By Phillip Smith
Where does Donald Trump’s pick for the Supreme Court come down on weed? The record is pretty sparse.
Neil Gorsuch hasn’t made any known public pronouncements about marijuana policy, and despite his tenure on the 10th US Circuit Court of Appeals in Denver, he hasn’t ruled in any cases that directly take up the issue.
But he has ruled on some marijuana cases, and he didn’t go out of his way to support freeing the weed in them. And there’s at least one marijuana-related case he’s ruled on that demonstrates a disquieting deference to law enforcement.
In Feinberg et al. v. IRS, Gorsuch ruled against a Colorado dispensary that sought not to report data about its operation to the IRS because marijuana remains illegal under federal law and it feared incriminating itself. But in passing, he offered some commentary on the legal weirdness of state-legal but federally illegal marijuana commerce.
“This case owes its genesis to the mixed messages the federal government is sending these days about the distribution of marijuana. Officials at the Department of Justice have now twice instructed field prosecutors that they should generally decline to enforce Congress’s statutory command when states like Colorado license operations like THC. At the same time and just across 10th Street in Washington, D.C., officials at the IRS refuse to recognize business expense deductions claimed by companies like THC on the ground that their conduct violates federal criminal drug laws. So it is that today prosecutors will almost always overlook federal marijuana distribution crimes in Colorado but the tax man never will.”
And he marveled at the federal government’s contortions as it sought to accommodate commerce in a substance it considers illegal.
“Yes, the Fifth Amendment normally shields individuals from having to admit to criminal activity. But, the IRS argued, because DOJ’s memoranda generally instruct federal prosecutors not to prosecute cases like this one the petitioners should be forced to divulge the requested information anyway. So it is the government simultaneously urged the court to take seriously its claim that the petitioners are violating federal criminal law and to discount the possibility that it would enforce federal criminal law.”
Gorsuch also pointedly noted the provisional nature of the Obama administration’s decision to work with — instead of against — the states experimenting with marijuana legalization.
“It’s not clear whether informal agency memoranda guiding the exercise of prosecutorial discretion by field prosecutors may lawfully go quite so far in displacing Congress’s policy directives as these memoranda seek to do. There’s always the possibility, too, that the next… Deputy Attorney General could displace these memoranda at anytime.”
This is, of course, something of which the marijuana industry and legalization advocates are painfully aware and explains much of the movement’s agonizing over the nomination of pot foe Sen. Jeff Sessions (R-AL). A single signature on a new policy memorandum at the Justice Department could throw the industry into chaos.
As Tom Angell notes at the MassRoots blog, Gorsuch ruled in a 2010 case, US v. Daniel and Mary Quaintance, that a couple charged with federal marijuana distribution offenses couldn’t use the Religious Freedom Restoration Act as a defense because their claims weren’t sincere.
“Numerous pieces of evidence in this case strongly suggest that the [couple’s] marijuana dealings were motivated by commercial or secular motives rather than sincere religious conviction… “The record contains additional, overwhelming contrary evidence that the [couple was] running a commercial marijuana business with a religious front.”
In other words, if you’re trying to run a real marijuana ministry, don’t be selling weed.
But it’s a 2013 case, Family of Ryan Wilson v. City of Lafeyette and Taser International , that raises disturbing implications that go beyond marijuana policy into the broader realm of police use of force. In that case, Gorsuch held that a police officer’s fatal tazing of Wilson, who was fleeing a marijuana arrest, was “reasonable.”
“[T]he illegal processing and manufacturing of marijuana may not be inherently violent crimes but, outside the medical marijuana context, they were felonies under Colorado law at the time of the incident… And Officer Harris testified, without rebuttal, that he had been trained that people who grow marijuana illegally tend to be armed and ready to use force to protect themselves and their unlawful investments.”
As Angell noted, that ruling in particular had the National Urban League tweeting its concern and calling for close scrutiny of Gorsuch’s record within hours of Trump’s announcement of his selection.
Overall, Gorsuch hasn’t provided a whole lot of hints about how he might rule on cases revolving around the conflict between state and federal marijuana, although he has shown he’s aware of it. Any members of the Senate Judiciary Committee representing states where medical or recreational marijuana commerce is legal might want to be asking for some clarification when his confirmation hearings come around.