Weeded Out: Medical Marijuana in D.C. Requires Federal Waiver Opening a pot shop in D.C. means signing a paper that says you're a criminal

Illustration by Brooke Hatfield

Montgomery Blair Sibley has been waiting for this chance for a while. Not only does the longtime local lawyer have a location for his pot-cultivation center scoped out along New York Avenue NE, but he’s also been shopping himself out as something of a consultant and legal counselor for anybody else looking to get into the District’s nascent medical marijuana program.

But now he’s having second thoughts.

When the District formally opened the application process in early August for the 10 planned cultivation centers that will supply marijuana to five dispensaries, the D.C. Department of Health required that all applicants sign an “acknowledgement and attestation form.” The four-page document asks all applicants to verify that they’ve never been convicted of a felony or a drug-related misdemeanor, don’t owe the city any back taxes, and understand the lengthy rules governing the program.

It also requires that all hopefuls sign off on three provisions that would limit any liability faced by the District should the program be shut down, indemnify the city against any losses, and admit they recognize that growing, distributing, and possessing marijuana is a violation of federal law—no matter what the District’s medical marijuana program says.

The final provision engages in some legal acrobatics to distance the city from the program it’s charged with implementing: “The District of Columbia’s law authorizing the District’s medical marijuana program will not excuse any registrant from any violation of the federal laws governing marijuana or authorize any registrant to violate federal laws.”

In short, even though applicants will submit lengthy applications in hopes of gaining a license from the District to grow or dispense marijuana—a federal offense—the city claims it isn’t actually authorizing or excusing what will invariably be a violation of federal law. (The city will be taking its money, though— $5,000 for each application filed and $5,000 a year simply to operate a cultivation center. A dispensary will cost $10,000 a year.)

As tortured as it might be, the legal fine print has a purpose.

Despite the fact that 16 states and the District have approved the use of marijuana for medicinal purposes, no amount of talk of compassion and effective pain relief changes the fundamental truth that marijuana is still a Schedule I drug. According to the feds, there’s a high chance that it’ll be abused, and it has “no currently accepted medical use in treatment in the United States.” In October 2009, though, the Department of Justice issued a memo saying that the federal government wouldn’t be using its finite resources against marijuana in states where its use for medicinal purposes was legal.

That suddenly changed in June of this year, when Deputy Attorney General James Cole wrote a follow-up memo saying pretty much the opposite: “Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law.”

The memo landed just as city officials were deciding how the District’s long-awaited medical marijuana program would actually work. What most irked city officials was the part of the memo saying those who “knowingly facilitate” the growing and distribution of marijuana would be as much in violation of federal law as those actually doing it: You give someone else a license to do it, and you may as well be doing it yourself.

Hence the legal waiver. Now applicants have to sign a form admitting not only that they know they’re breaking federal law, but that if they get caught, it’s all on them—and not on the D.C. government.

Colette Chichester, a special assistant to Department of Health Director Mohammad Akhter, notes that the program’s rules always included a requirement that applicants assume “any and all risk or liability” from their participation in the medical marijuana program. The waiver, she says, is simply “more beefed up” to limit any exposure the city could suffer if the feds start busting down the doors of local cultivation centers and dispensaries.

According to Allen St. Pierre of the pro-marijuana advocacy group NORML, this waiver may well be the first of its type for states with medical marijuana programs. Admitting that he was “hardly surprised” to see it, St. Pierre notes that it reflects the difficult balance faced by city officials who want to reap tax benefits from cultivation centers and dispensaries while staying on the right side of federal law.

But what it means is not only that all the danger of the operation is shifted onto the distributors, but that they may be even more vulnerable to prosecution with the waiver than without it. For Sibley, who guesses he could spend $100,000 just to get his cultivation center up and running, this isn’t just an unacceptable business risk. (“Investors are melting away like ice,” he says.) It’s also a violation of his rights. In a lawsuit filed Aug. 16, Sibley asked a federal judge to forbid the District from forcing applicants to sign the form because it would violate their Fifth Amendment rights against self-incrimination. He also argued that the waiver constitutes entrapment: The city is enticing applicants into breaking the law by granting them licenses, then denying them any semblance of a defense should they get caught.

Not everyone in the medical marijuana movement is so put off by the waiver, though. Kris Hermes, who works with Americans for Safe Access, says such language is “marginal when compared to the benefits” of actually getting a medical marijuana program off the ground, especially in a climate of renewed federal threats. St. Pierre largely agrees. “It’s a tortured process to get from point A to point B,” he said. “But we want to get to point B.”

In the minds of many anxious to see medical marijuana get to patients in the District, a tightly regulated program is better than no program at all. And the District may be doing a better job of balancing local prerogatives against federal concerns than any other jurisdiction in the country. Local cultivation centers will each be limited to 95 plants, just shy of the 100 plants that usually provoke a five-year mandatory federal sentence. Moreover, the recent Department of Justice memo seems to focus on “large-scale, privately-operated industrial marijuana cultivation centers”—much more a California phenomenon than what D.C. has in mind.

Still, the risks are too high for one group. The D.C. Patients’ Cooperative, a nonprofit run by Adam Eidinger, who owns Capitol Hemp in Adams Morgan and Chinatown, decided to jump out of the game, despite having been actively involved in writing the rules that will eventually govern it. He says the organization decided it wants nothing to do with a program “that treats us like criminals.”

Eidinger is also frustrated that the District opted not to allow home cultivation—14 states with medical marijuana programs do—a step that could have likely saved the District from the threat of federal intervention. The June DOJ memo focused on “commercial” operations, giving advocates renewed assurances that small-time home-growers with qualifying medical conditions will remain safe.

In late August, Sibley met with nine other groups that are planning to submit applications for cultivation centers, which are due Sept. 16. (The application process for dispensaries will open that same day.) Many shared his concerns, and some even said they’d be willing to join his lawsuit. Regardless, all agreed that they’d move forward and submit their applications, which will be judged by a five-person committee.

As for Sibley, he remains torn. “It’s a difficult choice,” he says, not wanting to swear off the one chance he might have to apply for a cultivation-center license. But if things don’t change, he may pull the plug: “I wouldn’t sign the form as is,” he says.

Our Readers Say

this is bogus. What happened to equal protection under the law (14th amendment).

No other sick person has to jump threw this many hoops for MEDICINE. Congress did not conduct scientific tests to find that cannabis is "dangerous". It's only dangerous to big pharma, petro-chemical, alcohol, prison-guards lobby, and big tobacco companies because it will take money from them. Oh I forgot all the "addiction" specialists that jumped on the BS bandwagon concerning cannabis.

If you think cannabis is dangerous and causes the human body ANY harm... can you say baaaaahh (in case you are slow I am calling you a sheep). Go read the Shafer Commission's report from 1972... you know the blue ribbon presidential commission that was charged with finding out if cannabis belonged in the controlled substance schedule or not... seriously go read it; I dare you, then tell me I'm wrong...

*(waiting for your appology to me and EVERY SINGLE "POTHEAD" you've talked shit about...).
Please google, Marijuana The Poor Mans Medicine.
Marijuana should be one medicine that can be grown in peoples back yards, or obtained at dispensaries. The FDA is owned by drug companies. It might not wipe out pain, but it sure makes it more bearable.
After attending the DC Patients Co-Op's forum in February, I was hoping they would be my dispensary for Ward One. But kudos to them for making a principled statement by not signing away their constitutional rights. Sounds like we should have another ballot initiative for home cultivation.
It is time to change things at the federal level. It makes no sense at all that some states have medicinal use and others do not. The laws need to change at the federal level! The nation needs to vote only for cannabis friendly candidates. Out with the old and in with the new. The time has come for the nation to stand together and demand change! VOTE! Sign petitions, be heard loud and clear.

Tell your Congressional Representatives -
It is time to "Change the Schedule of Cannabis, Cannabis Laws, and Drug Czar Laws"
Read and Sign the petition at

http://www.change.org/petitions/change-the-schedule-of-cannabis-cannabis-laws-and-drug-czar-laws

After you sign the petition, email your friendlies, share on facebook, or twitter from the petition page. If you have a website grab the widget so your visitors can sign it without leaving your website.

This petition uses laws passed by Congress to point out that by their laws, the laws must change.

If you haven’t asked your representative and senator to support policy change, what are you waiting for? Sign the petition then send a email.
the 14th Amendment only applies to states, dumbass.
So do this mean if I have a doctors statement and enroute to the dispensary I encounter the neighborhood drug dealer who offer me a deal I couldn't refuse, I purchase my supply, I get stopped by the police, am I guilty of possession for not purchasing the same shit from the goverment sanction dealer? just asking!!
So do this mean if I have a doctors statement and enroute to the dispensary I encounter the neighborhood drug dealer who offer me a deal I couldn't refuse, I purchase my supply, I get stopped by the police, am I guilty of possession for not purchasing the same shit from the goverment sanction dealer? just asking!!
hearst and dow ..two crooked billionaires are rsponsible for making marijuana illeagal! Sad how a nation of 300 million cannot see past this travesty ! Legalize GREEN you fucking fools !
The "conflict" between State law and Federal law is only a mystery to those outside the medical cannabis patient protection community. The document that the DC Government wants those who want to be involved in producing and providing is the equivalent of signing a document that they acknowledge that the sun will rise in the east and set in the west for the foreseeable future. I have no clue how anyone who is involved in production, distribution or quality control of whole plant cannabinoid medicine could be unaware of the risk of Federal criminal sanctions. If they are truly that uninformed then the city is doing them a favor. People shouldn't be taking such a risk without knowing that they're doing so.

I see from the posts above that I'm likely giving my fellow potheads too much credit.
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"What most irked city officials was the part of the memo saying those who “knowingly facilitate” the growing and distribution of marijuana would be as much in violation of federal law as those actually doing it: You give someone else a license to do it, and you may as well be doing it yourself."

That's horse shit, and the SCOTUS agrees with me on that point. For details, please see County of San Diego v San Diego NORML, 165 Cal.App.4th 798 , -- Cal.Rptr.3d --[No. D050333. Fourth Dist., Div. One. Jul. 31, 2008.] The case specifically absolves local governments of criminal liability for engaging in purely administrative tasks.
http://www.lawlink.com/research/CaseLevel3/85901

Did no one else see that the Feds told Arizona Governor Jan Brewer to drop her argument in that vein, and to do her job implementing Arizona's cannabis patient protection laws? The argument that State employees are somehow liable is so laughable that the Court case asking a Federal Court to say it's not a risk finds the Federal government filing briefs alongside the ACLU and the medicinal cannabis patients advocates. You really have to be out in an alternate reality to find the Feds and the potheads on the same side opposing your motion.

I've got to admit that in the 15th year of State level medicinal cannabis patient protection laws, with the California Compassionate Use Act having been in front of the SCOTUS 4 times yet still valid California law, that there are still people who think that Federal law preempts or "trumps" State laws. It's simply hogwash, and the precedents date back to Gambino v United States of America, 275 US 310 (1927) which addressed a previous Federal Prohibition interacting with a State in which there were no State level laws that matched the National Prohibition Act which was passed in 1919 and implemented in 1920, and subsequently repealed in 1933. New York canned drinking alcohol prohibition in 1921. Gambino not only says that the States don't have to enforce Federal law, that decision sure seems to me to say that they're not even welcome to do so if that's what they want.

link to Gambino v USA:
http://supreme.justia.com/us/275/310/

Wah wah wah. I think medical marijuana has obvious benefits, but did these folks actually think that they were going to have a pain-free ride to a government sanctioned corner on the market to sell illegal drugs? Holy shit how could you be so stupid?
joan blathers, "the 14th Amendment only applies to states, dumbass."

You've got to be kidding. It's time for joan to repeat 11th grade civics class. Also please look up the definition of dumbass. You obviously missed that day in school as well.

http://dictionary.reference.com/browse/dumbass

The 14th Amendment is most certainly applicable to the Federal government. Equal protection of the law absolutely requires the criminalization of drinking alcohol if the list of hazards of cannabis is enough to criminalize it. If the government is going to protect me from becoming a pothead then they also owe me the duty of protecting me from becoming a lush, which is a worse fate than being a pothead by several orders of magnitude.

---------- ---------- ---------- ---------- ----------
"In its first decision involving the 14th Amendment, the Supreme Court ruled that the amendment applied only to federal, and not state, violations of the privileges and immunities of U.S. citizens."

http://supreme.justia.com/us/83/36/
---------- ---------- ---------- ---------- ----------

ActivistCat said: "It is time to change things at the federal level. It makes no sense at all that some states have medicinal use and others do not. The laws need to change at the federal level! The nation needs to vote only for cannabis friendly candidates."

Wow, I hadn't noticed many cannabis friendly candidates on the ballot. Can you point out a couple that aren't Libertarians? I can't even consider voting for another L after watching the financial calamity of 2008 and knowing that the L's would have just let our economy fail had they been in power. Yeah, let's see social progress when people are worried about starving and/or freezing to death. As important as this particular issue is to our birthright of freedom as Americans, keeping the economy running is significantly more important.

BTW there are 27 States + DC which now recognize whole plant cannabis medicine as valid. The 16 + DC that are commonly listed, Maryland with it's lame affirmative defense for petty possession, and 10 States like Virginia that passed medicinal cannabis laws back in the late 1970s/early 1980s. What, you didn't know that Virginia has a medicinal cannabis law that's 32 years old? Maybe because it hasn't resulted in a single patient getting even a stick of medicine. Take a read and see if you can figure out why:
http://lis.virginia.gov/cgi-bin/legp604.exe?000+cod+18.2-251.1

While it's a totally useless law as far as getting real relief to real patients, it nevertheless does recognize that cannabis is a valid medicine. Alabama, Georgia, Illinois, Massachusetts, Minnesota, New York, South Carolina, Texas, and West Virginia are also on that list. 16+1+10+DC is what we referred to as a "majority" where I grew up.

Traditionally it's the States that make these decisions and the Feds are the last to change the law. When the Harrison Narcotics Tax Act of 1914 passed 46 of 48 States had criminalized cocaine, and 29 of 48 had criminalized or severely limited access to Heroin. When the National Prohibition Act was passed in 1919 drinking alcohol was already prohibited in 32 or 33 of 48, and when The Marihuana Tax Act of 1937 was passed 46 of 48 States had criminalized cannabis.

Then again 27 + DC would still have the Feds bringing up the rear so perhaps you're right, it is time. When you figure out a way to get them to listen, I'm all ears. In the meantime my efforts are going to getting medicine to as many sick people as is humanly possible, and my analysis says that the State by State effort has been much more effective toward that end. It's hardly the case that the State by State effort has been promoted to the exclusion of changing Federal law. The first Federal rescheduling petition was filed so long ago that when the NORML reps filed it the sign on the building where they went to file it said "Bureau of Narcotics and Dangerous Drugs" not "Drug Enforcement Administration." By the way that's the one that resulted in the findings by DEA administrative law Judge Francis Young 16 years later in 1988 which were ignored by DEA administrator John Lawn. The State by State push didn't start until 1993. The Feds have managed to ignore 3 separate rescheduling petitions for a total of more than 3 decades combined. You might have heard that in May the Feds "officially" rejected yet another rescheduling petition so it's hardly true that there's no effort going into changing Federal law. The reason that it hasn't changed is because the Federal government is intransigent and refuses to play by its own rules, not for lack of effort. More resources have been expended in the attempt to change Federal law than have been used to change State law despite the disparity in success.
"So do this mean if I have a doctors statement and enroute to the dispensary I encounter the neighborhood drug dealer who offer me a deal I couldn't refuse, I purchase my supply, I get stopped by the police, am I guilty of possession for not purchasing the same shit from the goverment sanction dealer? just asking!!"

It depends on which State you're in. Californian patients are absolutely entitled to purchase their medicine from anyone. If an authorized patient has cannabis it's presumed to be legal medicine. In DC, medicine can only come from the authorized producers/distributors. That's why despite the law pushing 2 years since the Feds removed their block, there hasn't been a stick of legal medicine in DC. You can thank the DC Council for that since they completely rewrote Initiative 59.

Doesn't anyone else find it amusing that the DC Council gets bent out of shape because the Feds ignore the will of DC's residents? The DC Council maintains that if anyone is going to ignore the will of the DC voters that it's their job.
Ward 1, can't you just look in a mirror and figure out the answer to your question from your own life experience? Gosh, that's another thing that's ever so amusing. People making stuff up like you did in your post, then acting as if your fantasy land question has any bearing on reality.

Nobody thought "that they were going to have a pain-free ride to a government sanctioned corner on the market to sell illegal drugs?" That's nothing but irrelevant fantasy from your own uninformed mindlessness.

It seems that there really are a number of idiots in the general population who for some reason are unable to grasp the concept of changing laws. It's really a crying shame.
Duncan - Thanks for self-important jeremiads (A+, terrific!) and the clumsy insults (childish), but they don't change the reality that friends of mine are some of the people who were very involved in the DC medical cannabis effort at the organizational and legislative levels. The rosy scenarios they envisioned and spoke of to me showed a general lack of appreciation for some painfully obvious realities to the point of striking naivety. In my estimation they did think "that they were going to have a pain-free ride to a government sanctioned corner on the market to sell illegal drugs." It may not fit your experience, but unfortunately for your argument it sure as hell isn't me "making stuff up." Again, thanks for the insults. Have a great weekend.
Duncan,

While it is true that some people may have been overly optimistic, berating them hardly seems fair. Just because you have been jaded does not mean that others cannot dare to hope that real change can happen, and swiftly. Name-calling isn't helping anyone on any side of this discourse
"[T]here’s a high chance that it’ll be abused, and it has 'no currently accepted medical use in treatment in the United States.'" Yep, sounds like alcohol to me.
As someone struggling with HIV-related peripheral neuropathy, the degeneration of nerves in my hands and feet, I'm beyond frustrated with this whole situation.

I hate buying my pot from my meth-addled dealer. You can walk into almost any nightclub in DC and find X, ice, or any number of other party drugs. Trying to find marijuana is so much harder, and it shouldn't be--and wouldn't be if we had the medical marijuana system in place that voters wanted ten years ago. My dealer is so strung out half the time, I try to minimize contact and desperately want to find a new contact. And I hate contributing to the narco black market. Who knows where money from my purchases end up; my concerns don't outweigh my need for effective pain relief, though.

The Feds need to drop pot from the list of Schedule I drugs, which includes heroin, PCP, and meth among others. Pot is less toxic than alcohol; no one has ever OD'ed from pot and it's about as addictive as caffeine.

This issue, like almost no other, exposes the price DC residents like me pay for living in the colonial/feudal governance system that is Home Rule. This might not be the issue that makes DC residents rise up against our lack of representation, but those of us with HIV are paying a heavy price.

Hmmm. I wonder why someone who has NO idea about the benefits of marijuana and has never even smoked pot would write this article. The source is biased he is anti-pot as far as I know! It's people like him that hinder legalization!!

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