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Sheriffs Say Cannabis Legalization Should Be Overturned Because It Makes Them Uncomfortable

Six Colorado sheriffs filed a federal lawsuit that seeks to reverse marijuana legalization in their state, which they say should be overturned because it makes them uncomfortable. Larimer County Sheriff Justin Smith and his counterparts in five other counties say Amendment 64, the marijuana legalization measure that is now part of Colorado’s constitution, has made their jobs harder by creating a conflict between state and federal law.

“When these Colorado Sheriffs encounter marijuana while performing their duties,” their complaint says, “each is placed in the position of having to choose between violating his oath to uphold the U.S. Constitution and violating his oath to uphold the Colorado Constitution.”

This supposed dilemma arises from Smith et al.’s mistaken assumption that they have an obligation to help the federal government enforce its ban on marijuana.

According to the Supreme Court’s extremely generous reading of the power to regulate interstate commerce, Congress has the authority to ban cultivation, possession, and distribution of marijuana, even when those activities are permitted under state law and do not cross state lines (in fact, even when they are confined entirely to the privacy of someone’s home). The federal government therefore may continue to enforce marijuana prohibition in Colorado.

But contrary to what the sheriffs seem to think, that does not mean they are required to lend a hand, notwithstanding the Supremacy Clause, which makes valid acts of Congress “the supreme law of the land.” Under our federalist system, Congress has no authority to dragoon state and local officials into enforcing its laws—a point the Court made clear in Printz v. United States, a 1997 case involving federally mandated background checks for gun buyers.

Colorado SheriffsUnder the “anti-commandeering principle” that the Court applied inPrintz, requiring local cops to enforce the federal ban on marijuana would be clearly unconstitutional. So when a Colorado cop encounters someone 21 or older with an ounce or less of marijuana (the limit set by state law) and does not confiscate it as contraband under the Controlled Substances Act (CSA), he is not violating his oath to uphold the U.S. Constitution.

Likewise if he finds six or fewer plants in someone’s home and leaves them there or if he passes a state-licensed pot shop and does not try to shut it down.

Similarly, the U.S. Constitution does not require state legislators to mimic federal law by punishing everything Congress decides to treat as a crime. Yet Smith et al. argue that eliminating state penalties for marijuana-related activities violates the CSA and therefore the Supremacy Clause. They are asking the U.S. District Court in Colorado to overturn all the sections of Amendment 64 that say specified activities involving marijuana—including possession and home cultivation as well as commercial production and distribution by state-licensed businesses—”are not unlawful and shall not be an offense under Colorado law.”

To put it another way, the sheriffs want a federal court order requiring Colorado to recriminalize these activities and start busting cannabis consumers, growers, and retailers again. They say the U.S. Constitution requires Colorado to treat those people as criminals, regardless of what Colorado voters or legislators want.

That position cannot be reconciled with the 10th Amendment, which says “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Writing state criminal laws is not a power that the Constitution delegates to the federal government.

Smith et al., whose lawsuit is joined by four sheriffs from Nebraska and Kansas who also were offended by Colorado’s decision to legalize marijuana, concede that the CSA does not override all state drug policy choices. “Under 21 U.S.C. § 903,” they note, “the CSA shall not ‘be construed’ to ‘occupy the field’ in which the CSA operates ‘to the exclusion of any [s]tate law on the same subject matter which would otherwise be within’ the state’s authority.

Rather, Section 903 provides that state laws are preempted only when ‘a positive conflict’ exists between a provision of the CSA and a state law’ so that the two cannot consistently stand together.” But the sheriffs claim Amendment 64 creates such a conflict. “The enforcement of the CSA violates Colorado law,” they say, “and conversely adherence to Colorado law violates the CSA.”

That is clearly not true for most of the provisions that Smith et al. are challenging. If Colorado cops stop arresting pot smokers, the pot smokers are violating the CSA, but the cops are not. Likewise with people who grow and transfer marijuana, whether money changes hands or not. They are violating federal law, but the police officers who refrain from dragging them away in handcuffs are not. Conversely, a federal agent who arrests a cannabis grower, seller, or consumer for violating the CSA is not doing anything forbidden by Colorado law.

The sheriffs say Amendment 64 “in some cases” not only allows but “requir[es]” the cultivation and distribution of marijuana. That would indeed be a positive conflict, since it would be impossible to obey both state and federal law. But unless I missed it, the complaint do not cite any actual examples of state-mandated CSA violations.

The sheriffs’ strongest argument echoes the central claim of Nebraska and Oklahoma’s anti-legalization lawsuit: that Colorado’s marijuana regulations “embed state and local government actors with private actors in a state-sanctioned and state-supervised industry which is intended to, and does, cultivate, package, and distribute marijuana for commercial and private possession and use in violation of the CSA.” In other words, the state’s stamp of approval for cannabusinesses goes beyond declining to punish marijuana offenses by actively promoting them.

That is one way of looking at it. Alternatively, you could say a marijuana license merely certifies that the holder has met the criteria for escaping punishment under state law. It does not make him immune to punishment under the CSA, and it does not require him to violate that statute.

Suppose Colorado took this criticism to heart and stopped regulating the marijuana industry. Anyone would be free to grow or sell marijuana without having to seek the state’s blessing. Libertarians might welcome that outcome, but I doubt the sheriffs would. In any case, the existence of state regulations does nothing to strengthen the sheriffs’ argument that they have suffered a personal injury justifying a lawsuit because they are not allowed to bust pot smokers anymore.

From: http://reason.com/blog/2015/03/05/colorado-sheriffs-say-marijuana-legaliza

Steven Peters

Owner & Publisher at Natural Revolution
Steven Peters has been a health advocate for more than a decade and proponent for alternative healing by ‘Empowering Natural Living’ through homeopathic approaches. He is also an activist for social justice and environmental causes in the GMO Labeling and Non-GMO grassroots movements across the country, and a staunch advocate for cannabis education and reform.

Read more about Steven Peters.
  • DrMesmer

    If you don’t like Cannabis your not going to liek the future! LOL

  • DrMesmer

    If you don’t like Cannabis your not going to like the future! LOL

  • Red_Baran

    To fucking bad.

  • Ricky Powers Jr

    It’s going to get a lot more uncomfortable than this for you bitch ass commies…

  • TimothyTipton

    Picture on Far right of Terri Maketa, FORMER El Paso Sheriff!

  • justsay’n

    If it makes you uncomfortable, get over it. Maybe you all need to admit you’re smoking some of the stuff you confiscate. According to a former cop, not all that shit makes it to evidence. Cops make people uneasy so why don’t we make them illegal too?

  • Chuck B

    Fire the lot of them. Let them work for the feds if they want to. Poor boys cant bash down peoples doors any more, shoot the pet dog and throw flash stun grenades into baby cribs any more. I feel so awful for them. Nazi bastards.

    • Deborah Mahmoudieh

      well said!

  • Tom Terrific

    OK, but why is INDUSTRIAL HEMP a felony?

    • Denzidrine

      The way I read it long ago… The DEA has trouble identifying it from the cannabis that makes you high. Nearly every other country grows hemp and has no trouble telling the difference, but not ours. Our officers are, well they’re uncomfortable.

  • Michael Dussault-Jensen

    Tough luck if they do not like it, deal with it 🙂

  • Teddy

    Awwwww, the poor sheriffs are uncomfortable. Too bad because us people in pain are uncomfortable too……..

  • Steve k

    well if you feel that way then go arrest the president for ordering like 69 million dollars of cannabis and arrest the government growers for growing that much cannabis and moving across state lines to get it to the white house what makes government exempt of laws that they enforce on all American people that is not in government and cops have always enjoyed cannabis with no conflicts to there job

  • U.s. Hemp

    Violently arresting people, seizing their children and property and putting them in prisons for using medical marijuana? Cops should feel very uncomfortable for doing that kind of “dirty work” for a living. I’ve never considered looking up another man’s asshole for a living. Most people haven’t. Very uncomfortable subject in deed.

  • Ameliawizard

    The Koch Brothers support decriminalization of marijuana so I think the Supreme Court (wholly owned subsidiary of Koch Industries, except for that bitchy old lady) will side with Colorado.

  • Ameliawizard

    Stolen comment from a facebook post that should be repeated: Ignorant assholes with guns and badges make me nervous.

  • HughYonn

    Many of those in ‘our’ legislatures need to re-visit the 4th grade in American public schools…somehow, they missed the concept of ‘freedom’…

  • BarleySinger

    The one problem with all of this is is the HUGE elephant in the room the problem that people in the government and ‘criminal’ system *ignore* … because they do not like what it means.

    Pay attention to th8is (Amendment 10) : The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    There are no police powers granted in the constitution. None. Not to anybody, not in any amendment.

    Have a read. Did you find any? No? That is because they are not there.

    This is why it took a constitutional amendment to ban alcohol, instead of just a “new federal law”.

    This is why AFTER the “cannabis tax act” (which was illegal because you could not BUY tax stamps (which made it “illegal restraint of trade”) – and they had no right to regulate any physical item that did not pass over a state line.

    Yet the federal government (the Sanate, etc) of the USA has been ACTING like it has TONS of power and can make any laws it likes. Each decade they seem to grab up more powers.

    None of this is legal.

    The nation started as a group of 13 INDEPENDENT NATIONS (according to the treaty of Paris) who chose to enter into a confederation for purpose of common defence and trade and to ensure a set basis for the rights of the people.

    The rest of the crap that is there today, is 100% bullshit power mongering… all done the way it is because it is MORE CONVENIENT to ignore the constitutional limits of power, than it is to ADMIT they are there (and have been being continuously violated) and make an amendment to legalize the current form of government.

    They should have added an amendment if they felt they needed those sorts of federal powers. There is not one word in that set of documents that grants any police powers to the feds.

  • Denzidrine

    Are these the same cops that went on a rampage eating edibles and playing darts after raiding a dispensary? (I know that they’re not). Just saying, how uncomfortable are they when they think the cameras are off?

    • Erniepaul Toth


  • Deborah Mahmoudieh

    lol! They’re probably very p’d off about losing what was once, an easy source of revenue and a power-tool to hold over certain peopole – easy arrest quotas too when all you need to do is find someone with some harmless plant material on them. No wonder they all hate cannabis legalization; now they’re gonna have to start investigating and arresting real criminals i.e. child abusers and perpetrators of 9/11 would be a good start.