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Smoke 'Legal' Medical Pot, Still Get Arrested by Feds

By Andrew Chow, Esq. on January 30, 2012 6:02 AM

Lest there be any question, the U.S. Constitution's supremacy clause still applies to medical marijuana. A federal judge has ruled that federal laws trump Montana's state laws about medical pot, and patient advocates aren't pleased.

"It's disappointing to see how the states have essentially paved a path for citizens to engage in what they believe is lawful activity, only to set them up for federal intrusion like this," a lawyer for the Montana medical-marijuana patients told the Associated Press.

U.S. District Judge Donald Malloy dismissed the pot patients' lawsuit claiming Constitutional violations in raids by federal agents last year, the AP reports. Malloy also rejected their argument that a Justice Department memo promised the feds would not press charges.

"A reasonable person, having read the entirety of the [memo], could not conclude that the federal government was somehow authorizing the production and consumption of marijuana for medicinal purposes," Malloy wrote in his Jan. 20 decision, according to the AP.

The 2009 memo said federal prosecutors would not go after "individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana," according to the AP.

Voters approved Montana's medical marijuana law in 2004. But that law -- like other state laws that allow for medical pot -- is trumped by the federal Controlled Substances Act that prohibits marijuana in all forms, Malloy's decision held.

Malloy cited the U.S. Constitution's supremacy clause and a 2005 Supreme Court decision, Gonzales v. Raich, which held that the supremacy clause applies in medical-marijuana cases.

Lawyers for the Montana medical-marijuana patients tell the AP they're considering an appeal to the Ninth Circuit. Federal prosecutors declined to comment.

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