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Ninth Circuit Burns Pot Growers in California Case

By William Vogeler, Esq. | Last updated on

Talk about a buzz kill.

The U.S. Ninth Circuit Court of Appeals gave the go-ahead to prosecute marijuana growers in California, where voters approved recreational pot nearly two years ago. It's been legal to use medical marijuana in the Golden State for more than a decade.

But that's not important right now, the appeals court said in United States of America v. Gilmore and a companion case. Federal law trumps state law in more ways than one.

Federal Law, Federal Land

Government authorities arrested Russell Gilmore and Richard Hemsley and charged them with conspiracy to manufacture and the manufacture of marijuana plants in El Dorado County, California. The 118 marijuana plants at the property had something to do with it, but the case had more to do with the grow site.

The defendants tried to stop the case under the Consolidated Appropriations Act, which bars the Department of Justice from using government funds to prosecute in states that authorize medical marijuana. A trial judge denied their motion, however.

The Ninth Circuit affirmed. The appeals panel said the Act does not limit the government's power to enforce drug laws on federal land.

"Nothing in California law purports to authorize the cultivation of marijuana on federal land," the appeals court said. "Even if state law tolerated marijuana cultivation on public land, federal law forbids such use."

State Land, State Laws

The decision was an unexpected turn for the defendants, cannabis attorneys and the marijuana industry in general. The U.S. Justice Department had laid off prosecutions in the Obama era, and California marijuana blossomed in the meantime.

In United States v. McIntosh, the Ninth Circuit also backed away from federal enforcement in marijuana cases. The court held that defendants could enjoin expenditure of federal funds in states that authorized marijuana use.

When Gilmore and Hemsley appealed, they relied on McIntosh and argued they complied with California law. Plus, they said, they didn't know they were on federal land.

The appellate judges said that the state law and the defendants' knowledge were irrelevant. Federal law says you can't grow or distribute marijuana -- especially on government land.

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