Reed Smith Client Alerts

Since December 2014, there has been a provision in the federal budget that, generally stated, denies funds to the U.S. Department of Justice (the DOJ) to prosecute conduct that is in compliance with state medical-marijuana law. That “rider” – referred to variously as the Rohrabacher-Farr Amendment or the Rohrabacher-Blumenauer Amendment (and referred to herein as the Amendment) – was again included in “Fiscal Year 2020 spending legislation,” which the president recently signed into law.

The full scope and effect of the Amendment, however, is far from certain. To date, only one federal appellate court – the U.S. Court of Appeals for the Ninth Circuit – has really considered this provision.  However, just recently, the U.S. Court of Appeals for the Tenth Circuit cleared the way for another federal court to address the potential application of the Amendment. In Sandusky v. Goetz, No. 18-1483 (10th Cir. Dec. 16, 2019), the Tenth Circuit permitted a federal inmate’s claim that the Amendment precludes his continued incarceration to move forward in the federal district court below. All eyes should and will be on the U.S. District Court for the District of Colorado as it takes up the inmate’s case.

Authors: Michael H. Sampson Zachary S. Roman

Rohrabacher-Farr Amendment

The current iteration of the Amendment, which has not really changed substantively over time, reads as follows:

“None of the funds made available under this Act to the Department of Justice may be used, with respect to any of the States of Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming, or with respect to the District of Columbia, the Commonwealth of the Northern Marina Island, the United States Virginia Islands, Guam, or Puerto Rico [collectively, the Medical Marijuana States], to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

Note that the Amendment only applies to medical marijuana; attempts to extend it to adult-use marijuana have failed so far.

United States v. McIntosh

Considering a previous version of the Amendment (which is no different than the current version in any material respect), the Ninth Circuit explained that the Amendment “prohibits [the] DOJ from spending money on actions that prevent the Medical Marijuana States’ giving practical effect to their state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” In United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016), that court concluded that, at a minimum, the Amendment “prohibits [the] DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.”

However, the Ninth Circuit cautioned that the Amendment “does not provide immunity from prosecution for federal marijuana offenses.” It explained, in relevant part:

“Congress currently restricts the government from spending certain funds to prosecute certain individuals. But Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding.”