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February 25, 2010 04:33 AM UTC

Letter to Eric Holder: stop medical marijuana raids

  • 49 Comments
  • by: Jared Polis

( – promoted by Colorado Pols)

The DEA must do more to stop their agents from harassing and raiding our medical marijuana dispensaries, which are legal under state law.

That’s why I sent this letter to Attorney General Holder today:

February 23, 2010

Attorney General Eric Holder

U.S. Department of Justice

950 Pennsylvania Avenue NW

Washington, DC 20530-0001

Dear Attorney General Holder:

As you know, the voters in my state legalized marijuana for medical use, and placed it in the Colorado Constitution, Article XVIII § 14, the Supreme Law of Colorado.

The Department of Justice is to be commended for issuing formal written guidelines on October 19, 2009, clarifying that federal resources should not be used against people in compliance with state law in states that have legalized marijuana for medical use.  When drug czar Gil Kerlikowske was in Colorado recently, I thanked him for taking this step and respecting our state law.

Despite these formal guidelines, Friday, February 12, 2010, agents from the U.S. Department of Justice’s Drug Enforcement Administration (DEA) raided the home of medical marijuana caregiver Chris Bartkowicz in Highlands Ranch, Colorado.  In a news article in the Denver Post the next day, the lead DEA agent in the raid, Jeffrey Sweetin, claimed “We’re still going to continue to investigate and arrest people…Technically, every dispensary in the state is in blatant violation of federal law,” he said. “The time is coming when we go into a dispensary, we find out what their profit is, we seize the building and we arrest everybody. They’re violating federal law; they’re at risk of arrest and imprisonment.”

Agent Sweetin’s comment that “we arrest everybody” is of great concern to me and to the people of Colorado, who overwhelmingly voted to allow medical marijuana.  Coloradans suffering from debilitating medical conditions, many of them disabled, elderly, veterans, or otherwise vulnerable people, have expressed their concern to me that the DEA will come into  medical marijuana dispensaries, which are legal under Colorado law, and “arrest everybody” present.  Although Agent Sweetin reportedly has backed away from his comments, he has yet to issue a written clarification or resign, thus the widespread panic in Colorado continues.  

    On May 14, 2009, Mr. Kerlikowske told the Wall Street Journal: “Regardless of how you try to explain to people it’s a ‘war on drugs’ or a ‘war on a product,’ people see a war as a war on them,” he said. “We’re not at war with people in this country.”  The actions and commentary of Mr. Sweetin are inconsistent with the idea of not waging war against the people of the State of Colorado and are a contradiction to your agency’s laudable policies.

On Saturday, February 13, 2010, local Attorney Robert J. Corry, Jr. submitted a formal complaint regarding the raid and subsequent comments by Sweetin to the U.S. Department of Justice Office of Inspector General, which is tasked with investigating “waste, fraud, abuse, or misconduct” from Justice officials.  I ask you to instruct the Inspector General to respond promptly to Mr. Corry’s complaint.

On Tuesday, February 17, 2010, Acting U.S. Attorney for the District of Colorado David Gaouette announced his office’s intention to criminally charge Mr. Bartkowicz in federal court.  In order to ensure a fair trial for Mr. Bartkowicz, it is essential that the confusion about administration policy caused by the actions of Agent Sweetin be resolved ahead of jury selection in this case.  A response to Mr. Corry’s complaint would serve as point of clarity.

I again applaud your policy.  Treating drug policy as primarily an issue of public health, as opposed to an issue of criminal justice, is both practical and compassionate and it has been and will continue to be supported by the voters of Colorado.  Please clarify for me in writing whether Agent Sweetin’s comments that DEA will “arrest everybody” remains United States policy.  Thank you very much for your attention to this matter.

Sincerely,

Jared Polis

Member of Congress

cc: President Barack Obama

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49 thoughts on “Letter to Eric Holder: stop medical marijuana raids”

  1. Agent Sweetin’s apparent disregard of the guidelines established by his superiors is cause for grave concern. Establishing the guidelines and priorities of the Department of Justice is the jurisdiction of the executive branch of government, not of each individual agent. The DOJ wisely decided to leave this issue to the discretion of the states (as Congress should have done). The exercise of an inappropriate veto by a rogue agent in disagreement with that decision should not be tolerated.

    Thank you, Jared.

  2. I love the idea of giving the DEA a swift kick in the pants for their blatant disregard for the wishes of the people of Colorado.  But, let’s be honest, it is going to take more than letters to the AG to put a stop to the tactics of the DEA with regard to medical marijuana.  

    Congress has the power to put some sanity into the Controlled Substances Act–either by amendment or calling for the AG to begin the required steps for reclassification of marijuana.  

    In this day and age, there is no logical reason why marijuana remains a Schedule I narcotic.

    1) Schedule I. –

    (A) The drug or other substance has a high potential for abuse.

    (B) The drug or other substance has no currently accepted medical use in treatment in the United States.

    (C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

    Marijuana has no more potential for abuse than alcohol or caffeine, it certainly does have an “accepted medical use” in Colorado and other States and the idea that there is a “lack of accepted safety” is a fallacy.  

    The time has come to put an end to the costly (in human, economic and societal terms) and ill-fated War on Pot.  

  3. You criticize Republicans for talking about “nullification” when laws are passed at the Federal level that trample states’ rights, and you have no problem with the Democratic alternative of simply asking the Justice Department not to enforce the law?

    Just so we’re clear, I think that the Federal government needs to pass legislation that permits states to set their own rules and regulations regarding the use of marijuana.  I don’t smoke marijuana and would prefer if nobody else used it either, but I’m all for your right to do so.

    1. I always thought of state nullification as a pre-Civil War artifact. Those who speak of it as a living doctrine must not have noticed that that ship has most definitely sailed. But, as for your specific criticism, that there is something untoward about the DOJ deciding what priorities to pursue, you need to take a closer look at the social institutional framework involved:

      1) Our law enforcement systems are laden with layers of discretion at various levels: The police decide whether to investigate and file charges; a prosecutor decides whether to prosecute; a judge decides whether to dismiss as a matter of law; a jury decides whether to employ another form of “nullification.” Generally, those layers of discretion are designed to allow each subordinate layer to be more lenient (under certain circumstances) than the upper limit of severity set by superordinate layers, but not more severe. For instance, states cannot offer weaker civil rights protections than those determined at the federal level, but they can offer stronger ones.

      2) Our separation of powers (like our federalism) is not designed to grant each branch perfectly discrete jurisdictions, but rather to give them competing and overlapping jurisdictions, creating a counterbalancing tension among them. When Congress legislates, for instance, it often creates an administrative agency to administer that legislation (or assigns it to an existing one). But that administrative agency belongs to the executive branch, and once authorized, cannot be micromanaged by Congress, though it is Congress’ creature. In other words, Congress writes the laws, and the executive branch executes them, each as they see fit.

      3) While the executive branch is required to execute the laws as written, it is not required to do everything always. Agency inaction, even when explicitly instructed by law to do something, is a complex area of administrative law, and generally not subject to judicial review (not being a final agency action). On a more pragmatic level, our regulatory and law enforcement agencies simply lack the resources not to prioritize among the demands placed upon them.

      4) There is a similar tension built into our federalism as there is built into our separation of powers. The Bill of Rights originally enumerated the most important individual rights that states could legally protect against federal encroachment. After historical experience demonstrated that we also needed to empower the federal government to protect individual rights against state enroachments, the 14th amendment set into motion the process of “incorporation,” through which most of the content of the first 10 amendments was gradually incorporated into the 14th amendment equal protection clause. In other words, the tension between state and federal government is functional, and designed to protect rather than relinquish individual rights.

      When you combine all of these facets of our political system, you find that the only thing that was capricious in the enforcement of the federal law in opposition to our state law was the individual agent’s choice to ignore his agency’s written guidelines, not the drafting of those guidelines, and not the fact that those guidelines exercised the degree of executive discretion available in determining the executive branch’s priorities.

    2. state nullification, which may serve either to protect or abrogate individual liberties, tends to dissolve our Union (as it did on every occasion that it was invoked prior to The Civil War), while executive branch discretion in how to implement legislation is part of the structure which preserves both the Union and the liberties guaranteed within it.

      1. You want the Federal government to use its discretion in this case so as to not impede on the wishes of the people of Colorado.  You would also throw a hissy fit if a Republican-led Executive branch used its discretion to not force states to participate in the health care reform bill (in Unicorn land where it actually might pass).

        1. between substance and process, and toward which to direct my criticisms. From your description, it is unclear which would be implicated, or whether both would be implicated, since the scenario you are describing could be different in fundamental ways from the one we are discussing (and would certainly be different in the distinction between criminal and regulatory law, which carries with it a variety of implications).

  4. The only only way to curtail cartel violence, and perhaps influence in our elections from the Supreme Court’s ruling in January, is to move towrds an end to prohibition.

    Thank you, Rep.Polis for showing courage on this issue.  

    2. (since I addressed this issue from a different angle above), I completely agree. It is abundantly and increasingly clear to almost everyone who in any way examines this issue that our “war on drugs” and our long, painful return of prohibition and all that it entails, has been disastrous in every way. Most (though not all) of the social problems associated with drug trafficking are a consequence of their illegality rather than of their effects on users, and those social problems which are attributable to the drugs themselves can better and more effectively be addressed through a public health approach than through a penal system approach.

  6. Drug prohibition is a complete failure just as alcohol prohibition was a complete failure when tried for 13 years (that’s why it was repealed).

    Let’s use the process of selecting a US Attorney for Colorado as a forum for determining what the policy is going to be. Senators Bennett and Udall – you have that power – use it.

    There is a proposal on the ballot in CA this fall that will end prohibition of the possession of one ounce or less of marijuana by adults and allow one to “grow their own” on privately owned property on a 25 square ft. plot or less. Latest polls show it passing by a 57% majority.

    If the voters of the largest state in the Union vote to end the prohibition of the recreational use marijuana, things are going to get very interesting.

    “Don’t criticize what you don’t understand, for the times they are a changin'”  

    2. As stated in my above post, we still don’t have a permanent US Attorney for the State of Colorado since Stephanie Villafuerte withdrew her name for nomination in December.

      Doing a net search, I couldn’t find much happening with this nomination so I don’t believe President Obama has made a subsequent nomination for consideration by the Senate. Reportedly Pueblo Dist. Attorney Bill Thiebaut Jr. and Denver attorney John Walsh III are still in the running per their inclusion on the recommendations by Udall and Bennett.

      It’s very simple. Ask these prospective nominees, if appointed US Attorney for Colorado, do they intend to comply with the DOJ guidelines issued Oct. 19, 2009?

      Ask the actual nominee the same question at their confirmation hearing.

      And ask Udall and Bennett (Bennett’s running for election, right?) if they would vett a nominee who states they would not comply with the DOJ guidelines of Oct. 19, 2009.

      When these politicians start understanding that there’s more than can be done than writing a letter to Attorney General Holder – when they realize we can take away or deny them their jobs by ignoring the will of the people making arrogant statements that they can “arrest everybody”, then I guarantee you there will be change you can truly believe in.  

    3. The issue is definitely Federal, but the number of raids from law enforcement both DEA and local SWAT teams (as out farm was raided for NO REASON) is a finely tuned fear mongering tag team.

      AG Suthers is a dangerous person on this issue.  I received information from a local MMJ attorney that one of the Denver Metro Sheriff’s Departments, Agent Sweetin, DEA had a meeting last week with all the Metro Drug Task Forces and Sheriff’s Departments and offered FEDERAL GRANT MONEY to their departments for the location of major grow ops.  

      While I did not get the “Proof” we are looking in to circumstances of this allegation.

      The Fear Mongering on part of law enforcement both Feds and State have cut back the number of good doctors that will write recommendations which will now slow the number of patients.

      Just for the record there are over 500,000 people in Colorado with prescriptions for pain reliving and addictive opiates.  Currently, there are less than 70,000 people with recommendations for MMJ.

  8. A letter?

    I heard the State of the Union – the President didn’t specifically endorse this. I read the President’s outline for today’s healthcare summit and he didn’t mention medical marijuana.

    So if the President isn’t leading the way, this is clearly just Congressman Polis’s way of grandstanding to pander to his base without actually doing anything.

    All you suckers congratulating him for his “leadership” need to wake up- primary that guy now. He has no chance to win in the general.

      1. If he shows leadership by writing a letter, but the RPesident doesn’t get on board, then he’s clearly just grandstanding. I read that right here on CoPols- it must be true.

  9. Rep. Polis, you wrote in your letter:

    The Department of Justice is to be commended for issuing formal written guidelines on October 19, 2009, clarifying that federal resources should not be used against people in compliance with state law in states that have legalized marijuana for medical use.

    While I appreciate the spirit with which this latter was written, Mr. Bartkowicz was clearly in violation of state law, because he had far more than the allowed three plants per patient.

    The MMJ people may have decided to use this guy as their martyr, but I think that’s a huge mistake. If people are getting raided who are within the confines of state law, that’s one thing, but Mr. Bartkowicz wasn’t.

    I would urge everyone who is an advocate for marijuana law reform as I am, not to get caught up in this, because it’s a losing cause. There are plenty of people who are playing by the rules who deserve Congressmen and MMJ lawyers defending them. Let’s make sure we’re defending the law abiding ones, and not the criminals.

    1. Mr. Bartkowicz was well over the limit. And no doubt he knew or should have known this.

      People getting involved in the MMJ business have a responsibility to know and comply with the law as approved by the voters.

      That being said, I have a real problem with a federal law enforcement official who states they will “arrest everyone”.

      1. The agent in question obviously has a vendetta of some kind against MMJ, but that doesn’t change the fact that Bartkowicz was over the limit of plants. Mr. Sweetin may not be going about his job with fairness as his primary concern, but he was obviously following the letter of AG Holder’s order.

        1. carefully.  But isn’t the “violation” one of state law?  Why is a Fed agent leading the charge?  And won’t the subsequent charges come from an US Attorney?  I belive Rep. Polis is right on this one.

          1. The AG said that the DEA would no longer be raiding people who conform to state law.

            I think there’s still a lot to be figured out on this. Canines thoughtful response below tells me that we don’t have all of the information. If it turns out that Mr. Bartkowiscz was under the limit (depending on how many plants were mature at the time) then there’s a definite case to be made that this DEA agent was just trying to bust some heads–which is what his comments lead me to believe, however many plants it turns out this guy had.

            I just think it might be premature to be coming to this guy’s defense without knowing all of the facts.

            I’ve been supporting the use of marijuana as medicine for a long, long time. I’m glad that Rep. Polis feels strongly about it, as many Coloradans do. What I’m afraid of is people backing up the lawbreakers, rather than the law abiders, because it just makes everyone look bad.

            1. was he over the legal limit of Colorado law, why is this Fed agent leading the charge?  And in opposition to his superior’s and the Administration’s stated position on these matters.  Now, if they have evidence, which has yet to be revealed, of other violations, I could understand the Fed involvement.  But do not understand if it was simply an alleged violation of state law.

                1. the supremacy clause of the U.S. Constitution means that federal law trumps state law, period. Even federal regs trump state constitutional law (in theory). If the DOJ wanted to prosecute marijuana growers under federal law, then, as a legal matter, Colorado state law is irrelevant.

                  The more salient issue is DOJ policy. If the DOJ establishes a policy to leave a certain area of state law alone, even though it is technically in conflict with federal law, that is within their discretion to do.

                  The gray area here results from the possibility that Barkowicz was in violation of state law, which means that, arguably, federal investigation and prosecution isn’t a violation of DOJ policy. Still, it seems more in line with the thrust of DOJ policy to let state authorities determine if he was in violation of state law.

    2. A person can grow six plants (three mature, three immature) for every patient who designates that grower as a “caregiver.” So, if this was a state matter, it would be a matter of Bartkowicz proving that he’s within the legal limits, showing paperwork for each of the patients that he is growing for. Since it’s a federal matter, he will more than likely be convicted without even being able to utter the words “medical marijuana” in front of the judge and jury.

      Here’s an opinion piece by Vincent Carroll of the Denver Post highlighting what’s going on in Colorado:

      The marijuana growing facility I visited is not in a residential neighborhood. It is in an industrial corridor in Denver, in a building without so much as the tiniest sign to betray its mission. The owner says his landlord, banker and insurer know what he’s doing, as does the city itself…

      So where does this marijuana go? My host brandished a sheaf of papers representing “dozens” of patients for whom he is the official caregiver…

      Here’s a person growing marijuana for “dozens” of patients. Let’s say it’s only five dozen. Do that math on that one: multiplying the number of patients by the number of plants allowed, six. And that’s a conservative example.

      2. I’ll be following this story closely, and if it turns out that this guy was within the confines of state law, then I’ll be defending him just as much as Rep. Polis.

    3. What kind of cilivization are we?  Can we stand up to the world on how people are treated when we lock up people for growing a plant that NO ONE HAS EVER DIED OF OVER DOSED ON?

      Is this what America is about?

  10. Unfortunately, the central issue here is whether or not federal law or state law should take precedence. While the DEA really just seems intent on persecuting potheads rather than prosecuting real drug criminals, federal law protects their ability to do so. The state of Colorado did not do a great job with the infrastructure of medical marijuana distribution and will face consequences. Pot patients and legitimate businesses should be able to function legally in Colorado but not at the expense of clear laws and regulations. Thanks to Polis for bringing this to the attention of law enforcement.  

  11. While I appreciate the spirit with which this latter was written, Mr. Bartkowicz was clearly in violation of state law, because he had far more than the allowed three plants per patient.

    um…your argument as well as the argument for the DEA guy who authorized this raid omits one HUGE factor:

    this guy was growing and selling MMJ wholesale to dispensaries who then in turn sold MMJ retail to their patients. The dispensaries held the actual caregiver cards for their patients and depended on this wholesale grower to provide the medicine they in turn sold to their patients.

    how is THAT in clear violation of the voter intent of Colorado’s MMJ law? It isn’t and this raid is a clear and obvious abuse of power by the DEA. There is ZERO evidence this wholesale MMJ grower was selling on the street or otherwise outside of the dispensaries and his personal patients he provided for.

    —

    the Denver Post and all other media outlets failed to mention this in their stories…

    hopefully those of you who post your comments here on Pols are smart enough to realize not believe everything you read or see on TV…there’s usually more to the story (finger pointing at RedstateBlues)

    1. authorize wholesalers to supply dispensaries, and to do so by growing up to three plants for every patient that the client dispensaries serve? You mentioned the intent of the law, but not the letter. In the end, and to the extent discernable, the letter of the law is the law.

      Without meaning to presume the answer to my above question (which I am curious about), I think that it is essential, when making an argument, to put everything on the table, even if it does not support your case. If the argument can not be won having done so, then it is not the argument that should be won (in other words, it may be the case that RSB is right, and that the Colorado law does not support Mr. Bartkowicz. If that is so, it would be unwise to pin an argument on an easily demonstrated falsehood regarding what the Colorado law says).

      1. Growers have essentially argued that they are providing service as a primary caregiver, or as part of a primary caregiver’s operation.  No law defines a primary caregiver right now, and given the scope of the grow operation that is required to support so many patients here in Colorado, I hope that any future law specifically covers growers in an understanding light.

        Still, under the provisions of the law, growers would still be in violation if they didn’t have documentation for a sufficient number of patients.  If Mr. Bartkowicz didn’t have an appropriately large client list, then he’s still in violation.

  12. here is Colorado Amendment 20 in all it’s glory, letter for letter, word for word:

    Colorado Amendment 20

    Medical Use of Marijuana 2000

    Ballot Title: An amendment to the Colorado Constitution authorizing the medical use of marijuana for persons suffering from debilitating medical conditions, and, in connection therewith, establishing an affirmative defense to Colorado criminal laws for patients and their primary care-givers relating to the medical use of marijuana; establishing exceptions to Colorado criminal laws for patients and primary care-givers in lawful possession of a registry identification card for medical marijuana use and for physicians who advise patients or provide them with written documentation as to such medical marijuana use; defining “debilitating medical condition” and authorizing the state health agency to approve other medical conditions or treatments as debilitating medical conditions; requiring preservation of seized property interests that had been possessed, owned, or used in connection with a claimed medical use of marijuana and limiting forfeiture of such interests; establishing and maintaining a confidential state registry of patients receiving an identification card for the medical use of marijuana and defining eligibility for receipt of such a card and placement on the registry; restricting access to information in the registry; establishing procedures for issuance of an identification card; authorizing fees to cover administrative costs associated with the registry; specifying the form and amount of marijuana a patient may possess and restrictions on its use; setting forth additional requirements for the medical use of marijuana by patients less than eighteen years old; directing enactment of implementing legislation and criminal penalties for certain offenses; requiring the state health agency designated by the governor to make application forms available to residents of Colorado for inclusion on the registry; limiting a health insurer’s liability on claims relating to the medical use of marijuana; and providing that no employer must accommodate medical use of marijuana in the workplace.

    Text of Proposed Constitutional Amendment:

    Be it Enacted by the People of the State of Colorado:

    AN AMENDMENT TO THE CONSTITUTION OF THE STATE OF COLORADO, AMENDING ARTICLE XVIII, ADDING A NEW SECTION TO READ:

    Section 14. Medical use of marijuana for persons suffering from debilitating medical conditions.

    (1) As used in this section, these terms are defined as follows.

    (a) “Debilitating medical condition” means:

    (I) Cancer, glaucoma, positive status for human immunodeficiency virus, or acquired immune deficiency syndrome, or treatment for such conditions;

    (II) A chronic or debilitating disease or medical condition, or treatment for such conditions, which produces, for a specific patient, one or more of the following, and for which, in the professional opinion of the patient’s physician, such condition or conditions reasonably may be alleviated by the medical use of marijuana: cachexia; severe pain; severe nausea; seizures, including those that are characteristic of epilepsy; or persistent muscle spasms, including those that are characteristic of multiple sclerosis; or

    (III) Any other medical condition, or treatment for such condition, approved by the state health agency, pursuant to its rule making authority or its approval of any petition submitted by a patient or physician as provided in this section.

    (b) “Medical use” means the acquisition, possession, production, use, or transportation of marijuana or paraphernalia related to the administration of such marijuana to address the symptoms or effects of a patient’s debilitating medical condition, which may be authorized only after a diagnosis of the patient’s debilitating medical condition by a physician or physicians, as provided by this section.

    (c) “Parent” means a custodial mother or father of a patient under the age of eighteen years, any person having custody of a patient under the age of eighteen years, or any person serving as a legal guardian for a patient under the age of eighteen years.

    (d) “Patient” means a person who has a debilitating medical condition.

    (e) “Physician” means a doctor of medicine who maintains, in good standing, a license to practice medicine issued by the state of Colorado.

    (f) “Primary care-giver” means a person, other than the patient and the patient’s physician, who is eighteen years of age or older and has significant responsibility for managing the well-being of a patient who has a debilitating medical condition.

    (g) “Registry identification card” means that document, issued by the state health agency, which identifies a patient authorized to engage in the medical use of marijuana and such patient’s primary care-giver, if any has been designated.

    (h) “State health agency” means that public health related entity of state government designated by the governor to establish and maintain a confidential registry of patients authorized to engage in the medical use of marijuana and enact rules to administer this program.

    (i) “Usable form of marijuana” means the seeds, leaves, buds, and flowers of the plant (genus) cannabis, and any mixture or preparation thereof, which are appropriate for medical use as provided in this section, but excludes the plant’s stalks, stems, and roots.

    (j) “Written documentation” means a statement signed by a patient’s physician or copies of the patient’s pertinent medical records.

    (2)

    (a) Except as otherwise provided in subsections (5), (6), and (8) of this section, a patient or primary care-giver charged with a violation of the state’s criminal laws related to the patient’s medical use of marijuana will be deemed to have established an affirmative defense to such allegation where:

    (I) The patient was previously diagnosed by a physician as having a debilitating medical condition;

    (II) The patient was advised by his or her physician, in the context of a bona fide physician-patient relationship, that the patient might benefit from the medical use of marijuana in connection with a debilitating medical condition; and

    (III) The patient and his or her primary care-giver were collectively in possession of amounts of marijuana only as permitted under this section. This affirmative defense shall not exclude the assertion of any other defense where a patient or primary care-giver is charged with a violation of state law related to the patient’s medical use of marijuana.

    (b) Effective June 1, 1999, it shall be an exception from the state’s criminal laws for any patient or primary care-giver in lawful possession of a registry identification card to engage or assist in the medical use of marijuana, except as otherwise provided in subsections (5) and (8) of this section.

    (c) It shall be an exception from the state’s criminal laws for any physician to:

    (I) Advise a patient whom the physician has diagnosed as having a debilitating medical condition, about the risks and benefits of medical use of marijuana or that he or she might benefit from the medical use of marijuana, provided that such advice is based upon the physician’s contemporaneous assessment of the patient’s medical history and current medical condition and a bona fide physician-patient relationship; or

    (II) Provide a patient with written documentation, based upon the physician’s contemporaneous assessment of the patient’s medical history and current medical condition and a bona fide physician-patient relationship, stating that the patient has a debilitating medical condition and might benefit from the medical use of marijuana. No physician shall be denied any rights or privileges for the acts authorized by this subsection.

    (d) Notwithstanding the foregoing provisions, no person, including a patient or primary care-giver, shall be entitled to the protection of this section for his or her acquisition, possession, manufacture, production, use, sale, distribution, dispensing, or transportation of marijuana for any use other than medical use.

    (e) Any property interest that is possessed, owned, or used in connection with the medical use of marijuana or acts incidental to such use, shall not be harmed, neglected, injured, or destroyed while in the possession of state or local law enforcement officials where such property has been seized in connection with the claimed medical use of marijuana. Any such property interest shall not be forfeited under any provision of state law providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense or entry of a plea of guilty to such offense. Marijuana and paraphernalia seized by state or local law enforcement officials from a patient or primary care-giver in connection with the claimed medical use of marijuana shall be returned immediately upon the determination of the district attorney or his or her designee that the patient or primary care-giver is entitled to the protection contained in this section as may be evidenced, for example, by a decision not to prosecute, the dismissal of charges, or acquittal.

    (3) The state health agency shall create and maintain a confidential registry of patients who have applied for and are entitled to receive a registry identification card according to the criteria set forth in this subsection, effective June 1, 1999.

    (a) No person shall be permitted to gain access to any information about patients in the state health agency’s confidential registry, or any information otherwise maintained by the state health agency about physicians and primary care-givers, except for authorized employees of the state health agency in the course of their official duties and authorized employees of state or local law enforcement agencies which have stopped or arrested a person who claims to be engaged in the medical use of marijuana and in possession of a registry identification card or its functional equivalent, pursuant to paragraph (e) of this subsection (3). Authorized employees of state or local law enforcement agencies shall be granted access to the information contained within the state health agency’s confidential registry only for the purpose of verifying that an individual who has presented a registry identification card to a state or local law enforcement official is lawfully in possession of such card.

    (b) In order to be placed on the state’s confidential registry for the medical use of marijuana, a patient must reside in Colorado and submit the completed application form adopted by the state health agency, including the following information, to the state health agency:

    (I) The original or a copy of written documentation stating that the patient has been diagnosed with a debilitating medical condition and the physician’s conclusion that the patient might benefit from the medical use of marijuana;

    (II) The name, address, date of birth, and social security number of the patient;

    (III) The name, address, and telephone number of the patient’s physician; and

    (IV) The name and address of the patient’s primary care-giver, if one is designated at the time of application.

    (c) Within thirty days of receiving the information referred to in subparagraphs (3)(b)(I)-(IV), the state health agency shall verify medical information contained in the patient’s written documentation. The agency shall notify the applicant that his or her application for a registry identification card has been denied if the agency’s review of such documentation discloses that: the information required pursuant to paragraph (3)(b) of this section has not been provided or has been falsified; the documentation fails to state that the patient has a debilitating medical condition specified in this section or by state health agency rule; or the physician does not have a license to practice medicine issued by the state of Colorado. Otherwise, not more than five days after verifying such information, the state health agency shall issue one serially numbered registry identification card to the patient, stating:

    (I) The patient’s name, address, date of birth, and social security number;

    (II) That the patient’s name has been certified to the state health agency as a person who has a debilitating medical condition, whereby the patient may address such condition with the medical use of marijuana;

    (III) The date of issuance of the registry identification card and the date of expiration of such card, which shall be one year from the date of issuance; and

    (IV) The name and address of the patient’s primary care-giver, if any is designated at the time of application.

    (d) Except for patients applying pursuant to subsection (6) of this section, where the state health agency, within thirty-five days of receipt of an application, fails to issue a registry identification card or fails to issue verbal or written notice of denial of such application, the patient’s application for such card will be deemed to have been approved. Receipt shall be deemed to have occurred upon delivery to the state health agency, or deposit in the United States mails. Notwithstanding the foregoing, no application shall be deemed received prior to June 1, 1999. A patient who is questioned by any state or local law enforcement official about his or her medical use of marijuana shall provide a copy of the application submitted to the state health agency, including the written documentation and proof of the date of mailing or other transmission of the written documentation for delivery to the state health agency, which shall be accorded the same legal effect as a registry identification card, until such time as the patient receives notice that the application has been denied.

    (e) A patient whose application has been denied by the state health agency may not reapply during the six months following the date of the denial and may not use an application for a registry identification card as provided in paragraph (3)(d) of this section. The denial of a registry identification card shall be considered a final agency action. Only the patient whose application has been denied shall have standing to contest the agency action.

    (f) When there has been a change in the name, address, physician, or primary care-giver of patient who has qualified for a registry identification card, that patient must notify the state health agency of any such change within ten days. A patient who has not designated a primary care-giver at the time of application to the state health agency may do so in writing at any time during the effective period of the registry identification card, and the primary care-giver may act in this capacity after such designation. To maintain an effective registry identification card, a patient must annually resubmit, at least thirty days prior to the expiration date stated on the registry identification card, updated written documentation to the state health agency, as well as the name and address of the patient’s primary care-giver, if any is designated at such time.

    (g) Authorized employees of state or local law enforcement agencies shall immediately notify the state health agency when any person in possession of a registry identification card has been determined by a court of law to have willfully violated the provisions of this section or its implementing legislation, or has pled guilty to such offense.

    (h) A patient who no longer has a debilitating medical condition shall return his or her registry identification card to the state health agency within twenty-four hours of receiving such diagnosis by his or her physician.

    (i) The state health agency may determine and levy reasonable fees to pay for any direct or indirect administrative costs associated with its role in this program.

    (4)

    (a) A patient may engage in the medical use of marijuana, with no more marijuana than is medically necessary to address a debilitating medical condition. A patient’s medical use of marijuana, within the following limits, is lawful:

    (I) No more than two ounces of a usable form of marijuana; and

    (II) No more than six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana.

    (b) For quantities of marijuana in excess of these amounts, a patient or his or her primary care-giver may raise as an affirmative defense to charges of violation of state law that such greater amounts were medically necessary to address the patient’s debilitating medical condition.

    (5)

    (a) No patient shall:

    (I) Engage in the medical use of marijuana in a way that endangers the health or well-being of any person; or

    (II) Engage in the medical use of marijuana in plain view of, or in a place open to, the general public.

    (b) In addition to any other penalties provided by law, the state health agency shall revoke for a period of one year the registry identification card of any patient found to have willfully violated the provisions of this section or the implementing legislation adopted by the general assembly.

    (6) Notwithstanding paragraphs (2)(a) and (3)(d) of this section, no patient under eighteen years of age shall engage in the medical use of marijuana unless:

    (a) Two physicians have diagnosed the patient as having a debilitating medical condition;

    (b) One of the physicians referred to in paragraph (6)(a) has explained the possible risks and benefits of medical use of marijuana to the patient and each of the patient’s parents residing in Colorado;

    (c) The physicians referred to in paragraph (6)(b) has provided the patient with the written documentation, specified in subparagraph (3)(b)(I);

    (d) Each of the patient’s parents residing in Colorado consent in writing to the state health agency to permit the patient to engage in the medical use of marijuana;

    (e) A parent residing in Colorado consents in writing to serve as a patient’s primary care-giver;

    (f) A parent serving as a primary care-giver completes and submits an application for a registry identification card as provided in subparagraph (3)(b) of this section and the written consents referred to in paragraph (6)(d) to the state health agency;

    (g) The state health agency approves the patient’s application and transmits the patient’s registry identification card to the parent designated as a primary care-giver;

    (h) The patient and primary care-giver collectively possess amounts of marijuana no greater than those specified in subparagraph (4)(a)(I) and (II); and

    (i) The primary care-giver controls the acquisition of such marijuana and the dosage and frequency of its use by

    the patient.

    (7) Not later than March 1, 1999, the governor shall designate, by executive order, the state health agency as defined in paragraph (1)(g) of this section.

    (8) Not later than April 30, 1999, the General Assembly shall define such terms and enact such legislation as may be necessary for implementation of this section, as well as determine and enact

    (a) Fraudulent representation of a medical condition by a patient to a physician, state health agency, or state or local law enforcement official for the purpose of falsely obtaining a registry identification card or avoiding arrest and prosecution;

    (b) Fraudulent use or theft of any person’s registry identification card to acquire, possess, produce, use, sell, distribute, or transport marijuana, including but not limited to cards that are required to be returned where patients are no longer diagnosed as having a debilitating medical condition;

    (c) Fraudulent production or counterfeiting of, or tampering with, one or more registry identification cards; or

    (d) Breach of confidentiality of information provided to or by the state health agency.

    (9) Not later than June 1, 1999, the state health agency shall develop and make available to residents of Colorado an application form for persons seeking to be listed on the confidential registry of patients. By such date, the state health agency shall also enact rules of administration, including but not limited to rules governing the establishment and confidentiality of the registry, the verification of medical information, the issuance and form of registry identification cards, communications with law enforcement officials about registry identification cards that have been suspended where a patient is no longer diagnosed as having a debilitating medical condition, and the manner in which the agency may consider adding debilitating medical conditions to the list provided in this section. Beginning June 1, 1999, the state health agency shall accept physician or patient initiated petitions to add debilitating medical conditions to the list provided in this section and, after such hearing as the state health agency deems appropriate, shall approve or deny such petitions within one hundred eighty days of submission. The decision to approve or deny a petition shall be considered a final agency action.

    (10)

    (a) No governmental, private, or any other health insurance provider shall be required to be liable for any claim for reimbursement for the medical use of marijuana.

    (b) Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.

    (11) Unless otherwise provided by this section, all provisions of this section shall become effective upon official declaration of the vote hereon by proclamation of the governor, pursuant to article V, section (1)(4), and shall apply to acts or offenses committed on or after that date.

    1. When asked in a discovery request for documents, send a flood so that the damning information within them will remain buried.

      Look, it’s your call. For my part, I was asking for a specific citation of a specific provision. If I wanted to read the whole amendment, I could have done that without any assistance.

      I’ll try not to make any assumptions based on this non-response to the question, but if I were to make any assumptions….

  13. note:

    (b) Effective June 1, 1999, it shall be an exception from the state’s criminal laws for any patient or primary care-giver in lawful possession of a registry identification card to engage or assist in the medical use of marijuana, except as otherwise provided in subsections (5) and (8) of this section.

    can someone explain to me how this Highlands Ranch guy was not “assisting” in the medical use of MMJ? He was growing for dispensaries AND the small group of patients he personally cared for…

    1. Now my only question is whether it is a matter of bad drafting, or intentional, that the provision you cited, read literally, does not authorize anyone not in personal possession of a registry identification card “to engage or assist in the medical use of marijuana….”

      The following definition, which you chose not to cite, suggests that it is intentional:

      (g) “Registry identification card” means that document, issued by the state health agency, which identifies a patient authorized to engage in the medical use of marijuana and such patient’s primary care-giver, if any has been designated.

      In either case, it appears from the plain language of the amendment that the registry identification card is required by the grower in order to be legally authorized, and is only assigned to patients and primary care givers. If that is the case, then there is no indirect or derivative authorization to those who are supplying marijuana to primary care givers.

      Look, if you read my posts prior to RSB’s, you’ll see that I have no disinclination to arrive at your legal conclusion. But you seem to be starting with that legal conclusion, rather than arriving at it.

      If anything, you’ve convinced me that RSB is probably right.

  14. has Rep. Polis introduced legislation to get the fed out of conflict with states’ medical marijuana laws?

    “Hypocrisy can afford to be magnificent in its promises, for never intending to go beyond promise, it costs nothing”. -Edmund Burke

  15. Over 20 years ago when an old timer detective was printing my house after a break from the alley – again – in in Los Angeles, he made this observation:

    “When I was on patrol I would go to non-emergency calls by driving the allies, or when I was just patrolling.  Now the guys stick to the main streets; they don’t WANT to find problems in the allies.  They would rather look for expired tags on the streets than confront a burglar.”

    (Ironically, I later got busted for an expired tag soon while parked in front of my house.)

    But ever since then, I’ve watched and observed and agree with him.  It seems police would much rather pick on some poor, or young, or really not doing much wrong and come down like a ton of bricks.  

    Much easier to arrest (Colorado) law abiding citizens than arrest true threats to society.  

  17. hey Ralphie:

    instead of getting mad at me for forcing you to be an informed voter who actually reads and understands the laws you chime in and post comments on, maybe you oughtta  be mad at the people who actually wrote this 3,388 word state amendment (holy moly!) that still is ambiguous and vague requiring even more poorly written laws (even more thousands of words) from lawmakers like Chris Romer so that law enforcement people can understand it…

    — where I come from, if you can’t get your point across in a black & white / crystal clear / bottom line fashion in 3,300 words, you probably shouldn’t bother writing in the first place!

    as for this case where the DEA went after a wholesale MMJ grower, well sadly I predict this whole fiasco will have to interpreted by a federal circuit judge 🙁   so much for the voices of the voters of Colorado being honored by the DEA in this matter…JP is right on the money with his letter.

    Let’s all think like republicans for a second here, why are we letting the DEA witch hunt a legal Colorado business that is creating wealth and jobs? Last time I checked we could use all the jobs and tax revenue we can get in Colorado, ya know?

  18. The laws of the state of Colorado must be respected by the federal government, but on the same hand we as a state must respect federal laws as well. Regardless if marijuana is legalized in the state for medical use, federal law still views marijuana as illegal. The people who grow plants, run dispenseraies and smoke marijuana must understand that there is the possibility of being prosecuted under federal law if caught with marijuana. If you are going to take the chance you must know and understand the potential ramifications.  

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