The Status of Federal Prosecution and the Hinchey-Rohrabacher Amendment

The cannabis community enthusiastically welcomed the DOJ's decision to drop its appeal in the case against Lynette Shaw and the Marin Alliance. One headline exclaimed, "Federal Court Ruling Stands: DOJ Cannot Target MMJ Providers Operating Within State Law".

While the DOJ's abandonment of the Shaw appeal is helpful, it is not -- by any means -- the end of the issue. As we wrote at the time, the most likely explanation is not DOJ's concession that Hinchey-Rohrabacher prohibits prosecutions for acts in compliance with state law, but rather a strategic decision hoping to find a different appeal DOJ believes it is more likely to win.

And, indeed, DOJ continues to argue in other cases that the Hinchey-Rohrabacher Amendment does not meaningfully limit DOJ's ability to prosecute criminal cases or civil forfeiture actions. A number of cases are consolidated before the Ninth Circuit to address the scope of Hinchey-Rohrabacher and a number of related procedural issues, under the name of United States v. David McIntosh. In that appeal, DOJ argued that Hinchey-Rohrabacher's "Plain Language Does Not Prohibit the Criminal Prosecution of Marijuana Traffickers," even if acting in compliance with state law. (DOJ's full appeal brief is here, and the key section on this point starts at page 25.) In December, at oral argument in McIntosh, which is available to the public for listening or downloading, DOJ made the same assertion.

The Ninth Circuit has not ruled in the McIntosh case. It's been five months since oral argument, and that panel of judges has issued opinions in all the other cases argued the same day. This suggests that an opinion could issue soon, though sometimes the Ninth Circuit takes far longer, particularly if there is more than one opinion for the panel. That appears reasonably likely here given that the panel contains Judge O'Scannlain, a Reagan appointee with a very conservative reputation. And even after this panel of the Ninth Circuit rules, particularly if there is a dissenting opinion, there may en banc review or an appeal to the United States Supreme Court. Ultimately, what that means is that the issue will continue to percolate in the courts for the foreseeable future.