Federal Judge strikes down lawsuit against recreational marijuana 


click to enlarge This ruling, an expert says, won't stop opponents from filing more suits. - FILE PHOTO
  • File photo
  • This ruling, an expert says, won't stop opponents from filing more suits.

Judge Robert E. Blackburn dismissed charges against Pueblo County, as well as other government agencies and officials, in a lawsuit that challenges the legality of recreational marijuana.

Filed in February 2015, the suit asked the U.S. District Court of Colorado to find Amendment 64 illegal due to conflict with the Supremacy Clause of the U.S. Constitution. The suit also asked the court to find Pueblo County guilty of violating the Racketeer Influenced and Corrupt Organizations Act (RICO).

That federal law, created in the 1970s to civilly prosecute organized crime, has since been applied in cases against the likes of the Mafia, the Catholic church and FIFA (soccer's world governing body.) It essentially allows leaders of a criminal enterprise to be tried for crimes they didn't themselves commit, i.e. ordering a murder, assisting in a coverup or colluding to launder money.

Last February, the Washington, D.C.-based anti-marijuana group Safe Streets Alliance filed this suit, along with Pueblo County landowners Hope and Michael Reilly, against Rocky Mountain Organics, which was constructing a recreational grow facility near the Reillys' property in Rye. The plaintiffs also held responsible Gov. John Hickenlooper; Barbara J. Brohl, executive director of the Colorado Department of Revenue; W. Lewis Koski, director of the Colorado Marijuana Enforcement Division; the Pueblo County Board of County Commissioners; and the Pueblo County Liquor and Marijuana Licensing Board.

The plaintiffs argued that federal law supersedes state law, so those who own, do business with or fail to shut down Rocky Mountain Organics are all complicit in breaking the law under RICO.

Judge Blackburn dismissed these claims, concluding, in short, that private parties can't seek recourse for violations of the Supremacy Clause, which makes federal law the supreme law of the land. He also concluded that it's up to the U.S. attorney general and Department of Justice to enforce — or not enforce — the Controlled Substances Act, under which marijuana is still illegal. Blackburn's ruling cites the DOJ's "conscious, reasoned decision" to let states that have enacted marijuana legalization proceed without federal interference. Additionally, government entities can't be prosecuted under RICO, Judge Blackburn wrote, as "[they] cannot form specific criminal intent."

Only the public-sector defendants, however, are off the hook. Rocky Mountain Organics owners Joseph and Jason Licata, as well as the landowner, the leasor, an insurance company, and a developer are among the private-sector defendants named in the suit. All may still be looking at a RICO suit.

Safe Streets Alliance filed two RICO suits last February. The other was against Summit Marijuana and several banking, bonding and accounting companies with which the dispensary did business. Those financial companies either disavowed any association with Summit Marijuana or settled, and the suit was dropped. Summit was "forced to close," according to its website.

Though drug-law expert Sam Kamin told The Cannabist that Safe Streets' case would have lost at trial, he added that such suits "are going to be incredibly problematic for the industry going forward. The folks who helped to bring this suit and sought out plaintiffs for this suit are looking for more and other lawsuits."

Still, this is good news for Amendment 64 supporters. Between Blackburn's ruling and U.S. Solicitor General Donald Verrilli Jr. advising the U.S. Supreme Court to dismiss Nebraska and Oklahoma's lawsuit against Colorado, it is becoming increasingly unlikely that legalization will be struck down in court.

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