Safe Streets Alliance et al. v. John Hickenlooper, et al. – Good News, Bad News

C1_8734_r_xA ruling issued on June 7th by the US Court of Appeals for the Tenth Circuit, in response to a series of legal challenges to Colorado’s adult cannabis use regulations, includes both good news and bad news.

The Good News

Most importantly for the legalization movement nationwide, the appeals court rejected the argument raised by the states of Nebraska and Oklahoma that Amendment 64 in Colorado, the voter initiative that legalized and regulated the adult use of marijuana, was preempted by the federal Controlled Substances Act. That argument, made by these neighboring states, if accepted by the court, would have voided Amendment 64.

It should be noted that this was not a definitive ruling on the federal preemption argument. Rather, it was a procedural ruling, finding that only the US Supreme Court has jurisdiction to hear disputes between the states. (The Supreme Court declined to consider a similar challenge in 2016.)

In fact, it was only after the Supreme Court had rejected their motion that the two states elected to raise these same issues with the 10th Circuit, by filing a motion to intervene in the Safe Streets case.

Also a big win, the Circuit Court rejected a similar attempt by a group of sheriffs and prosecutors from Colorado, Kansas, and Nebraska to use the US Controlled Substances Act and the Supremacy Clause of the US Constitution to enjoin the enforcement of Amendment 64. The court found that the Supremacy Clause “does not give rise to a private right of action.”

Hopefully this will give pause to other anti-marijuana zealots out there who might wish to use the federal preemption argument to undermine the various state legalization laws.

The Bad News

The bad news is that the 10th Circuit did reinstate a civil RICO complaint filed by private landowners in Colorado against a state-licensed indoor cultivation center, alleging it had caused a noxious odor that damaged their property value. The appellate court remanded the case back to the US District Court for further proceedings to allow the plaintiffs to attempt to prove their RICO claims.

While this is necessarily concerning to those in the state-legal cultivation industry, since the problems presented by the odors emanating from large grow operations is a theme which has been raised in several Colorado communities, it likely does not open the floodgates for every neighbor to bring a RICO suit against any cultivation center. Rather it likely will accelerate the adoption of the most effective technology by cultivation centers to minimize the odor of marijuana.

In the court’s own words, “We are not suggesting that every private citizen purportedly aggrieved by another person, a group, or an enterprise that is manufacturing, distributing, selling, or using marijuana may pursue a claim under RICO. Nor are we implying that every person tangentially injured in his business or property by such activities has a viable RICO claim. Rather, we hold only that the Reillys alleged sufficient facts to plausibly establish the requisite elements of their claims against the Marijuana Growers here.”

31 thoughts

  1. So, let’s see, must be time to start RICO-ING the shit out of pizza stores, coffee shops, restaurants, bars, and anyone wearing perfume, cologne, or deodorant. Fragrance is now a crime in and of itself? Then nothing anywhere is legal. Of course, the bar was set at the lowest point already when cannabis became illegal.

    How deep down the rabbit hole must we go before we awaken from this fevered delirium?

    This kind of madness is why I sometimes go by the moniker “Dain Bramage.” It requires all my mental powers to survive and transcend and immunize myself against a society constructed entirely of deceit, marketing, and propagandist illusions.

    Protect your mind!

  2. Like possibly many other readers here, I am perplexed that anyone would object to the odor of cannabis plants. Other than that it would “damage property value”– bigots would not pay as much to buy a house near there, hm. follow the money.
    Think for a moment, if cannabis is legalized everywhere (and the MICRODOSAGE COMPROMISE: substitute 25-mg single vapetokes for the halfgram hot burning overdose) we’ll be spared the truly noxious Side-Stream $moke from 700-mg designed-to-overdose commercial nicotine $igarettes.

  3. Thank you Keith!
    Allow me to post a collective “Hell Yeah! Keith is back on the blog!!” I missed that joint puffin image and our founder’s perspective.

    This is GREAT news. The Supremacy Clause was shot down?! YES!

    And now all we have to worry about is RICO? Hah! Ol no-regard-Beauregard is too busy beggin The president to resign and dodging subpeonas to worry about prosecuting RICO cases, at least for the time being. But thats whatcha get for being obsequious with the mad King. You can run in Alabama but you sho caint hide!!
    Great to see you back, brother.

  4. Honestly, When are all these anti-American prohibitionists going to die…..The anti-human idiots have to be loosing numbers by now, when are they going to die off and fade away?

  5. Some varieties of cannabis have a skunky smell some people may find just as bad as that of a real skunk.

    I remember going for a walk in Haarlem and getting a whiff of cannabis. I was across the street from some industrial buildings, warehouses or factories. It wasn’t all the time but must have been at the times when the grow was venting and the smell not totally masked. Most of the time it was undetectable. If you went back at the same time the next day to see if it wasn’t just your imagination and smelled it again the grow has been given away. Don’t know who they were or exactly where the grow was, only that it was in the area, but it gave the grow away.

    I didn’t think the faint occasional scent of it was objectionable. Production is still illegal in Holland.

    If you don’t want to get raided because you’re out of favor with the current political administrators then you don’t want to give yourself away to the authorities.

    1. But some drunk big shots puffing on a stinky ass cigar , or if you are an ex President the cigar might smell of something else ,is ok ?

    1. @ guest,
      Ha! Excellent point. I’ve got four words for Hickenlooper: “National Western Stock Show.”

  6. Article 4 Section 1: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.

    Article 4 Section 2: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

  7. Voters in the area of Colorado where the prohibitionist farmers live voted last November to continue cultivation and recreational sales by a 57% to 43% margin. If anything property values in the Pueblo area are going up due to the “green rush” in and around Pueblo. The so-called “safe streets” Alliance will ultimately fail in their endeavor to get legalization shut down.

  8. Relax fellow NORML people; theres something more rotten in the state of our federal politics than the smell of prosecuting RICO cases. Even the language in the case suggests property damages for industrial smell will not be a recurring use of RICO. Grow operations will follow some new code, some contactors will make some money and that will be that. The marijuana industry has to follow more unique regulations. Big surprise. The slippery slope to prosecuting other industries for property damage created by real, measurably noxious smells is ridiculous and dully noted by the Judge’s decision. (If poor people next to landfills and fracking operations only kept records and had a good lawyer pro bono…)

  9. On to other stories about stepping in something that actually stinks:
    Sessions being denied resignation means Trump wants to fire him in a timely way to distract us from the next big break in the Russian investigation. This pathetic “distraction” works more to distract a hostile prohibitionist administration from ongoing advances in marijuana policy.
    Appointing Guliani after Sessions is gone is not going to be easy, and the lack of appointments in general is part of an anarchist strategy from Chief Grim Reaper Bannon:

    More likely, Rosenstein will become AG when Sessions gets the can. Leafly’s new political Haymaker column points out that Rosenstein stopped prosecuting cannabis cases when he was top prosecutor in Baltimore after Maryland legalized mmj, meaning he respects states rights.
    Whats going to be interesting is Rosenstein already has to recuse himself from investigating the Russia-Gate since he appointed a special councel and he himself is under investigation. Trump got neutered and theres nothing he can do about it or fire his way out of it. Rosenstein planned it that way to protect himself, knowing Sessions wanted out of this $hitstorm early on.
    Besides, Guliani would not likely pass confirmation and I dont think even he wants the job anymore. Who wants to work for a sociopath who cant even distinguish a supportive ruse of a disagreement from disloyalty? Ive heard of shooting the messenger, but this sick, rotten orange shoots his getaway driver. If yer gonna be dumb ya gotta be tough…
    Meanwhile as the $hitstorm continues, Connecticut, Vermont and even Delaware are in the race for legislatively enacted marijuana legalization. Game on.

    1. Love the Russian investigation. I can’t wait to see some evidence.

      OTOH Loretta obstructed justice. I can’t wait until she is a target of investigations.

      OH. Yeah. Sessions is an idiot. At least 50% of Republicans support medical. He wants to attack his base?

      1. Surrounded by water yet the fool is thirsty:

        Let me ask you something MSimon; When a Presidential candidate goes on live camera, says “Russia are you listening” and pleads for a hostile nation to hack his opponents emails, is it the fear of your own failure as an American adult that causes you to deny the very obvious evidence of Russian collusion in front of us all?
        Once we understand that this treason of Trump and Russia is true, dating back to his deals with Russian money launderers to keep the lights on at Trump Tower, we can begin to see the collusion and treason with every bad billionaire out to sell our Democratic Republic to the highest bidder: Sheldon Adelson, Charles & David Koch, the Mercers, John Paulsen and a whole bunch of @$$ wipe Trump enablers like yourself.
        You are participating in the collusion. Your cowardly, treasonous denial is an accomplice threat to our national security. Only accepting the truth and making your Representatives accept it to can begin to save your battered abuse-loving soul.

  10. Sure would like to see the Keebler elf charged with obstruction of justice, forced to serve the minimum mandatory sentence in a prison for profit, that would be poetic justice for all.

    1. That certainly would. Sessions is more at risk than Trump. If he tries executive privilege to weasel out of the hearing tomorrow were looking at the US v. Trump that’ll make the U.S. v. Nixon look like a quaint little tea party.

  11. Sessions will testify before the Senate Intelligence Committee:

    Look at his face in the pic from the NYT. He looks like a deer caught in the headlights. Trump thinks he’s just throwing another victim under the bus, deep in his finasteride-ridden pathological denial of whats happening. After all, Trump always had a fall guy to blame for his spoiled disasters.
    But Sessions knows whats up. He’s facing the Tsunami because he knows he has nowhere to run from it, and I think he’s trying to speed up his exit and force Trump to let him go before the wave hits the white house.
    Placing Rosenstein in the budget committee hearings (where Congress was going to drill Sessions anyway) is another way of prepping stein for the official job to the American public. Rosenstein is a MUCH better alternative for marijuana policy than Beauregard Sessions. And the USAG is going to be a little to busy to appoint new people or prosecute RICO cases.
    I always wondered what the climax of our Great American Prohibition Tragedy would look like. Here it is.

    1. Sessions is a son of a bitch, and so is the Prince of Orange for nominating him AG.

      According to the Washington Post, via Huffington Post:

      Attorney General Jeff Sessions is asking congressional leaders to undo federal medical marijuana protections that have been in place since 2014, according to a May letter that became public Monday.

      The protections, known as the Rohrabacher-Farr amendment, prohibit the Justice Department from using federal funds to prevent certain states “from implementing their own State laws that authorize the use, distribution, possession or cultivation of medical marijuana.

      In his letter, first obtained by Tom Angell of and verified independently by The Washington Post, Sessions argued that the amendment would “inhibit [the Justice Department’s] authority to enforce the Controlled Substances Act.” He continues:

      “I believe it would be unwise for Congress to restrict the discretion of the Department to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime. The Department must be in a position to use all laws available to combat the transnational drug organizations and dangerous drug traffickers who threaten American lives.”

      Sessions’s citing of a “historic drug epidemic” to justify a crackdown on medical marijuana is at odds with what researchers know about current drug use and abuse in the United States. The epidemic Sessions refers to involves deadly opiate drugs, not marijuana. A growing body of research (acknowledged by the National Institute on Drug Abuse) has shown that opiate deaths and overdoses actually decrease in states with medical marijuana laws on the books. . . .

      I’d love to hear from the Trump apologists. Where is csaaphill? Something about an apology . . . ?

      1. Still fighting yesterday’s battles, I see, . . . er, sort of like Trump himself. The problem, MSimon, is that your comment about Hillary is academic. She ain’t prez.

        We DO know that Drumpf appointed a rabid prohibitionist as his AG. That’s a fact. We also know that his rabid AG has already made several attempts to impede or overturn legalization. Those are facts, MSimon. All the complaints about Hillary won’t change those facts.

      2. The memo is a funny revelation Evening Bud, more than it is a threat. Congress voted on the Rorhabacher-Blumenauer amendment to ride until September. A Republican controlled Congress mind you… terrified of 2018 elections. By September Sessions is lucky if he has a job pickin peaches.

        I have been more concerned about the timing of Trump’s remaining nominations. But even that is a pathetic mess. He just barely nominated new US attorneys yesterday that he fired months ago!!! These are the bottom line that decide whether or not its in the “Americans interest” to fire Mueller.
        Thanks to Grim-Reaper-Bannon’s Billionaire Anarchist Strategy of “no government” were still operating with a deputy Obama staff. The way Trump turns everything into $#!+ like a stomach, and this ongoing investigation, I think even his only crowning achievement… revealing the lack of integrity of the Evangelical right wingers to get Gorsuch nominated… will culminate into his and the GOP’s own undoing… in the US v. Trump.

      3. I suppose, Julian. But it still pisses me off; still proves to me that Sessions is trying, in his own little Keebler Elf way, to impede legalization. It’ll be interesting to see how California and the other newly-legalized states deal with this throw-back.

  12. pot should be legalized if the law builds in public safety measures. For example, driving while intoxicated on pot should be treated exactly like a DUI.
    People who are somewhat opposed to legalization like myself could support it if protections to use are built in

    1. Driving while intoxicated on anything should be illegal! That said, I think we need to rethink the definition of intoxicated. Just because someone has a beer or 2, or smokes a joint, doesn’t mean they can’t drive safely. Personally, I think there should simply be a standard test that looks at a persons mental and physical abilities at the time they are pulled over for an alleged driving infraction. Whatever is in their body at the time should be irrelevant; after all there are hundreds of things that could be in one’s body that could affect their abilities. The only thing that really matters is whether or not they can drive safely.

      I can say, in all seriousness, that I could probably drink 4 beers and smoke 2 joints and still drive more safely than half the people out there that have zero alcohol or cannabis in their system.

    2. While NORML does not condone driving while under the influence of marijuana, marijuana is NONTOXIC, and studies show a reduction in fatal accidents with legalized marijuana due to a reduction of prescription opiate use in those states.
      Marijuana is psychoactive and can mildly, temporarily impair, especially for those with repressive or traumatic memories consuming for the first time going through the healing process. But please do not call marijuana “intoxicating,” because it does not cause overdose and it doesnt help our cause.

      1. Says the guy who cant find the evidence of collusion with Trump and Russia when he colluded on camera during the campaign? Pull your head out of your @$$ Msimon. It’s GOTTA stink in there.

  13. The smell of an industrial grow is far worse and absolutely can not be compared to one cigar, a horse farm or any other privately owned business. Each strain has it own smell some are not so bad others are horrid rancid vomit….
    The industrial growers use extremely large Industrial Ozone Generators to try and mask the overwhelming smell on these outdoor grows. Last summer the reports of men, woman and children with extreme burns to their eyes with detached retinas and worse…. Living next to one of these grows while the plants are in full flower you can be guaranteed to have your eyes burned, your sinuses burned and your lungs become raw and irritated with a constant cough. You will be forced to breathe THC-A the actual THC but in its raw form of acid. It is obvious by the comments no one on here has ever actually been forced to live next to one of these industrial grows sites.
    Washington State precisely King County gives permits to grow 300 plants at one time. Just 15 yards off the property line in residential neighborhoods!
    Ever tried to breathe while 300 cigars are burning or 300 hamburger joints cook or 300 coffee shops work. But don’t forget those shops are all regulated with air filtration systems and Marijuana is not!
    All one has to do is follow the money? Yes lets follow it with more than $60,000,000.00 a MONTH coming into just King County Washington in taxes. All put in A “GENERAL FUND” to be dispursed “WITHOUT ACCOUNTING”. Do you actually think any person, man, woman or child OR PROPERTY matters? The corruption is overwhelming and completely unbelievable!
    To state the money issues is on the part of the homeowners losing value. What a joke. Spoken by a true zombie.
    As of Dec 2017 the study declared more than 43% of all accidents in Wa. State attributed to driving while “under the influence of marijuana”. Only 31% is alcohol leaving 26% driver error.

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