On August 16, 2016, the Ninth Circuit made an unexpected decision — it enjoined a federal criminal prosecution against medical marijuana growers in the Ninth Circuit. In the published opinion1, the three-judge panel (Justices Scannlain, Silverman, Bea) afforded states with legal medical marijuana industries a provisional reprieve from federal interference. Specifically, the Ninth Circuit barred the Department of Justice from pursuing criminal prosecutions of individuals from California and Washington who had strictly complied with state medical marijuana regulations. The Department of Justice alleged that in working within the bounds of the state laws, the individual defendants had simultaneously violated the Controlled Substances Act, which prohibits marijuana cultivation and distribution.

While federal courts have traditionally refrained from interfering with federal criminal prosecutions, the Ninth Circuit allowed the appeal to go forward and consolidated 10 separate criminal appeals for injunctive relief, which sought to halt the criminal proceedings. The 10 individuals presented a simple defense: the federal government could not prosecute them because the federal government was prohibited from spending the funds to prosecute them pursuant to a congressional appropriation rider, Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332-33 (2015), which states:

None of the funds made available in this Act to the Department of Justice may be used, with respect to the States [in the Ninth Circuit and others]… to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

Pursuant to the rider, Congress had temporarily unfunded any acts by the Department of Justice that would have impeded states’ ability to implement a medical marijuana industry. A similar tactic was used by Congress in 2013 when it refused to enact any legislation appropriating funds to the government, effectively shutting it down for 16 days.

The Ninth Circuit interpreted the rider as prohibiting the Department of Justice from spending funds on actions that prevented states from giving practical effect to their medical marijuana laws. The panel further found that the rider prohibited the Department of Justice from prosecuting individuals who strictly complied with all relevant conditions imposed by state law on the use, distribution, possessions, and cultivation of medical marijuana.

In the growing conflict between state and federal law over the growing marijuana industry, the Ninth Circuit’s decision appears to give those in the industry some relief, albeit uncertain. First, the Ninth Circuit made clear that its ruling applied only to medical marijuana. Further, because appropriation riders must be reauthorized or otherwise enacted by Congress, its ruling is conditional and potentially temporary. If Congress chose to let the rider expire and not enact similar legislation, the Department of Justice could potentially continue to prosecute individuals for marijuana-related conduct legal under state law.

This decision, however, does leave open the bigger question on recreational marijuana prosecutions. In the Ninth Circuit, Washington, Oregon, and Alaska have all legalized recreational marijuana and Arizona, California, and Nevada are considering recreational marijuana legalization. No federal appellate court has addressed recreational marijuana in the same manner, nor is it likely given the lack of Congressional riders on the subject. Given that two of the three states — Washington and Oregon — with medical marijuana laws in the Ninth Circuit are in the process of merging medical marijuana and recreational marijuana or offering licenses that make no distinction between growers or distributors of medical or recreational marijuana, the full scope and protection of this decision is unclear. While some may point to this decision as a guidepost for future prosecutions, given the limited nature of the ruling, the Department of Justice does not appear to be prohibited from moving forward on recreational marijuana prosecutions, or potentially against individuals in states that merge medical and recreations regulation.