Colorado's "Criminal" Pot Dispensaries Complying with State Law

| by Reason Foundation

By Jacob Sullum

On Friday I noted that John Walsh, the U.S. attorney for Colorado, has threatened to prosecute the operators and landlords of 23 medical marijuana dispensaries located within 1,000 feet of a school. Since the 1,000-foot rule is part of Colorado's regulations for dispensaries, I said, Walsh's threats do not necessarily conflict with Attorney General Eric Holder's assurances that the Justice Department won't focus its resources on medical marijuana suppliers who comply with state law. Rep. Jared Polis (D-Colo.), who has repeatedly pressed the Obama administration to respect his state's laws regarding medical use of marijuana, had a similar reaction to Walsh's letters. But as the Drug Policy Alliance's Bill Piper and the Marijuana Policy Project's Steve Fox both pointed out to me, Colorado's law allows local governments to deviate from the 1,000-foot rule, which applies to "a school, an alcohol or drug treatment facility, or the principal campus of a college, university, or seminary, or a residential child care facility."

Fox notes that Boulder has reduced the minimum distance to 500 feet, while Denver has allowed licensed dispensaries that existed before the state enacted its regulations to remain where they are, even if they are within 1,000 feet of a school. So it is not clear how many of the 23 dispensaries that received letters from Walsh last week, if any, actually are violating state law. Westword reports that several of the 23 dispensaries are in Denver and will now have to find new locations that comply with the 1,000-foot rule. Another complication: Colorado measures distance from a school by the length of the shortest pedestrian route, while the feds measure it as the crow flies. That means some dispensaries could be complying with state law but still be within 1,000 feet of a school under federal law, which (as Walsh noted in his letters) triggers enhanced criminal penalties. Furthermore, Walsh might decide to copy his colleagues in California by adding parks to the list of insulated locations. "If they add parks," a a medical marijuana lawyer tells Westword, "oh shit."

According to the CBS affiliate in Denver, the 23 dispensaries targeted so far are just a start. "More letters will soon will be sent out," it says. A dispensary attorney tells the station "there are far more than just 23 medical marijuana dispensaries located near schools."

Piper says Walsh "is taking a page out of California," where the U.S. attorneys likewise "cite the need to keep dispensaries away from schools," using "protecting the children" as a "fig leaf" for their assault on dispensaries. "If there are violations of state laws (especially zoning violations), then cities, counties, and states can enforce those restrictions," he says. "U.S. attorneys should be focused on real crimes, not going around town with a tape ruler." I agree, and that approach also would prevent the Justice Department from second-guessing state and local officials' interpretations of California's fuzzy rules for patient collectives and cooperatives. But since Colorado, unlike California, has adopted detailed regulations for dispensaries, it should be clear whether a particular operation is complying with state law. More to the point, it should be clear whether that matters to Walsh. If not, Holder's promises mean nothing in practice.