MAYBE I'M PARANOID, but do you think that a court could rule that Oregon's recreational program is illegal because of federal law?
Honestly, I doubt it. Someone took this approach in Colorado and it's not going so well, although they are giving some pot growers trouble.
The lawsuit I mention challenges Colorado's Amendment 64, which legalized recreational pot in the Centennial State. Two plaintiffs, Hope and Michael Reilly, joined together with a group called Safe Streets Alliance (SSA), which was founded in the '90s by that somber fellow who hosted America's Most Wanted. The original goal of SSA was to keep prisoners locked up for longer periods under truth-in-sentencing laws. Now its stated mission includes fighting pot legalization.
The SSA lawsuit took a broad approach. First, it asked the court to find Amendment 64 illegal due to conflict with the Supremacy Clause of the US Constitution. The judge threw that out last week, saying the Supremacy Clause doesn't allow for a "private right of action," and that only the Department of Justice can enforce federal drug laws. The judge got that one right.
The second, more uncomfortable part of the lawsuit brings a claim against the Reillys' neighbors, a friendly-sounding grow site named Rocky Mountain Organics, as well as the grow site's owners, landlord, insurer, and developer, and then even Pueblo County and a bunch of government agencies and officials—including the governor himself. SSA alleges all of these defendants conspired to violate federal drug laws, which is prohibited by the federal Racketeer Influenced and Corrupt Organizations Act (RICO).
RICO is a controversial 1970s statute built to prosecute organized crime. It plays well on television, but courts seem to hate it. Still, RICO has been invoked in cases against disparate groups like the mafia, the Catholic Church, pro-life activists, and soccer syndicate FIFA. RICO allows leaders of a criminal enterprise to be tried for crimes that they themselves did not commit. In the case of Rocky Mountain Organics, the alleged crime is growing pot under state licensure.
When the judge said that Amendment 64 cannot be challenged, he also threw out the RICO allegations against all the government entities (because they "cannot form specific criminal intent"). The grow site and its partners, however, are still twisting in the wind. My guess is that SSA will offer to drop its remaining claims if these private parties disavow Rocky Mountain Organics and the grow site folds. My other guess is that SSA will succeed, because it has more money.
The upshot of the lawsuit is that a state pot program, like Oregon's, probably can't be shuttered in court. The disappointing takeaway, however, is that as long as NIMBY plaintiffs want to disturb pot businesses, they seem to have some leverage through spiteful lawsuit filings. Hopefully Rocky Mountain Organics can raise some money, ride the wave from last week's ruling, and prevail. Stay tuned.