Dear Pot Lawyer,
If the federal government starts suing cannabis businesses, do those people have a shot?
They do, and it’s not an impossibly long shot. To start, though, we should concede that arguments for cannabis merchants are almost hopelessly skinny as a matter of law. This is because the federal Controlled Substances Act (CSA) outlaws the possession and sale of cannabis, period. In federal enforcement cases, courts have consistently said that the feds can enforce their terrible pot laws, even in states like Oregon where sales are licensed. However, people may not stand for it.
When someone is charged with a criminal offense, that person has a constitutional right to trial by jury. And juries are interesting. For one thing, they have no obligation to follow the law, even where a defendant is clearly guilty. If a pot merchant were selling weed in direct violation of the CSA, a jury could say, “So what?” and acquit that individual. We call this controversial legal concept “jury nullification.”
Jury nullification doesn’t happen often.