Only five days following the Drug Enforcement Administration’s statement they were denying petitions to reschedule marijuana; the United States 9th Circuit Court of Appeals made a landmark decision regarding the herb.

UNITED STATES V. MCINTOSH sought Petitions for Writ of Mandamus for several defendant-appellants from California and Washington. It was argued and submitted for a decision in front of  Diarmuid F. O’Scannlain, Barry G. Silverman, and Carlos T. Bea, Circuit Judges on December 7, 2015 in San Francisco, California. Judge O’Scannlain filed the opinion on August 16 vacating orders of the District Courts that were prosecuting the defendants allegedly involved in the production of cannabis.

It was ordered by this court that the federal prosecutors set evidentiary hearings to evaluate if the defendants were in compliance with their individual state’s medical marijuana laws at the time they were arrested.

On December 17, 2015, the United States Congress passed the “Consolidated Appropriations Act, 2016.” It is a rider on this act that enjoins the Department of Justice from spending monies that are governed by the appropriations on the prosecution of individuals who are involved in conduct permitted by their own state’s medical marijuana laws.

Advocates for medical marijuana around the country took the decision as a victory. However, if they had read Judge O’Scannlain’s opinion completely through, perhaps they wouldn’t have been so quick to dance in the streets. Although the judge pointed out the temporal nature of lack of funds and the defendant’s right to a speedy trial in seeking a remedy for the violation of the rider; he was also very quick to point out that could change:

“Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding. Moreover, a new president will be elected soon, and a new administration could shift enforcement priorities to place greater emphasis on prosecuting marijuana offenses.”

The panel acknowledged that at the time of the arrests, “The government had authority to initiate criminal proceedings, and it merely lost funds to continue them.”

At the very end of the decision, Judge O’Scannlain stated regardless of what individual states have voted into law, “ while the CSA [Controlled Substances Act] remains in effect, states cannot actually authorize the manufacture, distribution, or possession of marijuana. Such activity remains prohibited by federal law.”

(Author’s note: This piece was published first in Everything Medical Marijuana magazine)