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Old March 18, 2013, 12:29 PM   #10
Frank Ettin
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 8,809
Originally Posted by Come and take it.
Than how can a law legalizing marijuana cause the federal government pause in enforcing federal law in Colorado and Washington.
  1. It's all about the doctrine of prosecutorial discretion. Prosecutors generally can decide how to use limited resources.

    In some cases a policy decision to back off of certain types of crimes might be driven by a conclusion that enough people, particularly among the current administration's constituency, find the conduct relatively benign. That might not be the case with other matters.

    To put some flesh on those bones, I can see the appeal to the current administration of soft peddling recreation marijuana prosecutions in State which have decriminalized it. And I can accept that the current administration could reasonably conclude that it has adequate political cover to support that policy decision. But if the subject were a matter about which the current administration's constituency was likely to feel differently, e. g., guns, I don't think we could count on the same level of prosecutorial forbearance.

  2. And looking at the marijuana issue, the Obama administration might have a policy not to vigorously enforce federal controlled substance law with respect to recreational marijuana use. That doesn't mean that the Obama administration isn't going to vigorously enforce federal gun laws with regard to persons who are unlawful users of a controlled substance and who are unlawfully, under federal law, in possession of a gun.

  3. A a month or so ago I did a quick search of federal appellate court decisions in a legal data base I subscribe to and quickly found more than 50 cases apparently involving convictions for being an unlawful user of a controlled substance in possession of a gun. Those were just appeals, and there were probably more; but I didn't see any point to spending any more time on it.

  4. Gun control is also on pretty much everyone's radar. There is considerable public pressure for increased gun control and enforcement of existing laws -- especially among Obama's core constituency.

  5. And the fact that there's a current policy to "soft peddle" federal prosecution of recreational marijuana use doesn't necessarily mean that will be the policy tomorrow.

  6. And in any case there has been considerable recent federal activity in connection with the dispensing and cultivation of marijuana under state medical marijuana laws. See --

Originally Posted by Come and take it.
...More specifically the Kentucky bill, puts a penalty on its own law enforcement if they aid federal agencies in the execution of any new laws (after January 2013). Wouldn't it be perfectly constitutional for a state to exercise authority over its own law enforcement?
There is some legal authority for the proposition that the federal government may not require state authorities to enforce federal law or policy. So that Kentucky law would not appear to offend the U. S. Constitution. I can't say whether or not it would be an issue under the Constitution of the Commonwealth of Kentucky.

Of course all that means is that if you violate a federal law you'll be arrested by a federal officer rather than a local cop. And in any event you'd be tired in federal court and sent to federal prison.
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
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