OR OP-2012-1 January 19, 2012

If Oregon law tells law enforcement officers to return seized medical marijuana to a card-holder, but federal law makes possessing or distributing marijuana a crime, do the officers have to return the marijuana, and if they do, are they breaking federal law?

Short answer: The AG concluded the federal Controlled Substances Act likely preempted ORS 475.323(2)'s return-the-marijuana requirement, leaving the state requirement 'without effect.' Officers returning seized medical marijuana would risk federal criminal exposure, and the federal immunity for officers 'lawfully engaged' in enforcement of controlled-substance laws would not protect them, because they would not be enforcing a valid law. If a court ordered the return, officers should appeal and seek a stay.

Disclaimer: This is an official Oregon Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Oregon attorney for advice on your specific situation.

Subject

Oregon State Police

Plain-English summary

Oregon's Medical Marijuana Act required law enforcement to return medical marijuana that they had seized, once the district attorney determined the holder was protected by the Act (ORS 475.323(2)). The federal Controlled Substances Act, by contrast, prohibits possession and distribution of marijuana for any purpose other than FDA-approved research. The U.S. Supreme Court (Gonzales v. Raich; Oakland Cannabis Buyers' Cooperative) had already foreclosed any federal medical-necessity exception. The collision between the two regimes meant officers were stuck.

In 2010, the Oregon Supreme Court held in Emerald Steel Fabricators v. BOLI that the federal Controlled Substances Act preempted the part of Oregon's Medical Marijuana Act that "affirmatively authorized" use, leaving that section "without effect." A federal district court in Butler v. Douglas County extended the reasoning, suggesting officers would not have authority to return seized marijuana.

Captain Duvall asked the AG four questions. The AG worked through them.

First, the requirement in ORS 475.323(2) to return marijuana was "likely preempted" by federal law. The provision did more than affirmatively authorize what federal law prohibited; it required it. Under the Emerald Steel framework, that obstructed the federal purpose of prohibiting marijuana distribution, so the state requirement was "without effect."

Second, both the officer returning the marijuana and the recipient receiving it would violate federal law and could face federal criminal prosecution. The federal immunity for officers "lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances" (21 USC § 885(d)) did not apply, because the officers would not be enforcing a valid law (the underlying state requirement was preempted) and the federal courts in Rosenthal had read § 885(d) to cover only enforcement of laws consistent with the federal Act.

Third, if a court ordered an officer to return marijuana, the officer or agency should appeal under ORS 19.205(5) and seek a stay under ORS 19.330. Without a stay, the appellate court would likely treat the issue as moot once the marijuana was returned (citing State v. Ehrensing). If both the appeal and stay request failed, the officer would have to comply or risk contempt.

Fourth, the same logic applied when an officer took marijuana for safekeeping when booking a cardholder into jail on an unrelated charge. Mailing or releasing the marijuana on release would constitute federal "delivery." If the cardholder later filed a motion for return under ORS 475.323(2), the same preemption analysis applied.

The AG cautioned throughout that this area of law was rapidly evolving.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why does federal law trump Oregon's medical marijuana statute?

Because of the Supremacy Clause and the Oregon Supreme Court's reading of "obstacle preemption" in Emerald Steel. Federal law prohibits marijuana possession and distribution outright. Oregon's Medical Marijuana Act let cardholders use, possess, and (in limited amounts) deliver marijuana. The Oregon Supreme Court held that to the extent the state law "affirmatively authorized" use, it "stood as an obstacle to the implementation and execution of the full purposes and objectives of the Controlled Substances Act," and was therefore preempted and "without effect." The return-the-marijuana provision, in the AG's view, went one step further by actually requiring distribution.

What about the immunity provision in 21 USC § 885(d)?

That provision shields officers "lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances" from civil or criminal liability. The Ninth Circuit in Rosenthal read it narrowly: officers must be enforcing a law that is consistent with (or at least not inconsistent with) the federal Controlled Substances Act. Returning marijuana to a cardholder under a state law that the federal Act preempts is not "enforcement" of any valid law, so the immunity does not attach.

Did the AG distinguish State v. Kama?

Kama (Or App 2002) had ruled the other way, finding officers immune under § 885(d) when returning marijuana under ORS 475.323(2). The AG noted Kama predated Emerald Steel and the Rosenthal decisions, and that Kama's reasoning was minimal. The Oregon Supreme Court in Willis v. Winters had also clarified that Emerald Steel was an application of federal preemption analysis, not a free-standing rule. The AG read Kama's standing as weakened by the later cases.

Did the federal government actually prosecute officers for this?

The AG noted in a footnote that federal authorities had focused their resources on prosecutions of commercial cultivation, sale, and distribution of marijuana for medical purposes, not on individual cardholder possession. The AG added: "There is no reason to believe that federal authorities would be more eager to prosecute law enforcement officials for returning marijuana to medical users." But the analysis was about legal exposure, not enforcement priorities.

What practical move did the AG recommend if a state court ordered a return?

Appeal immediately and ask for a stay. Without a stay, the issue would likely become moot, because once the marijuana left state custody it could not be retrieved. The AG also recommended notifying federal authorities about the pending challenge.

What happens at the jail booking when a cardholder has lawful marijuana?

The opinion did not identify a clean answer. Department of Corrections rules let inmates designate someone to receive their non-permitted property by mail or pickup, but the AG concluded that mailing or transferring marijuana to a third party (other than another protected cardholder) would be a federal delivery and possibly a state violation under State v. Fries.

Background and statutory framework

The Oregon Medical Marijuana Act exempted cardholders, caregivers, and producers from state criminal liability for possessing or delivering medical marijuana within statutory limits (ORS 475.309(1), 475.319, 475.320). ORS 475.323(2) prohibited destruction or forfeiture of seized property connected to medical marijuana use and required law enforcement to return seized marijuana once the district attorney determined the holder was protected.

The federal Controlled Substances Act prohibits marijuana possession (21 USC § 844) and distribution (21 USC § 841) outside of FDA-approved research. 21 USC § 903 says the federal Act preempts state law only when there is a "positive conflict" so that "the two cannot consistently stand together." 21 USC § 885(d) provides immunity for federal and state officers "lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances."

The U.S. Supreme Court foreclosed a federal medical-necessity exception in United States v. Oakland Cannabis Buyers' Cooperative (2001) and confirmed federal jurisdiction over even purely intrastate cultivation in Gonzales v. Raich (2005).

The Oregon Supreme Court framework comes from Emerald Steel Fabricators v. BOLI (2010), which adopted the implied-preemption analysis and held that ORS 475.306(1) was preempted to the extent it "affirmatively authorized" use. Willis v. Winters (2011) clarified that Emerald Steel applies the general federal obstacle-preemption framework rather than a stand-alone Oregon rule.

The federal court analysis comes from United States v. Rosenthal (ND Cal 2003, aff'd in part 9th Cir 2006), which read § 885(d) immunity as inapplicable to enforcement of state laws that conflict with the federal Act. Butler v. Douglas County (D Or 2010) extended the reasoning to suggest officers had no authority to return seized marijuana under ORS 475.323(2).

Citations

ORS 475.304; 475.306(1); 475.309(1); 475.319; 475.320; 475.323(2); 475.346; 475.860; 475.864
ORS 19.205(5); 19.330; 19.350; 1.240(2); 1.250
21 USC §§ 841, 844, 885(d), 903
Emerald Steel Fabricators, Inc. v. BOLI, 348 Or 159, 230 P3d 518 (2010)
Willis v. Winters, 350 Or 299, 253 P3d 1053 (2011)
State v. Kama, 178 Or App 561, 39 P3d 866, rev den 334 Or 121 (2002)
United States v. Rosenthal, 266 F Supp 2d 1068 (ND Cal 2003), aff'd in part 454 F3d 943 (9th Cir 2006)
Butler v. Douglas County, Civil No. 07-6241-H (D Or August 10, 2010)
Gonzales v. Raich, 545 US 1 (2005)
United States v. Oakland Cannabis Buyers' Cooperative, 532 US 483 (2001)

Source

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

JOHN R. KROGER

MARY H. WILLIAMS

Attorney General

Deputy Attorney General

GENERAL COUNSEL DIVISION

January 19, 2012

Captain Steve Duvall
Oregon State Police
255 Capitol St. NE, 4th Floor
Salem, OR 97310

Re: Opinion Request OP-2012-1

Dear Captain Duvall:

The Oregon Medical Marijuana Act authorizes the provision and possession of marijuana for medical use and requires law enforcement officers to return seized marijuana to persons who are entitled to the protections of the Act. ORS 475.304, 475.320, 475.323(2). The federal Controlled Substances Act, on the other hand, prohibits the distribution and possession of all marijuana, including marijuana that state law permits to be used for medical purposes. 21 USC § 841, 844; United States v. Oakland Cannabis Buyers' Cooperative et al, 532 US 483, 486, 494, 121 S Ct 1711, 149 LEd2d 722 (2001), Gonzales v. Raich, 545 US 1, 14, 125 S Ct 2195, 162 LEd2d 1 (2005).

In Emerald Steel Fabricators, Inc. v. BOLI, 348 Or 159, 230 P3d 518 (2010), the Oregon Supreme Court held that the Oregon Medical Marijuana Act is preempted by the federal Controlled Substances Act to the extent that it affirmatively authorizes medical marijuana use. An Oregon federal district court subsequently relied on Emerald Steel to deny claims arising from a law enforcement officer's refusal to return medical marijuana to those entitled to possess it under the Oregon Medical Marijuana Act. Butler v. Douglas County, Civil No. 07-6241-H (D Or August 10, 2010). In light of those recent opinions, you ask the following questions.

QUESTIONS AND SHORT ANSWERS

Question 1: Does the federal Controlled Substances Act preempt the direction in ORS 475.323(2) to Oregon state and local law enforcement officers that they must return seized marijuana in certain circumstances?

Short Answer: Based on the reasoning in Emerald Steel, yes. The requirement in ORS 475.323(2) to return marijuana likely is preempted by provisions of the federal Controlled Substances Act that prohibit the distribution and possession of marijuana. Because a preempted statute is "without effect," the requirement in ORS 475.323(2) to return marijuana has no legal effect. But we caution that the law in this area is evolving.

Question 2: If a state or local law enforcement officer returns medical marijuana that was lawfully possessed under the Oregon Medical Marijuana Act, does the officer who returns the marijuana or the person who receives it violate federal law?

Short Answer: Based on the reasoning in Emerald Steel, the officer would violate federal law by returning the marijuana and may be subject to federal criminal prosecution. The recipient of the marijuana would violate federal law by possessing marijuana and also may be subject to federal criminal prosecution.

Question 3: Based on the current case law and statutes, what would be the appropriate response by the Oregon State Police or its officers, as appropriate, when a court orders the agency or the officer to return the marijuana?

Short Answer: The agency or the officer should appeal the order and request a stay of the order pending the appeal. If no stay is granted or if the appeal is unsuccessful, the agency or officer should return the marijuana.

Question 4: Assume an individual is arrested and has a lawful amount of medical marijuana under Oregon law in his or her possession; the individual is lodged at the county jail; and the jail staff inventories and stores the individual's marijuana along with the individual's other personal possessions for safekeeping. If a jail staff member returns the marijuana to the individual upon the individual's release from custody, does the jail staff member or the individual, or both, violate federal law?

DISCUSSION

I. Relevant Statutory and Case Law

A. The Oregon Medical Marijuana Act

Oregon's Uniform Controlled Substances Act prohibits the possession or delivery of marijuana. ORS 475.864, 475.860. But the Oregon Medical Marijuana Act exempts persons engaging or assisting in the medical use of marijuana from criminal liability for possessing or delivering marijuana. ORS 475.309(1), 475.319.

Under the Oregon Medical Marijuana Act, a person who wishes to engage in the medical use of marijuana must obtain a registry identification card. See ORS 475.306(1). Cardholders and their caregivers and producers may possess limited amounts of marijuana. See ORS 475.320.

ORS 475.323(2) prohibits the harm or forfeiture of any property interest connected with the medical use of marijuana that has been seized by any state or local law enforcement officer. That provision also requires law enforcement officers to return usable medical marijuana to those from whom it was seized if the district attorney determines that those persons are protected by the Oregon Medical Marijuana Act.

B. The Federal Controlled Substances Act

The federal Controlled Substances Act prohibits the possession and distribution of marijuana, except as part of a Food and Drug Administration (FDA) pre-approved research project. 21 USC § 844, 21 USC § 841(a). The federal law provides no exception for possession and distribution of medical marijuana that is permitted under state law. See Gonzales v. Raich, 545 US at 14; United States v. Oakland Cannabis Buyers' Cooperative, 532 US at 486. By its terms, the federal Controlled Substances Act preempts state law only when there is a "positive conflict" between the state law and a provision of the Act "so that the two cannot consistently stand together." 21 USC § 903.

C. State v. Kama

In Kama, city officers refused to return medical marijuana as required by ORS 475.323(2), arguing that to do so would constitute delivery of a controlled substance in violation of the federal Controlled Substances Act. The defendant argued that the city officers would be immune from criminal liability for delivery under section 885(d) of the federal Controlled Substances Act, which provides immunity to officers "lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances."

The court did not address whether returning the marijuana constitutes delivery under the federal act, instead holding that "[e]ven assuming that returning the marijuana otherwise might constitute delivery of a controlled substance, the city does not explain — and we do not understand — why police officers would not be immune from any federal criminal liability that otherwise might arise from doing so." 178 Or App at 565.

There is no discussion in Kama as to whether the federal Controlled Substances Act preempts ORS 475.323(2). Nor did the court analyze whether immunity applies to actions taken to carry out laws that conflict with the federal Controlled Substances Act. But given the court's holding, it necessarily assumed that the federal immunity did extend to actions to enforce laws that conflict with the federal Controlled Substances Act. In a subsequent case, however, the federal district and circuit courts reached the opposite conclusion.

D. United States v. Rosenthal

United States District Court

One year after Kama was decided, the United States District Court for the Northern District of California decided United States v. Rosenthal, 266 F Supp 2d 1068 (ND Ca 2003), aff'd in part, rev'd in part, 454 F3d 943 (9th Cir 2006). The court reasoned that "enforcement" under section 885(d) means compelling compliance with a law, rather than merely facilitating the purposes of a law. Id. at 1078.

The court further concluded: "'Lawfully engaged' in 'enforcing a law related to controlled substances' must mean engaged in enforcing, that is, compelling compliance with, a law related to controlled substances which is consistent — or at least not inconsistent — with the Controlled Substances Act. Section 885(d) cannot reasonably be read to cover acting pursuant to a law which itself is in conflict with the Act."

Ninth Circuit

Rosenthal appealed to the Ninth Circuit, which agreed with both grounds for denying immunity. In dicta, the Ninth Circuit distinguished the holding in Kama on the ground that, there, the officers were "enforcing a state law that required them to deliver the marijuana to that individual because he had a state-law right to its return." 454 F3d at 948.

E. Emerald Steel Fabricators v. BOLI

In Emerald Steel, the court considered whether ORS 475.306(1), which states that registry cardholders "may engage" in the medical use of marijuana, is preempted by federal law. The court characterized the issue as one of "implied preemption." Implied preemption exists if there is an "actual conflict" between federal and state law, either because it is "physically impossible to comply with both state and federal law," or because the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." 348 Or at 175.

Applying that analysis, the court concluded that: (1) the Controlled Substances Act imposes a blanket federal prohibition on marijuana use without regard to state permission to use marijuana for medical purposes; (2) ORS 475.306(1) "affirmatively authorized" the use of medical marijuana; (3) by permitting what federal law prohibits, ORS 475.306(1) "stands as an obstacle to the implementation and execution of the full purposes and objectives of the Controlled Substances Act"; (4) therefore, ORS 475.306(1) is preempted; and (5) because a preempted law is without effect, ORS 475.306(1) is without effect to the extent that it affirmatively authorizes the medical use of marijuana.

The court distinguished between state law provisions like ORS 475.306(1) that affirmatively authorize what the federal law prohibits and provisions like ORS 475.309(1) and 475.319 that merely exempt medical marijuana use, possession and manufacture from state criminal liability. The court stated that, while Congress has the power under the Supremacy Clause to preempt state laws that affirmatively authorize what Congress has prohibited, Congress lacks authority to require states to criminalize conduct that states choose not to. Id. at 180 (quoting Printz v. United States, 521 US 898, 935 (1997)).

F. Willis v. Winters

The Oregon Supreme Court decided another implied preemption case concerning medical marijuana use after Emerald Steel. In Willis v. Winters, 350 Or 299, 253 P3d 1053 (2011), county sheriffs refused to issue concealed handgun licenses to persons who admitted to medical marijuana use. The court said that Emerald Steel "should not be construed as announcing a stand-alone rule that any state law that can be viewed as 'affirmatively authorizing' what federal law prohibits is preempted. Rather, it reflects this court's attempt to apply the federal rule and the logic of the most relevant federal cases to the particular preemption problem that was before it." 350 Or at 309 n 6.

G. Butler v. Douglas County

In Butler v. Douglas County, the United States District Court for the District of Oregon considered the effect of Emerald Steel on a sheriff's duty to return seized medical marijuana. The court reasoned that "federal law preempts OMMA such that it has no effect. Thus, public policy dictates that failure to return marijuana in violation of federal law is not a constitutional violation." Butler at 4. The court also held that "the [state law] conversion claim fails as well as Sheriff Brown thus did not have authority to turn over the marijuana." Id.

II. Questions and Answers

A. Preemption

Applying the reasoning and holdings of Emerald Steel, Willis, and Butler, we conclude that the requirement to return marijuana in ORS 475.323(2) likely is preempted. The relevant purpose and intended effect of the federal Controlled Substances Act is to prohibit the possession, distribution and use of marijuana for any purpose except as part of a FDA pre-approved research project.

Returning marijuana to users would constitute distribution of a controlled substance under the Controlled Substances Act. See 21 USC § 841(a)(1); 21 USC § 802(11); 21 USC § 802(8).

Applying the analysis in Emerald Steel and Willis, the requirement to return the marijuana obstructs the accomplishment of the Controlled Substances Act's purpose and intended effect to prohibit the distribution and possession of all marijuana outside of FDA-approved studies. ORS 475.323(2) is distinguishable from the provision that the court found to be preempted in Emerald Steel in that it does more than affirmatively authorize what the federal act prohibit — it requires it. Therefore, the requirement to return marijuana in ORS 475.323(2) appears to be preempted and without effect. The federal district court in Butler apparently reached the same conclusion in holding that the sheriff had no authority to return the marijuana.

The immunity provided to officers by section 885(d) does not change the conclusion. We doubt that Congress intended that provision to have any bearing on the extent to which the Controlled Substances Act preempts the underlying law being enforced. The purpose of the immunity provision simply is to shield law enforcement officers who are lawfully engaged in enforcing a controlled substances law from civil or criminal liability for doing so.

We caution only that this remains an evolving area of the law.

B. Exposure to federal criminal prosecution

The possession of marijuana, even for medical use permitted by state law, is a violation of the federal law. Unless and until possession of medical marijuana is made lawful under federal law, those who possess it are subject to criminal prosecution by federal authorities.

ORS 475.323(2)'s requirement to return medical marijuana likely is preempted and unenforceable. Therefore, immunity under section 885(d) would be unavailable because the return would not constitute enforcement of any valid law. Consequently, officers could be subject to federal prosecution.

C. Appropriate response to court-ordered return

If the trial court ordered a state law enforcement officer to return marijuana pursuant to ORS 475.323(2), such an order could be appealed immediately under ORS 19.205(5) as an order in a special statutory proceeding. State v. Ehrensing, 232 Or App 511, 516, 223 P3d 1060 (2009). The state should appeal the order to seek resolution by the Oregon appellate courts of the issues discussed above. At that time, it also would be prudent to apprise federal authorities of the matter and, particularly, of the pending challenge to the court's order.

The state should also ask for a stay of judgment pending the appeal. See ORS 19.330. If the trial court denies the stay request, the state should consider seeking a stay in the Court of Appeals. ORS 19.350. A stay would allow officers to avoid potential violation of the federal Controlled Substances Act pending resolution of the preemption issue. A stay would also likely be necessary to ensure that the appellate court does not consider the issue moot.

In the unlikely event that a stay is not granted — or if the appeal is unsuccessful — the officers would have to comply with the order or risk a contempt action. ORS 1.240(2); ORS 1.250.

D. Return when marijuana taken for safekeeping

We conclude that the result is the same when a cardholder is arrested and jailed for an unrelated crime, but the analysis is more complicated.

We are not aware of any statute that expressly authorizes officers to take property into custody upon a person's admittance to a correctional facility, although at least one statute assumes the existence of that authority. See ORS 133.455. This authority on the state level comes from administrative rules.

Department of Correction rules authorize a person who is going to be admitted to a correctional facility to possess only a very limited number of items, and those do not include medical marijuana. OAR 291-117-0090. The Department must package "unauthorized" property and mail it at the inmate's expense to a person designated by the inmate to receive it. OAR 291-117-0140(1)(a).

Mailing or giving marijuana to a designated third party would constitute delivery under federal law. It also might constitute delivery under Oregon law and subject persons receiving the marijuana to prosecution for possession if those persons themselves are not entitled to the protections of the Oregon Medical Marijuana Act. See State v. Fries, 344 Or 541, 185 P3d 453 (2008).

To the extent that the rule would require officers to deliver marijuana in violation of the federal Controlled Substances Act, the provision is preempted. Also, as this rule is not a law relating to controlled substances, carrying out the duties it specifies would not appear to constitute enforcement of a law relating to controlled substances that would provide a basis for immunity under section 885(d).

If, upon a person's release from custody, he or she files a motion to return the marijuana under ORS 475.323(2), the previous analysis in this opinion would apply.

Sincerely,

Chief General Counsel
General Counsel Division
DEL:smg/3127904