Is the Drug Enforcement Administration violating the spirit of October's Justice Department memo
suggesting that federal prosecutors make medical-marijuana charges a low priority?
Colorado medical marijuana advocates certainly think so. They protested outside President Obama's recent Denver visit about a DEA raid of a medical pot grower.
"Honestly, I think they haven't gotten the message," said Brian Vicente, executive director of Sensible Colorado
, an advocacy organization. "We think they're acting in a rogue manner."
The DEA confiscated 224 marijuana plants from Chris Bartkowicz' suburban Denver home on Feb. 12 after he showed his growing operation to a Denver news
show. The DEA says that number of plants is more than the 72 allowed to serve the 12 patients designating Bartkowicz as their caregiver.
The drug is illegal under federal law, although Colorado voters approved the use of medical-marijuana in a 2000 ballot initiative and medical-marijuana dispensaries have popped up across the state.
"If I knew what I was doing was illegal, I would have never made a public display of myself,"
Bartkowicz said in an interview with 9News. "I would not have put myself in the line of fire if I was knowingly violating the law."
Wednesday, U.S. Rep. Jared Polis, a Boulder Democrat, wrote
Attorney General Eric Holder, criticizing DEA special agent Jeff Sweetin for telling the Denver Post
"we arrest everybody" in a story about the raid. Polis asked Holder to clarify whether that statement is part of the Justice Department's policy.
But the DEA's raid is not inconsistent with the October Justice Department memo, one legal expert
"I'm not sure this necessarily violates the spirit or the letter of the announcement that was made," said Robert Mikos, a law professor at Vanderbilt University School of Law, who researches marijuana laws. "These raids aren't really that much of a surprise."
Still, the case could plow new legal ground. "There are complex legal issues that haven't been addressed in this state,"
Joesph Saint-Veltri, Bartkowicz' attorney, said during a hearing.
Saint-Veltri wouldn't discuss his defense strategy.
Vicente said he hasn't heard of DEA raids in any of the other 14 states
that allow medical-marijuana since the October memo.
"It went on for years in California," Vicente said. "Lately, they seem to have backed off."
Denver U.S. Attorney David Gaouette has charged Bartkowicz with possession with intent to manufacture, distribute or dispense marijuana. He defended the charges in an interview
with Westword, a Denver alternative weekly, and said his office is considering other prosecutions that might involve medical- marijuana suppliers. Perhaps in response to such words, Sensible Colorado is holding training sessions on how to deal with potential raids in four Colorado cities this weekend.
Bartkowicz is free on $10,000 bond, according to federal court records, with a status conference set for March 12.
Although Polis and medical-marijuana advocates are calling for clarification of the October memo, that memo may not be any help for a federal criminal defense, Mikos said.
"They can't necessarily cite this document and say 'You can no longer enforce the controlled substances act against me,' " he said. "The Obama administration really did signal a shift...but it's so weak in its terms."