Smith v. Hickenlooper, the latest lawsuit seeking to overturn Colorado’s marijuana laws, was filed on March 5, 2015, in the U.S. District Court for the District of Colorado on behalf of a group of sheriffs and prosecutors in Colorado, Nebraska and Kansas. Critics see it as frivolous; nonetheless, Smith is the fourth such lawsuit since December.
The flurry of activity suggests that opponents are now turning to the federal court system as a way to thwart legalization’s growing political momentum. That’s an expensive strategy, and it bears watching where the money is coming from. In Smith, the deep pockets are those of the Drug Free America Foundation. DFA was instrumental in the defeat of Amendment 2 in Florida and has an even more troubling past with coercive drug rehabilitation of adolescents.
The Sheriffs’ Suit in Context
This is beginning to take a chart. The four suits currently pending are:
- States of Nebraska and Oklahoma v. State of Colorado, filed in the U.S. Supreme Court on December 18, 2014.
- Safe Streets Alliance v. Alternative Holistic Healing, LLC, filed in the U.S. District Court for the District of Colorado on February 19, 2015.
- Safe Streets Alliance v. Medical Marijuana of the Rockies, LLC, filed in the U.S. District Court for the District of Colorado on February 19, 2015 and
- Smith v. Hickenlooper, filed in the U.S. District Court for the District of Colorado on March 5. 2015.
All four make the argument that federal law should preempt conflicting state law. Smith and the Nebraska/Oklahoma suit are directed against the state of Colorado. The Smith complaint actually tracks the earlier complaint word-for-word in some sections. The two Safe Streets suits are directed toward private enterprises and include counts under the Racketeer Influenced and Corrupt Organizations Act as well as the preemption claim.
All suits allege that the plaintiff has suffered a harm of some kind, from undermining the legal system of a neighboring state in the Nebraska/Oklahoma complaint, to loss of bucolic character of the neighborhood or reduced ski tourism in the Safe Streets suits, to personal conflict about how to perform law enforcement duties in Smith. The organized opposition has adopted what is known in technical legal terms, as the “throw everything at the wall and see what sticks” strategy.
Legal Analysts See Flaws
It is always a mistake to handicap the outcome of lawsuits, but legal analysts see two big issues that affect some or all of the suits. The first relates to the concept of federal preemption. Under settled law, Congress has no power to require states to enact laws, nor does it have the power to require that state executives enforce federal law. Colorado is not obligated and cannot be compelled to ban marijuana or to enforce federal laws that do.
The second flaw has to do with the harm alleged. It has to be harm to a legally protected interest. It is not clear that the bucolic character of a neighborhood or the peace of mind that comes from being able to do one’s job without reservations meets that test. The harm also has to be real, immediate and measurable.
Flawed theories and claims do not prevent anyone from filing a lawsuit, however, and if any claims succeed, that precedent can be used to support further litigation. Plaintiffs can generally keep it up as long as they can afford it. With funding from the DFA, it could be a long fight.
Drug Free America Foundation
Out-of-state participation and political connections are nothing new in the legalization struggle, but DFA has a particularly swampy past. The organization was founded by Mel Sembler, a Florida shopping center developer. He and his wife are long time Republican fundraisers. Sembler served as Ambassador to Italy during the George W. Bush administration and as Ambassador to Australia and Nauru during the George H.W. Bush administration. Former Gov. Jeb Bush and his wife Columba have served on DFA’s Advisory Board.
DFA and the Florida Sheriff’s Association, with backing from casino magnate Sheldon Adelson, worked to defeat Amendment 2, which would have legalized medical marijuana in Florida in 2014.
DFA is also closely linked to Straight, Inc., a coercive drug rehabilitation program that was successfully sued for falsely imprisoning, assaulting and denying medical care to adolescents at its treatment facilities during the 1980s.
Having largely failed to block legalization efforts at the ballot box in November, individuals and organizations that oppose legalization seem to be regrouping around another strategy. It may prove to be a war of attrition as lawsuit after dubious lawsuit is filed in federal court.
This is why fundraising efforts on the part of advocacy organizations like the Marijuana Policy Project and the Drug Policy Alliance remain an important part of protecting the legal landscape for business and investors. It takes considerable financial resources to continue to meet challenges mounted by the deep pocketed and well connected defenders of prohibition.