Tag Archives: law

Gambling with Tribal Marijuana

For this post I will look at the application of state criminal jurisdiction to non-tribal members while on tribal lands; first at the jurisdictional framework in general, and then at a brief history of federal Indian gaming regulations to better understand the legal limitations of tribal marijuana cultivation. In my last post I discussed Federal Public Law 280 (PL-280) and the delegation of criminal jurisdiction over tribes and their members to state agencies and courts. State criminal jurisdiction does not apply to tribal lands where the alleged crime is regulated—and not strictly prohibited—by states. This raises the question: Does state criminal jurisdiction under PL-280 extend to the activities of non-members of the tribe while on tribal lands? For example, if a tribe opens a “cannabar” for non-tribe members to purchase and imbibe marijuana while on tribal lands, would the actions of those non-members be within the criminal jurisdiction of California, the U.S., or the tribe? The answer to this question depends on whom we ask. The current U.S. Supreme Court case law and lower court statutory interpretations find that federal criminal jurisdiction (or state criminal jurisdiction in PL-280 states) over non-members extends to their activities on tribal lands. Which, continuing from the earlier example, non-members would be subject to federal or state criminal jurisdiction for acts committed on tribal land, and could be prosecuted for violating the state or federal law by purchasing marijuana for recreational use at a cannabar located on tribal lands. But a group of constitutional theorists argues that these activities are beyond the reach of state, and perhaps even federal, criminal jurisdiction in PL-280 states. What does this jurisdictional quagmire mean for tribes seeking to sell marijuana to non-tribal members for use on tribal lands? Is “casino”-style marijuana consumption and sale possible?

Does PL-280 extend state criminal jurisdiction to activities of non-members while on tribal lands? In Oliphant the U.S. Supreme Court ruled that tribal criminal jurisdiction does not apply to non-members, noting that “[n]on-Indians are not subject to the jurisdiction of Indian courts and cannot be tried in Indian courts on trespass charges. Further, there are no Federal laws which can be invoked against trespassers.”  Mark Oliphant was a non-tribe member residing on the Suquamish reservation in Port Madison, Washington. During the tribe’s annual Chief Seattle Days celebration, Oliphant was arrested by tribal police and charged with assaulting a tribal officer and resisting arrest. He was arraigned before a tribal court, and after bailing out; he filed for a writ of habeas corpus in Ninth Circuit relying on the claim that the Suquamish court did not have criminal jurisdiction over non-members. The Ninth Circuit found in favor of the Suquamish, and Oliphant appealed to the Supreme Court. The Court found that tribal sovereignty is not strictly geographical, and thus the tribal court’s criminal jurisdiction does not automatically extend over non-members while they are present on tribal lands. Rather, non-members are subject to the federal (or in PL-280 states, the state) statute that would apply if the crime had been committed outside of tribal boundaries. The Court did not question the tribe’s power to arrest, and in fact found that the tribal agencies must turn over and “not to shelter or conceal offenders against the laws of the United States, but to deliver them up to the authorities for trial.” It also noted that the basis for this policy was to provide protection for tribal members “from the violences [sic] of the lawless part of our frontier inhabitants,” or to put it another way, to protect the American Indians from non-members entering tribal territory and committing what would be considered crimes by the federal government had it occurred on non-tribal soil. Oliphant further elucidated that tribes have sovereignty over their members, and the right to assert jurisdiction where no Congressional jurisdiction has been asserted (or asserted and then delegated to states via PL-280).

Cohen’s Handbook of Federal Indian Law, the preeminent source for understanding the intricacies of U.S. tribal law, also lends clarity to the convoluted point of tribal jurisdiction over non-members while on tribal lands. Citing Oliphant as authoritative precedent, Cohen’s Handbook notes that even a regulatory PL-280 state law, which would normally not be enforceable in Indian territories, may be enforceable on tribal lands where it “affects non-Indians and survives the Court’s infringement/preemption test.” The test, as explained by the Court in Mescalero Apache Tribe is that “if [the state regulation] interferes or is incompatible with federal and tribal interests reflected in federal law [it is preempted], unless the state interests at stake are sufficient to justify the assertion of state authority.”

There are some critics that question whether the federal government acts within the scope of its constitutional powers by delegating inherently federal jurisdiction to states; an issue which has never been addressed by the U.S. Supreme Court in regards to the application of state law to tribal lands.

The lower courts that have addressed this issue have set aside the issue with minimal or circular analysis. In Anderson, James Anderson, a member of the Klamath tribe residing on the Klamath reservation, appealed his conviction of second-degree murder in Oregon state court to the Ninth Circuit. He appealed to the Court on the basis that Oregon state courts did possess criminal jurisdiction in this case as the homicide had occurred on Klamath land, and the defendant is a member of that tribe. The Ninth Circuit did not agree, and found that, “[t]he [Congressional] power over Indians was deemed not so inherently or exclusively federal as to apply beyond the extent to which the federal government has preempted the field, and the federal government could thus withdraw from the field and turn the subject matter back to the states when it chose to do so.” However, the presumption that the states possessed original jurisdiction over tribes, and that the federal government had preempted the state powers on those lands, is unsupported by statute, treaty, or constitutional amendment. Tribes, recognized in the U.S. Constitution as falling under the same umbrella of federalist powers as states and foreign countries, never entered into treaties with state governments to cede jurisdiction, but rather made treaties with the federal government to cede their jurisdiction in a limited manner. As Cohen’s Handbook notes, “[U.S.-Indian t]reaties must be understood as grants of rights from Indian people who reserve all rights not granted.”

The false presumption first promulgated in Anderson was relied on in other cases reviewing the PL-280 for its constitutionality. In Agua Caliente the District Court noted that, “Public Law 280, like other similar laws in recent years, is a withdrawal by Congress from its preemption in this field. It has done so in this case by express grant to the state of authority…to the extent that any further withdrawal by the Federal Government occurs, the sovereignty of the state becomes enlarged to that extent.” Again, there is no existing evidence or support of this presumption, except that this is the relationship between federal powers and state jurisdiction outside of tribal lands. The express purpose of federalism is for federal jurisdiction to extend to “certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.” But this only exists where original state jurisdiction would otherwise exist. Keeping in mind that this issue has never been argued before the Supreme Court, it is possible that the Court would find in favor of the federalist principles, and rule that where the federal government has withdrawn from a jurisdiction, the sovereignty of tribes would become enlarged to that extent.

How does this relate to marijuana sales on tribal lands? Which criminal jurisdiction applies on tribal lands matters to non-members seeking to imbibe or purchase marijuana from tribe-operated dispensaries? Under the majority view, it appears that non-members cannot commit acts on tribal lands that are considered crimes in state or federal court. This is due in part to existing statutes and Supreme Court decisions, and seems to be the most largely accepted interpretation of the law. However, a splinter group of theorists among the minority view argues that the federal government cannot delegate its criminal jurisdiction to states. Under one interpretation of the principles of federalism this could mean that where the federal government has withdrawn from the field of criminal jurisdiction (i.e. via attempting to delegate this power to states) that jurisdiction is restored to the tribes. The tribes would have the criminal jurisdiction that would otherwise be granted to the states under PL-280, and could determine whether non-members could purchase or imbibe marijuana on their land. Of course, this is not a view supported by the existing case law, but since the Supreme Court has not addressed the question, it remains an argument to be made.

When first hearing of the interaction between PL-280 and the CSA for tribes, it may seem natural to conclude that the state criminal jurisdictional exception extends to non-members in such a way that “casino”-style marijuana sales (i.e. tribal dispensaries providing marijuana for on-site consumption by non-members) seem inevitable. To better understand why this not the case, an examination of the history of American Indian gaming is necessary. From the outside, it may seem a rather straightforward matter; tribal sovereignty in conjunction with PL-280 allows for casino and gaming in states that do not completely prohibit gaming (i.e. operating a state lottery). However, the power to organize casinos and gaming on reservations is still within the jurisdiction of the federal government. This is because the Federal Indian Gaming Regulatory Act of 1988 (IGRA) re-asserted federal jurisdiction to regulate the conduct of gaming on Indian Lands, established the National Indian Gaming Commission (NIGC), as well as a regulatory structure for Indian gaming in the United States, essentially closing the jurisdictional loophole left open under PL-280 by the Cabazon decision.

Based on Cabazon, which held that in PL-280 states where gaming is a regulated activity and not a prohibited activity (e.g., states with a state-operated lottery), tribal gaming was determined not to fall within the state’s jurisdiction to regulate. The Court further elucidated that only Congress “could effectively place limits on the Indian Gaming industry.” For precedential support, the Court relied on the Mescalero Apache Tribe preemption test mentioned earlier in this post. Within a year of the Cabazon decision, Congress passed the Indian Gaming Regulation Act (IGRA). The stated purpose of the IGRA includes the establishment of Federal Regulatory powers over Indian gaming and a Federal commission to oversee and apply such powers (NIGC). Cohen’s Handbook notes that although the IGRA does not mention PL-280, it operates to supersede state jurisdiction because it is a more recent statute asserting exclusive federal control over violations of Indian gaming. Under the IGRA, tribes are required to enter into compacts with the states in order to participate in Class III gaming, which includes all gaming not covered in Class I and II, specifically anything not closely resembling bingo or “social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as a part of, or in connection with, tribal ceremonies.” Tribes retain jurisdiction over Class I and Class II gaming; subject to any “prohibitive” limitations placed by states (very similar to the tribal jurisdiction limitations mandated by PL-280).

In those states where tribes have sought Class III compacting agreements, the state has not granted criminal jurisdiction as a result of the IGRA legislation, rather states have a per se veto power over Indian proposed regulation of such activities, as iterated in
§ 2710(d)(3) of the IGRA:

“Any Indian tribe having jurisdiction over the Indian lands upon which a class III gaming activity is being conducted, or is to be conducted, shall request the State in which such lands are located to enter into negotiations for the purpose of entering into a Tribal-State compact governing the conduct of gaming activities.”

The IGRA included a provision for tribes to file suit in U.S. District Court against states failing to enter into negotiations or that negotiate in bad faith these compacts with tribes. However, in Seminole Tribe the Supreme Court ruled that this provision was not within the constitutional power of the federal government, and that states were immune to suit by tribes under the Eleventh Amendment. Despite the fact that the language of the IGRA seems to be a broad grant of jurisdiction to the District Courts over suits brought by Indian tribes against States that had not consented, the language was held as “insufficient to constitute a clear statement of an intent to abrogate state sovereign immunity.”  Thus, tribal sovereignty was limited by the passage of the IGRA, but state sovereignty (under the Eleventh Amendment) was not.

This is important because there has been some recent discussion of state legislation in Washington essentially re-asserting state jurisdiction over marijuana cultivation or sale on tribal lands. However, any resulting legislation would be open to legal challenge. This is because while the federal government can re-assert federal jurisdiction via federal statute in states where PL-280 applies, such as it did with the IGRA, the principles of federalism do not allow for states to assert their criminal jurisdiction without direct delegation by the federal government. Those states either have criminal jurisdiction over drugs (where that drug has been strictly prohibited) or they don’t (where there is existing regulatory state legislation). In PL-280 optional states, or states that were offered the opportunity to claim state criminal jurisdiction under PL-280, but were not mandated to accept that jurisdiction, such as Washington, Arizona, and Montana, further analysis is necessary to determine whether PL-280 is applicable. Several of these optional states have state constitutional disclaimers that prevent PL-280 from applying (according to the McClanahan decision), and cannot claim criminal jurisdiction until these constitutional disclaimers were nullified. Cohen’s Handbook notes, “[i]f a state has not assumed jurisdiction under Public Law 280, it may not acquire jurisdiction over Indians independent of that Act.”  This is especially true in Washington, which is blocked from fully asserting criminal jurisdiction over tribes by its own constitutional disclaimer, and so would lack PL-280 jurisdiction on two counts; first it would lack jurisdiction under PL-280 because it has not fully assumed that jurisdiction, and secondly, because if PL-280 were to fully apply, the state regulates but does not prohibit marijuana sales and cultivation, and so would not have jurisdiction over the tribes that chose to engage in those activities.

As recently as March of this year, tribes were granted the ability to prosecute non-Indians for certain crimes under Special Domestic Violence Criminal Jurisdiction, including criminal violations of protective orders. While this federal action may partly overturn Oliphant, it is not clear whether this opens the door for greater tribal jurisdiction over crimes committed on reservations. If it did and tribes were able to determine for themselves what recreational drug use was allowed on their lands by non-members, the risk of investing in the marijuana industry would be largely alleviated.

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Why Tribes Don’t Need Your Permission

Late last year the U.S. Department of Justice made an announcement that American Indian tribes may grow and sell marijuana on tribal land so long as they adhere to the federal conditions required of states that have legalized marijuana, and with the consultation of the local U.S. Attorney’s office. As a result of the announcement many tribes, including the Pomo and the Red Lake Band, are seeking to implement a regulatory framework that would adhere to those federal conditions. Others have voiced concern that the vague wording of the DOJ memo will leave tribes vulnerable to prosecution on the federal, state or county level. But what if California tribes did not need the permission of the federal government to cultivate marijuana without the threat of criminal prosecution?

The United States Supreme Court has recognized an exemption for tribal lands from the application of state law. For example, in Washington v. Confederated Tribes of Colville Indian Reservation the Court held that “tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States.” However, where Congress has delegated this power to states, state law would be enforceable on tribal land.

Under Public Law 280, the federal government delegated criminal law enforcement to California and a handful of other states, making the state penal code enforceable on tribal land. This rule is subject to one caveat: if the state generally permits the conduct at issue, subject to regulation, it must be classified as a civil or regulatory charge, rather than criminal, and thus PL-280 would not authorize its enforcement on an Indian reservation. Furthermore, the definition of generally permitted conduct is extensive. The Supreme Court held in California v. Cabazon Band of Mission Indians that “even to the extent that the State and county seek to regulate short of prohibition, the laws are preempted” from application on tribal land. One possible conclusion is that by regulating marijuana, even for medical purposes, California has preempted state or county marijuana laws from applying to tribes.

Tribal law still applies, of course. And some tribes have strict anti-drug policies, which may be enforced by tribal police on those lands. However, those tribes that are within the borders of a state with PL-280 in effect would be able to independently determine how to regulate marijuana without the need to invoke the protection of the recent memo. What this means is that for tribes seeking to benefit from the restrictive nature of the marijuana market the fear of criminal prosecution can be at least somewhat alleviated (however, this blog post does not constitute legal advice; anyone seeking to take action must consult with a licensed attorney).

In my next post I will be considering whether PL-280 would also allow for “casino-style” recreational marijuana use, or the use by non-tribal members while on tribal lands, and if so, whether what the ramifications of such use would be.

Are High Drivers High Risk?

at-checkpoint

The danger of driving under the influence of alcohol (DUI) has been solidified for some time. The development of DUI laws and enforcement has been grounded in scientific research about crash risks and the effects of alcohol are easy to measure. However, driving under the influence of marijuana (DUIM1) presents an entirely different issue. It may not be wise to assume that similar laws, tests, and enforcement methods should apply. If there is anything to take away from the body of DUI policy, it is that it was developed to decrease accidents rather than indirectly prohibit alcohol. If marijuana is to be legalized, there is likely to be an increased level of enforcement to prevent the dangers of DUIM. However, such enforcement is only necessary if these dangers actually do exist.

DUIM is a criminal offense in California and will continue to be even if marijuana is legalized.2 A California roadside survey conducted in 2012 found that 7.4% of drivers tested positive for some amount of THC, a psychoactive component found in marijuana. To put that into perspective, 7.3% of drivers tested positive for alcohol. Although the occurrence of intoxicated drivers may be almost identical for alcohol and marijuana, the similarities quickly diverge when it comes to the crash risk these drivers present. DUIM after legalization is only an issue if high drivers actually present a danger to themselves and society.

The National Highway Traffic Safety Administration (NHTSA) recently released the results of a study that was “the largest and most comprehensive study to address alcohol and drug crash risk in the United States.” This study was conducted in 2012 over a 20-month period in Virginia and tested thousands of drivers using blood, urine, and saliva for the presence of THC. The NHTSA took care to match characteristics of control drivers with those of crash-involved drivers as closely as possible. These characteristics included age, gender, ethnicity, and alcohol use. When the variables of age, gender, ethnicity, and alcohol use were not accounted for, the results showed an increase in crash risk for those who tested positive for THC. However, when the analysis accounted for these variables, the correlation vanished – the NHTSA study did not find an increased crash risk associated with THC use. In contrast, drivers at a .08% blood alcohol level (the legal limit in every state) had about four times the chance of crashing.

The NHTSA study is the first large-scale study of its kind conducted in the United States, and so it stands to be the best indicator of an actual, observable crash risk for DUIM in California. The study found no increased risk, and it calls into question whether increased enforcement is actually necessary. This leads one to wonder how these results are even possible. Marijuana is a psychoactive drug, and an analysis of numerous studies (Sewell) “concluded that marijuana causes impairment in every performance area that can reasonably be connected with safe driving of a vehicle, such as tracking, motor coordination, visual functions, and particularly complex tasks that require divided attention[.]” Despite these effects, the Sewell analysis found that most marijuana intoxicated drivers show only small impairments on actual road tests while more experienced marijuana users showed almost no functional impairment.

The study attributes these results to evidence that marijuana intoxicated drivers are are able to compensate for the effects of their intoxication. For example, they will drive slower, increase their distance from cars, and try to overtake less. On the other hand, alcohol intoxicated drivers will underestimate their impairment, and will even drive more aggressively compared to sober drivers. A year after the Sewell analysis, a study was completed that seems to agree with their findings. In 2010, a double-blind, placebo-controlled study of 21 heavy cannabis users was conducted, rating each individual’s performance on tasks that tested their ability to track, make quick decisions, multitask, and react to a stop. This study found that marijuana generally did not affect task performance, concluding that “heavy cannabis users develop tolerance to the impairing effects of THC on neurocognitive task performance.”

These studies help explain the surprising results of the NHTSA study, and together, they show that DUIM may not be the public safety hazard that it is often thought to be. However, there are concerns that legalization will change the landscape of marijuana use, causing both an overall increase in DUIM related crashes, along with an increased crash risk by creating new users who are unable to successfully compensate for their intoxication. This concern is not without merit, but it cannot be expressed with certainty either.

The DMV has found that out of fourteen states that have allowed access to medical marijuana, three of them showed an increase in DUIM crash rates from the time of access to 2009. California was one of these states, showing an increase in 2.1 percentage points for fatal crashes where a driver tested positive for marijuana intoxication. This may seem insignificant, but it was a 196% increase. However, this uptick occurred in 2004 when medical marijuana was initially decriminalized, and there was no significant growth for 6 years after. From these results, the DMV suggested that medical marijuana is simply providing more access to a stable population of patients rather than creating new users. If the effect of legalization is to follow the same pattern, it will not create an explosion of new, inexperienced users, but it will increase access for experienced users, the ones who have shown the ability to drive safely in experiments and studies.

More importantly, if the goal of DUIM policy is to reduce crash risk, an increase in the total number of DUIM related crashes does not show that there is an increased risk of crashing. The DMV study explicitly states that determining the crash risk of DUIM was neither the intent nor purpose of the study. Accident totals were not adjusted for the increased use of marijuana in states where medical marijuana was allowed. Greater access to marijuana increases the number of people who are intoxicated, and when those people get into accidents, there is an increase in accidents involving marijuana intoxicated drivers. Confused? Here is an analogy: If there is greater access to yellow shirts, then an increase in accidents involving drivers in yellow shirts is likely to occur (provided that people want to wear yellow shirts). It does not follow that wearing a yellow shirt causes accidents, and similarly, the DMV results establish nothing about the actual risk of crashing.

The NHTSA study, on the other hand, was purposefully designed to discover such risk, and it found that drivers intoxicated on marijuana do not have a heightened risk of accidents compared to sober drivers. If the goal of DUIM policy is to reduce accidents, there must be a heightened risk to reduce. Even if marijuana is legalized, it cannot be assumed that an increased crash risk will come along with it.

It would be a shame to make the trek through all this technical, scientific data for it to merely be an academic exercise. But it unfortunately is. Questioning the necessity of increased enforcement will likely be nothing but a philosophical pursuit. It is almost assured there will be an increased focus on DUIM enforcement whether it is useful or not. In reaction to marijuana legalization, Colorado and Seattle have enacted new DUIM laws, funded training programs for their officers, and instituted new field tests for discovering marijuana intoxicated drivers. While California still awaits legalization, counties such as Los Angeles have already taken similar steps in officer training and field-testing. With legalization comes enforcement, and the state will have to design policy and procedure to prevent DUIM in a fair and just way. Many of us will also have to find a way to forget that our tax dollars are being spent on a problem that may not exist.

1. I choose to use the term DUIM here instead of using the more common term of driving under the influence of drugs (DUID). DUID is often the term used for marijuana intoxicated driving under the California Penal Code. This is because the pertinent section of the code does not distinguish between drug types other than alcohol, so all non-alcohol intoxication can be referred to as DUID. For this reason, I choose to use DUIM in order to specify that I am only talking about marijuana intoxication and not the countless other drugs that DUID can refer to.
2. California Penal Code section 23152(e)

Cannabis: Patently Useless?

Not too long ago I was at a party where an acquaintance, upon hearing that I was studying intellectual property in law school, addressed me with a slightly tipsy and decidedly confrontational “you can’t own ideas, man!”  At the time, I just smiled and prevaricated.  It is true, though.  You cannot own ideas.  Intellectual property law is built on that very concept.  There are some fine distinctions and clarifications, and certainly some gray area, but that’s the lawyer’s bread and butter.  Intellectual property is like a contract with the government, and all contracts require both sides to gain something (‘consideration’).  The commonwealth has generally concluded that there are certain protections worth granting for the greater public good and this is where a debate on the merits of intellectual property finds footing.  We should ask what, exactly, do the rest of us get out of affording some entity protection of their copyright, trademark, trade secret, or patent?

A patent, for example, gives the inventor a few temporary rights, essentially to exclude others from making, using, selling, and importing the invention in the United States.  Thomas Jefferson wrote that “the exclusive right to invention [i]s given not of natural right, but for the benefit of society” and highlighted “the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not.”  Exclusive rights grant a monopoly of sorts, and a government-protected monopoly without a very important public interest being served would be embarrassing.  For example, the Post Office is a monopoly that serves the commonwealth’s need for delivery of mail.  But what concomitant need does granting a patent serve?

The United States Patent Office (USPTO) has been receiving applications for patents on strains of cannabis. This could be because a few states have legalized recreational use of cannabis or because the majority now supports legalization.  Certainly, the projections of tens of millions of dollars of potential revenue will interest businesses and investors.  But cannabis is federally illegal under the Controlled Substances Act.  Can the USPTO even grant a patent on something illegal?  More importantly, why should the USPTO grant these patents?  There are valid arguments for both sides, but ultimately the USPTO should grant these patents because whether or not those patents can be enforced is a separate question for a separate agency.

In order to patent something the inventor must provide a description of the invention that would give someone familiar with the material the ability to actually make the invention.  This “enabling” for a “person skilled in the art” is part of what the public gets.  When your temporary exclusive rights run out, we can all take advantage of your clever new invention.  Money made during the exclusive period works as a reward for your inventive mind as well as incentive for the rest of us to get out there and innovate.

Among other requirements, an invention must be “useful” to be eligible for a patent.  Just about anything can be “useful” in one application or another, but what about uses that society would not want?  Imagine Ted Kaczynski comes up with a cunning new way to disguise, package, and deliver explosive devices.  It seems patent, so to speak, that there is little “useful” about this invention.  Justice Story, better known for the Amistad case, posited that “a new invention to poison people, or to promote debauchery, or to facilitate private assassination, is not a patentable invention.”  Further, Justice Story indicated that “whether [the invention] be more or less useful is a circumstance very material to the interests of the patentee, but of no importance to the public.”  An invention can be “useful” for patentability purposes but have very little practical use. This doesn’t matter much to the rest of us because, as Justice Story put it, it “will silently sink into contempt and disregard.”

Courts have used Story’s reasoning to deny “useless” patents, usually of gambling devices or inventions to facilitate fraud.  Courts, over time, have shifted away from the sticky issue of morality and generally look toward “usefulness” with a pretty open mind.  In fact, the Federal Circuit explicitly stated that “years ago courts invalidated patents on gambling devices on the ground that they were immoral . . . but that is no longer the law.Juicy Whip, Inc. v. Orange Bang, 185 F.3d 1364 (Fed. Cir. 1999)  (Citations omitted, emphasis added).

In Juicy Whip, the invention was “designed to deceive customers by imitating another product and thereby increasing sales of a particular good.”  That court held that the “utility” requirement in the Patent Act of 1952 “[wa]s not a directive to the Patent and Trademark Office or the courts to serve as arbiters of deceptive trade practices.”  Further, the court pointed to 42 U.S.C. § 2181(a), which revokes all granted patents and denies patentability to anything “useful solely in the utilization of special nuclear material or atomic energy in an atomic weapon.”  Essentially, that court said potentially harmful uses of inventions are not the purview of the patent office and if Congress wants something specific barred from patentability, they will pass a law to that effect.

Now you’re probably thinking “wait a minute, what about our hypothetical patent application by Kazcynski?  Surely we, as a society, still draw the line somewhere?”  Of course we do, it’s just not the Patent Office’s job.  For example, the Federal Circuit in Juicy Whip cited to In re Watson, quoting “it is not the province of the Patent Office to determine, under section 101, whether drugs are safe.”  Other agencies are responsible for safety, the FDA in that case.  Cannabis is federally illegal, but enforcing that aspect of the plant is the purview of the DEA, not the Patent Office.

The Supreme Court has held that “Congress never intended that the patent laws should displace the police powers of the States, meaning by that term those powers by which the health, good order, peace and general welfare of the community are promoted.”  Generally, it seems that a patent on an invention with dubious merits will stand (at least with regard to ‘utility’) even if you might not be allowed to use (‘practice’) it in a given jurisdiction.  Individual states can -and do- determine for themselves how best to enforce cannabis possession, growth, distribution, sales, etc.  The Patent Office was not intended as an enforcer of federal laws.  Still, cannabis is federally illegal.

A plant can be patented.  Plant applications like this application for “Midnight,” a strain of cannabis with 1:1 ratio of Tetrahydrocannabinol (THC) to Cannabidiol (CBD), are curious because possessing one is almost always in violation of the Controlled Substances Act.  While many agree that both the courts and the USPTO have abandoned Justice Story’s observed limitations, the Federal Circuit in Juicy Whip does leave some room for denying a patent application if it could not be put to legal use.  Specifically, the Juicy Whip court cited Fuller v. Berger, 120 F. 274 (7th Cir. 1903) which would deny an invention “incapable of serving any beneficial end.”  Juicy Whip also quoted a much more recent case, clarifying that “the claimed device must be totally incapable of achieving a useful result” and the “test for utility” is “not merely that the device has been used for pernicious purposes, but that it is incapable of serving any beneficial end.”  Fuller referenced the Colt revolver and its inherently dangerous nature, then advocated that an invention is useful if it can be used “to accomplish a good result, though in fact it is oftener used (or is as well or even better adapted to be used) to accomplish a bad one.”  The question, then, is can a cannabis plant accomplish a good result in spite of its federal status?

There may be some plausible legal use for, say, handcuffs that administer electric shocks, even if torture is the first use that comes to mind.  That application has expired, but it’s an example of an invention with questionable “uses.”  Is an invention that has no legal use incapable of serving any beneficial end?  Granting a patent is not a guarantee from the government that you can use, or ‘practice,’ it.  A drug might be patented but be declared unsafe by the FDA, or the FTC might protect consumers from a deceptive invention.  Our laws are malleable, subject to review and change.  Cannabis being legal or not is also changeable.  In fact, legislators are currently working on changing cannabis’ legal status.

What if an inventor during alcohol prohibition created an efficient and safer process to isolate ethanol but was denied a patent?  One amendment to the Constitution later, that invention has legal applications.  Surely this is some injustice to the original inventor, society not upholding our end of the contract.  Also, if we legalize liquor, don’t we want more efficient and safer methods of production?  On the other hand, patent applications are public domain, so an application for an illegal invention by definition enables others to make it. (Though I think it is an unlikely criminal who peruses patent office materials in hopes of some improvement to their criminal empire).

If the USPTO does grant cannabis-related patents it will likely encourage more applications of this kind.  One of the effects of decriminalization is increased awareness and understanding of cannabis and cannabis products.  Cannabis consumers trying to create “butane hash oil” (BHO) have been increasingly blowing themselves up.  Presumably this is because more people are aware of BHO in the first place.  However, the public will subsequently become more aware of the dangers and perhaps less likely to engage in those methods.  Also, people may invent and patent safer and more reliable methods or machines to produce BHO.

An “illegal” invention could be safer than previous technologies, and could further public health concerns while ostensibly subverting federal law.  Consider a particular strain of cannabis with high CBD and low THC that, due to the differences in those active substances, may have medical uses without the psychoactive effects of cannabis.  We should encourage such limited uses and developments of a drug in the same way that we encourage it for other scheduled but better known drugs.  

Certain inventions, such as the physically impossible, provably lack use, but patents should not be denied for current illegality.  Certainly some patents have been granted for substances derived from cannabis plants, which means the inventor was working with those plants – a fact that was probably not overlooked by the Patent Office. Extending that to a patent on the plant itself is a small step. Also, cannabis has some utility, either in the present sense in states where cannabis has been decriminalized, or in the possible future of federal decriminalization.  If that isn’t enough, society can still benefit from increasing knowledge in the public domain while relying on other agencies, such as the DEA or, if legalized, the FDA, to enforce any application of a patented cannabis strain.

California’s Retail and Commercial Future with Legal Marijuana

If California legalizes marijuana in 2016, her citizens will have to decide a number of important questions as to the nature of marijuana sale and consumption within her borders. To address this, my writing will focus on questions regarding the potential future existence and regulation of retail point of sale cannabis consumption. Will marijuana be sold exclusively in the classic “dispensary,” with actual consumption of the marijuana allowed only within the privacy of the home, or will there be commercial establishments where cannabis can be bought and consumed socially on premises, similar to a bar serving cigars or alcohol? I will explore contemporary examples of point of sale consumption in Colorado and Washington, and how the interplay between local zoning laws and state and municipal smoking bans could affect the existence of similar businesses in California. All told, I intend my writing to illuminate the difficult choices Californians will need to make about their state’s future societal and commercial relationship with legal marijuana.

My name is Philip Brody, and I’m a current 3L at Santa Clara University School of Law. More importantly, I’m a native Californian who loves and cares about the future of my state. We Californians will have a number of very important electoral decisions to make in 2016, with marijuana legalization being among them. Through the Drug Law and Policy Project, I hope to provide a practical envisioning of what forms a future California could take with safe, legal marijuana.

Cannabis and Intellectual Property: To © or not to ©, and Other Pressing Questions

My contributions will primarily be analysis of different aspects of intellectual property in a market that has decriminalized cannabis while it remains federally illegal.  Can, and more importantly, should a state furnish intellectual property protections when they are unavailable from the federal government?  California’s possible shift from medical cannabis to recreational cannabis raises many questions about commercial and social costs and benefits to affording these protections.  While attorneys and businesses are largely approaching this topic from the perspective of private players,  my goal is to outline not just the various legal challenges and possible solutions to the concerns of cannabis-oriented businesses but, instead, to point out how a state can balance those private interests with public policy, safety, and health concerns.

I am a law student who studied science for my undergraduate degree. I am focusing on intellectual property law with an emphasis on patent prosecution. I am an associate on the Santa Clara High Tech Law Journal, and I have developed a strong interest in the intellectual property challenges presented to emerging markets and businesses.  Because of the politicized nature of these topics I am writing under a pseudonym, Lucilius, who was a friend and correspondent of one of my favorite writers.

Sending up Smoke Signals


Kendra Livingston
J.D. Candidate, 2016

I will be analyzing federal environmental and land use issues as they relate to state and tribal sovereignty. My first post will focus on the existing treaties between American Indian nations and the federal government as pertains to the regulation, sale, and cultivation of marijuana on tribal lands. I will focus on whether a tribal regulatory framework, carefully considered and crafted, would be above the reach of the Controlled Substances Act. Then I will be turning to the topic of water and resource utilization as it relates to the juxtaposition between federal and state marijuana regulation, especially in states where the agricultural industry is prevalent and water is scarce. I will also consider how state legislation or initiatives regulating or legalizing marijuana could be drafted to limit negative environmental impact.

As a second year law student and International Comparative Law Certificate candidate I am able to provide analysis of, and creative solutions to, the issues presented by drug law and policy. During my travels with the Santa Clara University School of Law, I have experienced the legal frameworks and researched national drug policies for both Cuba and the Netherlands. This summer I hope to take classes in Australia and develop an understanding for the policies utilized by that government in drug and substance abuse management. Last semester I was excited to be able to participate in the Drug Abuse Seminar taught by former Santa Clara Law Dean, Gerry Uelman, which advocated an end to the “War on Drugs” and more humane treatment of drug offenders. I am particularly interested in the environmental implications of California regulation (and possible legalization) of marijuana. Post-bar, I plan to work drafting policies to help put an end to the federal government’s controlled substance scheduling of marijuana.