Local Pot Theft Is Interstate Commerce, SCOTUS Says

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By Kimberly Strawbridge Robinson and Patrick Gregory

June 20 — Robberies targeting marijuana are subject to federal jurisdiction even if the drugs were homegrown, the U.S. Supreme Court ruled June 20 ( Taylor v. United States, 2016 BL 195656, U.S., No. 14-6166, 6/20/16 ).

The court's broad application of the Hobbs Act—permitting federal prosecution of robberies or extortions that affect interstate commerce—means that a robbery targeting even a single cigarette of homegrown marijuana could result in federal prosecution.

That result is “straightforward and dictated by our precedent,” Gonzales v. Raich, 545 U.S. 1 (2005), Justice Samuel A. Alito Jr. wrote for the 7-1 court.

The decision underscores that all the marijuana activities businesses are doing under the cover of state legalization laws are still criminal under federal law, Professor Marsha Cohen, of the University of California, Hastings College of Law, told Bloomberg BNA June 20.

Cohen's scholarship focuses on food and drug law.

But the case probably doesn't change very much in the world of marijuana legalization, Sam Mendez, of the University of Washington School of Law's Cannabis Law and Policy Project, Seattle, told Bloomberg BNA June 20.

Drug Theft

This case doesn't deal with legal or illegal drug sales. Instead, it deals with drug theft.

Here, Anthony Taylor and his “Southwest Goonz” gang targeted drug dealers for a series of robberies in their homes, the court said.

Although Taylor made off with very little—a couple of cell phones, some jewelry, $40 and a marijuana cigarette—he was convicted under the Hobbs Act, 18 U.S.C. §1951(a), which carries a sentence of up to 20 years in prison.

The court rejected Taylor's argument that the Hobbs Act requires that the government prove that the robbery was related to interstate commerce.

In Raich, the Supreme Court said that Congress can regulate the market for even purely local marijuana under the commerce clause, the court explained.

“Because Congress may regulate these intrastate activities based on their aggregate effect on interstate commerce, it follows that Congress may also regulate intrastate drug theft,” the court held.

Lone Dissent.

The dissent is Thomas's fifth lone dissent this term, according to research conducted by Bloomberg BNA.

Of the eight cases decided this term with one justice in dissent, Thomas is the only justice to have been the lone dissenter more than once. The other lone dissenters this term are Alito, Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Thomas may be discovering that he is the last vestige of the “old guard” for conservatives on the court, now that Justice Antonin Scalia is gone, Little said.

Chief Justice John G. Roberts Jr. and Alito are more of the “new guard,” he added. They aren't as rooted in the “states' rights vision of federalism,” Little said.

Another Notch

Cohen wondered why the federal government even got involved in this case. When you think of home invasions, you think of the local police, she said.

But the case demonstrates that the federal government isn't ceding its marijuana policy to the states, Mendez said.

Marijuana is still a Schedule 1 drug under the Controlled Substances Act, and the federal government isn't going to change its stance just because Washington and Colorado have legalized it, he said.

Still, the case isn't likely to become a landmark decision, Mendez said.

“It's just another notch on the bedpost for how the federal government approaches marijuana.”

Moreover, the case is unlikely to affect commerce clause jurisprudence in general, Mendez said.

The commerce clause power has always been known to be very broad, Cohen said.

While this case grafts that broad understanding of interstate commerce onto the Hobbs Act, the court goes to great lengths to try to limit the case to this particular set of circumstances—namely, robberies targeting drug dealers, Mendez said.

Weakens Protections

That was still too broad for Justice Clarence Thomas, however, who was the only justice to dissent.

The decision “weakens longstanding protections for criminal defendants” by relieving the government of its “especially high” burden of proving every element of the crime beyond a reasonable doubt, he said.

Here, the majority holds that, as a matter of law, the interstate commerce element is met whenever the target of a robbery is a drug dealer, Thomas said.

Thomas's dissent is fueled by his federalism concerns, Rory Little, also at UC Hastings College of Law, told Bloomberg BNA June 20.

Thomas is concerned with the reach of the federal government, and what limits can be placed on its ability to encroach on states' police powers, Mendez said.

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