The U.S. Supreme Court in Washington D.C.

Richard Gillin

Trump’s Supreme Court Nominee Has No Prohibitionist Red Flags

Judge Neil Gorsuch, President Donald Trump’s Supreme Court Nominee, has ruled on just three cannabis-related cases in recent years while serving on the 10th Circuit Court of Appeals in Denver, Colorado, which makes it difficult to determine how he might rule on such cases on the federal bench, according to a Vice report. He is, though, known as a states’ rights advocate which could be good news for the cannabis industry.

In December 2015, Gorsuch ruled against a Colorado dispensary in a case against the Internal Revenue Service; but in his opinion he seemed sympathetic to the business owners, saying that the government has sent “mixed messages…about the distribution of marijuana.” In that case, the dispensary owners sought to use Fifth Amendment protection against self-incrimination, which would have allowed them to keep their business a secret and reduce their tax bill.

“So it is that today prosecutors will almost always overlook federal marijuana distribution crimes in Colorado but the tax man never will,” Gorsuch wrote in that decision. “…the government simultaneously urged the court to take seriously its claim that the petitioners are violating federal criminal law and to discount the possibility that it would enforce federal criminal law.”

In a 2013 case against a police officer who used a taser on suspect who fled trying to avoid being arrested for an illegal grow, Gorsuch wrote the majority opinion. The suspect died due to a heart condition and his parents sued. In his opinion, Gorsuch opined that the although “illegal processing and manufacturing marijuana may not be inherently violent crimes” the use of force was reasonable because the suspect was a felon under state law at that time.

In a 2010 case, the court ruled against a couple accused of selling cannabis illegally who used the Religious Freedom Restoration Act as their defense. In that case, the 10th Circuit ruled that the act didn’t apply to the couple because “their marijuana dealings were motivated by commercial or secular motives rather than sincere religious conviction.”

Alex Kreit, director of Thomas Jefferson School of Law’s Center for Law & Social Justice, said that there was nothing to indicate Gorsuch would be strongly opposed to cannabis legalization.

“There isn’t anything in his record that suggests he is a hardline anti-marijuana, pro-mandatory minimum zealot in the mold of Jeff Sessions — at least not that I’ve seen,” Kreit said in the report. “And there are at least some cases that suggest he’s willing to rule in favor of individual rights and against the government in some criminal justice cases.”

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