People v. Crouse , 388 P.3d 39 ( 2017 )

JUSTICE EID

delivered the Opinion of the Court.

¶1 The state’s medical marijuana amendment, article XVIII, section 14(2)(e) of the Colorado Constitution, requires law enforcement officers to return medical marijuana seized from an individual later acquitted of a state drag charge. The federal Controlled Substances Act (“CSA”) prohibits the distribution of marijuana, with limited exceptions. 21 U.S.C. §§ 801-971 (2012). The question in this case is whether the return provision of section 14(2)(e) is preempted by the federal CSA. In a split decision, the court of appeals held that the return provision was not preempted by the CSA on the ground that § 885(d) of the CSA exempts those officers who are “lawfully engaged” in the enforcement of laws relating to controlled substances. According to the appellate court, officers returning marijuana pursuant to section 14(2) (e) are acting “lawfully” and the exemption thus resolves any conflict between the CSA and the return provision. People v. Crouse, 2013 COA 174, ¶¶ 32-33, — P.3d

¶2 We granted certiorari and now reverse. The CSA does not preempt state law on the same subject matter “unless there is a positive conflict between [a] provision of [the CSA] and that State law so that the two cannot consistently stand together.” 21 U.S.C. § 903 (2012). The return provision requires law enforcement officers to return, or distribute, marijuana. Distribution of marijuana, however, remains unlawful under federal law. Thus, compliance with the return provision necessarily requires law enforcement officers to violate federal law. This constitutes a “positive conflict” between the return provision and the CSA’s distribution prohibition such that “the two cannot consistently stand together.”

¶3 Moreover, the exemption relied upon by the court of appeals does not resolve this conflict. Section 885(d) of the CSA immunizes only those officers who are “lawfully engaged in the enforcement of any law ... relating to controlled substances.” 21 U.S.C. § 885(d) (2012) (emphasis added). This court has held that an act is “lawful” only if it complies with both state and federal law. Coats v. Dish Network, LLC, 2015 CO 44, ¶ 4, 350 P.3d 849, 851. The officers here could not be “lawfully engaged” in law enforcement activities given that their conduct would violate federal law. We thus conclude that, because section 14(2)(e) “positively] conflicts” with the CSA, and because § 885(d) does not protect officers acting unlawfully under federal law, the return provision is preempted and rendered void.

I.

¶4 On May 5, 2011, the Colorado Springs Police Department arrested Robert Crouse for cultivating and possessing marijuana with intent to manufacture in violation of state law. The police seized drag paraphernalia, fifty-five marijuana plants, and approximately 2.9 kilograms of marijuana product from Crouse’s home. He was charged with one felony count of cultivation of more than thirty marijuana plants and one felony count of possession of between five and one hundred pounds of marijuana with intent to distribute. At trial, Crouse asserted that he was a registered medical marijuana patient, and that state law authorized his cultivation and possession of medical marijuana. The jury acquitted him of both charges.

¶5 After trial, Crouse requested that the district court order the police to return the seized marijuana plants and marijuana pursuant to article XVIII, section 14(2)(e) of the Colorado Constitution. Under this provision, “marijuana and paraphernalia seized by state or local law enforcement officials from a patient ... in connection with the claimed medical use of marijuana shall be returned immediately upon ... the dismissal of charges, or acquittal.” Colo. Const. art. XVIII, § 14(2)(e). The People opposed the motion, arguing that the return provision of section 14(2)(e) conflicts with and is therefore preempted by the federal Controlled Substances Act. The People argued that the return of marijuana and related property would require them to “distribute” marijuana, in violation of the CSA. The district court rejected the People’s argument and ordered the return of the seized property.

¶6 The People appealed, arguing that the return provision of section 14(2)(e) conflicted with the CSA. In a split opinion, the court of appeals affirmed the district court’s decision, holding that the return of the marijuana would not violate the CSA due to the statute’s express immunity for law enforcement officers “lawfully engaged in the enforcement of any law ... relating to controlled substances.” 21 U.S.C. § 885(d). Because law enforcement officers would be enforcing section 14(2)(e), the court of appeals reasoned, the officers would be acting lawfully under § 885(d), and therefore no conflict exists. Crouse, ¶¶ 32-33.

¶7 In dissent, Judge Bernard would have held that because the return provision “requires police officers to violate federal law by engaging in affirmative conduct that the CSA forbids,” it “creates an obstacle to achieving the purposes and the objectives of the CSA” and is therefore preempted. Id. at ¶ 105 (Bernard, J., dissenting). Immunity under § 885(d) of the CSA, he continued, was not applicable because the officers could not be “lawfully engaged” in law enforcement activities that violated federal law. Id. at ¶ 106.

¶8 We granted review of the court of appeals’ opinion¹ and now reverse. Compliance with the return provision necessarily requires law enforcement officers to violate federal law. We therefore conclude that the return provision of 14(2)(e) “positive[ly] conflicts” with the CSA such that “the two cannot consistently stand together.” Moreover, the exemption relied upon by the court of appeals does not resolve this conflict. Section 885(d) immunizes only those officers who are “lawfully engaged in the enforcement of any law ... relating to controlled substances.” 21 U.S.C. § 885(d) (emphasis added). This court has held that an act is “lawful” only if it complies with both state and federal law. Coats, ¶ 4, 350 P.3d at 851. Here, the officers could not be “lawfully engaged” in law enforcement activities given that such conduct would violate federal law. We therefore hold that, because section 14(2)(e) “positively] conflicts” with the CSA, and because § 885(d) does not protect officers acting unlawfully under federal law, the return provision is preempted and rendered void.

II.

¶9 We review de novo the question of whether the return provision of article XVIII, section 14(2)(e) of the Colorado Constitution is preempted by the federal Controlled Substances Act.

¶10 In 2000, the Colorado Constitution was amended to allow persons “suffering from debilitating medical conditions” to use “medical marijuana.” Colo. Const. art. XVIII, § 14. Here we consider only section 14(2)(e) of article XVIII. Section 14(2)(e) provides that if marijuana is seized pursuant to an arrest, “such property shall be returned immediately upon an acquittal.” Colo. Const, art XVIII, § 14(2)(e).

¶11 Conversely, the CSA prohibits the distribution and possession of marijuana for nearly all uses. Under federal law, marijuana is classified as a Schedule I controlled substance, meaning that it has no acceptable medical use and cannot be legally prescribed. 21 U.S.C. § 812(c)[ (Sched. I)](c)(10) (2012); see also 21 U.S.C. § 812(b)(1)(A)-(C) (2012). There is no exception for marijuana use for medical purposes, nor is there an exception for use in compliance with state law. See Gonzales v. Raich, 545 U.S. 1, 14, 125 S.Ct, 2195, 162 L.Ed.2d 1 (2005). The CSA states that “it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1) (2012).

¶12 However, § 885(d) provides an exemption under the CSA for law enforcement officers in certain situations. Section 885(d) states that “no civil or criminal liability shall be imposed by virtue of this subehapter ... upon any duly authorized officer of any State, territory, political subdivision thereof, the District of Columbia, or any possession of the United States, who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.” 21 U.S.C. § 885(d).

¶13 Under the Supremacy Clause of the United States Constitution, the “Constitution, and the laws of the United States ... shall be the supreme law of the land .., anything in the constitution or laws of any state to the contrary notwithstanding.” U.S. Const. art. VI, cl. 2. “Under this principle, Congress has the power to preempt state law.” Arizona v. United States, 567 U.S. 387, -, 132 S.Ct. 2492, 2500, 183 L.Ed.2d 351 (2012). The CSA includes its own preemption language. Section 903 of the CSA states that the CSA will not preempt state law on the same subject matter “unless there is a positive conflict between [a] provision of [the CSA] and that State law so that the two cannot consistently stand together.” 21 U.S.C. § 903. We thus must determine whether a “positive conflict” exists between the CSA and the return provision in section 14(2)(e) such that “the two cannot consistently stand together.”

¶14 Section 14(2)(e) requires law enforcement officers to return seized marijuana and marijuana products to medical marijuana patients after an acquittal. Colo. Const. art. XVIII, § 14(2)(e). The CSA, however, prohibits the distribution of marijuana without regard to whether state law permits its use for medical purposes. 21 U.S.C. § 841. The CSA defines “distribute” to mean “to deliver a controlled substance or a listed chemical.” 21 U.S.C. § 802(11) (2012). The CSA further defines “deliver” to mean “the actual, constructive, or attempted transfer of a controlled substance.” 21 U.S.C. § 802(8) (2012). An officer returning marijuana to an acquitted medical marijuana patient will be delivering and transferring a controlled substance. Therefore, based on the CSA definition, when law enforcement officers return marijuana in compliance with section 14(2)(e), they distribute marijuana in violation of the CSA Because compliance with one law necessarily requires noncompliance with the other, there is a “positive conflict” between section 14(2)(e) and the CSA such that the two cannot consistently stand together.

¶15 We also must consider whether § 885(d) resolves this conflict. The § 885(d) exemption immunizes only those officers who are “lawfully” engaged in the enforcement of a law relating to controlled substances. 21 U.S.C. § 885(d). The court of appeals suggested that because the return provision requires law enforcement officers to return marijuana, their actions in compliance with that law are “lawful.” We disagree.

¶16 In construing undefined statutory terms we look to the language of the statute itself “with a view toward giving the statutory language its commonly accepted and understood meaning.” People v. Schuett, 833 P.2d 44, 47 (Colo. 1992).

¶17 The term “lawful” as it relates to conduct permitted by state law but prohibited under federal law has already been considered by this court in Coats v. Dish Network, LLC, 2015 CO 44, ¶ 4, 350 P.3d 849, 852. In Coats, we considered how Colorado’s medical marijuana law interacted with section 24-34-402.5, C.R.S. (2014), which prohibits an employer from terminating an employee for his or her “lawful” outside of work activities. Coats, ¶ 15, 350 P.3d at 852. In that ease, the plaintiff was terminated when he tested positive for marijuana in violation of his employer’s drag use policy. The plaintiff argued that the termination was improper because his marijuana use was “lawful” under Colorado medical marijuana laws. Id. at ¶ 7, 350 P.3d at 851. We disagreed, concluding that “the commonly accepted meaning of the term ‘lawful’ is that which is permitted by law or, conversely, that which is not contrary to, or forbidden by law.” Id at ¶ 17, 350 P.3d at 852. Applying this definition, we held that “an activity such as medical marijuana use that is unlawful under federal law is not a ‘lawful’ activity under section 24-34-402.5.” Id. at ¶ 13, 350 P.3d at 851.

¶18 The term “lawful” is not defined in the CSA. However, we look to the plain meaning of a term in interpreting a federal statute just as we would look at the plain meaning of a term in interpreting a state statute. See, e.g., FDIC v. Meyer, 510 U.S. 471, 477, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (“In the absence of ... a definition [of a term in a federal statute], we construe a statutory term in accordance with its ordinary or natural meaning.”). As we stated in Coats, the plain meaning of “lawful” is “that which is permitted by law or, conversely, that which is not contrary to, or forbidden by law.” Coats, ¶ 17, 350 P.3d at 852. Consistent with our holding in Coats, then, we again find that conduct is “lawful” only if it complies with both federal and state law. Because compliance with the return provision necessarily requires law enforcement officers to violate federal law, officers complying with that provision cannot be said to be acting “lawfully” and thus are not protected by § 885(d)’s exemption.²

¶19 We therefore hold that the return provision of section 14(2)(e) is in positive conflict with and thus preempted by the federal Controlled Substances Act. The exemption relied upon by the court of appeals protects only those officers acting lawfully under both state and federal law and is thus inapplicable here.³

III.

¶20 For the reasons stated above, we reverse the decision of the court of appeals.

JUSTICE GABRIEL dissents, and CHIEF JUSTICE RICE and JUSTICE HOOD join in the dissent.

1 . We granted certiorari to review whether, in a matter of first impression, the court of appeals erred in concluding that the federal Controlled Substances Act does not preempt article XVIII, section 14(2)(e) of the Colorado Constitution, where the state directive requires law enforcement officers to distribute marijuana to medical marijuana patients in violation of the CSA’s prohibition of such acts.

2 . The court of appeals erred in its reliance on case law permitting sting operations under the CSA for its conclusion that officers acting pursuant to section 14(2)(e) would be protected by § 885(d)’s exemption, Crouse, ¶ 37, 388 P.3d at 45, because such sting operations are "lawful" enforcement and consistent with federal law. See, e.g., United States v. Cortes-Caban, 691 F.3d 1, 20-21 (1st Cir. 2012). . ,

3 . Because we find that section 14(2)(e) is preempted under the terms of the' CSA preemption provision, we need not consider whether other preemption principles would apply as well.