A motion to dismiss has been filed in a widely watched federal medical marijuana case involving a family from rural northeastern Washington State. Larry Harvey, 71, of the Kettle Falls Five has moved for dismissal of his case or an order preventing further prosecution. The motion relies on the recently enacted Congressional measure that bans funding for medical marijuana enforcement by the Department of Justice (DOJ).
“Prosecuting persons who may be operating in compliance with state medical marijuana laws prevents states from implementing their own laws,” reads the brief written by Harvey’s attorney Robert Fischer. Harvey’s motion argues that state law is undermined by discouraging lawful patients from accessing medical marijuana because of the threat of federal prosecution. Harvey also argues that “federal prosecutions take away Washington’s authority to determine for itself whether someone is in compliance with its laws or not.”
Harvey’s motion to dismiss comes just a month after President Obama signed the so-called “Cromnibus” spending bill, which included Section 538, an historic rider that prohibits DOJ funds from being spent to block implementation of state medical marijuana laws. Advocates argue that federal prosecutions like that of the Kettle Falls Five run contrary to the spirit and letter of the law now in effect.
The Kettle Falls Five is made up of mostly family members, including Harvey, his wife Rhonda Firestack-Harvey, 56, her son Rolland Gregg, 33, daughter-in-law Michelle Gregg, 36, and friend of the family Jason Zucker, 39. Larry and Rhonda are retired and have a home in rural Washington State near the town of Kettle Falls. All five are legal patients with serious medical conditions, including Larry who was recently diagnosed with State IV pancreatic cancer, which has metastasized to his liver.
In August 2012, the Drug Enforcement Administration (DEA) raided the property and seized 44 premature marijuana plants, charging the five with conspiracy to manufacture and distribute marijuana, manufacture and distribution of marijuana, maintaining a drug-involved premises, and possession of firearm in furtherance of a drug trafficking crime. Federal agents also confiscated the family’s 2007 Saturn, $700 in cash, their legally owned firearms, and other personal property. Each defendant faces a mandatory minimum sentence of 10 years in prison.
Larry Harvey has been working with medical marijuana advocacy group Americans for Safe Access (ASA), which hosted his travel to Washington, DC on two occasions last year to lobby for passage of the Congressional measure restricting federal enforcement. ASA also held a DC lobby day in April focused on the measure’s passage. “The law that was signed last month by President Obama was designed precisely for patients like Larry Harvey,” said ASA Executive Director Steph Sherer. “If this law doesn’t stop federal prosecutions like the Kettle Falls Five, nothing likely will.”
A hearing on the motion to dismiss is scheduled for February 12th at 10am in U.S. District Court in Spokane, Washington, before Judge Thomas O. Rice. Trial is currently set for February 23rd.