Medical Marijuana’s Catch-22

When medical marijuana is legal statewide but illegal under federal law, things get tricky for patients.

Photo Illusttration by Dair Massey/The Daily Beast

Once a week, 50-year-old Raymundo Marrufo drives 22 miles from Deming, New Mexico to the state’s second largest city, Las Cruces. It’s the medical marijuana dispensary that brings him there, the closest place to his home where he can fill a prescription for cannabis to treat PTSD.

The drive isn’t bad, a straight shot down a desert highway in Southwest New Mexico, but it lands him in the middle of a Border Patrol checkpoint. There he waits in a line full of cars to be questioned. Some of the ones he’s asked (“Do you have proof of citizenship?”) are easy. Others, like this one, are not: “Do you have any illegal drugs?”

It’s a standard question from a Border Patrol agent, a key part of their effort to secure the nation’s borders. But for those in possession of a drug that’s legal in the state but illegal under federal law, it’s one with no right answer.

If Marrufo admits to having marijuana in his car, he’s in danger of a drug trafficking felony; if he denies it, he could be accused of lying to a federal agent. It’s a trap, perhaps an unforeseen one, but a trap nonetheless. You’re damned if you do, you’re damned if you don’t. A Catch-22—or, in this case, a Catch-420.

After facing this predicament too many times, Marrufo filed an injunction against Border Patrol. In it, he argues that Border Patrol’s actions violate the Rohrabacher Amendment, the historic marijuana reform bill passed by Congress in 2014. The bill prevents federal agencies from impeding on state medical marijuana programs, which Marrufo insists the agents are doing.

“Whether it is a sense of entitlement, indifference or simply ignorance of the law, the court must immediately issue an injunction enjoining the United States Border Patrol from asking questions and conducting searches that violate that Rohrabacher Amendment,” the complaint states.

The legal landscape of marijuana in the U.S.—even for someone well acquainted with the subject—is complicated. The drug, although legal for medicinal purposes in 24 states (and recreationally in four), remains illegal under federal law. Until it’s removed from the Drug Enforcement Administration’s Schedule I substance list, illegal it will remain.

Medical cannabis has been legal in New Mexico since 2007, when then Governor Bill Richardson signed the Lynn and Erin Compassionate Use Act into law. The state currently has an estimated 18,000 registered patients today with conditions ranging from epilepsy to Crohn’s Disease.

But despite the legality of the drug for medicinal purposes, Marrufo still runs the risk of being arrested. He’s not alone. With 71 interior Border Patrol checkpoints—33 of which are permanent—other medical marijuana patients are facing the same predicament.

Justin Sevey, a medical marijuana patient in New Mexico, told local news that his “palms get sweaty and heartbeat races” when he drives through checkpoints with his medical cannabis. “I don’t know why I even feel this. I should have nothing to be afraid of,” he said. The fear was so debilitating that he now basically avoids it all together.

The problem even extends to cannabis deliverymen, who are often driving medical marijuana to people who are too sick to leave their homes. One such person, Josh Zapata, tacks extra hours onto his trip by driving down back roads—sometimes even “up and down steep mountain passes” to deliver cannabis to his patients.

The former Marine, who has a state-issued medical marijuana card, said it makes the job difficult. “I’m a little bit paranoid about them,” he told the SF Reporter in 2013. “If they tie my face to the industry, it’s going to be really easy to flag me down.”

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The American Civil Liberties Union has repeatedly voiced concerns with Border Patrol, even creating a fact sheet for citizens titled Know Your Rights With Border Patrol. New Mexico’s state government seems less concerned with protecting the rights of medical marijuana patients and more with defending Border Patrol agents.

In 2013, New Mexico Governor Susana Martinez said that Border Patrol has the right to question and act however they see fit. “If they find that marijuana they are able to do what they please because they don’t enforce state law they enforce federal law,” said Martinez. The Daily Beast’s request for comment from her office was not returned.

Jason Flores-Williams, Marrufo’s attorney, calls the issue a nightmare. “When they go through these checkpoints, they do not know if this is the day that their lives are destroyed,” he says. “And when you think about the fact that most of these people are sick or suffering from PTSD, then the burdens and stresses become even more nightmarish. Rather than helping these people, we are making their lives worse.”

Rather than monetary damages Marrufo requests that the Court “issue a permanent injunction that the United States Border Patrol cease… questioning US citizens regarding medical cannabis in any states where the use of medical cannabis has been approved.”