Various states have enacted laws legalizing marijuana in some form, either for medical purposes and/or recreational use. For those considering relocating, you might want to think about Alaska, Washington state, or Colorado. In Alaska, it is legal for adults 21 years and older to transport, buy or possess up to an ounce of marijuana and grow up to six plants for individual use. In Washington state, persons over the age of 21 can carry up to one ounce of marijuana, commercial sales of the drug are allowed, with the requisite licenses. Similarly Colorado voters approved “Amendment 64” legalizing the personal use and commercial sale of marijuana. Under Colorado law, it is legal to carry up to an ounce of marijuana for personal use and it is legal to grow marijuana for commercial purposes with the appropriate license.

Before you move to one of these states for “greener pastures” (literally and figuratively) you should be aware that a lawsuit has been filed alleging that the federal drug laws preempt state law on the issue of whether marijuana is legal. On March 5, 2015, Sheriffs from Colorado and elsewhere filed a lawsuit against the Governor of Colorado alleging that the Colorado law allowing recreational use of marijuana and its commercial sale is preempted by the federal Controlled Substance Act. Smith v. Hickenlooper, Case No. 1:15-cv-00462, United States District Court for the District of Colorado. The Complaint alleges that “Amendment 64 pursues only one goal – legalization of marijuana – a goal which is diametrically opposed to the many objectives which Congress has established, and repeatedly reestablished, for the United States’ anti-drug policy and practice for marijuana as a controlled substance.”

The lead plaintiff in the lawsuit, Sheriff Justin Smith of Larimer County, Colorado stated in a press release, “All sheriffs in Colorado swear an oath of office to protect both the U.S. and the Colorado Constitutions. Amendment 64 renders that oath impossible by forcing us to choose which Constitution we will protect.” Sheriff Chad Day of Yuma County, Colorado noted “As a Colorado sheriff, I am put in an untenable position because virtually every time I support Colorado’s marijuana law, I violate federal law, and virtually every time I attempt to support federal law, I violate Amendment 64.”

So which laws do the sheriffs in Colorado enforce: the Colorado law legalizing marijuana or the federal law prohibiting it? As this case winds its way through the legal process we will all find out the answer.

While a comprehensive analysis of the federal drug laws and the Colorado law legalizing marijuana is outside the scope of this post, employers have “a dog in this fight.” For example, if marijuana is presumptively legal under state law but not federal law, what should an employer do if an employee is in possession of (but not using) marijuana on company property? What should the employer do if several employees are sharing marijuana growing tips in the break room?

To say this is an emerging area of the law would be an understatement. Should the Smith v. Hickenlooper case make it all the way up to the United States Supreme Court, it could give us the answer to whether state laws legalizing marijuana are enforceable despite federal drug laws. Regardless, the case will provide some interesting insight on where Colorado’s federal courts stand on the issue. Meanwhile, employers should re-examine their drug policies and clarify the company’s position on employee marijuana possession and use at work and on company business.