Can you refuse to comply with cannabis registration requirements on the theory that it violates your Fifth Amendment right not to incriminate yourself?
At least two courts have said no. But there’s a legitimate argument that those courts are wrong.
Participating in states’ cannabis industries often requires registering with the state governments. The exact registration requirements varies. But essentially, registration is anything that requires an application to the government.
Nevada’s medical marijuana program requires that persons register with the state government and obtain registry identification cards.
The District of Columbia requires that prospective medical marijuana cultivators file an application in which the applicants admit that they are violating federal law.
The City of Colton in California requires a permit for cultivating cannabis plants inside a private residence.
The Fifth Amendment
The Fifth Amendment Self-Incrimination Clause grants you the right to remain silent. The government can’t force you to say something that may show you committed a crime.
The criminal part of the Fifth Amendment here is no mystery. Federal law criminalizes cannabis. So anything linking you to it tends to show you committed a crime.
But what counts as force? Is the government forcing you to register to enter the cannabis industry? Or is that your choice?
Two Cases on Fifth Amendment Rights with Cannabis Registries
The Nevada Supreme Court (Doe v. State ex rel. Legislature of 77th Session of Nevada) and the District Court for the District Court of Columbia (Sidley v. Obama) have both said that compelled registration is a voluntary choice. You can enter the cannabis industry (and register). Or you can not enter the industry (and not register). And because you have that choice, you can’t claim a third option of entering the cannabis industry and not registering.
But these courts