Photo by BenBalter.

If you’re one of the brave entrepreneurs that’s thinking of jumping into the business of growing or supplying medical marijuana in the District, it’s not the usual concerns of location and profit margins that might cross your mind — it’s also the fact that, despite what the District says, marijuana is still illegal.

The tension between the federal government and the 17 states that have authorized the use of marijuana for medicinal purposes reached a boiling point in late June when the Department of Justice sternly reminded local officials across the country that the federal government could still prosecute individuals for growing or distributing marijuana, regardless of whether the state or city they were in allowed them to do it.

The warning left D.C. officials in the lurch — how could they implement the city’s long-overdue medical marijuana program while limiting their legal liability? Simple — fine print.

When the District opened the application process for the program’s 10 cultivation centers last Friday, it included an “Acknowledgment and Attestation Form” (PDF here) that is required of all applicants. The form asks applicants to confirm that they have never been arrested for convicted of a felony or a drug-related misdemeanor, don’t owe the city back taxes and have read the lengthy rules governing the program. But, more importantly, is this section, titled “Federal Prosecution”:

The United States Congress has determined that marijuana is a controlled substance and has placed marijuana in Schedule I of the Controlled Substance Act. Growing, distributing, and possessing marijuana in any capacity, other than as a part of a federally authorized research program, is a violation of federal laws. The District of Columbia’s law authorizing the District’s medical marijuana program will not excuse any registrant from any violation of the federal laws governing marijuana or authorize any registrant to violate federal laws.

For those of you not fluent in legal acrobatics, the heart of this clause is simple — even though the District is formally issuing licenses to individuals to grow and dispense marijuana (albeit only to qualifying patients), no one should actually take that as authorization to break federal law. Even though, as you might note, those very licenses allow their recipients to, well, grow and dispense marijuana in the District, which is, well, against federal law.

If that’s not enough, the form also includes two clauses that completely indemnify the District against any legal liability or responsibility stemming from the implementation of the program. So, should a cultivation center or dispensary be raided by the feds and its proprietors arrested, the District will remain free of blame, even though it formally licensed the activity that got the people in trouble to begin with. (Local medical marijuana advocates note that this entire problem could be avoided if home cultivation were allowed.)

As obnoxious as these legal qualifiers seem, it’s unlikely that the District’s medical marijuana program would have moved on without them — the recent DOJ memo specifically called out individuals who “knowingly facilitate such activities” for possible prosecution. That wasn’t lost on any city officials, who recognized that granting a license to someone else to grow marijuana would likely qualify as “knowingly facilitating” the violation of federal laws.

Both Arizona and a local medical marijuana entrepreneur have filed lawsuits seeking to stop enforcement of federal drug laws in states with medical marijuana programs until a federal court can rule on where federal law ends and states’ rights begin. The local lawsuit, filed by Montgomery Blair Sibley, additionally asks a court to consider whether the feds can prosecute marijuana cases in the District when the city’s medical marijuana program was approved by Congress.