The internet was set ablaze in late September 2018 after catching a whiff of the official marijuana policy of Los Angeles Airport (LAX), which allows individuals to possess marijuana on airport property in accordance with California state law. See Lilit Marcus, LAX Airport to Allow Marijuana in Carry-ons, CNN (Oct. 1, 2018), https://www.cnn.com/travel/article/lax-los-angeles-airport-marijuana/index.html. The five-sentence policy concludes with notices—or perhaps warnings—that TSA screening stations remain under federal jurisdiction and that marijuana laws may be different in the state in which a passenger lands. LAX Marijuana Policy, L.A. World Airports, https://www.flylax.com/en/lax-marijuana-policy (last visited Mar. 7, 2019). The problem presented by the LAX policy is exactly that—the uncertainty to which the conclusion of the policies allude—as improving the ability to predict legal outcomes is “[f]ar the most important and pretty nearly the whole meaning of every new effort of legal thought . . . .” Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 457–58 (1897).
I. LAX Marijuana Policy
The LAX policy, which took effect at the beginning of 2018, but was not posted to the LAX website until September, states that the Los Angeles Airport Police Division has “no jurisdiction to arrest individuals if they are complying with state law[,]” which permits adults over the age of twenty-one to possess up to eight grams of concentrated marijuana and 28.5 grams of marijuana for personal consumption. LAX Marijuana Policy, L.A. World Airports, https://www.flylax.com/en/lax-marijuana-policy (last visited Mar. 7, 2019). This policy came on the heels of the 2016 passage of the Adult Use of Marijuana Act, which legalized the recreational use and possession of marijuana when it took effect on January 1, 2018. See Megan Keller, LA Airport Allowing Passengers to Carry Marijuana, Hill (Oct. 1, 2018, 4:20 PM), https://thehill.com/homenews/state-watch/409326-lax-to-allow-passengers-through-security-with-marijuana. It is not surprising to see LAX become what is thought to be the first major airport to adopt such a policy, as California has been a pioneer throughout the history of marijuana legalization efforts. See Scott C. Martin, A Brief History of Marijuana Law in America, Time (Apr. 20, 2016), http://time.com/4298038/marijuana-history-in-america/. In 1996, California became the first state to legalize marijuana for medicinal purposes. Id.
While marijuana is legal in some capacity in thirty states, the recreational use or possession of marijuana is legal in only nine states and Washington, D.C. Jeremy Berke & Skye Gould, States Where Marijuana Is Legal, Bus. Insider (Jan. 4, 2019, 12:49 PM), https://www.businessinsider.com/legal-marijuana-states-2018-1. The LAX policy and hazy state of affairs left in its midst are juxtaposed against the backdrop of an American population that supports marijuana legalization at record levels, with 64% of Americans saying that they believe use of marijuana should be legalized according to a 2017 Gallup poll. See Justin McCarthy, Record-High Support for Legalizing Marijuana Use in the U.S., Gallup (Oct. 25, 2017), https://news.gallup.com/poll/221018/record-high-support-legalizing-marijuana.aspx?g_source=Politics&g_medium=newsfeed&g_campaign=tiles.
II. Current Procedures
As the LAX policy states, Transportation Security Administration (TSA) screening stations are under federal jurisdiction. LAX Marijuana Policy, L.A. World Airports, https://www.flylax.com/en/lax-marijuana-policy (last visited Mar. 7, 2019). TSA spokeswoman Lorie Dankers offered some words that may provide an unwarranted sense of security for passengers trying to fly with marijuana, stating that “TSA’s focus is on terrorism and security threats to the aircraft and its passengers.” James Hetherington, LAX Passengers Can Now Bring Weed on Flights, Newsweek (Sept. 28, 2018, 3:35 AM), https://www.newsweek.com/lax-passengers-can-now-bring-weed-flights-1143057. However, Dankers added that the ultimate decision of whether a passenger will be allowed to fly with marijuana will largely be up to the discretion of local law enforcement agencies, as TSA agents will not confiscate marijuana and will instead summon local police to handle the situation. See id. This approach by TSA makes it incredibly difficult to predict the potential outcomes of legal situations that travelers wishing to pack marijuana in carry-on luggage may encounter, because, as mentioned in the LAX policy, marijuana laws vary from state to state. See LAX Marijuana Policy, L.A. World Airports, https://www.flylax.com/en/lax-marijuana-policy (last visited Mar. 7, 2019).
III. Problems Arising from Lack of Uniformity
This lack of uniformity mentioned in the policy and the lack of a clear, useful federal response results in an inability to predict the outcome for a passenger carrying marijuana. See, e.g., The Associated Press, LAX Allows Pot in Airport but TSA Says It’s Still a Crime, WTOP News (Sept. 28, 2018, 12:50 AM), https://wtop.com/travel/2018/09/marijuana-now-ok-at-lax-but-getting-it-on-plane-may-be-hard/. If TSA summons the police to handle a situation at LAX, the Los Angeles Airport Police will let travelers who possesses marijuana in compliance with California law proceed on their way. See id.
However, the result becomes hazier upon the passenger’s arrival; even flying within the state of California is unpredictable, as San Diego International Airport does not have any policy on marijuana. Id. Likewise, a spokesperson for Denver International Airport in Colorado has stated that it is still illegal to possess marijuana on airport property because air travel is governed by federal authorities and marijuana possession is still against federal law. Id. However, the spokesperson noted that few people have been caught with marijuana at Denver International Airport, and those who have been caught by TSA or the Denver police are typically allowed to proceed on their way if they dispose of the marijuana. Id. If unforeseen difficulties arise, as they often do in air travel, a passenger traveling from LAX with marijuana may be subject to entirely different laws, and entirely different penalties, if weather or other circumstances cause an unexpected landing in a state that has not legalized marijuana. See id.
Beyond the lack of predictability, additional problems persist. The lack of uniformity also results in too much discretion being given to local law enforcement officers. See Rick Jones, Coming and Going—Racial Disparity in the Punishment and Profit of Marijuana, Medium (Feb. 27, 2018), https://medium.com/@NACDL/coming-and-going-racial-disparity-in-the-punishment-and-profit-of-marijuana-c33167a8c661. Enforcement of marijuana-related infractions involving any degree of discretion has traditionally been accompanied by racial disparities, even in legal states. See id. Likewise, racial discrimination in airports has become a disappointing reality of the post–9/11 world. See Michael T. Luongo, Traveling While Muslim Complicates Air Travel, N.Y. Times (Nov. 7, 2016), https://www.nytimes.com/2016/11/08/business/traveling-while-muslim-complicates-air-travel.html. Combining the two, likely a frequent result of interactions between airport personnel and travelers carrying marijuana, is sure to enhance the embarrassing disparities that currently exist in each area and emphasize the need to replace discretionary decisions with some clear standards and uniform procedures for TSA employees and local law enforcement alike. See Jones, supra; Luongo, supra.
In a system premised on prediction, the complications presented by state laws legalizing marijuana, and the marijuana policies of airports within those states, are enhanced when inserted into the context of air travel in a post–9/11 world. See Holmes, supra, at 457; see also Jones, supra; Luongo, supra. The current situation highlights the need for a greater degree of uniformity among the states or some explicit and uniform federal policy in an area of law that is already greyer than most others. “But certainty generally is illusion, and repose is not the destiny of man.” Holmes, supra, at 466.
*Joe Stephan is a second-year student at the University of Baltimore School of Law, where he serves as a staff editor for Law Review and is a Distinguished Scholar in the Royal Graham Shannonhouse III Honor Society. Joe is the Law Scholar for Professor Phillip Closius’s Constitutional Law I course and a Fellow of the MSBA-UB Business Law Clerkship Program. He spent this past summer working as a law clerk at Silverman|Thompson|Slutkin|White LLC, and was the Law Scholar for Professor William Hubbard’s Civil Procedure I course this past fall. See Joe’s past work here.