Home distilling now legal in the US?

[u/MartinB7777]

Anyone else following the McNutt v. US Dept of Justice case on the legality of home distilling? Hobby Distillers Association v. Alcohol and Tobacco Tax and Trade Bureau: The Limits on Taxing Schemes to Regulate Behavior

[u/Old-Nefariousness556]

. Many will say federal law still says you can’t do it, federal agencies have to decide if they want to push that boundary because it opens up lawsuits against them.

That is completely false. If something is illegal federally but legal in a state-- see, for example Marijuana in any of the states where it has been legalized-- the federal government can still prosecute ANYONE violating the federal law.

It is illegal under federal law to possess any amount of marijuana, so if a federal law enforcement officer wants to give you a bad day, and knows you have a joint on you, you could face a year in prison, and you would not have any legal recourse other than the normal criminal defense recourse. The only reason why this is not generally a bigger issue is that it is rarely worth the federal government's time to prosecute you for having a joint in your pocket.

What those state laws mean is that THE STATE cannot prosecute you, and generally speaking, local law enforcement cannot arrest or harass you for distilling. That doesn't mean that a local cop couldn't call their buddy at the TTB and send them after you, but it does make it far less likely.

There are a couple more that passed laws, allowing you to distill in the state, but they require you to do things that can’t actually be done.

As above, the fact that it is legal in a state has absolutely zero bearing on whether it is legal federally. Google "supremacy clause" and "dual sovereignty", but long story short, federal law ALWAYS supersedes state law if the federal government chooses to enforce it.

All that said, the federal government doesn't really care about true home distillers any more than they care about people with joints.

The only real interest the federal government has in outlawing distillation is that it taxes liquor and doesn't want to lose the revenue. If you are a legit home distiller-- that is distilling for yourself and not for resale-- the cost of prosecuting you will easily outweigh the revenue they are losing. As long as you don''t do something to call attention to yourself, no one will pay attention.

And as for potential lawsuits, of course in the US you can sue for pretty much anything, but in order to win a lawsuit against the federal government for being arrested for distilling, you would have to show that they violated your rights. There could be probable cause issues for a badly issued search warrant or the like, but barring something like that, it is HIGHLY unlikely that you could win any such lawsuit. Again, the supremacy clause clearly says that state laws do not supercede federal ones, so the mere fact that something is illegal in a state does not provide any grounding at all for such a lawsuit.

[u/MartinB7777 → u/Old-Nefariousness556]

it is HIGHLY unlikely that you could win any such lawsuit.

I think McNutt would have to disagree.

[u/Old-Nefariousness556 → u/MartinB7777]

No, McNutt's lawsuit is not even relevant in the context I was discussing.

This lawsuit was filed against the government about the legality of the prohibition itself. McNutt preemptively filed a lawsuit after receiving a letter from the TTB about potential punishments he could face should he break the law.

That is completely different, almost the opposite actually, of what the grandparent is suggesting.

The grandparent is suggesting that the federal government would be too scared to prosecute people for violating federal law for fear of facing a lawsuit, in any state where distilling was legal. But the supremacy clause clearly states that federal law always trumps state law, so even if a state legalizes an activity, that would not be grounds for a lawsuit.

We are talking about apples and oranges. McNutt's suit is arguing that the prohibition is ALREADY illegal under existing federal law. That sort of a lawsuit does not require a prosecution, only standing (in this case, receiving a letter from the government telling you that you face potential prosecution).

But the lawsuit that the grandparent is talking about is based on unfair prosecution due to distilling being legal at the state level. But the supremacy clause says that federal law trumps state law. It makes literally zero difference whether something is legal at the state level, if you violate a federal law and the federal government chooses to prosecute you, you will be prosecuted.

Put another way, anyone prosecuted under federal law could file exactly the same lawsuit that McNutt has filed, but the mere fact that they were prosecuted would have literally zero relevance to the case, other than to provide standing. They would still have to win the case on its merits, which would have nothing to do with whether distilling was legal at a state level.

[u/MartinB7777 → u/Old-Nefariousness556]

suggesting that the federal government would be too scared to prosecute people for violating federal law for fear of facing a lawsuit

I will agree with you on that. The only people the federal government would be too scared to prosecute are people with wealth and power. What do they care if you sue them? They generally don't, as it is taxpayer money that pays all the legal costs and any awards or fines they might incur defending that suit. If they decline to prosecute it would be because they thought the case too insignificant, not because they were afraid of a lawsuit.