Back In the Closet 

California medical cannabis patients are increasingly being forced to hide behind closed doors as bans on dispensaries and home cultivation sweep through the East Bay.

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California's initiative process is unique in that voters can go over the heads of politicians, city managers, and chiefs of police to directly write the law. Fueled by San Francisco activists battling the AIDS crisis, Prop 215 created a medical defense in court against prosecution for many marijuana crimes. And it sent law enforcement officials into fits.

After Prop 15 passed, then-California Attorney General Dan Lungren assembled a conference of about three hundred cops from across the state. First, they decided to target any doctor who wrote recommendations. Physicians, as a result, had to fight in court to clarify their First Amendment right to recommend cannabis — though most are still too scared or ignorant about their rights to exercise them, said Dr. Donald Abrams, chief of Oncology and Hematology at San Francisco General Hospital.

Led by vocal opponents of Prop 215 at the California Police Chiefs Association, the California Narcotic Officers Association, and some officials within the federal government, police continue to exploit loopholes in the measure to harass patients, ex-cops say.

Patients also have had to fight in court to clarify their right to recover unlawfully confiscated pot and paraphernalia from the police. And patients had to fight for immunity from arrest, which they got with Senate Bill 420 in 2003. The law also created a state medical pot ID card, as well as the right to associate to collectively cultivate and distribute cannabis.

The legislation led to the first dispensaries in bastions of reform like Oakland and Berkeley. But red areas of the state dug in their heels. The City of San Diego, for example, had to be taken to court and forced to issue the ID cards called for under SB 420 — and some counties still won't issue them.

Meanwhile, the rest of the country moved on. In 2009, the Obama administration issued the so-called Ogden Memo, a legal opinion that was widely viewed at the time as marking the beginning of the end of the war on medical pot. Amid the worst recession since the Great Depression, the memo spurred a marijuana dispensary-boom across California. Pot became one of the few promising industries in the state during the Great Recession. And police fumed.

In 2010, the state appeared to be ready to legalize pot for all adults. But then the nation's top cop, US Attorney General Eric Holder, flew to the Golden State to denounce Proposition 19. The measure's 52-48 lead in the polls quickly evaporated, and it lost on Election Day 46 percent to 54.

Police and illegal drug cartel leaders cheered, and, in 2011, a second White House memo clarified that all commercial medical marijuana activity was fair game for police action. The so-called Cole Memo emboldened local chiefs and led to the launch of a joint federal-state medical pot crackdown. US attorneys threatened thousands of landlords with property forfeiture as raids swept the state. Thousands of dispensaries closed. San Diego's dispensary count went from more than two hundred to zero; Sacramento County went from more than one hundred to zero.

"There was like one-two punches coming at the industry for the last three years," Spradlin said.

Cities, counties, and federal prosecutors played whack-a-mole with clubs through 2012 and into 2013, forcing them to close, reopen elsewhere, and close again. Then the disastrous California Supreme Court ruling came down.

In the case of City of Riverside v. Inland Empire Patient's Health and Wellness Center, Inc., et al., the high court reviewed a series of appellate court decisions concerning the right of cities to ban dispensaries. The court found that patients had no lawful right to access pot — under the law they only had a shield from being prosecuted in court. "It represented a devastating defeat for patients," said Kris Hermes, spokesperson for Americans for Safe Access. "It entrenched the patchwork system."

"I'm still stunned. I think it's lunacy," said 59-year-old Ojai resident Risa Horowitz, who has to commute ninety miles to the nearest dispensary to treat chronic back pain. She had her first back surgery in her twenties. "It's a burden," she said, adding that she believes the California Supreme Court has abandoned the citizens of the state. "I think it's barbaric and criminal of our elected officials to perpetuate that cannabis is an illegal plant.

"Can you imagine if cities banned pharmacies?" she continued. "That's essentially what they are saying. It just happens to be a natural pharmacy."

After the high court's ruling, cities with bans on the books doubled down on enforcement, and holdout clubs in ban towns shut their doors and went to delivery-only.

But Riverside did more than just affirm a city's right to ban pot shops. It left open the possibility of also banning collectives, as well as personal cultivation.

One of the first locales to ban all cultivation of medical cannabis was Live Oak, an unincorporated area of Sutter County, north of Sacramento. In December 2011, Live Oak prohibited all medical pot growing within its boundaries.

So patient James Maral sued on behalf of himself and as a trustee of the collective Live Oak Patients, Caregivers and Supporters Association, along with other individuals, on the grounds that Live Oak's law violated Prop 215 and SB 420. A lower court ruled in favor of Live Oak, so Maral appealed to Third District Court of Appeals in Sacramento, which then last year also upheld the lower court ruling, citing the Supreme Court's decision in Riverside.

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