Despite new federal guidelines that purportedly were designed to ease enforcement of marijuana laws in states in which pot is legal for adult or medicinal uses, US Attorney Melinda Haag is plowing ahead with attempts to close two of the most prominent medical cannabis dispensaries in California — Oakland's Harborside Health Center and Berkeley Patients Group.
According to BPG attorney Henry Wykowski, Haag is ignoring the new federal guidelines spelled out in a memo issued on August 29 by the Obama Justice Department and authored by Assistant Attorney General James Cole. Wykowski said he met with a federal judge and Haag's office on October 29 for a case management conference involving Haag's efforts to close BPG. Like in the Harborside case, Haag is attempting to shutter BPG by seizing the property it occupies via a process known as forfeiture. But Wykowski said the "judge questioned why this case was proceeding in light of the Cole Memo. The US Attorney had a very difficult time articulating an answer."
BPG requested the matter be sent to mediation, but Haag's office refused, saying it intended to proceed with the forfeiture case. A trial is set for December 2014, and the next court date is next month. "I just don't understand what's going on," Wykowski said.
Haag spokesperson Lili Arauzhaase didn't respond to questions for this report.
A number of California court cases have affirmed the legality of medical pot dispensaries in the state. And in 2009 President Obama promised that his administration would take a hands-off approach to medical cannabis in states in which it is legal. Nonetheless, US Attorneys in California, led by Haag, launched a medical pot crackdown in October 2011.
Haag threatened BPG with forfeiture in April 2012, and forced the collective to close its doors at 2477 San Pablo Avenue. The collective moved and re-opened in December at 2366 San Pablo. Haag responded in May by filing a legal action to seize BPG's second property. She started coming after Harborside's location — and its storefront in San Jose — in July 2012.
Neither BPG nor Harborside has broken state law, which is why Governor Jerry Brown has denounced the federal court actions and why the cities of Oakland and Berkeley have moved to block the forfeitures. Oakland sued Haag in October of 2012, and Berkeley moved to intervene in the BPG case in July of this year.
Haag filed a motion to dismiss Oakland's suit in February, but the city appealed, and a federal judge granted a motion to stay the case pending the outcome of the appeal, which is scheduled to be heard by the Ninth Circuit Court of Appeals in late 2014. Wykowski said Haag failed to contest the City of Berkeley's claim in the BPG forfeiture case, so the city will be involved in the trial.
Cole's memo, known as Cole 2013, outlines how US Attorneys should respond to the legalization of pot in Colorado and Washington and the legalization of medical cannabis in twenty states. Cole wrote that state efforts to regulate and control marijuana also serve federal goals, and he spelled out the administration's priorities for which marijuana cases prosecutors should pursue: namely, ones that would allow them to prevent the distribution of pot to minors; the use of revenues from the sale of legal pot from funding gangs and gang activity; the diversion of legal weed to states in which it is not legal; drugged driving and increased public health problems related to marijuana use; and the growing of pot on federal land or the possession or use of it on federal property.
"BPG is in compliance with each and every one of those — unequivocally, " Wykowski said. "So why is this action continuing? It's even more egregious with Harborside."
Haag has never alleged that Harborside or BPG violated any of the Cole memo's priorities; rather she said that BPG is too close to a preschool and Harborside is too large.
Berkeley Mayor Tom Bates disputes Haag's claim about BPG, and as for Harborside, the Cole memo explicitly stated that "prosecutors should not consider the size or commercial nature of a marijuana operation alone" when deciding whether to prosecute. "Haag is going to have great difficulty in defending the position that she's taken with respect to these dispensaries," Wykowski said. "The City of Berkeley is saying, 'They're in compliance with our law. We have a regulatory system: We monitor it, it's effective, and these people meet it.'"
Haag also is undermining the White House's desired goals, added Wykowski, a former federal prosecutor. "The goal of Cole 2013 is to have state and localities have strong and effective regulatory policies, so this action flies in the face of Cole."
By comparison, the US attorney for the Central District of California, Andre Birotte Jr., dropped four forfeiture cases against dispensary landlords after Cole 2013 came out. The defense attorney in those cases, Matthew Pappas, said Haag and other federal prosecutors in California who are still targeting legal medical cannabis dispensaries are "off the reservation. ... She needs to be exposed. ... I can't imagine she would be able to continue doing this unless folks in Washington are unaware of what she's up to."
Haag also continues to target a number of other licensed dispensaries in the Bay Area — such as Herbal Mission and Shambhala in San Francisco — and needs to drop those cases as well, said Kris Hermes of the advocacy group Americans for Safe Access. "There's a number of dispensaries in San Francisco that have shut down as a result of her threats, and if the policy is changing, they should remove those threats and allow really the city to regulate, as it was doing in the first place."
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