Feds Ain’t Lovin It

by Fred Gardner, November 11, 2011

"Keep your head down. Those feds are tough."

—Former San Francisco District Attorney Terence Hallinan, to every cannabis cultivator and dispensary operator who sought his advice.

In 1996, California voters overcame a lifetime of War-on-Drugs propaganda and made marijuana legal for medical use. Similar (but weaker) marijuana laws have since been enacted in 15 states and Washington, D.C.  The number of legal medical cannabis users in all those other states is less than half the number in California, where more than a million people have been authorized by MDs to medicate with cannabis, and some cities and counties have passed ordinances to regulate cultivation and distribution.

For many years the relationship between the federal government and the jurisdictions that decided to tax and regulate cannabis was essentially "don't ask, don't tell."  This discreet arrangement ended in the winter of 2010-11 when Oakland's plan to license four huge indoor grows became national news.  The U.S. Department of Justice warned Oakland officials that they faced criminal prosecution if they allowed the cultivation venture, and the city then reconsidered licensing big grows. Since then, city and county officials up and down the state have been told by federal prosecutors that they risk prosecution themselves if they permit cannabis cultivation or distribution.

In 2011 the DOJ sent letters to officials in Arizona, Colorado, Montana, Rhode Island, Vermont, Hawaii, New Hampshire, Maine, and Washington threatening to prosecute those who implemented cultivation and distribution programs. Plans were dropped. The Washington legislature had recently passed a measure, supported by Gov. Christine Gregoire, that authorized dispensaries. After a warning from federal prosecutors, Gregoire decided to veto it.

California's four U.S. Attorneys held a press conference Oct. 7 to threaten growers, dispensaries, and their landlords with long prison terms and forfeiture of their property. The prosecutors claimed they were going after "egregious" profiteers and violators of state (as well as federal) law. But less than a week later, an exemplary Mendocino County collective, Northstone Organics, was taken down by the Drug Enforcement Administration.

Northstone's organizer, Matt Cohen, was growing 99 plants on his property in Redwood Valley, Mendocino County — each plant with a zip-tie around its stalk to indicate that it had been authorized and inspected by the sheriff's office. Northstone's 1,700 members in the Bay Area and Los Angeles had provided letters from physicians authorizing them to use cannabis as medicine.  "If we're not legal, nobody's legal," said Cohen. "We actually are a legitimate not-for-profit corporation. We worked with the county to get where we are."

At 6 a.m. on Oct. 13 DEA agents stormed into the bedroom of Matt and Courtenay Cohen, yelling and brandishing automatic weapons. When the Cohens explained that their grow was in compliance with California law and Mendocino County ordinance 9.31, the feds scoffed and called the county program permitting cultivation "a sham."  The Cohens were handcuffed for eight hours while their house was ransacked and their plants chainsawed down and hauled off in a truck.  The raid was a "smash-and-grab" -—the Cohens were not arrested and it's unlikely that they will be charged.  The effects will be to deprive Northstone Organics' members of high-quality, sungrown herb, and to make  Mendocino growers question whether they want to pay for the protection of the sheriff next year. (The innovative program generated close to $300,000 for the county in 2011.) Northstone Organics is finished for the foreseeable future.

If the Drug Warriors only pursued blatant profiteers and violators of state law, the fully compliant non-profits would benefit and a regulated medical marijuana industry would thrive.  They have to take down some righteous growers and distributors in order to scare others into folding —or at least not expanding. (No better example than the 2002 DEA raid on WAMM, a Santa Cruz garden grown mainly for hospice patients.)

A 10th Amendment Argument

The raid on Northstone Organics is cited in a suit that Americans for Safe Access filed in federal court Oct. 27 on behalf of ASA's approximately 20,000 members in California "who are adversely affected by the federal government's selective targeting of medical marijuana providers and its direct threats against California political subdivisions in an attempt to disrupt state law."

One such patient is a 48-year-old chronic pain sufferer who first used marijuana while undergoing chemotherapy and now uses it to reduce his intake of morphine. This patient, "Due to a recent federal raid on Northstone Organics... lost his proportionate share of the medical marijuana cultivated by the cooperative and he will be impeded from obtaining his medicine because no other delivery service provides medical marijuana at the same low cost."

The defendants are U.S. Attorney General Eric Holder and U.S. Attorney for the Northern District of California, Melinda Haag. ASA’s suit, drafted by attorney Joe Elford, is seeking an injunction "requiring defendant to cease the unconstitutional behavior of the Department of Justice and requiring it to return the marijuana seized from Northstone Organics."

ASA contends that California has a right under the 10th Amendment  —"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"— to regulate the practice of medicine. It follows that California can legalize the medical use of marijuana (defined by physician approval) while non-medical use remains a crime. The federal government has violated the 10th Amendment, ASA argues, by "seeking to coerce and commandeer the police power and legislative and executive functions of the state of California and its political subdivisions in regard to the implementation of the State's medical marijuana laws."

Eureka, Arcata, Chico, El Centro, and Sacramento are listed as California cities that have been "coerced by the federal government to change their local laws regarding medical marijuana."  The threat to Eureka was typical. The City Council received a letter Aug. 15 from Melinda Haag stating that the Department of Justice was "concerned about the City of Eureka's creation of a licensing scheme that permits large-scale industrial marijuana cultivation, processing, and distribution... If the City of Eureka were to proceed, this office would consider injunctive actions, civil fines, criminal prosecution, and the forfeiture of any property used to facilitate a violation of the Controlled Substance Act."

History Matters

"This federal policy of coercion began at the inception of California's medical marijuana laws in 1996," ASA's suit asserts, referring to a series of emergency meetings chaired by Drug Czar Barry McCaffrey in the weeks after Prop 215 passed. It's an important point —the federal position on medical marijuana has been consistently Prohibitionist in the Prop 215 era.

It was right then, with Clinton assured of a second term, that the Democrats could have and should have rescheduled marijuana and funded research to track its safety in California.

Instead, the feds tried to dis-implement the new law by threatening to revoke the prescription-writing license of any doctor who approved marijuana use by patients. The threat was announced by McCaffrey at a well-publicized press conference on Dec. 30, 1996, as Attorney General Janet Reno nodded emphatically at his side. Donna Shalala, the highest-ranking health official in the government, explained that marijuana was illegal because its use is “wrong.”  The Drug Czar ridiculed Dr. Tod Mikuriya's claim that marijuana alleviated a wide range of symptoms and dismissed its use as “Cheech and Chong medicine.”

The soundbite boomeranged. In January, just as the New England Journal of Medicine decried the feds’ willful ignorance, the director of the National Institutes on Health, Nobel Prize Winner Harold Varmus, announced that he was convening a conference of medical experts to consider the medical potential of marijuana. The Drug Czar’s office put up $1 million to fund a study of marijuana by the Institute of Medicine. McCaffrey’s new line became: the pharmaceutical industry will bring you the “good” things in marijuana —not by smoking, and pure, and in reliable doses— without the “bad” things.

Also in January ‘97, lawyers backed by Ethan Nadelmann (whose group was then called the Lindesmith Center) filed a suit, Conant v. McCaffrey, to enjoin the feds from carrying out their threat. Marcus Conant, MD, was an ideal lead plaintiff because of his position on the UCSF faculty and his work with AIDS patients. Tod Mikuriya, MD, was not included among the many co-plaintiffs, although it was Tod who had helped draft Prop 215 and whom McCaffrey had threatened by name.

In March '97 a federal judge who had been appointed by Reagan, Fern Smith, granted Conant et al their injunction on free-speech grounds —the doctor-patient conversation is protected by the 1st Amendment. When the 9th Circuit Court of Appeal upheld the injunction, Judge Kozinski wrote in a concurring opinion that the federal policy of threatening physicians violated the 10th Amendment because it “deliberately undermines the state by incapacitating the mechanism the state has chosen for separating what is legal from what is illegal under state law.”

"A minor slight," is how Tod described not being included in Conant. He was more dismayed by the reform leaders "pulling their resources out of California to promote the master plan," i.e., to pass medical marijuana laws, no matter how restrictive, state-by-state, until so many have been enacted that the federal government has to accede somehow. Tod called Prop 215 "a unique research opportunity" and thought the movement's most important task was to document the safety and medical efficacy of cannabis —a job for clinicians and epidemiologists, not campaign consultants and media messengers.

PS As we go to press, another suit has been filed seeking a temporary restraining order to prevent the US Attorneys from carrying out their threats against growers, dispensaries and their landlords…

The landlord of a dispensary called “Love In It” in the town of Mendocino has received one of the threatening letters… Mendocino  County Counsel Jeanine Nadel told the Willits News that federal authorities have not threatened County officials involved in Sheriff Allman’s zip-tie program.

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