Dispatch From The Weed Wars: Oaky Joe & The Pot Police
by Tim Stelloh, February 11, 2010
Oaky Joe at a recent garden
Volume is the first thing you notice about Joe Munson: He doesn't seem to have much control over it. The hearing aids stuffed in his ears are next. They're the result of being an alcoholic. More specifically, they're the result of going on a bender in Pontiac, Illinois, of talking shit to a very large man, of receiving an asskicking so severe his jaw broke in three places and his hearing vanished.
That was more than 20 years ago—before Munson, 46, met his wife, Atsuko. It was before he quit the juice and had two kids. It was before he became known as “Oaky Joe”—a name that's derived, depending on the day you ask, from a firewood business he once ran or because he says “OK” to everything. It was before he became one of the area's most combative—and, literally, one of its loudest—disgruntled medical pot growers.
Which is the next thing you notice. Get him started on the medicinal marijuana situation in Mendocino County, and he's not unlike the comedian Lewis Black: A bit unhinged, with ferocious tongue-lashings for all whom he thinks deserving: The district attorney's office, the sheriff's office, the Major Crimes Task Force, the San Francisco Police Department—anyone on his long list of villainous authorities.
And there are many.
The problem is simple: Joe Munson says he grows medical pot for a group of low-income, very sick people—people with spinal injuries, people with diabetes, people with epilepsy, people who can't afford dispensaries. He says he doesn't make a dime from what he grows. The problem? No one believes him. So the police chop down his plants, charge him with felonies, haul him to jail and process him through the courts.
Though Munson's story can, at times, seem like a comedy of errors—he once started a grow a block from Pete Hoyle, Mendo's most controversial, most feared cop—when Joe Munson goes to court, Joe Munson wins. Every time. Most recently, it was in San Francisco. Before that, he had three cases dismissed in Mendocino.
“He wants to be able to show that you can do this lawfully, that you don't have to to keep getting raided for this,” said former assistant district attorney Keith Faulder, now one of Mendo's most respected—and prolific—medical pot lawyers. He's represented Munson pro-bono since his troubles began. “He's trying to stand up for people and say, look, this is the right thing to do. This is how patients get their medicine, when people like me stand forward and put the target on ourselves and say, this is how you can do this lawfully.”
Once upon a time, Oaky Joe was an outlaw grower with a familiar biography: At 18 he'd moved from New York to San Francisco, where he was a small-time drug dealer moving dime bags of pot. After enough arrests, he figured there had to be another way—so he came north and learned to grow. His first patch was on Mt. Tamalpais—“it went dismally, ” Munson says, “because I was pretty much clueless”—but he soon moved north to Mendocino County. And there he stayed—first at Lake Pillsbury, then on private land.
By the late '90s, he'd met Eddy Lepp—the pot activist famous for growing 20,000 plants off Highway 20 in Lake County and for getting a heafty federal prison sentence as a result. And everything changed.
“I had a flat tire on my motorcycle and hitchhiked out of a Lake Pillsbury one day, and a guy named Jeff Cederholm—he had a brain tumor and he's dead now—he told me that Eddy had helped save his life because the drugs he was doing were killing him faster than the tumor,” Munson said. “And so smoking the weed that Eddy was giving him was helping him quite a bit. He said you should meet Eddy because you see eye to eye on a lot of stuff. So that's how I met Eddy, and Eddy says you should stop breakin' the law and get down here and do it right.”
Which is what Munson did.
He moved to a two-bedroom, one-story house in Redwood Valley with a big backyard, which he converted to a grow. He also took out an ad in MendoLake Exchange, the classifieds magazine. “If you have a current valid medical marijuana card, I might be able to help you,” the ad says. “If you have questions or need technical support, I'd be willing to just talk. Or if you need start to finish support, that may be available also. You need to live in California. Oaky Joe.”
He'd interview each new patient before agreeing to grow for them. He'd require that he be the only one from whom they get medical pot. He hung an “Attention Cops” sign and his members' recommendations on the fence that enclosed his plants. And he decided to take a big pay cut, he said: everything he grew he'd give away free of charge. (Incredulous police and prosecutors would, not surprisingly, challenge this assertion.)
By the time of his first arrest, on October 1, 2007, he had 11 people for whom he was providing free marijuana, according to court records.
His first visit with police was in 2006, however, after his 2 ½ year-old-daughter accidentally hit the automatic 9-1-1 dialer and hung up. A sheriff's deputy showed up, found Munson's 37 plants, checked his recommendations and told him they were expired. Munson protested, saying they were still current and that he was in compliance; the deputy, Derek Scott, made a phone call and agreed. Munson says Scott told him they were good for another three years. (Scott, who recently recalled the incident, said that Munson was indeed in compliance, but declined to discuss details.)
The cops returned the following October after a nervous neighbor called police to complain, Munson said. He showed them 11 recommendations, but the police said seven of them were invalid. This time, no phone calls were made. They ripped up his 130-some plants and confiscated his automatic bud trimmers, along with $1,400 in cash, several pounds of processed pot, a scale, recommendations and several documents the cops took to be pay-and-owe sheets—one of the many telltale signs of a large commercial grower.
He was charged with felony cultivation and intent to distribute.
To fight the charges, Munson enlisted the help of Keith Faulder. The preliminary hearing from the following March was a lesson in the slipperiness of California's medical pot rules: Robert Moore, one of the major crimes special agents on duty that October night, testified that Munson was a for-sure commercial grower based on everything seized from his home. (He also seemed bewildered by Munson's no-cash policy). Those pay-and-owe sheets, however, turned out to be several pages of the same names and phone numbers—the babysitter, the doctor, Munson's collective members—repeated over and over. (“I smoke pot and I have problems keeping track of things,” Munson explained). The cash belonged to Atsuko, Munson's wife. Munson has maintained all along that he's a true believer in the medical pot cause—and that he's gone into serious debt (about $100,000 deep) as a result. To pay the bills, he says he's done all manner of things: He says he's blown through a good deal of savings. He's says he's been subsidized by his 73-year-old mother-in-law, who's a calligrapher and teacher in Japan. (Atsuko says she's not sure what her mother thinks about medical marijuana, though, for a time, she was happy to help support her and her husband). Munson says he's also gotten help from sympathetic benefactors. To make his point that he's not in it for the money, he often mentions his car: “I drive a piece of shit '84 Toyota Corolla, OK?”
Prosecutor Scott McMenomy offered no evidence to the contrary.
And what about those 11 recommendations? Moore had said seven of them were expired. But, like many of California's medical pot guidelines, whether that matters is up for debate.
All that's required by Proposition 215—the ballot measure that kicked off 14 years of vague, perpetually in-flux medical marijuana rules—is an oral recommendation from a doctor, Faulder said. In other words, Munson didn't even need a piece of paper signed by a doctor to be legit—all he needed was that doctor on a cell phone saying to the cop, “Yes, I prescribed marijuana to patient X.”
“There's an immunity to prosecution if the recommendations are valid,” Faulder said. “There's no requirement for writing. And law enforcement has a duty to make sure what's being done is either lawful or unlawful.” McMenomy disagreed. It isn't a cop's job to investigate the validity of a recommendation “on the scene,” he said. That's up to the courts.
In this case, Judge Ron Brown agreed.
All of which raises questions about what, exactly, constitutes a “compliance check”—that is, what Mendo's cops do when they happen upon a grower who claims medical. Those checks are mighty important, of course, because they determine whether or not cops are eradicating first and asking questions later, and whether or not a case will land in the DA's office.
“What we're looking for is to make sure they're following the law,” said Bob Nishiyama, head of the county's major crimes task force. “We want to know what are the plants are for, are you responsible for them, and we'll go from there. I can tell you, we walked away from an indoor grow that had 18 or 19 plants and a pound of finished product. Everything they had—you could conceivably see them all using it. We left it that.”
There is a set of seven guidelines—is it a commercial grow? Is it damaging the environment? Is it on public land?—that Sheriff Tom Allman said he posted in every substation to help guide deputies in figuring out whether you're legit, or whether they should rip up your plants and haul you to jail (though that'll likely change due to a recent California Supreme Court decision). But this is often a discretionary exercise. Which is how you can get one cop (Derek Scott) making one decision, and another cop doing the opposite (Robert Moore). Even so, Allman said his office is doing a good job making the distinction between commercial and medical: In 2008, deputies walked away from 54 legit grows, he said.
Pebbles Trippet, the medical marijuana advocate, disagrees. There have been too many raids on legit medical growers for the sheriff to go congratulating himself, she said—and deputies often ignore the fundamental question of whether or not a garden is medical or commerical. The current guidelines leave too much to the whims of those deputies, she said.
“In the field—at the point of friction in the garden—it isn't required that you give the patient the benefit of the doubt as you would in criminal court. But if they were trained to investigate first, based on clear gardensite guidelines, there'd be fewer arrests. If the marijuana is medical, by definition it's not criminal—it's a right. But routinely what happens is the patient's right to grow is ignored or disbelieved while they have you lying face down with a gun in your back or handcuffed making threats, preparing to search for evidence of 'crime' without regard to your doctor's approval. It's all up to the deputies' discretion whether to respect a patient's right to grow.”
Despite Judge Brown's decision that cops don't need to investigate recommendations in the field, he said he saw no evidence that Munson was selling his pot for cash. The case was dismissed—but Oaky Joe's problems were far from over.
The Redwood Valley bust had made Munson nervous about how out in the open he could be—though he hadn't been at all persuaded to stop growing. So, while fighting the first round of charges, he started two other grows: one in a barn in Brooktrails, the other in the garage of a large house in a Redwood Valley subdivision.
By now, Munson was angry at the DA's office. In a move that could either be described as defiant, self-destructive or, as a judge would later say, “troublesome,” he decided to “help” as many people as possible—to go out and find patients and grow as much pot as he could. (Those were the pre-Measure B days, of course—the 25-plants-per-patient days.)
Soon after moving, both of his grows were raided. Munson was again accused of running a commercial operation and 300 plants—along with clones, CO2 tanks and other equipment Munson would later say he'd gotten for free from a grower who'd been busted—were seized from both buildings. And so it was that seven months after his first dismissal, Munson was back in court, this time fighting two separate cases for the two grows: He'd been charged with cultivation, intent to sell and keeping a house for criminal enterprise.
Again, Munson's cases were a lesson in how amorphous medical pot rules are—and in just how far apart law enforcement and medical marijuana advocates are in their approach to medicinal pot.
To the cops, the sheer volume—and the fact that his grow was indoor, that is, expensive—was, again, proof enough that Munson was a for-sure commercial guy. Nevermind checking for those all-important recommendations, which the cops didn't find and which Munson didn't have because they'd been seized during the previous bust, according to court testimony. Nevermind that Munson had, prior to them serving him with a warrant, told the cops that he was growing 250 plants.
The reason that Munson grew as much pot as he did was because he called himself a “caregiver.” The recipients of his pot were “patients.” Together, the group was a collective, which requires no official recognition from the state and for which there's no limit on how many members Munson can grow for. (He's had as many as 16.)
This is another point of debate among the opposing camps. During Munson's hearing, Katherine Houston, the prosecutor, defined “collective” so literally she read a dictionary definition aloud: To be considered a legit collective, the group should be jointly owned and operated, she said. Costs should be shared. “It's all about the collaborative efforts of the members,” Houston said. “Well, we don't have that here.” Furthermore, she said, the notion that someone like Munson can call himself a caregiver is absurd. “Somebody who just is the source of marijuana and doesn't do anything else for people doesn't automatically become a caregiver,” Houston said. Nishiyama, from the major crimes task force, said that according to the law, a caregiver is someone who provides their patients with food, shelter and care.
Munson's response is three-fold. First, he says, the people he grows pot for—and has been growing pot for for several years—are sick. They're so sick they can't grow it themselves. To emphasize this point, Munson has hauled as many of his members as he can into courtrooms to testify on his behalf—wheelchairs, braces and all—during his hearings. To be a caregiver, he says, all you need to do is provide the health, safety or housing for a patient. “I fall under health,” he said. (Though lately, on his attorney's advice, he's taken to calling himself a “collective operator.”) And nevermind what Houston said about a collective—what the law says, according to Faulder, is that “patients and/or their caregivers may associate within the state of California to collectively or cooperatively cultivate marijuana.”
That's it. It's a pretty vague threshold—and Munson clearly met it, Faulder said.
Throughout the hearing, Munson was his usual irascible self. He interrupted his lawyer to say that Robert Moore was an idiot. That Robert Moore was a liar. While testifying, Munson was reminded, repeatedly, that he if he could please wait to answer until the questions had been asked, that would really be best.
Despite all that—and despite Houston's disbelief that Munson was actually giving his pot away, that he was growing because, as he says, he likes to help people, that he was the “Santa Claus of medical marijuana,” as Houston put it—the judge once again dismissed the charges against him.
With all his legal troubles, Oaky Joe had become concerned about his family: They'd had their second child shortly before the second round of busts; though his wife is a permanent resident, the couple didn't want to risk the possibility of deportation. So Atsuko left for Japan for a few months with their children while Joe was going through the courts.
“I was very stressed,” Atsuko said. “I was thinking: They're going to come back. I was scared.”
When she returned, they left Mendo altogether for a county they'd rather you didn't know. He's still a caregiver, operating a comparatively modest grow on a hillside behind a small, beat-up trailer; on the front door of that trailer is a printout that shows all of his dismissals. He's taken to carrying that sheet of paper—along with his members' recommendations—with him while delivering their pot.
Which is where San Francisco comes in.
It was December 27, 2009, and Munson says he was delivering an ounce-and-a-half to a collective member in his “piece of shit” Toyota—which was recently purchased, and thus had temporary tags—when he was pulled over at Geary and Presidio. Munson says the police told him they pulled him over for his temp tags; a San Francisco police spokesman says it was because he had no license plate (though the spokesman added that cops can indeed pull you over for the simple fact of having a temp plate). In any event, after pulling Munson over, the cops smelled “burnt marijuana” in the car, the spokesman, Samson Chan, said, and were on him for the pot they subsequently found.
Which is when Oaky opened his mouth.
He tried offering up his member's recommendation, he says, along with the printout pinned up on his trailer door.
“As soon as I started talking about [medical marijuana law] SB 420,” Munson said, “as soon as I started talking about Proposition 215 11.362, as soon as I started saying any of these numbers and things, [the officer] said, 'You getting smart with me? Ae you telling me marijuana law? I'm a vice cop with 10 years. These cards mean nothing to me. These cards mean shit to me.'”
Chan describes it a little differently. He says the officer asked Munson for his paperwork, which he didn't have. So Munson was charged with transporting pot and possessing it for sale; he was booked and taken to jail. The case went to the district attorney's office and was on its way to trial last month when Munson provided a certified version of his member's recommendation, according to his public defender, Randall Martin.
Once again, the charges were dismissed.
Which means the Munson household is experiencing something it hasn't had much of in the last half-decade: relative peace.
At least for the moment.
Remember all that stuff that was seized? Oaky Joe never got it any of it back. Nor, of course, did he get reimbursed for any of his pot. Which is exactly what he's going to try and do next.
To see a photo series on Oaky Joe, click here.