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15 Years After Prop 215

Have the Feds Overreached on Medical Marijuana?

by FRED GARDNER

Occasionally the iron heel comes down on people who are widely respected and/or have the resources and will to fight back effectively.  “The feds have overreached,” says Steve DeAngelo, who runs Harborside Health Center in Oakland and has been presented by the IRS with a $2.4 million bill for back taxes. He was referring to the DEA raid on Northstone Organics Oct. 13; the threatening letters to growers, dispensaries, and their landlords sent by California’s U.S. Attorneys Oct. 7; the denial of gun permits to registered medical cannabis users ordered by the Bureau of Alcohol, Tobacco and Firearms in September; and other recent measures directed against the industry.

Overreach by law enforcement was a big factor in the passage of Prop 215 back in November, 1996.  The No-on-215 forces, led by Attorney General Dan Lungren, arranged a highly publicized raid on the San Francisco Cannabis Buyers Club three months before Election Day. Their intention was to turn the vote into a referendum on Dennis Peron’s right to operate.

On Sunday morning August 4, approximately 100 agents from the California Bureau of Narcotics Enforcement raided 1444 Market Street. Simultaneously, five smaller BNE squads raided the homes of Buyers Club staff members in and around the city. The raiders wore black uniforms with BNE shoulder patches. They seized 150 pounds of marijuana, $60,000 in cash, 400 growing plants, plus thousands of letters of diagnosis that citizens had brought from their doctors and left on file at the club.

Mayor Willie Brown said the high-profile bust had been carried out unbeknownst to him, and he accused Lungren of “Gestapo tactics.” (The club’s front door had been battered in and the raiders hung black drapes over the windows to conceal what they were doing from civilian observers on Market Street.)  The San Francisco Medical Society protested the confiscation of medical records as a violation of doctor-patient confidentiality.

Dennis considered defying the court order to remain closed. Members kept streaming by in the days after the bust, and expressed their dismay and anxiety as they stood outside the closed front door. Many went across the bay and joined the newly formed Oakland Cannabis Buyers Cooperative. Several Castro District churches began dispensing cannabis. New clubs were launched in the Mission (Flower Power) and at Dennis’s old location at Church and Market (CHAMP —Cannabis Helping Alleviate Medical Problems).

Some of Dennis’s so-called allies in the Yes-on-215 campaign did not want to see him reopen. They argued that ongoing publicity around his operation would jeopardize their chances of success at the polls on November 5. Bill Zimmerman, the Santa Monica p.r. man appointed by reform honchos Back East to replace Dennis as campaign manager, went so far as to urge the Northern California ACLU chapter not to file an amicus brief on Dennis’s behalf.  “Every time I debate Brad Gates,” said Zimmerman, referring to the Orange County Sheriff, a No-on-215 leader, “he always begins by saying, ‘This bill was written by a dope dealer from San Francisco,’ and emphasizes the looseness with which the Cannabis Buyers Club was run.”  Zimmerman said he had developed an effective counter: “If Prop 215 were law, we wouldn’t need such clubs.”

It was against Dennis’s instincts to stay closed but he was exhausted and outnumbered. I dropped in on him at the club one evening in mid-September, shortly after a Superior Court judge in San Francisco had turned down a motion to let his club reopen. The place was quiet but not empty. Bob Dole came on TV —the News Hour was replaying his speech at Villanova University on “the drug issue”—and seven or eight club staffers gathered around to watch. “The simple fact is that drug abuse, especially among young people, leads to more criminal activity,” said Dole. “Because you get arrested for smoking marijuana!” cried Dennis. “Are they going to build prisons from sea to shining sea? Twenty million Americans smoke marijuana!”

Bill Clinton came on next, telling a police officers’ convention that he was second to none in his support for the war on drugs.  He cited his appointment of 4-Star General Barry McCaffrey as drug czar — “He kept drugs from South America out of this country,” Clinton claimed, absurdly. Clinton also took credit for a bill that specifies the death penalty for “drug kingpins.”  “Am I a drug kingpin?” asked Dennis.  Clinton went on: “We proposed the largest anti-drug effort in history, and I hope Congress will give us the extra $700 million we asked for…”

Peron was disgusted. “It’s not even about marijuana anymore. It’s about America —where we’re going and who we are, just like the politicians say.”  He had been doodling out campaign ads, but it was all just an exercise because Zimmerman didn’t want his input. “Imagine being called ‘a liability’ to your own movement,” he sighed. I asked why he had come up so short on the original signature drive (which led to the honchos Back East taking control).  “I underestimated the climate of fear,” he said. “People think twice before they sign a petition that involves drugs. It’s like the McCarthy period —people worry if their name will go down on some list, if they’ll lose their job. Where are the liberals who will stand up and say, ‘This has gone too far!’?”

Doonesbury to the Rescue

On September 8, Peron’s lieutenant John Entwistle got a call from a friend who said he’d been at a party with Trudeau (a longtime advocate of reforming the marijuana laws) and that the cartoonist had expressed serious interest when the conversation turned to Proposition 215 and the bust of the Cannabis Buyers Club. Entwistle then spoke to Trudeau on the phone and sent him a packet of news stories describing the bust and the general situation.  On Monday, Sept. 30 the Chronicle, the LA Times, and many other papers in California began running a Doonesbury strip in which Zonker’s friend Cornell says, “I can’t get hold of any pot for our AIDS patients. Our regular sources have been spooked ever since the Cannabis Buyers’ Club in San Francisco got raided…”

Attorney General Lungren feared the impact these strips would have on the Prop 215 campaign. He urged publishers that carried Doonesbury to spike the entire set. “Alternatively,” he suggested in a letter that was widely run as an op-ed piece, “your organization should consider running a disclaimer side-by-side with the strips which states the known facts related to the Cannabis Buyers Club.” According to Lungren, the BNE investigation had established that the club “sold marijuana to teenagers. Sold marijuana to adults without doctors’ notes. Sold marijuana to people with fake doctors’ notes using phony doctors names and in some cases written on scrap paper. Allowed many small children inside the club where they were exposed for lengthy periods of time to second-hand marijuana smoke. Sold marijuana to people whose stated ailments included vaginal yeast infections, insomnia, sore backs and colitis —hardly terminal diseases. Sold marijuana in amounts as large as two pounds, greatly exceeding the club’s ‘rules.’”

Lungren called a press conference for Tuesday, Oct. 1, to reveal some of the evidence his investigators had assembled against Peron and the SF Cannabis Club. Somehow he lost his cool during the question-and-answer session. “Skin flushed and voiced raised, Attorney General Dan Lungren went head-to-head with a comic strip Tuesday…” is how Robert Salladay began his Oakland Tribune story.  Don Asmussen in the SF Examiner lampooned “Lungren’s War on Comics.” The New York Times devoted two full columns to the brouhaha, including a quote from Peron: “Crybaby Lungren… I think he’s just gone off the deep end. Waaa!”

Polls showed that a gradual decline in support for Prop 215 (with Peron marginalized)  ended October 1.  Lungren had Peron arrested Oct. 5 on criminal charges that included conspiracy to distribute marijuana —one more effort to make the vote a referendum on the proprietor of the San Francisco Cannabis Buyers Club. On Sunday, Oct. 20, Trudeau kicked off a week of strips in which Lacy, the refined Congresswoman, chats with an equally classy old friend who reveals that she smoked marijuana (Lacy checks her hearing aid) for relief of nausea brought on by chemotherapy; that she used to get it at the Cannabis Buyers Club; that she was reduced to trying to score in Dolores Park; and that she hopes the passage of Proposition 215 will enable her to grow it.  Lacy wonders if her friend will have room amongst the orchids in her conservatory.

Cut to the Present

As in ’96, when the Drug Warriors took it for granted that Dan Lungren could squelch Prop 215, it appears that politicians in Washington, D.C. underestimate the extent to which people are fed up with marijuana prohibition.  Just as San Francisco Mayor Willie Brown said he wasn’t advised of the BNE raid on Dennis Peron’s club all those years ago, Mendocino County Sheriff Tom Allman said he wasn’t advised of the DEA raid on Northstone Organics, and California Attorney General Kamala was surprised by the threats made by the U.S. Attorneys Oct. 7.

When U.S. Attorney Laura Duffy made an additional threat to prosecute media outlets running ads for dispensaries, it was reminiscent of Dan  Lungren’s crude attempt in ’96 to tell publishers what they should and shouldn’t run in their papers.  Duffy was over-overreaching; none of her colleagues issued similar threats.

The Oct. 7 press conference had been organized hastily by Eric Holder’s top aide, Deputy  AG James Cole. If Cole was trying to deflect media attention away from his boss’s oversight of the “Fast and Furious” fiasco, the ploy worked in the short term. (Fast and Furious was an ATF operation in which agents provided hundreds of automatic weapons to Mexican gangsters, intending to track them and find other gangsters. But the ATF lost track of the guns, and some of them would be used to shoot and kill two U.S. Border Patrol agents. Eric Holder contradicted himself about what and when he knew about the missing weapons.  On Oct. 6 NPR ran a news segment headlined “Holder Takes Heat Over ‘Fast and Furious’ Scandal.”)

Sheriff Allman and Attorney General Harris are both aware that a majority of their constituents want cannabis to be legal for medical use. “Californians overwhelmingly support the compassionate use of medical marijuana for the ill,” is how Harris began a statement in response to the U.S. Attorneys threats go growers, dispensaries, and their landlords.

“While there are definite ambiguities in state law that must be resolved either by the state legislature or the courts, an overly broad federal enforcement campaign will make it more difficult for legitimate patients to access physician-recommended medicine in California.”

Allman said of the raid on Northstone Organics,If the Mendocino County ordinance [with which Northstone had complied] is in violation of federal law, I want to be told that by the highest court in the land. But if it’s not in violation, I want to be told that, too.”

In 1996, the San Francisco Cannabis Buyers Club was the medical marijuana industry. Today there are a few thousand dispensaries and delivery services up and down the state providing herbal medicine to about a million physician-approved users.  Some, like Harborside and Northstone Organics, have done everything in their power to comply with state and local regulations. They provide decent jobs (Harborside employs more than 200 people) and pay substantial taxes.  Both Harborside’s DeAngelo and Northstone’s Matt Cohen, in protesting the federal attacks on their businesses, noted that others were diverting cannabis from the medical pipeline, i.e., selling to the black market, while they were following the rules. Their message to law enforcement seems to be: you’ll still have criminals to pursue —and much more public support— if you allow a regulated medical-cannabis industry to exist.

Zimm Again

Add overtones of ’96: professional campaign consultant Bill Zimmerman has drafted an initiative that is much, much weaker than the “Repeal Prohibition” initiative and several others that have been submitted to the secretary of state. “It essentially decriminalizes all cannabis use involving two ounces or less,” Zimmerman told David Downs of the East Bay Express.

“Zimmerman said his group spent a great deal of time and money on public opinion research polling after Prop 19 [the legalization measure that got 46% support in 2010] and found ‘The electorate in California is not ready to legalize marijuana for a variety of reasons.’

“Zimmerman said he’s only putting the initiative forward in case the big money wants a safe bet amidst a field of longshots,” Downs reported.

And we thought he was doing it just to muddy the waters!

Fred Gardner edits O’Shaughnessy’s the journal of cannabis in clinical practice. He can be reached at fred@plebesite.com