Obama’s Crossover Dribble on Marijuana Policy

Executive summary: Obama fakes left, goes right. Passes to Holder at the head of the key.  Holder holds the ball, looking for a cutter.  Looks in to Brown posting up, then swings it over to Russoniello on the wing. The Warriors veteran finds Obama behind a screen from Holder. Obama launches from beyond the arc… Off back iron. Rebound, Sibelius.

It has been business as usual for the Drug Enforcement Administration since Barack Obama took office. Attorney General Eric Holder has decreed a “policy change,” and some PC (as in Pro-Cannabis) lobbyists and lawyers have hailed that “policy change” as a major victory. But try explaining it to workers at any of the six dispensaries that have been raided by the Obama-era DEA.

“I would have let them in if they would have showed me something,” said John W., 35, who came to the front door of Emmalyn’s on Howard St. in San Francisco on the afternoon of March 25. “They were dressed kind of like me,” according to John, who was garbed in a football jersey.  “Once they actually got in I could see that they had bulletproof vests that said DEA on the back. But I couldn’t see that from the door. The only thing I could see was a person with a gun. I asked for a search warrant or a badge but they didn’t show me either one, they just battered down the gate.

“They rushed in and pushed us down -me, two or three patients, a lady who doesn’t work here anymore, and Rose [a beautiful woman of 30 who was behind the counter when your correspondent visited Emmalyn’s a week after the raid]. There were between 15 and 20, all DEA. The man lying next to me didn’t put up any kind of struggle but he kept saying, ‘I’m a patient.’ And ‘Why are you doing this?'”

“They never asked me no questions. They just went through the whole place and took the medicine we had and the little bit of money.”  Some heavy machinery was deployed to rip out a safe that had been bolted to the floor. The agents hauled it off, past a passionate group of protesters on the sidwalk chanting, “This medicine is marijuana. Listen to Obama.”  Did they know that Obama has said no such thing?

“To me it was robbery,” John said of the raid. “That’s how it feels. I was scared at first but then I just started listening to their conversations. They were in such a good mood, like they’d just won a championship or something. Then when they didn’t find very much they started saying, ‘There should be more. There should be more.’ We tried to tell them that upstairs was just a tenant who had nothing to do with us but they went up there and broke in and actually took their stereo equipment out of their apartment.

“A lot of their conversation was really sarcastic. Like poking shots at us and the whole movement. ‘You guys are pretending that dope is medicine…’ It was really disturbing but I just stayed quiet. They saw a headline on the West Coast Leaf (a tabloid that covers the medical marijuana movement/industry) about Obama ending the raids and that gave them a big laugh: ‘We didn’t get that memo.’

“One agent asked me if I had a card. I said yes. He said ‘Well, what’s wrong with you?’ I said “Better than me tell you, I could show you. And I showed him. I have a disease called Blount’s Disease. One of the bones in the bottom portion of my leg didn’t grow.  See, if I stand up straight, you can see how much shorter one of my legs is. (About two-three inches.) He said, ‘Well that medicine is not going to help your leg grow.’  That’s highly disrespectful. But you know, I was like, ‘Why am I even debating with this person?’

“I figured that it wasn’t the time or the place to tell them the truth. A lot of people come through here. People in wheelchairs, young people in wheelchairs, the handicapped. Different problems.  Sometimes people won’t have cards, they’ll have their letter of recommendation. Even though I try not to read ’em, the information is on there. It makes me feel bad for them: AIDS patients, hepatitis patients, cancer patients.  Sometimes people come in here and they just start to cry because they’re appreciative that we’re here because out of all the medications that they take, this is one that they really get relief from.”

The raid was typical in that no arrests were made. Emmalyn’s reopened the next day with product lent by a nearby dispensary. Beautiful Rose says, “We wanted to make sure that our patients would be taken care of. That we would be here for them and for everybody.”

Cannabis dispensaries tend to serve poor people. Rich people have land in the country, and middle-class people have friends with land in the country.

The raid occurred one week after Eric Holder’s statement that DEA would target only dispensaries that violated state as well as federal law. “What state law did they violate?” wonders attorney Brendan Hallinan (Terence’s son), who is representing Emmalyn’s. “They were permitted by the city. They were in the process of changing their layout to provide wheelchair access. They take pride in their low prices. They were one of the smallest clubs in San Francisco in terms of how many patients they served.”

Documents laying out the DEA’s case against Emmalyn’s are under seal because the investigation is supposedly ongoing. If it turns out that the operators were laundering money or importing BC bud, then dispensaries that don’t engage in such practices can continue to believe that the Obama Administration will leave them alone. But if Emmalyn’s is charged with nothing more than unpaid taxes -which should provoke a warning from the state board of equalization, not a rip-and-run from DEA- then the terror level will rise back to blood orange, as in the time of Bush.

Don’t be surprised if Obama’s approval rating begins slipping in California and beyond. Millions of people felt offended when he made light of the marijuana question during his on-line press conference.

Desperately Seeking Clarification

With acting DEA Administrator Michele Leonhart (a Bush appointee) by his side, Attorney General Holder told reporters March 18 that the Department of Justice would henceforth target “people, organizations, that are growing, cultivating substantial amounts of marijuana and doing so in a way that’s inconsistent with federal law and state law.”  In the week that followed, proceedings in three federal cases were put on hold pending clarification of the supposed “policy change.”

In Los Angeles, U.S. District Court Judge George Wu delayed the sentencing of Charles Lynch and asked the U.S. Attorney to provide a written summary of the new DOJ policy. Lynch, who operated a dispensary in Morro Bay, had been convicted on cultivation-for-sale charges. He contended that he was operating legally under California law and with the support of city officials.

In San Jose, U.S. District Judge Jeremy Fogel asked the US Attorney to produce a written version of the new policy, which could affect a case now called Santa Cruz v. Holder. The case stems from the September, 2002 raid on WAMM (The Wo/Man’s Alliance for Medical Marijuana). The city and County of Santa Cruz subsequently sued the Attorney General for blocking the implementation of California’s medical marijuana law.

In San Francisco, attorney Bill Panzer asked U.S. District Judge Charles Breyer for 30 days to seek an explanation from AG Holder of the reported “policy change.” Panzer represents Ken Hayes in a case dating back to 2002. At the time Hayes was indicted (along with Ed Rosenthal and Rick Watts), he was in Canada, having moved there with his wife and one-year-old son. He remained out of the country until late 2008. Panzer wrote a letter in February and another in March to US Attorney Joseph Russoniello asking how the DOJ “policy change” would affect settlement of the case against Hayes. After getting no reply, Panzer told Judge Breyer that the US Attorney had a conflict of interest because he was pursuing a policy contrary to that of his client, the United States of America. Breyer said he didn’t want to get in the middle of a discussion between the AG and the US Attorney, and gave Panzer his 30-day delay. “Holder already has my letter,” Panzer told PotShots April 9.

Russoniello: Nothing’s Going to Change

Another attempt to get clarification of current federal policy was made by defense specialist Joe Elford when he and Northern District US Attorney Joe Russoniello debated at Hastings School of Law April 8. Elford recounts:

“He said their policy didn’t change in 1996. He said that they had treated marijuana offenses the same before and after California passed its medical marijuana law. They have a limited budget and so they have to prioritize. His claim was that they’ve always gone after the bigger dealers who make a lot of money. Which is not completely true…

“He revealed that after Attorney General’s announcement, the four US attorneys in the state met and they decided that nothing was going to change. That the policy would be what it has always been.  He said that there would be little likelihood of a legitimate medical marijuana provider -a grower or a dispensary-being prosecuted by the federal authorities so long as people complied with the [state] attorney general’s guidelines. He didn’t go so far as to say they wouldn’t be prosecuted, but he came close to saying that.  Which is how  Americans for Safe Access feela that Obama’s new policy should play out.

“He had his copy of the [state] attorney general’s guidelines with highlighted passages. He actually said that of the 300 dispensaries in California are profiteering dispensaries which are making a bunch of money and violate the attorney general’s guidelines… All dispensaries are fair game because they violate state law as well as federal law. That’s scary.

“I asked, ‘Who are you to judge what’s a violation of state law?’ There’s a real problem here —a process problem. A federal agent who is not supposed to be interpreting state law makes a determination that a dispensary is not complying with state law. So then they bust the person and drag them into federal court where state law is not an issue. So this person will never get a jury to pass on whether they violated state law. They will end up getting very severe mandatory minimum sentences.

“It would be good if the U.S. Attorney talked to the [state] attorney general about whether there’s a violation of state law before taking down a grower or dispensary. The problem is, they’re going to rely on what some rogue cop who doesn’t believe in it [California’s medical marijuana law] in the first place says is a violation of state law.”

Another problem is, what Elford calls “rogue cops” are most cops.

“The audience,” Elford went on, “was less polite than I would have expected from a room full of law students. In response to a student’s comment about marijuana being less harmful than alcohol or cigarettes, Russoniello actually interrupted her and said, ‘No, alcohol is more harmful than both of those substances.’ That had a significant number of the students actually jeer him.”

At one point Russoniello put down the medical marijuana industry for not having a self-policing trade association. Elford pointed out that the threat of federal prosecution was an obstacle to forming such an organization. “The dispensaries are trying to self-regulate and impose standards, but you don’t know how many people at these meetings are DEA agents posing as operators, so you might be setting yourself up for federal prosecution by trying to organize a trade association.”

The overriding irony is that arch-capitalists like Joe Russoniello –your basic Mean White Man— have to define making a profit as a criminal act in order to take down medical marijuana growers and dispensaries.

FRED GARDNER edits O’Shaughnessy’s, the Journal of Cannabis in Clinical Practice. He can be reached at fred@plebesite.com

Fred Gardner is the managing editor of O’Shaughnessy’s. He can be reached at fred@plebesite.com