Click amount to donate direct to CounterPunch
  • $25
  • $50
  • $100
  • $500
  • $other
  • use PayPal
DOUBLE YOUR DONATION!
We don’t run corporate ads. We don’t shake our readers down for money every month or every quarter like some other sites out there. We provide our site for free to all, but the bandwidth we pay to do so doesn’t come cheap. A generous donor is matching all donations of $100 or more! So please donate now to double your punch!
FacebookTwitterGoogle+RedditEmail

ASA Sues Feds To Halt Anti-Pot Surge

“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. Today more than a million Californians have been authorized by MDs to medicate with cannabis, and certain cities and counties have passed ordinances to tax and regulate cultivation and distribution. Similar (but weaker) marijuana laws have been enacted in 15 states and Washington, D.C.

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 backed down. (Not fast enough for the city attorney, who left for safer pastures.)  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.  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 -Matt Cohen’s sweet dream- 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 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,” ADA’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.

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. Flanked by Attorney General Janet Reno and other Clinton Administration officials, the Drug Czar dismissed medical marijuana as “Cheech and Chong medicine” and ridiculed Tod Mikuriya’s claim that it alleviated a wide range of symptoms.

Within weeks, 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. UCSF’s Marcus Conant, MD, was a perfect lead plaintiff because of 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 all 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.

Fred Gardner was District Attorney Hallinan’s public information officer, 2000-02. In 2003 he co-founded O’Shaughnessy’s with Tod Mikuriya, MD. He can be reached at fred@plebesite.com.

More articles by:

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

October 22, 2018
Henry Giroux
Neoliberalism in the Age of Pedagogical Terrorism
Melvin Goodman
Washington’s Latest Cold War Maneuver: Pulling Out of the INF
David Mattson
Basket of Deplorables Revisited: Grizzly Bears at the Mercy of Wyoming
Michelle Renee Matisons
Hurricane War Zone Further Immiserates Florida Panhandle, Panama City
Tom Gill
A Storm is Brewing in Europe: Italy and Its Public Finances Are at the Center of It
Suyapa Portillo Villeda
An Illegitimate, US-Backed Regime is Fueling the Honduran Refugee Crisis
Christopher Brauchli
The Liars’ Bench
Gary Leupp
Will Trump Split the World by Endorsing a Bold-Faced Lie?
Michael Howard
The New York Times’ Animal Cruelty Fetish
Alice Slater
Time Out for Nukes!
Geoff Dutton
Yes, Virginia, There are Conspiracies—I Think
Daniel Warner
Davos in the Desert: To Attend or Not, That is Not the Question
Priti Gulati Cox – Stan Cox
Mothers of Exiles: For Many, the Child-Separation Ordeal May Never End
Manuel E. Yepe
Pence v. China: Cold War 2.0 May Have Just Begun
Raouf Halaby
Of Pith Helmets and Sartorial Colonialism
Dan Carey
Aspirational Goals  
Wim Laven
Intentional or Incompetence—Voter Suppression Where We Live
Weekend Edition
October 19, 2018
Friday - Sunday
Jason Hirthler
The Pieties of the Liberal Class
Jeffrey St. Clair
A Day in My Life at CounterPunch
Paul Street
“Male Energy,” Authoritarian Whiteness and Creeping Fascism in the Age of Trump
Nick Pemberton
Reflections on Chomsky’s Voting Strategy: Why The Democratic Party Can’t Be Saved
John Davis
The Last History of the United States
Yigal Bronner
The Road to Khan al-Akhmar
Robert Hunziker
The Negan Syndrome
Andrew Levine
Democrats Ahead: Progressives Beware
Rannie Amiri
There is No “Proxy War” in Yemen
David Rosen
America’s Lost Souls: the 21st Century Lumpen-Proletariat?
Joseph Natoli
The Age of Misrepresentations
Ron Jacobs
History Is Not Kind
John Laforge
White House Radiation: Weakened Regulations Would Save Industry Billions
Ramzy Baroud
The UN ‘Sheriff’: Nikki Haley Elevated Israel, Damaged US Standing
Robert Fantina
Trump, Human Rights and the Middle East
Anthony Pahnke – Jim Goodman
NAFTA 2.0 Will Help Corporations More Than Farmers
Jill Richardson
Identity Crisis: Elizabeth Warren’s Claims Cherokee Heritage
Sam Husseini
The Most Strategic Midterm Race: Elder Challenges Hoyer
Maria Foscarinis – John Tharp
The Criminalization of Homelessness
Robert Fisk
The Story of the Armenian Legion: a Dark Tale of Anger and Revenge
Jacques R. Pauwels
Dinner With Marx in the House of the Swan
Dave Lindorff
US ‘Outrage’ over Slaying of US Residents Depends on the Nation Responsible
Ricardo Vaz
How Many Yemenis is a DC Pundit Worth?
Elliot Sperber
Build More Gardens, Phase out Cars
Chris Gilbert
In the Wake of Nepal’s Incomplete Revolution: Dispatch by a Far-Flung Bolivarian 
Muhammad Othman
Let Us Bray
Gerry Brown
Are Chinese Municipal $6 Trillion (40 Trillion Yuan) Hidden Debts Posing Titanic Risks?
Rev. William Alberts
Judge Kavanaugh’s Defenders Doth Protest Too Much
FacebookTwitterGoogle+RedditEmail