“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.”
“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 firstname.lastname@example.org.