It may not yet be time to call U.S. Attorney for Northern California Melinda Haag's enforcement actions against pot facilities over the past four months a "war on medical marijuana," but she certainly took hostilities to a new level this week by filing civil forfeiture complaints against the landlords of the Harborside dispensaries in Oakland and San Jose.
Last October, California's four U.S. attorneys announced they would undertake a series of enforcement actions against what was then the state's booming marijuana industry. Since then, hundreds of medical
marijuana outlets have closed shop in the state, including some in the Bay Area and Northern California that had great stature in the medical marijuana community but were targeted by the federal government.
Some also had the express blessing of local officials. Mayor Tom Bates on the shuttered Berkeley Patients Group, for instance: "We're really sorry to see them close up"; Mendocino Supervisor John McCowen on the raided Northstone Organics: "I believe [they] can account for every ounce of marijuana [grown]...and it's going to patients who have a physician recommendation." And Oakland City Attorney Barbara Parker's statement on this week's Harborside action: "As Oakland’s City Attorney and a former Assistant US Attorney, I strongly oppose federal actions against members of Oakland's business community who are complying with California and Oakland laws and regulations and paying their fair share of taxes."
In a March interview with KQED's Michael Montgomery, U.S. Attorney Haag laid out criteria she said placed marijuana facilities in the most jeopardy of being targeted. In the interview, she emphasized proximity to schools and children:
One of my concerns about dispensaries that are in proximity to schools and parks and playgrounds is the possibility they could be the target of violence or armed robbery. People in the community may be supportive of the dispensary being in their community until there's a robbery and people come running out of the dispensary shooting guns...When a dispensary comes to my attention that is close to a school, a park, a playground or children, that's a line I've decided to draw.
The complaint against Harborside's landlords, however, have moved that line. Harborside is not near any facility that children may frequent, and Haag, in a statement, offered a new reason for going after a medical marijuana provider:
This office has used its limited resources to address those marijuana dispensaries that operate close to schools, parks and playgrounds. As I have said in the past, this is a non-exclusive list of factors relevant to whether we should commence civil forfeiture actions against marijuana properties, and circumstances may require us to address other situations.
I now find the need to consider actions regarding marijuana superstores such as Harborside. The larger the operation, the greater the likelihood that there will be abuse of the state’s medical marijuana laws, and marijuana in the hands of individuals who do not have a demonstrated medical need.
While it may seem that Haag is changing the rules in the middle of the game, it is true that she left the door open for more expansive enforcement in her interview with Montgomery:
I can't promise going forward that it won't change. I can't promise that we very well may find an appropriate case for criminal prosecution. We very well may find a case where it's appropriate to not give notice to the owner of the property but simply to institute an asset forfeiture action.
I cannot promise that we will not bring actions against dispensaries that are not close to schools and parks and playgrounds but for some other reason we felt that it was appropriate to expand our look. So I don't want to send the message to people that if you are more than 1000 feet from a school you will not be targeted.
Today I talked about the situation with Harborside Executive Director Steve DeAngelo, a passionate advocate of medical marijuana who appeared in the Discovery Channel reality series Weed Wars. DeAngelo characterized the federal crackdown on medical marijuana as "death by a thousand cuts," contending that U.S. Attorney Haag will continue to expand the criteria for taking action against marijuana facilities that are legal in the state of California -- but not under federal law.
JON BROOKS: How do you see the action against Harborside?
HARBORSIDE'S STEVE DEANGELO: The Justice Department issued a statement that said we'd been targeted because of an abstract principle that larger dispensaries tend to result in more people inappropriately receiving cannabis. I don't think that's a valid principle, but even if it were, to target an organization like Harborside that has an exemplary record of legal compliance simply because of a general principle that may or not apply to other people in the industry is really an egregious abuse of prosecutorial discretion.
JON BROOKS: What are Harborside's plans for the future?
STEVE DEANGELO: We are open and we have no intention of closing our doors voluntarily. We made a commitment to our patients six years ago to provide them with a safe place to get cannabis medicines and we're going to do that unless it becomes impossible.
In the meantime I think the Justice Dept has grievously overreached; I think the amount of support both from public and elected officials demonstrates that. We intend to engage the Justice Dept. by every legal means.
JON BROOKS: Have you talked to your landlords, who are the target of these actions?
STEVE DEANGELO: The landlords at this point are evaluating the legal position they find themselves in. They are in legal communication with our counsel. At this point it's too early to say how it will unfold. We're confident we have not violated any of the provisions of our lease. I really feel for the property owners who, believing the Obama Justice Dept that they were not going to target organizations that were in compliance with state law and seeing we were licensed by the city of Oakland and in good standing, then leased us this property. Property owners are in a terrible position.
JON BROOKS: When U.S. Attorney Haag laid out the proposition that facilities near children would be her primary target, she also said she wasn't promising that she wouldn't expand those criteria. Comments?
STEVE DEANGELO: This is one in a series of lies. When the U.S. attorneys announced their campaigns last October they said they were going to go after profiteers and criminals who were using the medical cannabis law as a shield for those activities. In fact if you take a look at who they have targeted it reads like an honor role of the most legitimate and compliant operators in the medical cannabis industry.
So first it was supposed to be profiteers and criminals, then she started targeting organizations with the highest integrity like the Marin Alliance for Medical Marijuana and Berkeley Patients Group and Divinity Tree and Vapor Room because they were supposedly too close to children. In San Francisco the park in the Tenderloin that one marijuana facility was close to had more crack vials and syringes than children playing in it and was directly cross the street from a strip club, a liquor store and an outdoor drug market.
Now she's saying it doesn't matter if you're not too close to a school if you're too large.
So after she rolls up all of the large dispensaries, she's then going to find another category of dispensary to go after. Clearly this is a strategy of death by a thousand cuts and one misrepresentation is going to be followed by another until the public stands up and demands it stop.
JON BROOKS: Melinda Haag also said this in her interview with Michael Montgomery: "Marijuana dispensaries are full of cash and are very public about them. Some of them go on television…" Do you think doing "Weed Wars" maybe wasn't the best idea?
STEVE DEANGELO: We created Harborside intentionally as a model to demonstrate that medicine could be distributed in a way that brings benefits to communities not harm. We have an obligation to the patients that are in places that don't have access. It was always our belief that if all the world could see what we were doing at Harborside and see how we handled this medicine then they would support what we were doing. And that's true.
Do I regret doing "Weed Wars"? Absolutely not. After it aired we had a flood of senior citizens coming in, veterans, people from states where they don’t have access to medical cannabis. We had dozens and dozens of parents of gravely ill children coming to us because of what they saw. We were able to greatly expand the reach of patients we were providing for, and we were able to provide a positive example of cannabis distribution for the world.
I would say, however, that I think there's a connection between my outspoken views and Harborside being targeted.
JON BROOKS: I personally know several people who have prescriptions for medical marijuana who are not really sick or have minor ailments. They have found it very easy to go to a doctor and get a prescription. What do you say to the argument that there are healthy people who are getting prescriptions and making a mockery of the law?
STEVE DEANGELO: Nobody's making a mockery of the law. California law explicitly allows a decision about whether or not cannabis should be used based on whether it's effective, and it turns out to be effective for a very wide range of medical and wellness conditions. California law requires the doctor and patient agree that this is something that would be beneficial.
If you take a look at the parade of pharmaceutical drugs offered to us every night with a range of side effects that comes out of something like a Stephen King novel, for things like insomnia and depression and anxiety and affective disorder and upset stomach and inability to digest and erectile dysfunction, all of which cannabis is more effective on and has fewer side effects than, I think there's a very strong case to be made that cannabis should not be considered a last line of defense for people who are terminally ill but rather the first, safest and most natural alternative to be looked to rather than pharmaceuticals.
In California we have a mechanism to address medical cannabis recommendations that have been written inappropriately. That mechanism is the Medical Board of California, which disciplines and examines doctors who are accused of wrongdoing. People who think recommendations are being written inappropriately should take their case there.
It's impossible for the staff of any dispensary to properly evaluate whether patients are truly ill who walk in with a recommendation. There are a great number of patients who are seriously ill who don't bear any physical signs of their illness. I don’t' think we have the ability to make that call, I don't think a cop sitting outside of a dispensary has the ability to make that call, and I don’t think a prosecutor watching "Weed Wars" has the ability to make that call. Only a well-trained doctor with access to all of the medical records can make a decision as to whether a recommendation is in compliance with that law.
JON BROOKS: Do you think the state bears any responsibility for this crackdown by virtue of not clarifying more specifically what is legal and what is not?
STEVE DEANGELIS: Following the federal government, the major degree of responsibility falls on the California Assembly, which was requested by when Prop 215 was passed to set up a system of regulated distribution of medical cannabis. That has not happened all these years later. Even as recently as just a few weeks ago, the California Assembly, when presented with a perfectly reasonable regulatory scheme, failed to get it done, not because they had any real objections but because some of the Assembly members just don't like Prop 215. If people don’t like Prop 215, let them put another initiative on the ballot and let them see if they can get it past the voters and change the law.
After the interview, I asked our reporter Michael Montgomery to assess the notion that U.S. Attorney Haag has expanded her list of targets with little or no warning. Here's what he had to say:
It's worth going back to the statements by the four U.S. Attorneys last year. While they said medical marijuana was being used a cover by drug traffickers, they didn't say this would be the sole focus of their enforcement actions. Another face of the problem, as described by the U.S. Attorneys, was marijuana as a commercial industry. They did make it clear that size matters and that large-scale operators would be a priority.
If you look back at the internal guidelines developed for law enforcement agents by the U.S. Attorneys in California, whether you agree with them or not, they do set out certain thresholds -- that is, the amount of marijuana being cultivated or distributed. If you get above a certain threshold, according to the document, you become a higher priority target. Harborside, by its own admission, was responsible for the cultivation and distribution of marijuana way above the thresholds in these guidelines.