Pubdate: Wed, 13 Nov 2013
Source: East Bay Express (CA)
Column: Legalization Nation
Copyright: 2013 East Bay Express
Contact: http://posting.eastbayexpress.com/ebx/SubmitLetter/Page
Website: http://www.eastbayexpress.com/
Details: http://www.mapinc.org/media/1131
Author: David Downs

US ATTORNEY DEFIES WHITE HOUSE

Melinda Haag, the US Attorney for Northern California, is flouting 
new federal guidelines in her continued attempts to shut down legal 
medical marijuana dispensaries in the Bay Area.

Despite new federal guidelines that purportedly were designed to ease 
enforcement of marijuana laws in states in which pot is legal for 
adult or medicinal uses, US Attorney Melinda Haag is plowing ahead 
with attempts to close two of the most prominent medical cannabis 
dispensaries in California - Oakland's Harborside Health Center and 
Berkeley Patients Group.

According to BPG attorney Henry Wykowski, Haag is ignoring the new 
federal guidelines spelled out in a memo issued on August 29 by the 
Obama Justice Department and authored by Assistant Attorney General 
James Cole. Wykowski said he met with a federal judge and Haag's 
office on October 29 for a case management conference involving 
Haag's efforts to close BPG. Like in the Harborside case, Haag is 
attempting to shutter BPG by seizing the property it occupies via a 
process known as forfeiture. But Wykowski said the "judge questioned 
why this case was proceeding in light of the Cole Memo. The US 
Attorney had a very difficult time articulating an answer."

BPG requested the matter be sent to mediation, but Haag's office 
refused, saying it intended to proceed with the forfeiture case. A 
trial is set for December 2014, and the next court date is next 
month. "I just don't understand what's going on," Wykowski said.

Haag spokesperson Lili Arauzhaase didn't respond to questions for this report.

A number of California court cases have affirmed the legality of 
medical pot dispensaries in the state. And in 2009 President Obama 
promised that his administration would take a hands-off approach to 
medical cannabis in states in which it is legal. Nonetheless, US 
Attorneys in California, led by Haag, launched a medical pot 
crackdown in October 2011.

Haag threatened BPG with forfeiture in April 2012, and forced the 
collective to close its doors at 2477 San Pablo Avenue. The 
collective moved and re-opened in December at 2366 San Pablo. Haag 
responded in May by filing a legal action to seize BPG's second 
property. She started coming after Harborside's location - and its 
storefront in San Jose - in July 2012.

Neither BPG nor Harborside has broken state law, which is why 
Governor Jerry Brown has denounced the federal court actions and why 
the cities of Oakland and Berkeley have moved to block the 
forfeitures. Oakland sued Haag in October of 2012, and Berkeley moved 
to intervene in the BPG case in July of this year.

Haag filed a motion to dismiss Oakland's suit in February, but the 
city appealed, and a federal judge granted a motion to stay the case 
pending the outcome of the appeal, which is scheduled to be heard by 
the Ninth Circuit Court of Appeals in late 2014. Wykowski said Haag 
failed to contest the City of Berkeley's claim in the BPG forfeiture 
case, so the city will be involved in the trial.

Cole's memo, known as Cole 2013, outlines how US Attorneys should 
respond to the legalization of pot in Colorado and Washington and the 
legalization of medical cannabis in twenty states. Cole wrote that 
state efforts to regulate and control marijuana also serve federal 
goals, and he spelled out the administration's priorities for which 
marijuana cases prosecutors should pursue: namely, ones that would 
allow them to prevent the distribution of pot to minors; the use of 
revenues from the sale of legal pot from funding gangs and gang 
activity; the diversion of legal weed to states in which it is not 
legal; drugged driving and increased public health problems related 
to marijuana use; and the growing of pot on federal land or the 
possession or use of it on federal property.

"BPG is in compliance with each and every one of those - 
unequivocally, " Wykowski said. "So why is this action continuing? 
It's even more egregious with Harborside."

Haag has never alleged that Harborside or BPG violated any of the 
Cole memo's priorities; rather she said that BPG is too close to a 
preschool and Harborside is too large.

Berkeley Mayor Tom Bates disputes Haag's claim about BPG, and as for 
Harborside, the Cole memo explicitly stated that "prosecutors should 
not consider the size or commercial nature of a marijuana operation 
alone" when deciding whether to prosecute. "Haag is going to have 
great difficulty in defending the position that she's taken with 
respect to these dispensaries," Wykowski said. "The City of Berkeley 
is saying, 'They're in compliance with our law. We have a regulatory 
system: We monitor it, it's effective, and these people meet it.'"

Haag also is undermining the White House's desired goals, added 
Wykowski, a former federal prosecutor. "The goal of Cole 2013 is to 
have state and localities have strong and effective regulatory 
policies, so this action flies in the face of Cole."

By comparison, the US attorney for the Central District of 
California, Andre Birotte Jr., dropped four forfeiture cases against 
dispensary landlords after Cole 2013 came out. The defense attorney 
in those cases, Matthew Pappas, said Haag and other federal 
prosecutors in California who are still targeting legal medical 
cannabis dispensaries are "off the reservation. ... She needs to be 
exposed. ... I can't imagine she would be able to continue doing this 
unless folks in Washington are unaware of what she's up to."

Haag also continues to target a number of other licensed dispensaries 
in the Bay Area - such as Herbal Mission and Shambhala in San 
Francisco - and needs to drop those cases as well, said Kris Hermes 
of the advocacy group Americans for Safe Access. "There's a number of 
dispensaries in San Francisco that have shut down as a result of her 
threats, and if the policy is changing, they should remove those 
threats and allow really the city to regulate, as it was doing in the 
first place."
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MAP posted-by: Jay Bergstrom