Pubdate: Wed, 04 Feb 2015 Source: San Jose Mercury News (CA) Copyright: 2015 San Jose Mercury News Contact: http://www.mercurynews.com/ Details: http://www.mapinc.org/media/390 Author: Howard Mintz POT DISPENSARY DEBATE BEGINS Oakland Trying to Block Feds From Closing Facility SAN FRANCISCO - Oakland's long-shot legal attempt to block the federal government's seizure of the nation's largest medical marijuana dispensary appeared to be going up in smoke Tuesday. But a federal appeals court nevertheless openly questioned why the U. S. Justice Department is pressing forward with its forfeiture of Oakland's Harborside Health Center given recent Obama administration policy pronouncements that it would take a hands-off law enforcement approach to medical marijuana in the 32 states where it is now legal. A three-judge 9th U. S. Circuit Court of Appeals panel heard about an hour of arguments in Oakland's bid to revive a lawsuit to block the seizure of the East Oakland dispensary. "Why have you picked this fight?" Stephen Murphy III, a visiting federal judge and former Detroit U. S. attorney, asked a Justice Department lawyer. "What's the end game here?" The 9th Circuit is reviewing a 2013 lower court ruling tossing out Oakland's lawsuit, which argues that a federal government shutdown of one of four city- approved and regulated medical marijuana outfits harms the city's interests and clashes with California's 1996 law permitting medical pot use. Despite that ruling, U. S. Magistrate Judge Maria Elena James has put the government's forfeiture case against Harborside on hold while the appeals court reviews the issues - a move that has allowed the dispensary to continue to sell medical pot to patients in Oakland and at its smaller facility in San Jose. For the most part, the 9th Circuit judges appeared hostile to Oakland's legal arguments, suggesting the city does not have the authority to intervene in a federal action designed to enforce strong federal drug laws. Murphy, an appointee of former President George W. Bush, and Judge Richard Tallman, one of the 9th Circuit's most conservative members, were particularly tough on Oakland's attorney, Cedric Chao, on whether the city could block a forfeiture action to preserve a medical pot dispensary. "It's against federal law," Murphy said of marijuana distribution. Added Tallman: "Go to Congress with that argument." San Francisco U. S. Attorney Melinda Haag two years ago moved to shutter Harborside, labeled a medical pot "superstore," because it is so large that it was alleged likely to sell to customers who could not prove a medical need. But since going to court to shut down the $ 20 million-a-year operation, the government's approach to medical marijuana has shifted. In a recent development, Congress included a provision in December spending legislation - signed by President Barack Obama - that appears to bar the federal government from using resources to prosecute medical marijuana providers in the 32 states where it is legal. Haag, who filed the forfeiture action against Harborside, has declined to comment on the case. And U. S. Justice Department officials, who are defending the government against Oakland's lawsuit in the 9th Circuit, say the legislation is irrelevant to Oakland's core arguments. But despite not buying Oakland's technical legal arguments, the judges appeared puzzled by the Harborside crackdown. "In light of the ( recent policy changes) it's a little curious we're here in this case," Judge Johnnie Rawlinson said . Harborside's supporters are using the legislation to back Oakland's arguments, telling the 9th Circuit in court papers that the congressional action "reaffirms the government's policy of non- prosecution of persons acting in compliance with state and municipal laws regarding medical marijuana." - --- MAP posted-by: Jay Bergstrom