In 2011, the U.S. Attorney’s office embarked on a miscalculated course of legal action intended to force closure of medical cannabis dispensaries operating legally under California state law. As part of a now ill-fated legal strategy lead by Melinda Haag of the U.S. Attorney’s office for the Northern District of CA, Haag filed civil forfeiture actions against the landlords of Bay Area dispensaries including Berkeley Patients Group, Shambhala Healing Center, and Harborside Health Center seeking to “quietly” force closure of the dispensaries through enforcement of civil rather than criminal laws.
As part of this strategy, the U.S. Attorney’s office began to issue letters to landlords leasing to dispensary operators with threats of property seizure and the tactic often scared landlords leasing to dispensaries into shuttering their doors. Rather than close their doors, Shambhala Healing Center, Harborside Health Center, and Berkeley Patients Group have vigorously defended against the civil forfeiture actions despite federal laws criminalizing cannabis. In fact, both the City of Berkeley and the City of Oakland have attempted to join the federal suits in support of the dispensaries, and despite strong political and community opposition, Haag’s office has continued to aggressively pursue the civil forfeiture cases.
In December 2014, the passage of Obama’s spending bill prohibited use of federal funds by the DOJ to crack down on cannabis activities in states that have adopted cannabis laws. Last month, a new policy issued by U.S. Attorney General Eric Holder prevents federal agencies from seizing assets without a warrant as Haag’s office is attempting to do in the civil forfeiture cases at issue here. As more states turn to legalization, the tides are shifting at a federal level, and the federal judiciary has responded by issuing several recent and important pro-cannabis decisions in the dispensary forfeiture cases.
First, in December 2014, U.S. District Court Judge Susan Illston ruled that Shambhala’s lease was legal, and tossed Haag’s forfeiture complaint out as a moot given a $150,000 payment made to the U.S. Attorney’s office by the Shambhala’s landlord to settle the case. Second, on February 3, 2015, a conservative 3 panel judge for the 9th Circuit Court of Appeals chastised Haag’s office for continuing to wage a losing battle against the dispensaries. The 9th Circuit panel indicated that it was a rouge battle improperly pursued by Haag in direct violation of the passage of the federal spending bill defunding prosecution of state-protected cannabis activities and Holder’s recent policy shift preventing warrantless seizures. Judge Richard Tallman even suggested that Obama ask for Haag’s resignation for continuing to pursue an unwarranted course of action against Harborside’s landlord. Lastly, on February 6, 2015, in another key victory in federal court, Judge Jon S. Tigar of the 9th Circuit Court of Appeals issued an order allowing Berkeley Patients Group to continue to operate while the court considers the pending civil forfeiture action. Given the recent funding and policy shifts at a federal level, perhaps Haag’s office should abandon its sinking ship of meritless lawsuits against state-protected cannabis activities and devote resources to prosecuting actual criminals, not patients seeking safe access to medicine.
Recent Spending Bill: http://www.businessinsider.com/the-new-spending-bill-just-ended-the-federal-war-on-legalized-weed-2014-12
Holder’s Policy to Reform Forfeiture Laws: http://www.huffingtonpost.com/2015/01/16/holder-asset-forfeiture_n_6488816.html
Shambhala Healing Center: http://mmjbusinessdaily.com/dispensary-notches-big-win-in-important-court-battle-with-feds/
Harborside Health Center: http://www.sfgate.com/bayarea/article/Court-questions-federal-action-against-Oakland-6059956.php?cmpid=email-mobile
Berkeley Patients Group: http://www.huffingtonpost.com/2015/02/10/berkeley-patients-group_n_6648268.html
With representation by attorney Dan Siegel and CBD attorney Nat Thurston, Judge Healy of Solano Superior Court allows Greenwell dispensary owner's civil rights lawsuit to move forward against City of Vallejo:
CBD Attorney Thurston is quoted in Law360 Article on the IRS's unfair tax treatment of medical cannabis businesses and efforts for reform:
If you are looking to open a medical cannabis dispensary in California - don't delay as under a recent California decision, City of Riverside v. Inland Empire Patients, et al, cities now have the legal authority to completely ban dispensaries within their borders. City of Eureka's moratorium recently expired with 2 dispensary permits now available. Contact CBD Professionals (www.cbdpros.com) to find out which CA cities are accepting permits for dispensaries. For a full copy of the Riverside opinion, click here:
A criminal case out of Mendocino County may set precedent for marijuana law in the state. In People v. Hawkins, Judge Ann Moorman ruled to suppress evidence used to charge Kevin R. Hawkins, 55 of Cloverdale with possession of meth. The unique question before the court was whether the admission of the presence of marijuana alone provides law enforcement with probable cause to search the defendant’s car. An officer pulled Hawkins over after a simple traffic violation upon which he provided the officer with valid driver’s license, registration, and proof of insurance. The officer did not see any evidence of contraband or smell the odor of marijuana as he later testified in court. At some point in the interrogation, the officer asked Hawkins if he had anything illegal in the vehicle and the topic of marijuana came up. Hawkins admitted to having less than an ounce of medical marijuana and gave the officer his valid medical marijuana card. The officer then said, “the practice had changed in that the county no longer issued such cards” and that he
would not honor Hawkins’ recommendation. The officer then opted to search the car regardless of the documentation that Hawkins produced “because he admitted to having marijuana in his car.” Judge Ann Moorman suggested that the doctor’s recommendation to use medical marijuana was not immunity from a search, but coupled with testimony and evidence was enough to throw out the evidence (Meth) the police officer found. If no appeal is filed by the state, this case will become precedent in California. To read more check out http://www.willitsnews.com/marijuananews/ci_24489469/mendocino-county-medpot-ruling-may-set-new-precedent
The City of Vallejo is being sued by Greenwell Collective, a medical cannabis dispensary that was located in the downtown area and raided by law enforcement in February 2012. Matt Shotwell, Greenwell’s Director, is suing on a number of claims including violation of his civil rights because the City of Vallejo targeted Greenwell for closure due to his political activism in support of a local measure to tax medical cannabis. In an effort to thwart public support for safe distribution of medical cannabis in Vallejo, the City timed the February 2012 raids shortly after a 10% tax on sales of medical cannabis was overwhelmingly passed by the citizens of Vallejo. In his complaint, Shotwell alleges that the city “selectively targeted the most outspoken” dispensary directors as some of Vallejo’s quieter dispensaries were allowed to remain open with business as usual. As
a further waste of public resources, the DA proceeded to criminally charge the dispensary directors raided including Shotwell with the very Health & Safety Code violations that are exempted under California's medical cannabis laws. The City’s tactic to force closure of the dispensaries has failed thus far, as no judge has found that any of the dispensaries raided were in violation of state law, and therefore any associated criminal charges have been dropped. CBD Attorney Thurston is serving as co-counsel with civil rights attorneys Dan Siegel and Kevin Brunner in bringing this action against the City to force the City to answer for its wrongful actions against legitimate, state-authorized medical cannabis dispensaries operating within its borders. Greenwell is the second dispensary to sue after a series of medical cannabis dispensary raids in Vallejo last year. For the full article click on the link:
CANNABIS PATIENT RESOURCE
CPR is a blog hosted by CBD Professionals. CPR's aim is to help qualified medical cannabis patients keep abreast of the latest information on California's rapidly changing laws impacting patients' legal rights.