Monday, October 20, 2014
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PHILLY420: Despite congressional vote, state medical marijuana still at risk

Los Angeles Police officers and DEA agents stand outside of a marijuana dispensary in 2007 as DEA stage a raid.
Los Angeles Police officers and DEA agents stand outside of a marijuana dispensary in 2007 as DEA stage a raid. MSNBC / "Marijuana Inc."

Armed men, wearing all black, combat boots and bulletproof vests and brandishing automatic weapons, stormed into a small store on a busy street. The front door and windows were immediately smashed. The stunned employees inside had guns held to their heads and were told to lie on the floor; their hands were zip-tied. Once subdued, the workers watched, helpless and very frightened, as the men opened the cash register and safe, took all the money, and scooped up the valuables stored in glass display cases. The assailants then unhooked the computers and took those as well.

This was not Afghanistan or Iraq, this was West Hollywood in Los Angeles in 2007. The Drug Enforcement Administration was upholding federal marijuana prohibition. The raid was approved by the local U.S. attorney, the federal prosecutor. 

The store was the Arts District Healing Center and their product was state-legal medical marijuana. The owners were vocal activists who had filed several court cases and regularly organized protests and rally events. Perhaps that's why they were targeted. No one was arrested during the raid. 

I was helping to run the National NORML Conference that day in Burbank. We had just finished the welcoming check-in for attendees at the hotel when a woman excitedly announced to our group that the raid was taking place. 

Jumping into a rental car with some audio recording equipment and another journalist, Dean Becker from KPFD in Houston (who had a video camera), I went to witness the event firsthand. We raced across town and found a police helicopter hovering above. The LAPD had blocked off surrounding intersections. We parked the car and walked two blocks, scaling an apartment building fence to reach the site. About 30 activists from Americans for Safe Access had assembled and were chanting "DEA Go Away" and "We're patients NOT criminals" as the federal agents finished inside. 

Dean's video can be found here.

Al Roker also briefly covered the raid in MSNBC's 2009 "Marijuana Inc." report, where I make a quick cameo at the scene.

These smash-and-grab operations by the DEA were commonplace during the Clinton and Bush administrations. Although staged by U.S. attorneys, there were rarely any arrests or prosecutions. The raids were designed to intimidate the storefront medical cannabis centers into shutting down. By seizing their marijuana and cash and scaring away any customers, they often had the desired effect. If the centers reopened, they were often raided again. 

California was the first state to legalize medical marijuana under a ballot initiative, Proposition 215, passed by voters in 1996. It is an expansive law, allowing for home cultivation and a long list of qualifying medical conditions. It did not include regulations for issuing patient ID cards or licensing for storefront facilities: that was left up to the counties. Even today, not every California county follows the true spirit (or letter) of the compassionate-use law.

Still, the feds never could have stormed into every single garden in the Golden State, there were just too many. So the California medical marijuana law was implemented by attrition. 

When politicians around the country talk about the relaxed environment for medical marijuana in California, they seem to forget that this kind of experience weighs on the heads of everyone in the industry there even today. It takes courage to provide natural medicine and uphold a voter-approved law. 

Last week the newswires were filled with an interesting story about how Congress had voted to stop all DEA medical cannabis raids. If only it were true. 

For the first time, the U.S. House of Representatives voted in favor of a minor amendment in an appropriations bill for the Department of Justice, the controlling entity of the DEA.

First introduced back in 2003 as the Hinchey-Rohrabacher amendment, it is now cosponsored by Congressmen Sam Farr (D-CA) and Dana Rohabacher (R-CA) and reads as follows:

"None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana."

Unfortunately the vote this week is 11 years too late. If it had been passed back in 2003, it might have done something to quell the smash-and-grab tactics I saw in 2007.

But the U.S. Senate and two more regulatory committees need to eventually approve the measure and President Obama needs to sign it. Even if all those steps are fulfilled there will likely be no change to the current Department of Justice policy or practice, meaning that the waste of federal law-enforcement resources on medical-marijuana raids will continue. 

Since 1996, dozens of more states have passed evolving laws that became much stricter than California's. Some state legislators voted against these laws, citing their fear of crossing the feds.

So the raids under Clinton and Bush represented some tangible interference by the federal government into passing new medical marijuana laws. Yet the tactics simply forced many providers back underground. Some storefronts may have been closed, yet the raided providers didn't disappear entirely.

But the game changed significantly under President Obama. The methods shifted to a new strategy but raiding did not stop completely. 

In 2009, Deputy U.S. Attorney General David W. Ogden issued a memorandum saying that federal prosecutors should carefully allocate resources when considering bringing cases against state-authorized medical marijuana suppliers. But the memo was largely misinterpreted by the reform movement and the cannabis industry as meaning that all raids would stop. That was, sadly, not the case. In fact, under President Obama, there have been more raids than under Presidents Clinton and Bush combined. 

Yet under Obama, the raids have become something much different than smash-and-grab because now there are arrests and prosecutions. Instead of just taking the money in the registers now, the owners' bank accounts are frozen; even their cars and houses are seized under what is known as civil forfeiture. The raids also started happening in more states like Michigan, Washington, Oregon and Montana. 

Fast forward to 2011: New Jersey had passed the newest, most limited form of a whole-plant compassionate use law. New Jersey has a very short list of qualifying conditions and prohibited home cultivation by patients. The scheme was to force patients to buy cannabis at one of only six facilities around the state. In charge of implementing this law is a former federal prosecutor now Governor, Chris Christie.

Before he allowed the N.J. Department of Health to write any regulations for the nascent cannabis program, Gov. Christie ordered then-state Attorney General Paula Dow to send a letter to the Department of Justice asking for clarification. He claimed that he did not want to put state employees at risk of federal prosecution, something the feds had never attempted, anyway. 

Deputy U.S. Attorney General James Cole responded to Christie's calculated move with another memo. Building on Ogden's statements, Cole said that federal resources should not be used against individual patients. 

But Cole also said that DOJ should begin to actively police the state medical marijuana programs, coming down as hard as possible on those who, in their opinion, were not complying with local laws. Freedomisgreen.com was the first to publish the full text of the Cole memo  found here.

This new legal logic puts the feds in a strange position that toes the line of constitutionality. Rather than enforcing prohibition overall, DOJ is now the arbiter of state legislation, something that goes against the ideals and the common practice of more than 200 years of American federalism. 

Focusing on those who seek to change the law while providing cannabis was, and still seems to be, the deplorable aim of federal authorities. Ed "NJ Weedman" Forchion's cannabis center in Los Angeles was shut down by the DEA and Steve D'Angleo's Harborside Health Center in Oakland fell prey to the IRS. Centers who don't "rock the boat" or attempt to forward reforms or hide their profits better are left alone. 

So what does the congressional vote last week do? It simply gives politicians some convenient campaign season talking points. More than 80% of American voters support state-legal medical marijuana. House members get to go back to their home states and say they support the issue, too, while asking for donations and votes. But savvy politicians know full well that the amendment now has no teeth. 

In order for the DOJ to interfere with "implementing" a law, they would have to go after a regulating entity like a state Department of Health (again something they have never done) or attempt to shut down an entire state's medical marijuana program. 

It is long past time for Congress to act swiftly, decisively and historically to change marijuana prohibition. But the vote last week was not it; not even close. 

In 1937, Congress took just nine hours and one vote to pass the "Marihuana Tax Stamp Act," a wide-ranging prohibition that remained in place for 32 years. The U.S. Supreme Court ruled in Leary vs. The United States that the tax was unconstitutional and struck it off the books in 1969. President Nixon and Congress acted quickly then and in 1970 took mere months to craft the Controlled Substances Act. The CSA is why marijuana remains illegal today. 

In 1972, a former Republican Pennsylvania Governor and constitutional scholar, Raymond Shafer, ran a blue-ribbon commission that recommended that cannabis be excluded from the CSA altogether. President Nixon, and every president since, ignored that well-thought advice. Now we arrest more than 750,000 Americans every year (21,000 in Pennsylvania and 22,000 in New Jersey) mostly for possessing a small amount of pot. 

Personally I think it is long past time for the press, the public, and the marijuana-reform movement to get truly politically savvy. Right now the issue of prohibition reform is being co-opted into campaign politics; landing in the same black hole as Social Security and the like.

More than half of states now have medical marijuana laws on the books, more than 20 with decriminalization laws, and now recreational cannabis laws exist in Washington and Colorado. Congress and President Obama can act to end an expensive war here at home that damages almost a million Americans each year. 

Marijuana should be removed from the Controlled Substances Act completely and put alongside alcohol and tobacco; fully legal, taxed and regulated by the states.  

Chris Goldstein is on the board of directors at PhillyNORML and is currently serving two years of federal probation for possessing a single marijuana joint on federal land. 

Chris Goldstein
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