Pubdate: Wed, 04 Feb 2015
Source: San Francisco Chronicle (CA)
Copyright: 2015 Hearst Communications Inc.
Author: Bob Egelko


A federal appeals court questioned the government's move to seize and 
shut down the huge Harborside medical marijuana dispensary, but 
showed no support Tuesday for Oakland's attempt to preserve the pot 
supplier and its bounty of tax revenue.

Despite the Obama administration's repeated assertions that it would 
not target medical marijuana operations that comply with state laws, 
U.S. Attorney Melinda Haag filed suit in July 2012 to close down the 
city-licensed Harborside Health Center, which supplies marijuana to 
108,000 patients along the Oakland Estuary at 1840 Embarcadero. City 
officials sued to block the forfeiture, but a federal magistrate 
ruled in 2013 that Oakland had no rights of its own at stake in the case.

Harborside, which is challenging the forfeiture in a separate case, 
remains open while Oakland appeals the dismissal of its suit. The 
appeal drew a plague-on-both-your-houses reaction Tuesday from a 
conservative panel of the Ninth U.S. Circuit Court of Appeals in San 
Francisco, which seemed scornful of both the federal government's 
actions and the city's effort to block them.

"Why have you picked this fight?" Stephen Murphy, a federal judge 
from Detroit temporarily assigned to the panel, asked the Justice 
Department's attorney, Adam Jed. Murphy said the forfeiture action 
appears to conflict with President Obama's and Attorney General Eric 
Holder's declared policy of "legally looking the other way with 
respect to medical marijuana facilities."

Jed said he didn't know why Haag had gone to court, and stressed that 
the administration's policy statements weren't legally enforceable. 
Judge Richard Tallman said he'd be surprised if Haag hadn't consulted 
with Holder's Justice Department in advance, and observed that if 
Obama had objected to her forfeiture case, he could have asked for 
her resignation.

But the judges showed no inclination to reinstate Oakland's lawsuit.

"You're challenging the discretionary decision by the attorney 
general and his U.S. attorney to bring a forfeiture action. Isn't 
that the end of our inquiry?" asked Tallman, noting that courts lack 
authority to overrule prosecutors' discretionary acts.

Murphy, a former U.S. attorney, said the city would have no right to 
intervene if Haag had filed criminal charges against Harborside for 
violating federal narcotics laws, and suggested the same barriers 
exist in a civil forfeiture suit.

Oakland's attorney, Cedric Chao, said the city has multiple interests 
at stake: its system of regulating pot dispensaries, the taxes from 
more than $20 million in annual sales, and the health and safety of 
patients who obtain marijuana from a licensed business rather than 
street dealers.

Under federal law, Chao argued, the city can sue the federal 
government for disregarding its own stated policies and a five-year 
statute of limitations by filing the forfeiture claim six years after 
Harborside began dispensing marijuana, giving Oakland "a basis to 
believe that its program would be allowed." He also said the 
forfeiture action conflicts with a new federal spending law that 
prohibits the government from interfering with states' medical marijuana laws.

But Tallman questioned whether the city had any tangible interests at 
stake. If the federal government seizes Harborside, he said, it will 
also control the dispensary's property and funds, and Oakland's 
taxing authorities will have "no claim to the money."
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MAP posted-by: Jay Bergstrom