Pubdate: Wed, 04 Feb 2015
Source: San Jose Mercury News (CA)
Copyright: 2015 San Jose Mercury News
Author: Howard Mintz


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."
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