Pubdate: Wed, 12 Aug 2015
Source: East Bay Express (CA)
Column: Legalization Nation
Copyright: 2015 East Bay Express
Author: David Downs


The Feds Are at the Crossroads, the Industry Is Emboldened, and 2016 
Election Limbo Begins.

Medical marijuana's public enemy number one in the Bay Area - US 
Attorney Melinda Haag - will exit stage-left in September, 
brightening the future for local business owners and patients, but 
also increasing the haze.

Haag's exit ushers in a period of legal limbo for Northern 
California. Locals will not know who their next permanent US Attorney 
will be until some time after the fall 2016 presidential election, 
when the next president nominates him or her. "The bigger question is 
not, 'Who replaces Melinda Haag?' it's 'Who replaces Barack Obama?'" 
said Dan Riffle, a Marijuana Policy Project lobbyist in Washington, DC.

Until then, Brian Stretch, acting US attorney for the Northern 
District of California, has to contend with mixed signals from his 
bosses in the nation's capital as he decides what to do with a couple 
troubled, high-profile forfeiture cases against two of the industry's 
best actors - Berkeley Patients Group and Harborside Health Center in 
Oakland. In December, Congress told Stretch's superiors at the 
Department of Justice not to spend federal money undermining state 
medical marijuana laws (the Rohrabacher-Farr amendment). And the most 
recent memo from DOJ Deputy Attorney General James Cole tells 
prosecutors to focus on armed, interstate drug traffickers dealing to 
gangs and kids - not licensed dispensaries that check ID and only 
admit qualified patients.

However, the DOJ's own lawyers told Stretch in a recently leaked memo 
from February that the medical pot industry remains fair game, 
despite Congress' new rule. Congressmembers are calling for a federal 
investigation, and Congressional support for taking a hands-off 
approach to states that have legalized cannabis for medical or 
recreational use has grown since December. Rohrabacher-Farr is likely 
to be extended this year, Riffle said.

There are also a dozen other bills pending in the 
Republican-controlled Congress to "protect state's rights" with 
regard medical or adult-use pot policies. Nearly 80 percent of 
Americans support access to medical.

Other signals include:

The head of the Drug Enforcement Administration said this month for 
the first time that marijuana was less dangerous than heroin. "It may 
not seem like much to rational people. ... But for the DEA to admit 
that is a fairly big deal," said Riffle.

The head of the National Institute on Drug Abuse said this month for 
the first time that the marijuana molecule cannabidiol (CBD) 
shouldn't be considered a dangerous drug, let alone one of the most 
dangerous. NIDA's head admitted that CBD can stop seizures. "All 
those sorts of things are part of the small, glacial change of pace 
that we see," Riffle said.

Haag's old forfeiture cases are also sailing into increasingly foggy 
legal waters. Both forfeiture actions are stayed pending the outcome 
of federal appeals by the cities of Oakland and Berkeley. And federal 
judges have begun to openly wonder if Rohrabacher-Farr applies to 
federal forfeitures against licensed dispensaries such as BPG.

If the cities lose in the Ninth Circuit, they can appeal to the US 
Supreme Court. That could take years. The dispensaries could also try 
to raise the Rohrabacher-Farr defense in court. "That could be a big, 
showdown argument," said Henry Wykowski, attorney for Harborside, and 
a former federal prosecutor.

Winding down the forfeitures and moving on is best, though, Wykowski 
said. "He could justify getting rid of the cases, if he wanted," 
Wykowski added, referring to Stretch.

The possibility of Stretch filing new forfeiture cases isn't 
politically palatable, either, Riffle added. The DOJ "sees the poll 
numbers, just like politicians do," Riffle noted. "They know what's 
politically toxic for them and gets bad headlines for the 
administration and the agency. Washington, DC has been sending 
strong, overt signals, 'Do not focus on marijuana, there's better 
ways to spend money.' ... I don't think you can do much worse than 
Melinda Haag, in terms of wasting resources and following guidelines 
from Washington."

Local Focus

The industry may be singing "ding dong the witch is dead" at cocktail 
parties, but operators actually have much more to fear at the state 
and local level than at the federal one, notes Sean Donahoe, an 
industry consultant based in Oakland. The reason is that the vast 
majority of dispensary raids and arrests are locally driven. Growers 
are more likely to run afoul of county bans, code enforcement, and 
state wildlife agencies, than the DEA. "Sheriffs are huge," noted Donahoe.

Medical regulations pending this fall in Sacramento likely will cull 
the industry like Haag never could. And voters will almost certainly 
decide on at least one industry-shaping legalization measure in fall 
2016 - maybe several. With Haag on the way out, the advice for 
operators seems to be "stay the course, don't catch a case, and if 
you do, drag it out as best you can. Your legal position improves every day."

"Keep a low profile," said Wykowski. "The trick is to make it to 
2016, and chances are two things are going to happen: they legalize 
adult use and probably grandfather in everyone that's open."
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MAP posted-by: Jay Bergstrom