Pubdate: Fri, 21 Aug 2015
Source: San Jose Mercury News (CA)
Copyright: 2015 San Jose Mercury News
Author: Howard Mintz
Page: B1


Appeals Court Rejects Oakland's Attempt to Block Facility's Closure

Oakland's attempt to block the federal government's shutdown of the 
nation's largest medical marijuana dispensary has gone up in smoke.

A federal appeals court on Thursday rejected the city's intervention 
in the U.S. Justice Department's effort to close down Oakland's 
Harborside Health Center, concluding that the legal move interferes 
with the federal government's powers under forfeiture laws to move 
against what it considers illegal activity. The 9th U.S. Circuit 
Court of Appeals, in a unanimous three-judge ruling, found Oakland 
had a right to sue but that its legal arguments would undercut 
federal drug enforcement powers.

The 9th Circuit was 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. Thursday's ruling could allow 
federal law enforcement officials to move to close down the operation.

But Harborside officials disagree.

"This ruling is not going to have any real-life effect on Harborside 
or our patients in the foreseeable future," Harborside Executive 
Director Steve DeAngelo said. "This is just one more step in 
litigation that's been going on for several years, and we are 
expecting to continue for several more years unless the federal 
government decides to dismiss the case."

Oakland City Attorney Barbara Parker said she will consult city 
officials on whether to seek a full 11-judge panel review, the first 
step before appealing to the U.S. Supreme Court.

"I was very pleased that the court agrees that city of Oakland will 
suffer significant, grievous injury if Harborside closes down," 
Parker said. "I'm perplexed by the court's other finding that despite 
recognition that we will have this injury, there's no remedy for it."

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.

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 
nonprosecution of persons acting in compliance with state and 
municipal laws regarding medical marijuana."

Oakland city officials maintain that shuttering Harborside will 
damage city interests in numerous ways, from losing tax revenue from 
a legal, regulated local business to driving those marijuana sales 
into the black market and boosting crime.

The Obama administration in recent years has shifted course on 
medical marijuana enforcement, for the most part abandoning 
prosecution in states where medical weed is legal. California voters 
approved medical pot in 1996.

But there have been some crackdowns, primarily aimed at dispensaries 
proliferating without much oversight in areas such as near schools 
and parks. The Harborside action came before some of the more recent 
shifts in Justice Department enforcement.
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MAP posted-by: Jay Bergstrom