Pubdate: Thu, 29 Oct 2015
Source: Sacramento Bee (CA)
Copyright: 2015 The Sacramento Bee
Author: Peter Hecht


Judge Recently Ruled That Congress Has Banned Federal Actions Against 
State-Permitted Marijuana Businesses

Ruling Cited Marin Alliance for Medical Marijuana, Which Was 
Shuttered in a 2011 Federal Crackdown

Marin Alliance for Medical Marijuana Operator Lynnette Shaw Plans to 
Reopen the Business

In 1991, amid the AIDS crisis in San Francisco, a former jazz and 
blues singer named Lynnette Shaw was hired as the intake officer at 
the San Francisco Cannabis Buyers Club, California's first medical 
marijuana dispensary.

The modest Cannabis Buyers Club would eventually transform into a 
flamboyant weed emporium on Market Street that founder Dennis Peron 
dubbed "the five-story felony." Shaw, who would partner with Peron in 
backing California's Proposition 215 medical marijuana law, went 
another direction months before the initiative passed in 1996. She 
ventured across San Francisco Bay to establish California's first 
locally permitted and regulated medical marijuana provider.

Peron eventually drew the ire of state narcotics officers, who raided 
his club. Shaw and her small-town marijuana dispensary, serving 
patients with HIV, cancer and other illnesses, drew something else: a 
nearly two-decade legal battle with the United States Justice Department.

In 2011, over protests from local officials, a federal seizure order 
shuttered the Marin Alliance for Medical Marijuana in the Marin 
County hamlet of Fairfax. Shaw was left destitute, ultimately living 
on welfare and food assistance.

But on Oct. 19, Shaw won a major court ruling that marijuana 
advocates hail as a potentially landmark rebuke to federal drug 
policies and government interference in states where cannabis is 
legal for medical or recreational use.

In a sternly written decision, U.S. District Judge Charles R. Breyer 
in San Francisco threw out a federal injunction against the Marin 
Alliance for Medical Marijuana. He ruled that the Justice Department 
was defying the will of Congress and improperly intruding on 
California's medical marijuana laws.

This week, Shaw, who still lives in Fairfax, was celebrating and 
making plans to reopen the historic dispensary, launched in 1996 and 
licensed by the city in 1997. "I am looking at my Facebook page," 
Shaw said. "I'm getting thousands of messages right now. I'm getting 
cheered all over the world."

Breyer's ruling was seen as a major test for an amendment to federal 
appropriations bills signed by President Barack Obama in 2014 and 
again this year that banned any expenditure of Justice Department 
funds to prevent states from implementing laws "that authorize the 
use, distribution and possession of medical marijuana."

Marijuana advocates and the two California representatives who 
sponsored the amendment  Reps. Dana Rohrabacher, R-Huntington Beach, 
and Sam Farr, D-Carmel - called its passage an end to federal raids 
on medical marijuana providers in the Golden State and beyond.

But federal authorities, who in 2011 had launched sweeping raids and 
property forfeiture actions against California dispensaries, argued 
in court briefs that the Justice Department retained the right to 
enforce federal law against individuals or businesses. U.S. 
prosecutors said such criminal and civil "actions do not prevent a 
state from implementing its own laws" on marijuana.

Breyer last week provided a blistering rejection of the government's 
argument. "It defies language and logic for the government to argue 
that it does not 'prevent' California from 'implementing' its medical 
marijuana laws by shutting down these same heavily regulated medical 
marijuana dispensaries," he wrote.

Breyer's ruling added: "Californians' access to legal medical 
marijuana has been substantially impeded by the closing of 
dispensaries, and the closing of MAMM (the Marin Alliance for Medical 
Marijuana) in particular."

Months before the judge's ruling, Rohrabacher and Farr had sent a 
pointed letter to then-U.S. Attorney General Eric Holder. They took 
issue with public statements by Justice Department officials that 
they retained the right to prosecute medical marijuana cases in 
states, such as California, with legal medicinal use.

"As the authors of the provision in question, we write to inform you 
that this interpretation of our amendment is emphatically wrong," the 
California representatives wrote Holder on April 8. "Rest assured, 
the purpose of our amendment was to prevent the Department from 
wasting its limited law enforcement resources on prosecutions and 
asset forfeiture actions against medical marijuana patients and 
providers, including businesses that operate legally under state law."

After Breyer's ruling, Shaw's attorney, Greg Anton, declared: "The 
war on marijuana is winding down - and marijuana won."

Unsettled landscape

Shaw's battle with the government began in 1998, when the Justice 
Department won a court ruling to shutter the Marin Alliance and five 
other California dispensaries for violating the federal Controlled 
Substances Act by distributing medical marijuana.

Yet the government never enforced the injunction and the dispensary 
stayed open as Shaw filed legal appeals and even ran as a Libertarian 
and "marijuana peace" candidate for lieutenant governor in 2006, 
winning 142,851 votes - just under 2 percent - in the November 
general election.

In December 2011, then-U.S. Attorney Melinda Haag in San Francisco 
threatened Marin Alliance's landlord with seizure of the property in 
addition to up to 40 years in federal prison for drug dealing by 
providing medical marijuana within 1,000 feet of a Little League field.

The town of Fairfax protested. Then-Mayor Larry Bragman wrote Haag 
that the medical marijuana provider was legally operating under 84 
permit conditions "in a model of effective local oversight." In 
follow-up correspondence, Bragman said the dispensary was a critical 
provider of medicinal relief in a Marin County region with 
"exceptionally high rates of breast and prostate cancer."

Nevertheless, the dispensary closed in 2011 under the federal threats.

Shaw said she never earned more than $30,000 a year from the small 
cannabis club, which at its peak employed seven people and provided 
marijuana for 2,000 patients a month from some 45 medicinal cultivators.

With her dispensary closed and Shaw barred from working in the 
cannabis industry as she pursued legal appeals, she went broke. She 
said she took in as many as four roommates at a time to keep from 
losing her house to foreclosure.

After last week's ruling, Shaw said she is looking for investors and 
engaging Fairfax officials about reopening the dispensary somewhere 
in town."I'm now fed-proof!" said Shaw, 61. "Fed-proof nationwide. Thank God!"

But the legal landscape may remain unsettled for Shaw as well as 
other medical marijuana providers and businesses.

Federal authorities still are pressing a civil case to shutter 
Oakland's Harborside Health Center, a massive dispensary that claims 
to serve 120,000 clients as the largest marijuana provider in the world.

In 2012, Haag filed a property forfeiture case, saying "marijuana 
superstores such as Harborside" pose a threat to California's medical 
marijuana laws by increasing the likelihood of putting "marijuana in 
the hands of individuals who do not have a demonstrated medical need."

Steve DeAngelo, Harborside's executive director, said Breyer's ruling 
in the Marin Alliance case means the Justice Department can't spend 
any funds to pursue the case based on Congress' order.

"Our position is they now are prevented from even sending a lawyer 
into court to argue to close Harborside down," DeAngelo said. "The 
only thing they can do is drop the case. Congress has spoken. Obama 
has signed the bill. It is time for this travesty to end."

'They have to obey Congress'

Yet in a conflicting case in eastern Washington, U.S. District Judge 
Thomas Rice this month imposed federal prison sentences of 12 months 
to 33 months on three medical marijuana defendants in a group that 
cannabis advocates dubbed the Kettle Falls Five.

The defendants claimed they were legal medical marijuana patients in 
a state where both medical and recreational use is permitted. But 
U.S. prosecutors said their more than 100 total plants violated 
Washington state's 15-plants-per-person medical cultivation limit and 
left them open to federal prosecution for growing marijuana for 
profit, a charge the defendants denied.

Matt Kumin, a San Francisco cannabis industry lawyer, said he expects 
the Justice Department to appeal the Marin Alliance case to the U.S. 
9th Circuit Court of Appeals, where he said a positive ruling for 
Shaw is far from assured.

In July, the 9th Circuit Court in San Francisco ruled against a 
dispensary in that city, the Vapor Room, in a key tax case. The Vapor 
Room had sought to escape a federal tax statute, which bars business 
deductions for illegal narcotics trafficking. The Vapor Room argued 
it was a legally permitted business under California marijuana law. 
The court said the federal tax statute still applies.

"I have a feeling the 9th Circuit is not going to be friendly," said 
Kumin, who said he fears a legal reversal for the Marin Alliance. 
"I'm not optimistic. That said, every victory we get is huge. The cat 
is out of the bag. The wall continues to fall."

For her part, Shaw insists Breyer's ruling means the wall has indeed 
fallen - and she is victorious over the federal drug enforcement establishment.

"I've never read a decision like this that was just so blazing," Shaw 
said. "How are they going to appeal? They have to obey Congress. This 
decision ends the marijuana war. It really does.

"They ruined my life. But guess what? The truth has set me free."
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MAP posted-by: Jay Bergstrom