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It hasn’t taken the full force of the federal government to shut down hundreds of California’s medical marijuana dispensaries. For the most part, the four U.S. Attorneys operating in California have snuffed out medical marijuana access for just the price of postage.
They’re doing it with threatening letters mailed to landlords who rent commercial space to the dispensaries. Rather than bring federal charges against the caregivers and volunteers at San Francisco’s Vapor Room Cooperative, for example, the U.S. Attorneys went after the elderly immigrant widow who owned the Victorian mansion that was the Vapor Room’s home and her primary retirement asset. They warned her in writing that she faced a lengthy prison sentence and the loss of her home if she did not immediately evict the Vapor Room, which had been a reliable tenant in a tumultuous real estate market.
In huge batches, U.S. Attorneys Andre Birotte Jr., Laura E. Duffy, Melinda Haag and Benjamin B. Wagner have mailed similar letters to the landlords of dispensaries throughout the state. Their campaign of strong-arm intimidation is cheap, effective and relatively quiet, as it allows them to usher a dispensary out its own back door without giving its owner a public day in court.
It’s a less visible way of waging an enormously unpopular war on alternative medicine. According to a recent Mason-Dixon poll, three-fourths of Americans want the federal government to respect state medical marijuana laws. A scant 15 percent want to see the federal law enforced.
California landlords aren’t the only ones being painted as accessories to drug trafficking. Banks and credit card companies have been threatened with money laundering charges for doing business with dispensaries, and media outlets are on notice not to publish or broadcast their advertisements. The federal government also pursues them through the IRS, using relentless audits and the denial of business deductions as tools to make dispensary operations cost prohibitive.
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When the U.S. Attorneys announced their crackdown on dispensaries in an October 2011 joint press conference, many medical marijuana advocates were caught off guard. Just three years earlier, a campaigning Barack Obama said he was “not going to be using Justice Department resources to try to circumvent state laws on this issue.”
After Obama’s inauguration, Attorney General Eric Holder confirmed this position for the Department of Justice. “What [Obama] said during the campaign is now American policy,” he said.
The Department of Justice even put the policy in writing in an October 2009 memo from Deputy Attorney General David Ogden, which said the U.S. Attorneys “should not focus federal resources in [their] states on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”
The Ogden memo and Obama’s position emboldened California’s medical marijuana providers, who invested heavily in the industry with the expectation that operating as not-for-profit cooperatives would insulate them from federal prosecution.
But fewer than two years later, freshly confirmed Deputy Attorney General James M. Cole issued a new memo that stressed that “persons who are in the business of cultivating, selling or distributing marijuana … are in violation of the Controlled Substances Act, regardless of state law” and “are subject to federal enforcement action, including potential prosecution.”
“The marijuana stores and grow[er]s are commercial operations,” said Thom Mrozek, spokesman for U.S. Attorney Andre Birotte Jr. “They may call the sale price a ‘donation,’ but that is just semantics designed to make them appear to be in compliance with state law.”
“We have yet to see a marijuana store that is operating as a true non-profit,” Mrozek said. “The anecdotal evidence is rife with examples of profiteers. I’m not saying that we have looked at every operation, nor am I saying that there isn’t one out there, but I am saying that law enforcement has yet to see a true non-profit marijuana operation.”
Birotte Jr. revealed his most recent targets on Sept. 25, taking legal action against 71 dispensaries in Los Angeles County. While announcing the action, he stressed that “even those stores not targeted today should understand that they cannot continue to profit in violation of the law.”
The U.S. Attorneys are so convinced that California dispensaries are in wholesale violation of state laws that they don’t even bother to verify their suspicions. And despite continued assurances from Holder that medical marijuana caregivers who “act in conformity with state law” will not be “enforcement priorities,” Mrozek is quick to point out that state law compliance is not an actual factor in the U.S. Attorneys’ decisions on which dispensaries to target.
“Since we started our enforcement actions last fall, we are not examining each marijuana operation,” Mrozek said. “Remember that our enforcement actions are taking place under federal law, which clearly prohibits the sale, cultivation and possession of marijuana. We don’t need to demonstrate a violation of state law to prevail on a case brought under the laws of the United States.”
California civil rights attorney Matt Kumin says that the U.S. Attorneys’ interpretation of “profits” is off-base.
“For the feds to say virtually everyone is making a profit, that’s really not true,” Kumin said. “Reasonable compensation is explicitly allowed for the caregiver. You can fight over whether a salary is a hidden profit, but what most of these dispensaries are doing salary-wise is in line with what other non-profits of similar size are doing. If the federal position is that there can be no cash involved, that’s the most extreme position you can take on the definition of ‘non-profit.’”
The possession of large sums of cash has been treated as evidence of dispensaries’ for-profit status in several cases. But because banks and credit card processors have been threatened with federal charges for serving the dispensaries in any way, most dispensaries must keep all of their financial assets in a safe, making them attractive prey for burglars and government accountants alike.
The Crackdown Continues
For the foreseeable future, the federal government will continue its successful campaign of squashing medical marijuana by threatening California’s business community outside of the courtroom doors. But what remains to be seen is whether growing support for medical marijuana and outrage over federal interference will eventually translate into reform at the federal level.
“The more the feds touch this issue, the more they lose the public relations battle,” Kumin said.
But so far, neither public opinion nor state law has swayed federal drug warriors from their bottom line.
“Long and short: they’re in violation of fed law,” Mrozek said
by Josh Crank
October 15, 2012