We’re Going to Win the War…and the Feds Know It, Too

Amid now-regular assaults by the federal government, the medical marijuana community of not only Southern California, but also the entire country has been hard-pressed to find reason to hope, or to celebrate. And yet, what we must remember is that we are under attack from a frightened enemy that knows its days are numbered.

Of course, victory – the day when the federal government finally admits marijuana is medicine, and stops diverting its resources to stamp out law-abiding qualified patients and collectives and to threaten local and state officials who seek to regulate medical marijuana – will take time, likely years. And we will suffer casualties and losses and endure panic and fear among our community and our state and local governments. But victory for medical marijuana will come – and after that, victory for drug reform will follow.

That inevitability – that someday, we will have a sensible federal drug policy, governing marijuana, medical and recreational – terrifies federal law enforcement. After all, rather than going after peaceful patients and responsible reformers, they will have to focus their time and energy on true villains – and perhaps, have their budgets slashed. Perhaps this is the fear that has made the federal government lash out at medical marijuana – and equally chillingly, at elected officials that have supported us.

In the past few weeks, the medical marijuana community has seen the following attacks from the feds:

• The DEA has raided five storefront collectives in San Diego.
• U.S. Attorney for the Central District of California, André Birotte, Jr., filed asset forfeiture lawsuits in Costa Mesa and Covina. Birotte has sent letters threatening asset forfeiture to other landlords and operators in Costa Mesa, Newport Beach, Murrieta, and Lake Elsinore, among other locations.
• U.S. Attorney for the Eastern District of California, Benjamin Wagner, filed an asset forfeiture lawsuit in Sacramento against Sacramento Holistic Healing Center, which the City of Sacramento had allowed to operate while it applied for a permit under the City’s ordinance. According to Wagner, he targeted the dispensary because it was within 1000 feet of a school.
• U.S. Attorney for the District of Colorado, John Walsh, has sent letters threatening asset forfeiture to 23 dispensaries in Colorado. Allegedly, Walsh targeted these dispensaries because they are within 1000 feet of schools.

Equally chilling, the feds have begun threatening local officials who regulate or seek to regulate medical marijuana. Examples include the following:

• U.S. Attorney for the Northern District of California, Melinda Haag, threatened to sue Mendocino County for its innovative – and successful – zip-tie program, in which the Sheriff’s Department would inspect and monitor registered medical marijuana grows in the County. As a result, the Mendocino Board of Supervisors suspended the program.
• The DEA has requested records for twelve of San Francisco’s licensed medical cannabis dispensaries from the City’s Department of Public Health. It is not yet clear if this request is meant to terrify only qualified patients, or the Department as well. Chillingly, the DEA requested records for five dispensaries in San Francisco from the Department approximately one year ago – the same five dispensaries whose landlords received letters from Haag last fall, and shut down as a result.
• The DEA in Montana recently questioned people as to whether Diane Sands, a representative in the Montana Legislature, could be part of a conspiracy to sell medical marijuana. Sands previously chaired a legislative committee that considered regulations for Montana’s medical marijuana industry.

Yet, as frightening as these federal assaults and threats are, the medical marijuana community must remember that the feds are lashing out because they feel cornered. Though the feds have convinced many operators to close their storefronts, many of these same operators have switched to delivering cannabis to collective members. In short, they are changing tactics as they wait out the storm.

In addition to changing collective exchange models, operators, qualified patients, and advocates have continued to move forward with promoting the industry and clarifying laws. Several groups are gathering signatures for statewide ballot initiatives, including Regulate Marijuana Like Wine, Repeal Cannabis Prohibition Act of 2012, and Medical Marijuana Regulation, Control, and Taxation Act. Others are gathering signatures for local ballot initiatives.

Also demonstrating that medical marijuana is an entrenched part of California life and law, the California Supreme Court recently announced it will hear appeals in several medical marijuana cases, including Pack v. City of Long Beach and City of Riverside v. Inland Empire Patient’s Health and Wellness Center, Inc. In Pack, the Second Appellate District ruled that federal law preempts most of the City of Long Beach’s ordinance that sought to regulate medical marijuana dispensaries. Unfortunately, many cities and counties used this ruling as an excuse to pass or maintain bans on storefront dispensaries. For example, the City of Los Angeles has pointed to the ruling as proof that the City must pass its so-called “gentle ban” on dispensaries. Proposed by Councilmember Jose Huizar, the proposed regulation would ban all storefront dispensaries in Los Angeles. In Inland Empire, the Fourth Appellate District, Division Two, ruled that municipalities can ban storefront dispensaries, though the Court also emphasized that municipalities can allow and regulate storefronts as well.

Though we will likely wait between eighteen months and two years for the California Supreme Court to issue opinions in these important cases, the fact that the Court took these cases demonstrates that medical marijuana law in California is alive – and here to stay. The time for victory will come; we just have to remain patient – and wait out the federal government’s terrifying death rattle.

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The Law Offices of Jessica C. McElfresh focuses on medical cannabis law in San Diego. For more information, email Jessica at This email address is being protected from spambots. You need JavaScript enabled to view it.