No end, win in sight in dispute over marijuana dispensaries

February 11, 2006

Herbert A. Sample, Sacramento Bee

In the past few months, this city enacted an ordinance regulating medical marijuana shops, federal authorities raided one of the dispensaries and advocates protested the crackdown by openly giving free marijuana to ill patients in a city plaza.

While the federal government continues going after medical cannabis shops across the state, and many communities still resist giving business licenses to the operations, support for the dispensaries in San Francisco remains strong -- even among law enforcement officials.

And that has set up what appears to be the makings of an intractable feud that some observers say no one is winning.

"It seems to me that this is a really good example of both sides of a hot topic doing really badly at handling it," said Rory Little, a professor at the University of California Hastings College of the Law in San Francisco.

"The feds have been ham-handed to some extent in what you call raids, in their search warrants and their seizing of plants and things like that," said Little, a former federal prosecutor. "On the other hand, the medical marijuana people have been unbelievably open to being co-opted" by groups supporting recreational marijuana smoking.

Local governments in California have been heading in disparate directions on medical marijuana. Roseville, for example, permanently banned medical marijuana dispensaries last year after repealing its law regulating cannabis shops.

In another anti-marijuana move, San Diego and San Bernardino county supervisors last month voted to sue to overturn Proposition 215, passed in 1996 legalizing medical marijuana, and a 2005 state medical marijuana ID card law, arguing that those measures conflict with federal statutes.

On the other hand, Oakland passed rules two years ago permitting four dispensaries. Santa Cruz last year created a city department to distribute medicinal marijuana -- the Office of Compassionate Use -- although it is not operating yet.

San Francisco voters in 2002 approved a similar policy in a nonbinding vote, and the Board of Supervisors in November enacted this city's first dispensary regulations.

The new rules allowed many of the city's nearly three dozen shops to remain but restricted where new ones could locate, and limited hours of operation and how much a patient could buy.

Catherine and Steven Smith, co-owners of the HopeNet Co-op and members of city task forces on medical marijuana, were active in the effort to enact the ordinance. To them, the new law tacitly acknowledged the shops as a legitimate part of the community.

"We're definitely becoming part of the establishment," said Catherine Smith, 49, who uses marijuana for control of migraines and to manage pain.

But on the morning of Dec. 20, federal Drug Enforcement Administration agents raided the Smiths' home and seized evidence but made no arrests.

The agents later approached HopeNet's shop but retreated as a crowd of several dozen medicinal marijuana supporters protested. A few hours later, after the demonstrators had dispersed, the agents entered the co-op and confiscated marijuana and other evidence, temporarily putting the dispensary out of business.

"It really took away our ability to help people," Smith said.

The raids angered medicinal marijuana supporters and two county supervisors, who organized a January press conference in city hall, where aides to Mayor Gavin Newsom, District Attorney Kamala Harris and state legislators read supportive statements.

At Civic Center Plaza across the street, HopeNet then passed out marijuana joints and candies to their patients, without interference from law enforcement. The separate -- but linked -- events were meant as a push-back, said Camilla Norman Field, deputy director of the Drug Policy Alliance, a national nonprofit group that advocates changes in laws regarding marijuana and other drugs.

"When there is a direct action against our city and our community and our patients by the DEA, you're going to see a direct response from our community, including city officials," said Field.

Steph Sherer, executive director of Americans for Safe Access, contended that when the federal government confronts one of the more than 100 dispensaries in the state, it suffers a public relations defeat.

The dispensaries "are publicly listed in the Yellow Pages. They are doing this in an open manner," she said. "The truth is that every time (federal officials) move forward on medical marijuana, they receive a black eye."

But Gordon Taylor, assistant special agent in charge of DEA operations in San Francisco, said efforts by several California cities and counties to delay or bar dispensaries demonstrates a groundswell against what he prefers to call "marijuana distribution centers."

In those cities and counties that do facilitate the distribution of medicinal marijuana, the DEA will continue to enforce federal law, he added.

"We have a responsibility to do that even in areas where it may not be popular," said Taylor, who works out of the agency's Sacramento office.

Further, he said it's time to "set the record straight" that many, though not all, dispensary customers are healthy and are obtaining the drug for recreational purposes.

It is that assertion, said Little, the Hastings law professor, that drives federal efforts. He said federal agents might have had ample probable cause for their searches, but they antagonized medicinal marijuana advocates by raiding operations where there were ill patients, such as a 2002 search of a Santa Cruz cooperative.

Little said medical marijuana proponents also hurt their cause by joining with groups, such as the National Organization for the Reform of Marijuana Laws, that also advocate legalizing recreational use.

While the seeming intractability of the two sides may persist for several more years, the popular trend appears to favor medicinal marijuana advocates as more states pass laws allowing its use and political pressure builds on federal officials, said Kenneth Walsh, a criminal justice professor at San Francisco State University.

"Eventually the people just won't be denied," said Walsh, a former New York City police officer.

In the meantime, the standoff between the federal government and medicinal marijuana supporters continues.

"Something has to be worked out with the federal government," said Anthony Ribera, a former San Francisco police chief and head of the University of San Francisco's International Institute of Criminal Justice Leadership. "The fact of the matter is, federal law supersedes local law and that's the reality of it."

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