Waiting to inhale
June 08, 2004
Ann Harrison, San Francisco Bay Guardian
Growing medical marijuana in San Francisco these days means never knowing when or if you'll get busted. State law and city policies purport to allow and even encourage growers like Patrick White to cultivate marijuana for the city's estimated 6,000 authorized users and 18 dispensaries.
Yet the lack of clear guidelines defining when legal medicines become illegal narcotics has allowed the San Francisco Police Department – led by zealous narcotics officer Sgt. Marty Halloran – to decide when to destroy the garden and jail the gardener.
Halloran led the December raid on White's 62-plant garden, seizing his crops and his cash despite paperwork designating White as the caregiver for six registered patients. Because White told officers he has sold two and a half pounds of surplus marijuana to local dispensaries, he now faces nine years in prison.
'I was just being honest,' White told the Bay Guardian. 'It was in good faith, because the law is so ambiguous and so unsettled. What I did has been done every day for five or six years in San Francisco. There have always been vendors in one way or another.'
Medical cannabis growers used to be most worried about federal agents, to whom any pot possession is a crime. Now it's Halloran and the SFPD that have been busting them.
Defense attorneys say there's been a steep increase in arrests of medical marijuana growers by local cops, sometimes even after the SFPD has been consulted by growers trying to figure out what the rules are.
At least two growers raided by the SFPD have been sent to federal prison in the past year, with a third on the way, and there were at least five San Francisco growers busted in December alone. These police actions are especially troubling given that San Francisco voters in 2002 approved Proposition S, which directed city officials to 'explore the possibility of establishing a program whereby the City would grow medical cannabis and distribute it to patients attempting to exercise their rights under Prop. 215.'
Proposition 215, the Compassionate Use Act, permits patients and their caregivers to grow medical cannabis but provides no legal protection or guidelines for large-scale cultivation. As San Francisco defense attorney Tony Serra once put it, Prop. 215 legalized the milk but not the cow.
Now a top city prosecutor has stepped into the fray, arguing that the current situation is unjust and an unnecessary waste of resources. Yet if patients and their caregivers want assurances that the police won't be kicking in their doors, it's going to take action by Mayor Gavin Newsom and the city's political leadership, who have stayed on the sidelines even as their city's war on drugs has been heating up.
Fairness and resources
San Francisco chief assistant district attorney Russ Giuntini told us the wrangling over these medical marijuana cultivation cases is draining law-enforcement resources at a time when the city's escalating homicide rate demands that police focus on violent crime.
He fears these cases could aggravate an already huge backlog in the courts and tie up cops and prosecutors in potential trials in which San Francisco juries are unlikely to convict. According to Giuntini, the District Attorney's Office is reorganizing the narcotics unit and reviewing all pending drug cases.
Giuntini told us he wants to sit down with representatives from the growers, police, patients, dispensaries, and doctors to hammer out a clear set of city guidelines for medical cannabis cultivation and distribution.
'I want to see a situation where someone who is doing a grow can come to the Police Department, come to the D.A.'s Office, and get the basic rules of the road which they can sign off on, so we don't have this kind of ad hoc, case-by-case approach, which is wasting everyone's resources,' Giuntini said. 'And it's got to make sense, so people don't walk away from meetings saying, 'I was told this or that,' only to have their door kicked in. That's not fair to anyone, and it's a waste of law enforcement's time.'
Yet Giuntini has so far proved to be the only city leader proactively seeking a solution. The San Francisco Board of Supervisors has taken a passive role in the matter, despite activists' calls for action. And Newsom hasn't yet shown any inclination to set clear standards or rein in cowboy cops like Halloran.
Newsom, who supported Prop. S, told us he has heard only 'generalizations' about increased arrests of medical cannabis growers. Nonetheless, he said he would consider presenting to the Board of Supervisors whatever guidelines Giuntini develops.
'I would look to the advice and wisdom of the D.A.'s Office and law enforcement, and if they determine what the appropriate guidelines were, we would take a good look at that and advance them if we believe they were good guidelines and good principals,' Newsom told us, adding, 'I am a big opponent of the war on drugs, a foursquare opponent of the war on drugs.'
Newsom couldn't say how he would deal with police who violated city guidelines, because it was too 'hypothetical.' But any guideline effort would have to overcome skepticism from the medical marijuana community.
'People don't trust the government, because politicians act one way and police act another,' medical cannabis patient Clark Sullivan told us. 'There are good officers out there that respect the law, but there are cops who make their own guidelines.'
The risks involved in a case-by-case approach are clear to Stephanie Landa, Kevin Gage, and Thomas Kikuchi. In February 2002, they say, they attended a Medical Marijuana Task Force meeting with Halloran and Capt. Kevin Cashman, then head of the SFPD narcotics unit.
According to Landa, Cashman said at the meeting that the Board of Supervisors had designated San Francisco as a medical marijuana sanctuary and police wouldn't cooperate with federal law enforcement.
Landa told us Cashman explained that as long as they used licensed electricians, kept their medical marijuana garden within city limits, and sold only to medical marijuana dispensaries, they would have no trouble. She said Cashman presented them with a handout noting that there was no medical marijuana plant limit in San Francisco and told them if they had any burglaries, they should call the police. Sullivan, who organized the meeting, supports Landa's account.
After more assurances from then-district attorney Terence Hallinan, Landa and her partners borrowed $250,000, moved from Los Angeles, secured a business license, and began creating a nonprofit medical cannabis collective. In April 2002 they rented a warehouse for an indoor garden at 560 Brannan St., less than three blocks from police headquarters, and began growing 40 strains of cannabis to treat different conditions.
'We wanted to be near them so they could protect us as promised,' Landa told us.
Four months later a group of plainclothes San Francisco police officers burst into the warehouse, threw Landa and Gage to the ground, and pointed guns at their heads. Leading the raid was Halloran, whom Landa said denied ever having met her.
When Cashman arrived, Landa told us, he recognized her and ordered her handcuffs removed. They weren't arrested, but Cashman asked Landa and Gage to give statements and come back the next day. When they returned, Landa said, more than 1,000 small marijuana plants were gone, $2,000 in cash was missing, and the entire growing facility had been heavily vandalized.
Two weeks later Landa, Gage, and Kikuchi were indicted on federal charges for growing more than 1,000 marijuana plants with intent to distribute.
Landa charges that when they couldn't make a state case, police simply turned over the evidence to federal authorities who weren't present at the raid; police dispute that characterization.
'The federal authorities were on the scene that day, and they adopted the case,' Halloran told us. He said a citizen complaint prompted him to investigate and secure a search warrant. Despite repeated requests, the SFPD wouldn't make Cashman available to set the record straight, and he has been transferred from his former post.
But Halloran told us Cashman never made the statements Landa claims he did. 'At no time did we give assurances that someone who cultivated 1,500 plants two blocks from the Hall of Justice would not be prosecuted under state and federal law,' said Halloran, who charges that the group didn't possess enough medical cannabis recommendations to prove they were growing for a large group of patients. 'They can possess marijuana if they possess a recommendation, and if they possess a recommendation, we said at that meeting that we handle all cases on a case-by-case basis.'
Landa said the paperwork was forthcoming and they hadn't yet sold any cannabis. Nevertheless, federal prosecutor George Bevan threatened to put Landa in prison for life because of a prior heroin-smuggling charge 35 years earlier and proposed 10-year sentences for Kikuchi and Gage.
In a plea agreement written by Bevan, Landa said she and her partners weren't allowed to mention the roles of Halloran and Cashman in the case and were forced to sign away their right to an appeal. Bevan didn't return calls seeking comment.
Landa says 10 San Francisco city supervisors wrote letters to the judge on their behalf. But they were sentenced last summer to 37 to 41 months in federal prison. Gage and Kikichi are now eight months into their terms at a federal prison camp in Sheridan, Ore. Landa, who was given a delayed sentence because she and Kikichi have a child, will begin serving her 41 months in a maximum-security prison in about two years.
'When government officials gave us permission to do this, this was not in the plan,' said Landa, who sobbed as she recounted the ordeal. 'I can't figure out why they would tell us something and then come in and destroy it. It doesn't make sense.'
And it's particularly hard to understand in a city that has taken the lead in tolerance of medical marijuana, at least in the rhetoric of local politicians.
'The asylum resolution was a great piece of showmanship, but it didn't impose any penalty for it being violated by city officials,' Landa's friend Michael Lee told us. He has also been arrested for growing medical cannabis.
Lee worries that future medical cannabis collectives encouraged by the city could be targeted by police. 'If the Board of Supervisors doesn't have any teeth in the situation,' Lee said, 'they might be waving a flag and yet subjecting people to criminal violations.'
The cost of ambiguity
The city's Medical Marijuana Task Force has helped city officials evaluate options for implementing Prop. S. But the last meeting, in March, became a forum for patient complaints, and city department representatives didn't get a chance to discuss policy issues.
Those present describe the meeting as chaotic, and Halloran and Capt. Tim Hettrich, the head of the SFPD narcotics unit, told us it was a waste of their time. Local defense attorneys say Halloran has arrested at least 10 patients and caregivers on cultivation and distribution charges in the past year.
Attorney Ian Loveseth represents a patient busted by Halloran in December for growing 69 plants. Loveseth told us Halloran contacted the patient's doctor and tried to expand the scope of the investigation.
'This was not limited to looking for evidence against the guy but maybe evidence against the doctors,' said Loveseth, who noted that harassing doctors violates Prop. 215. Loveseth notes that Sonoma and Humboldt Counties allow each patient and his or her caregiver to grow up to 99 plants. 'You can't let the Police Department make policy on cases in San Francisco, and right now the only people with a policy is the Police Department.'
The current Police Department Bulletin on medical cannabis contains the same vague rules set down in 2001, which were applied to the Landa case. It states that 'patients or caregivers may not possess or cultivate amounts greater than necessary for the patient's personal medical needs.'
The wording gives police wide latitude to arrest, and they clearly are skeptical about the validity of many medical cannabis growers.
'It is my opinion that in a great many of these cases, the marijuana is grown for entrepreneurial illegal purposes, to make money for the growers,' Hettrich told us. 'Oftentimes they claim the medical marijuana excuse if they get caught. I know that we have made numerous arrests for cultivation.'
Without clear policing guidelines for medical cannabis, the city could face expensive lawsuits. Steph Sherer, director of Americans for Safe Access, a medical cannabis patients group, told us her group is organizing patients who have been targeted by Halloran with the intention of filing a class-action lawsuit against the city.
'What we see here is absolute malice,' Sherer said. 'It is not much of a step to turn in a city when he has no problem turning in patients. I don't feel safe implementing any variation on Prop. S in San Francisco with him around, and I think a lot of people feel the same way.'
Halloran told us he has done nothing improper. 'I have not seized marijuana or arrested individuals if they clearly documented that they were patients or primary caregivers,' Halloran said. 'And if they were reasonable about the amount of marijuana needed to medicate themselves or their patients.'
So what's a reasonable amount of medical marijuana?
Halloran said the SFPD is enforcing controversial default plant guidelines prescribed by Senate Bill 420, which limits patients and their caregivers to 12 immature or 6 mature marijuana plants and eight ounces of dried buds. Many patients say these amounts are inadequate, and this law allows them to possess more if doctors say it's necessary.
Cities and counties are also permitted by that law to set higher limits, but San Francisco hasn't.
'The courts have to define 'reasonable', and the courts have to define what is mature and immature. That is vague and ambiguous in my opinion,' Hettrich said.
Giuntini from the D.A.'s Office isn't optimistic about local juries sorting out medical cannabis policy.
'Police can make arrests, and we can charge cases,' he said. 'But in the end, the juries decide what is really right and appropriate, and I don't know that jurors look at arbitrary guidelines that are set by the legislature and really care.'
How much is enough?
In February the city's Office of Legislative Analysis acted on Prop. S by releasing a report suggesting the city could support medical cannabis by providing incentives for the formation of medical marijuana collectives or cooperatives.
According to the report, the city could encourage these groups by selling or renting them land at discounted rates or providing grants for the purchase of supplies, equipment, and security. The City Attorney's Office is now preparing potential zoning guidelines for such groups.
The OLA report suggests city collectives follow the model established by the Santa Cruz Wo/Men's Alliance for Medical Marijuana (WAMM), which provides free cannabis to its members. WAMM's 200 patients grow their own medical marijuana with help from a paid agricultural director.
Deputy city attorney Rick Sheinfield says the WAMM model for collectives is favored because it's best protected under a Ninth Circuit Court of Appeals ruling in December that found federal drug laws exceeded the government's right to regulate interstate commerce. The court ruled in Raich v. Ashcroft that if the medical cannabis is grown and consumed inside the state, and if no money changes hands, the federal government has no jurisdiction.
'We don't have a lot of preconceptions as to how this should be done as long as it is within the parameters of the Ninth Circuit decision,' said Sheinfield, who noted that with a multimillion-dollar budget shortfall, he's not sure how much the city can spend on the project.
The Justice Department is seeking to appeal Raich to the U.S. Supreme Court, but plaintiffs were granted a preliminary injunction banning future raids. Landa is attempting to get the convictions in her case thrown out based on the Raich decision.
S.B. 420 also allows for the creation of medical marijuana collectives. Caregivers and patients who grow aren't permitted to cultivate or distribute medical marijuana for profit, but they can be compensated for their expenses.
The OLA report noted that there could be a federal backlash for supporting collectives. Hettrich told us he doesn't like the idea of the city supporting medical cannabis gardens, because 'there could be repercussions to the police department. It could impact federal grants and funding.'
How can the medical marijuana community work better with the city? The cops have an answer: rat out the growers.
'To legitimize themselves,' Hettrich told us, 'the main thing that the medical marijuana community can do is tell us who the illegal growers are.'
Some medical cannabis supporters argue that the city should focus on issuing permits to dispensaries and their growers, who now provide cannabis for the majority of patients. Jane Weirick, co-owner of the Hayward Patients Resource Center dispensary, said continuing arrests force growers underground and make lawyer fees part of the price of doing business.
'If there was some way to safeguard growers, then the cost of medical cannabis would decrease significantly,' Weirick told us.
WAMM founders Valerie and Mike Corral, who were raided by the Drug Enforcement Agency in 2002, told us collectives like theirs can give some patients access to free, high-quality cannabis, which now costs an average of $40 to $60 for an eighth of an ounce at city dispensaries. They believe collectives and dispensaries can exist side by side, and they have worked to develop a set of medical cannabis guidelines now being considered by the Santa Cruz Board of Supervisors based on those from Sonoma and Humboldt Counties. Giuntini said he wasn't aware of the proposed guidelines but is willing to consider them for San Francisco. In the meantime, he said, the D.A.'s Office will not pursue medical marijuana growers unless there's clear evidence of sales to nonmedical providers. And he said they aren't interested in prosecuting those who grow for compliant dispensaries, 'because the spirit of Prop. 215 is to get marijuana to the dispensaries that are legitimately dispensing the marijuana.'
The outcome of Patrick White's case could signal how serious the D.A.'s Office is about solving the current impasse. White has said he won't plea-bargain and wants to take his case before a jury, but a June 11 hearing will determine whether the case will continue.
But to those who support medical marijuana growers, Giuntini is a breath of fresh air.
'We've seen a fairly dramatic and very welcome shift in policy from the D.A.'s Office in recent weeks,' said San Francisco defense attorney Joe Elford, who served on medical marijuana grower Ed Rosenthal's defense team. 'They are clearly moving in the right direction and have a healthy attitude, and I wouldn't have said that a month ago.'