City considers aiding marijuana patients

January 25, 2008

Doug Oakley, Contra Costa Times

Berkeley is considering a plan to help get medical marijuana to patients if the Drug Enforcement Administration shuts down any of the city-permitted cannabis clubs.

The plan by City Councilmen Darryl Moore and Kriss Worthington already has drawn fire from the Berkeley police, the city manager's office and the DEA.

The resolution before the City Council on Tuesday night declares Berkeley a sanctuary for medical marijuana users and distributors, and says "the city itself shall ensure a continuum of access to medical marijuana" if the DEA moves in.

Whether that means the city selling marijuana itself or helping another distributor get started is up in the air at the moment, Moore said. He wants the police chief and city manager to come back with suggestions.

"The piece I originally suggested is that in the wake of a DEA closure that the city would step in and provide medical marijuana, and that was what the city manager and the police chief had a problem with," Moore said.

After a December meeting with Berkeley police Chief Douglas Hambleton and City Manager Phil Kamlarz, the language of the proposed resolution was softened.

The DEA doesn't like the idea of Berkeley selling marijuana.

"Our stand on it is if someone from the city sells it, it is still illegal, and we will investigate and take action as appropriate," said Javier Pena, special agent in charge of the DEA field office in San Francisco. "Anyone who breaks the law is at risk of getting arrested.

We don't discriminate."

Moore said a DEA crackdown in Berkeley could necessitate a medical emergency.

"I personally feel the state has adopted medical marijuana, and it is overwhelmingly positive," Moore said. "Should the DEA crack down here, it will be a public health issue, and the city should be responsible for the medical needs of its residents."

The DEA raided and closed five medical marijuana dispensaries in the Bay Area in the past year, according to a spokeswoman. And according to the resolution, the DEA has shut down 28 dispensaries in 11 counties statewide since June.

The resolution also criticizes the DEA's warnings to property owners in Berkeley that they face asset forfeiture and prosecution if they continue to lease property to medical marijuana providers.

Berkeley police spokeswoman Sgt. Mary Kusmiss said the department must straddle conflicting state and federal laws.

"There is a difference between us honoring Prop. 215 -- which legalized medical marijuana in California -- and actively violating federal law," Kusmiss said.

Berkeley's two dispensaries are the Berkeley Patients' Group on San Pablo Avenue and Berkeley Patients' Care Collective on Telegraph Avenue.

The city already has directed its police department not to cooperate with federal investigations of any dispensaries. But critics, including Americans for Safe Access based in Oakland, say police violated that policy last fall when it was on the scene of a search by the Internal Revenue Service and the Alameda County Sheriff of a Berkeley hills home that was connected to a marijuana dispensary raided outside Berkeley.

"We weren't facilitating the search warrant in that case," Kusmiss said. "We were there because there were cars being towed, and we were supporting the other officers there."

The resolution before the council should mainly be used as a statement to the federal government that Berkeley is serious about medical marijuana, said Kris Hermes, spokesman for Americans for Safe Access.

"It's not going to be in the municipal code, but it is a strong statement that the federal government is not welcome in the city of Berkeley and it stands behind its permitted facilities," Hermes said.

Hermes said instead of distributing marijuana, he sees the resolution as a way of getting the city to help find an emergency location for a cannabis club to operate if one is shut down.

"We're not asking the city to become a distributor," Hermes said.

Reach Doug Oakley at doakley@bayareanewsgroup.com.



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