Lawsuits challenge federal pot enforcement crackdown in California
November 06, 2011
John Hoeffel, Los Angeles TimesMedical marijuana advocates have filed lawsuits in California’s four federal judicial districts aimed at quickly winning court orders to stop U.S. attorneys from shutting down dispensaries.
The lawsuits are the second legal challenge to the stepped-up enforcement efforts that the four prosecutors announced last month at a high-profile joint news conference in Sacramento.
Matt Kumin, one of the attorneys who filed the lawsuits, said that the plaintiffs planned on Tuesday to ask the judges assigned to the cases for temporary restraining orders and hoped for a fast response.
“The government has gone well down the road to allowing medical cannabis in the United States,” he said. “It can’t reverse itself now, particularly because of the promises it made to the American people and the federal judiciary. They’re stuck.”
The 13-page lawsuits argue that the federal government’s threats to prosecute dispensary owners and their landlords conflicts with an agreement it made that led a federal judge to dismiss a lawsuit by patients with the Wo/Men’s Alliance for Medical Marijuana in Santa Cruz. In that stipulation, the government said it would not use federal resources against medical marijuana patients who complied with state law.
“You tell people, ‘Hey, you can do this,’ and they rely on it, and the next thing you know, they can get arrested. It’s entrapment,” said Kumin, a lawyer based in San Francisco who is working with a team of attorneys who specialize in medical marijuana litigation.
The lawsuits were filed Friday and Monday against U.S. Atty. Gen. Eric Holder, Drug Enforcement Administration head Michele Leonhart and each of the four federal prosecutors, including U.S. Atty. Andre Birotte Jr., who is based in Los Angeles. Thom Mrozek, a spokesman for Birotte and the Justice Department, said he could not comment on the lawsuits.
At their news conference, the U.S. attorneys said they would target dispensary operators and growers who were violating state law, which prohibits for-profit sales. The prosecutors have taken different tacts, including sending letters to landlords threatening to seize their property. Birotte has focused his efforts in the Central District on shutting down dispensaries in cities that have banned them.
In the lawsuit filed in the Central District, the plaintiffs are Conejo Wellness Center Cooperative in Agoura Hills; the dispensary’s landlord, Executive Center of Simi Valley; and Billie Jo Maisonet, who has a doctor’s recommendation to use medical marijuana.
“They have not yet received a letter, but they are, needless, to say, freaked out,” Kumin said.
Joe Elford, chief counsel for Americans for Safe Access, an advocacy group that sued last month, said he was surprised that more lawsuits have not already been filed. “We certainly welcome other challenges,” he said. “If any of us win on any theory, we’re all better off.”
Kumin said his goal was to bring the federal government to the table to reach a compromise on a state medical marijuana program it can support, noting that federal prosecutors have not issued similar threats in Colorado, which has implemented a more heavily regulated approach.
In addition to contending that the federal government is breaking its promises, the lawsuit says that the new enforcement effort undermines the right of patients to consult doctors, interferes with the state’s power to protect the health of its citizens, violates the right of equal protection by treating patients in Colorado differently from those in California and exceeds federal authority to regulate interstate commerce because the medical marijuana sold in California does not cross state lines.
Kumin said he has heard from collectives and landlords around the state, but only a few put up money for the suits. Many dispensary operators are unwilling to publicly take on the government, he said. “Everybody’s gone underground.”
The federal government’s actions, Kumin said, have already caused some dispensaries to close and could drive medical marijuana patients back to the streets to find the drug. “They’re saying patients can use it: ‘We’re OK with patients, but don’t ask us where the patients are going to get it,’” he said.
The lawsuit charges that the heightened enforcement “will eviscerate and likely eradicate” California’s established medical marijuana system, which relies heavily on storefront dispensaries.
“California now has an entrenched cultivation and distribution network of medical cannabis supplying approximately 1,000,000 patients throughout state,” the lawsuit says, adding that it generates annual revenue estimated by advocates at between $1.5 billion and $4.5 billion, and annual sales taxes estimated by state officials at between $50 million and $100 million.
“It is readily apparent, and there is no doubt,” the lawsuit says, “that the lawful medical marijuana program is a stimulus in an otherwise bleak economic picture.”