Berkeley To Federal Prosecutors: Don’t Mess With Our Medical Marijuana Program

Since two states passed ballot initiatives to legalize recreational marijuana, President Obama has said that he has “bigger fish to fry” than “going after recreational users” in states that have legalized their conduct. But lest anyone think Obama was also suggesting he wouldn’t prosecute dispensers and suppliers, federal prosecutors in several West-Coast states ramped up their crackdowns in May against medical marijuana dispensaries in states where they are legal.

Now, Berkeley has become the second California city to challenge these federal government crackdowns. In a motion to halt federal prosecutors from seizing the assets of the city’s largest medical marijuana dispensary, the city is arguing that the federal government is improperly interfering with the the city’s own financial and regulatory interests, as well as its residents’ medical interests:

Claimant issued a permit to Berkeley Patients Group to operate on the claimed property as part of a comprehensive plan to regulate medical cannabis dispensaries within the City of Berkeley—a plan to which Claimant has dedicated significant financial and human resources. The claimed property is vital to the safe and affordable distribution of medical cannabis to patients suffering from chronic and acute pain, life threatening and severe illnesses, diseases, and injuries within the City of Berkeley, and to the City of Berkeley’s ability to control and regulate medical cannabis within its community.

If the claimed property were forfeited, … Claimant would suffer economic injury due to the substantial loss of tax revenue paid by Berkeley Patients Group … Claimant would also suffer injury to its comprehensive plan to regulate and control medical cannabis dispensaries, which was implemented to positively impact the health, safety and well-being of all City of Berkeley residents. The closure of Berkeley Patients Group will likely lead to an increased number of unregulated, unpermitted dispensaries and an increased number of illicit marijuana sales on Berkeley streets negatively impacting Berkeley neighborhoods and the business community.

In October, the city of Oakland affirmatively sued the federal government over a similar move by federal prosecutors to seize the assets of that city’s major medical marijuana dispensary — also the nation’s largest – Harborside Health Center. At the time of the lawsuit, Oakland City Attorney Barbara Parker praised the dispensary as providing “access to safe, affordable and effective medicine.” And in another statement of local frustration with the federal crackdown, the U.S. Conference of Mayors passed a unanimous resolution last week calling for federal officials to back off their own enforcement of marijuana laws. In conjunction with Wednesday’s filing, Berkeley Mayor Tom Bates reiterated that Berkeley Patients Group is in compliance with all local rules.

Despite the state pushback against federal crackdowns, however, it is unlikely that state and local governments will ultimately be able to prevent federal crackdowns on medical marijuana providers if federal officials are determined to shut dispensaries down. States may refuse to aid federal enforcement efforts they oppose, but the federal government does have the constitutional authority to ban marijuana.

In the latest round of crackdowns prosecutors issued a spate of cease-and-desist letters that warned of both civil forfeiture and other harsh federal punishment, including as much as 40 years in jail even for landlords that rent to marijuana dispensaries. They have since moved forward with legal action against Berkeley Patient Group and other dispensaries, even though BPG shut down and moved its location in an attempt to address federal officials’ concerns. While an official White House policy on Washington and Colorado’s recreational marijuana laws is still pending, the DEA’s current approach suggests that even state law-abiding recreational dispensaries may be subject to the same type of crackdown, in the absence of federal legislation to exempt those states.