Oakland escalated the local-federal showdown over marijuana last fall when it filed the first lawsuit by a jurisdiction to challenge federal crackdowns on dispensaries that are complying with state and local laws. The federal trial judge rejected the challenge, holding that the city did not have standing to challenge the action. But U.S. Magistrate Judge Maria-Elena James ruled last week that Oakland had presented a novel legal challenge that a federal appeals panel might interpret differently, and that Oakland should therefore have the opportunity to make this argument before it is mooted by Department of Justice action. Lawyers have estimated the appeal will take at least a year.
Harborside Health Center, which has locations in Oakland and San Jose, Calif. and more than 100 employees, has held itself out as a model for legal, regulated medical marijuana distribution, and has been praised by Oakland officials as providing “access to safe, affordable and effective medicine.” It is also a major source of tax revenue for the city, and is expected to generate $1.4 million in city sales tax this year. The dispensary has thus far beat back several shutdown attempts, and Oakland argued in its latest legal filing that the dispensary’s shutdown would precipitate a “’a public safety crisis it’s not yet equipped to meet,’ by forcing tens of thousands of patients who are served by medical cannabis dispensaries to either forgo their medicine or turn to illegal markets to obtain it, thereby endangering their health and safety and further straining the limited resources of the Oakland Police Department.”
But in spite of resounding calls for the federal government to step back its sometimes-aggressive actions against state-compliant dispensaries, the federal government retains constitutional supremacy over federal drug law. So Oakland can only succeed if a court is persuaded by its case-specific arguments that the Department of Justice exceeded its authority by missing time limits for following suit, and acting contrary to earlier statements and actions that indicated it would not crack down on state-compliant distributors. After two states passed ballot initiatives to legalize recreational marijuana, President Obama made similar statements that he has “bigger fish to fry” than “going after recreational users” in states that have legalized their conduct. But renewed medical marijuana crackdowns suggest the federal government is continuing to make a policy distinction between users of marijuana and distributors.
Last week, Berkeley became the second city to file a legal challenge against federal crackdowns, intervening in a similar action to seize the assets of that city’s largest medical marijuana dispensary.