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And the Fast Talking Has Started...

I posited yesterday that federal fast talking about the Colorado and Washington initiatives would start soon. It turns out that federal fast talking hasn't even needed feds to get started, a "Network Media Fail" analysis by Peter Guither demonstrates:

Some of the network media have been trying to cover the legalization of marijuana in Colorado and Washington and clearly are in catch-up mode, not really knowing how to talk about it. And they're completely thrown by the fact that the DOJ, for the most part, isn't coming right out and commenting. So they're all forced to turn to… Kevin Sabet.
 

Kevin is a former Office of National Drug Control Policy staffer -- Phil faced off with him in The Fix on Tuesday. He had a respectable level position at the agency, from what I understand, but he was not the drug czar or near it, and he doesn't work at ONDCP now. Pete questions why media would think he knows what's going on behind the scenes or why we should think he does.

I'll just comment on two things from the ABC article by Christina Ng that Pete highlighted:

"When you have the governors of both states [opposing it] as well as the president and Congress, who has already determined that marijuana is illegal, this is not going to be a walk in the park for marijuana enthusiasts," Sabet said. [...]
 

That is an inaccurate characterization by Kevin of the positions of the governors. Colorado Gov. John Hickenlooper opposed the initiative, and according to the Denver Post is speaking with federal officials to assess their intentions -- Eric Holder, head of all DOJ, not ONDCP. But Hickenlooper also told the Post that "[y]ou can't argue with the will of the voters" and they plan to move forward with it. Washington governor-elect Jay Inslee has also said that he'll respect the will of the voters.

The second is a paragraph that was not presented as a quote, so I don't know precisely what Kevin told Ms. Ng, but here it is:

In 2005, the Supreme Court by an 8-0 margin struck down a California law that legalized medical marijuana in the state. The Court said Congress had the power to criminalize marijuana under the Commerce Clause.
 

Raich v. Gonzales was actually 6-3, but more importantly, the court did not strike down California's medical marijuana law! What the court did was decline to limit the reach of federal law. There's a difference.

As I discussed yesterday, state and federal law can be different, but that doesn't mean they're in conflict. And not every type of conflict is legally impermissible. California's medical marijuana law is very much in effect -- the trouble there is to providers, not directly to patients, and it's from federal raids and other actions, and local zoning restrictions. Tellingly, no federal prosecutor in 16 years of state medical marijuana laws has ever tried to undo one of them in court.

Perhaps they'll try now with one of the legalization initiatives, but their prospects for success on that route are unclear. What seems most unlikely is that states would be forced to reverse not only their licensing provisions, but their elimination of penalties for users and some sellers; much less that federal agents, more limited in number than state and local police, would conduct the massive numbers of possession busts (or in Colorado home growing busts) needed to keep prohibition going at that level. That's why the medical marijuana laws work.

In the meanwhile, police and prosecutors in Washington have more or less confirmed the walk in the park beginning December 6th.

Supreme Court Hears Drug Dog Cases

The US Supreme Court Wednesday heard oral arguments in a pair of cases out of Florida involving the use of drug sniffing dogs. One case is about whether it is legal to use drug dogs to sniff around the outside of homes without a warrant and the other is about how reliable the drug dogs actually are. The cases have the potential to either expand or restrict the use of drug dogs under Fourth Amendment jurisprudence.

The two cases are Florida v. Joelis Jardines, in which Jardines was arrested for marijuana cultivation after police without a search warrant brought a drug dog to his door, then returned with a search warrant after the drug dog alerted, and Florida v. Clayton Harris, in which Harris was arrested on methamphetamine charges after a drug dog alerted on his vehicle, but was stopped again two months later in the same vehicle and the same drug dog alerted, but no drugs were found.

In both cases, the Florida Supreme Court held that the drug dog searches were illegal, in Jardines because it was a warrantless search of a home and in Harris because it didn't find sufficient evidence of the drug dog's reliability. In both cases, the state of Florida appealed.

The Jardines case raises the issue of whether homes are subject to a higher Fourth Amendment standard than automobiles in traffic, luggage being sniffed on a conveyer belt, or packages being sniffed at a package delivery service. The Supreme Court has upheld the warrantless use of drug dogs in those cases, but has been inclined to grant greater protections to the sanctity of the home, rejecting, for example, the use of thermal imaging equipment to detect marijuana grow operations.

Gregory Garre, arguing for the state of Florida, ran into problems with some justices when he suggested that a drug dog sniff of a residence does not constitute a search under the law and thus no warrant is needed.

If that were the case, Justice Ruth Bader Ginsburg replied, wouldn't police be able to just walk down the street with a drug dog in "a neighborhood that’s known to be a drug-dealing neighborhood, just go down the street, have the dog sniff in front of every door, or go into an apartment building? I gather that that is your position."

"Your Honor, they could do that," Garre said.

Justice Elena Kagan also questioned Garre's rationale that a drug dog sniff was somehow different from a technology that allowed police to see inside a home -- such as the thermal imaging the court had previously ruled against. If someone invented a "Smell-o-matic" machine, Kagan said, police would still need to get a warrant to use it to search the home.

Jardines' attorney, Howard Blumberg, argued that the thermal imaging precedent applied to drug dogs at a home as well. Using a drug dog outside a house was cut from the same cloth, he said.

"I would submit that would basically be the same thing as a police officer walking up and down the street with a thermal imager that's turned on," Blumberg said.

Justice Anthony Kennedy, often a deciding vote on the closely divided court, challenged Garre on his contention that people with contraband in their homes have no expectation of privacy.

"Don't ask me to write an opinion and say, 'Oh, we're dealing with contraband here, so we don't need to worry about expectation of privacy,'" Kennedy said.

But Kennedy was also reluctant to accept Blumberg's argument that when police are trying to find something people are keeping secret, it amounts to a search under the meaning of the Fourth Amendment.

"To say our decisions establish that police action which reveals any detail an individual seeks to keep private is a search: that is just a sweeping proposition that in my view, at least, cannot be accepted in this case. I think it's just too sweeping and wrong,’" Kennedy said.

"I would add a few words to the end of that statement: Anything that an individual seeks to keep private in the home, and that's the difference," Blumberg replied.

In the Harris case, it was the reliability of drug dogs that was at issue.

"Dogs make mistakes. Dogs err," Harris's attorney, Glen Gifford told the justices. "Dogs get excited and will alert to things like tennis balls in trunks or animals, that sort of thing. There is no canine exception to the totality of the circumstances test for probable cause to conduct a warrantless search. If that is true, as it must be, any fact that bears on a dog's reliability as a detector of the presence of drugs comes within the purview of the courts."

Questions about the reliability of drug dogs have been on the rise in recent years. Last year, the Chicago Tribune analyzed three years of data from suburban police departments and found that alerts from dogs during roadside encounters led to drugs or paraphernalia just 44% of the time, and only 27% of the time for Hispanic drivers.

Justice Sonia Sotomayor cited an Australian study that found a drug dog only correctly identified drugs 12% of the time.

"I'm deeply troubled by a dog that alerts only 12% of the time," she said.

Garre responded that the study could be read differently, raising the number of correct alerts to as high as 70% -- if you included instances where the person the dog alerted to had used in been in contact with drug prior to the dog's alert.

And Justice Department attorney Joseph Palmore, arguing in support of Florida's position, told justices they should not let questioning of the dogs' skills go too far.

"I think it's critical... that the courts not constitutionalize dog training methodologies or hold mini-trials with expert witnesses on what makes for a successful dog training program," he said, citing the use of dogs in multiple search endeavors. "There are 32 K-9 teams in the field right now in New York and New Jersey looking for survivors of Hurricane Sandy. So, in situation after situation, the government has in a sense put its money where its mouth is, and it believes at an institutional level that these dogs are quite reliable."

The Supreme Court will decide the paired cases sometime next year.

Washington, DC
United States

Dr. Shaygan's Saga: Prosecutorial Misconduct in the War on Pain Docs [FEATURE]

special to Drug War Chronicle by investigative journalist Clarence Walker, cwalkerinvestigate@gmail.com

Part 4 in a series, "Prosecutorial Misconduct and Police Corruption in Drug Cases Across America."

In what could become an historic case, a Florida doctor acquitted of drug dealing charges over his prescribing practices is asking the US Supreme Court to reinstate a $600,000 award made to him by a lower court after federal prosecutors were found to have engaged in misconduct that was "vexatious, frivolous, or in bad faith." That language comes from the Hyde Amendment, enacted in 1997, which gives federal judges the power to force the government to pay attorney's fees to acquitted defendants if the actions of those prosecutors met that standard of misconduct.

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Dr. Ali Shaygan
The case of Florida physician Dr. Ali Shaygan has been closely watched by pain-management doctors -- an area in which the federal government has waged a fierce "war on prescription doctors" -- a war fueled by a rising death toll in recent years from prescription drug overdoses in America, but also preceding that rise. Since 2003, according to DEA, hundreds of physicians across the nation have been charged in federal or state court for illegally dispensing narcotic pain medicine to patients.

This past August, the 11th US Circuit Court of Appeals overturned the trial court decision awarding the money to Shaygan, who had operated a Miami pain clinic. He was acquitted in March 2009 of 141 counts of illegally distributing narcotics to patients, including one case where a patient died of an overdose.

Shaygan's attorneys charged that two Assistant US Attorneys, Sean Cronin and Andrea Hoffman, as well as a DEA agent, had acted "vexatiously" and withheld materially important evidence after Shaygan was originally charged in a 23-count indictment. US Circuit Court Judge Alan Gold, who presided over the high-profile trial, agreed that prosecutors violated disclosure requirements by withholding information from the defense and the court and ordered the cash award.

Judge Gold also accused the government of launching a separate "tactical" effort to disqualify the doctor's attorney, David Markus, shortly before the trial began. In that effort, which Gold characterized as part of a scheme to undermine the defendant's rights to a fair trial, the prosecutors failed to notify the defense that the DEA had attempted to manipulate two witnesses in the case into trying to entrap Markus into paying off witnesses to give favorable testimony at the trial to help the doctor beat the rap.

Following a sanction hearing after the doctor's acquittal in 2009, Judge Gold issued a scathing ruling against the prosecutors. The government conduct was so "profoundly disturbing that it raises troubling issues about the integrity of those who wield enormous power over the people they prosecute," Gold concluded.

After Gold requested that the Justice Department investigate the government's misconduct, prosecutor Cronin conceded to the Miami Herald, "We should have done a better job," but insisted that "at no time was I acting in bad faith."

He said he authorized secret recordings of attorney Markus because a witness, Courtney Tucker, had told a DEA agent the defense might be trying to tamper with her testimony. Yet Tucker contradicted Cronin's claim when she testified that a DEA agent had tried to pressure her to tailor her testimony to bolster the prosecution's case against Dr. Shaygan.

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Atty. David Markus after the acquittal
When federal prosecutors appealed the cash award to the 11th Circuit, a sharply divided panel overturned it, holding that Gold had overreached and wrongly interpreted the Hyde Amendment by applying the incorrect legal standard for awarding the fees under the statue. The appeals court majority also held that "as long as a prosecutor had an objectively reasonable basis in law (not frivolous and not vexatious), an award of attorney fees under the Hyde Amendment is improper." One judge concluded that the overall prosecution and allegations on the original indictment were "objectively valid."

But in a harsh dissent, Judge Beverly Martin wrote that the majority opinion "will render trial judges mere spectators of extreme government misconduct."

Markus told the Chronicle the appeals court reversal was not what he expected. "The decision was surprising given how the oral argument went and how thorough Judge Gold's order was," Markus said, adding that he was appealing to the Supreme Court.

Now a coalition of former federal judges and prosecutors, organized by the bipartisan group the Constitution Project has signed onto an amicus brief supporting Markus's writ of certiorari asking the Supreme Court to overturn the appeals court decision and reinstate the cash award in US v. Shaygan.

"When a court bends the law to excuse a prosecutor's bad faith, public confidence in the criminal justice system suffers," the Constitution Project brief said.

Just Another Pain Doctor Prosecution

The wheels of justice in Dr. Shaygan's case began turning on June 9, 2007, when one of the long-term patients at his pain clinic, James Brendan Downey, died of a drug overdose from a fatal combination of prescribed methadone and illegal cocaine. Shaygun had prescribed the methadone to Downey two days before he died, and an autopsy found that the levels of methadone in his blood alone were enough to kill him.

In a subsequent undercover sting operation, two Florida police officers posed as potential patients at Shaygan's office to determine how easily they could obtain prescribed narcotics. Federal prosecutors said both officers obtained a prescription for controlled substances on their first visit without presenting medical records, and that Shaygan only administered minimal physical examination.

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Judge Gold
On February 8, 2008, the Southern Florida US Attorneys Office filed a 23-count indictment against Shaygan alleging that "the doctor distributed and dispensed controlled substances outside the scope of professional practice unintended for legitimate medical purposes in violation of 21 U.S.C. 841."

Three days later, DEA agents arrested Shaygan at his office. Agents seized Shaygan's active patient files and even confiscated his leather-bound daily planner. Prosecutors said that DEA agents reported that Shaygan allegedly made a statement to the effect, "I want to cooperate." On May 14, Markus filed a motion to suppress his client's statement during his arrest.

At a post-hearing on the suppression motion held on August 2008, Markus clashed with lead prosecutor Cronin over Markus's attempt to keep his client's alleged statement from being heard by the jury. Cronin threatened Markus with an enhanced prosecution of his client if he persisted in that strategy.

"Cronin told me that if we litigated the suppression issues, there would be no more plea discussions, and that if I went after his witnesses (DEA agents), there would be a 'seismic shift' in the way he would prosecute the case against Mr. Shaygan," Markus said.

Markus dismissed Cronin's threat and forged ahead with the suppression hearing, offering up damaging testimony by Shaygan, who testified that DEA agents, while flashing their weapons, continued to interrogate him, despite his request to speak with a lawyer. Agents denied this happened. After hearing from a defense witness that he overheard Shaygan say, "May I please have my lawyer," Judge Gold granted the motion to suppress, which barred prosecutors from using Shaygan's statements during the trial.

Then, playing legal hardball, prosecutor Cronin made good on his threat, filing an additional 108 drug charges against Shaygan totaling hundreds of years in prison and bringing the total number of charges filed against him to 131. Cronin filed the extra charges after DEA agent Chris Wells located and interviewed Shaygan's former patients Carlos Vento, Trinity Clendening, Courtney Tucker and Andrew McQuarrie. These former patients would play a pivotal role in the misconduct allegations against federal prosecutors Cronin and Hoffman.

Before trial, prosecutors Cronin and Hoffman received a tip from DEA agent Wells that Shaygan's defense team might be tampering with the witnesses. Wells said one witness, Courtney Tucker, "was about to go south and not testify." Prosecutors relayed this new information to Karen Gilbert, the Assistant US Attorney in charge of the narcotics unit. Gilbert authorized DEA agent Wells to ask witnesses Tucker and Carlos Vento to record phone calls with the defense team and for the witnesses to ask attorney Markus for funds to testify that Dr. Shaygan had not overprescribed medication that killed James Downey. Vento later signed a confidential informant agreement with the DEA.

Trial Shenanigans

During a three-week trial in beginning in 2009, prosecutors characterized Dr. Shaygan as a drug dealer who recklessly sold prescriptions for dangerous narcotic painkillers, such as oxycodone and methadone, to increase his wealth. Prosecutor Cronin told the jury the government would prove that Shaygan's illegal distribution of methadone contributed to Mr. Downey's death. Jurors viewed evidence showing prescription bottles from Shaygan found in Downey's bedroom, where he died in his sleep. Downey's girlfriend, testifying for the government, said her boyfriend had obtained methadone from Shaygan hours before he died.

But the girlfriend also undercut the prosecution's case by testifying that Shaygan had questioned and cautioned Downey about the large amount of methadone he had requested. Defense attorney Markus further undercut the prosecution case by presenting evidence of additional medicine bottles at the scene prescribed by other doctors.

For the defense, renowned expert forensic pathologist Dr. Michael Baden testified that when Downey used multiple prescribed drugs there was no verifiable way to conclude the drugs given to him by Dr. Shaygan actually caused his death.

Then, in a dramatic twist right out of Perry Mason, former Shaygan patient and government witness Trinity Clendening let slip that he had recorded for the DEA a telephone call he made to to Markus's office to solicit payment for testifying on Shaygan's behalf. A recording later heard in court showed that that Markus had directly refused to offer bribes. "I am not paying money for anything," he said on the tape.

Markus was furious. During a hearing outside the presence of the jury, he hammered the witness. Clendening, now unraveling the government's deceit, revealed the whole scheme to set up Markus for a witness tampering charge. Markus attacked the prosecutors relentlessly over their withholding evidence of the scheme. In closing arguments, Markus rhetorically compared the prosecutorial misconduct in Shaygan's case with the infamous Salem Witch trials, and told the jury it had been misled by the government's flagrant violation of the law through withholding evidence that the defense had asked for under the law and not received.

Judge Gold instructed jurors that they were legally bound to consider the prosecutor's violations of the law during their deliberations over Shaygan's guilt or innocence. After deliberating four hours, the jury acquitted Dr. Shaygan on March 12, 2009.

Shaygan's relatives, friends and colleagues erupted with cheers after hearing the verdict, and jurors hugged Shaygan as he left the courtroom.

"I feel vindicated," Shaygan told the Miami Herald. "I feel that my life can move forward again."

"This verdict sends a message that justice prevails," Markus added.

But justice hasn't prevailed just yet. The federal prosecutors who engaged in the misconduct have not been punished for their actions, either criminally, professionally, or financially. The 11th Circuit Court of Appeals decision reversing the $600,000 award for misconduct that is "vexatious, frivolous, or in bad faith" remains the last word on the affair -- unless the Supreme Court agrees to take the case.

At least, Dr. Ali Shaygan is out from under his legal woes and, having had his license to prescribe medicine reinstated, he is once again helping patients.

Medical Marijuana Update

A California appeals court has made a landmark ruling, the DEA keeps on raiding, and a Montana medical marijuana provider refuses a post-conviction plea bargain, and those are just the top stories. Let's get to it:

Arizona

On Monday, it was revealed that a Mesa dispensary had been raided on October 5. Gilbert Police raided Arizona Natural Solutions, serving a search warrant and seizing "suspected marijuana, candy, cookies, powder, suspected ecstasy, and US currency." No information was offered about the reason for the raid. Three owner/employees are accusing of selling marijuana and "narcotics" (because Arizona state law defines marijuana products like hash as "narcotics").

California

Last Wednesday, a state appeals court threw out the conviction of a San Diego dispensary operator. In what Americans for Safe Access called a "landmark" decision, the 4th District Court of Appeal reversed the conviction of Jovan Jackson, convicted in September 2010 after being denied a defense in state court. The ruling also reversed the lower court's finding that Jackson was not entitled to a defense, providing the elements for such a defense in future jury trials. The ruling also recognized that collective members do not need to be actively involved in marijuana cultivation to access the marijuana they purchase.

Last Thursday, DEA agents arrested 12 people involved with Southern California dispensaries. Most of the dispensaries had been raided and closed in 2010 and 2011, but at least one was still operating. Charges against those arrested include failure to report taxable income, conspiracy to distribute marijuana and maintaining a drug location near schools.

Also last Thursday, the Santa Monica city council extended a 45-day moratorium on dispensaries. On a unanimous vote, the council voted to extend the moratorium for another 10 months. "This is about waiting for the Supreme Court to settle some law. At least I can hope, that with a little bit of time that the law will become clearer and every city's rights are better understood," said Mayor Richard Bloom.

Also last Thursday, the Napa city council told staff to prepare an ordinance banning outdoor grows. The move came after Police Chief Jackie Rubin told the council police had raided a property where 15-foot-tall marijuana plants were visible from a neighbor's yard.

Over the weekend, the California Medical Association addressed four marijuana resolutions. It rejected one (from a doctor who owns a winery!) to rescind the CMA policy in support of marijuana legalization, it passed one referring that policy to the American Medical Association, it passed another asking the governor to petition the DEA to reschedule marijuana, and it referred for further study one examining medical marijuana use in hospitals.

On Monday, the Los Angeles city clerk approved a petition to regulate dispensaries. Petitioners want to get on the May ballot; to do so, they must gather 41,138 valid signatures by December 7. The proposed initiative would bar new medical marijuana dispensaries, but allow those collectives that registered with the city as of Sept. 14, 2007 and meet other criteria, to continue operating. The ordinance would also establish operating standards, including mandatory annual police background checks and distances from schools, parks and other designated places.

Also on Monday, a state appeals court held that trial judges can ban the use of medical marijuana for some probationers. A three-judge panel of the Court of Appeal unanimously upheld a sentence in which Contra Costa County Superior Court Judge Leslie Landau last year prohibited Daniel Leal, 28, of Antioch, from using medical marijuana during his three years of probation. Leal was on probation for possessing marijuana for sale, and he argued the ban violated his right to use the substance under the state's Compassionate Use Act, which allows patients with a doctor's approval to use marijuana for medical purposes. But the ban on use of the substance was justified by "abundant evidence of need to rehabilitate Leal and protect the public," wrote Judge Andrew Kline. "Leal used Compassionate Use Act authorization as a front for illegal sales of marijuana, sales partly carried out with a loaded semiautomatic handgun in a public park occupied by mothers and their young children."

On Tuesday, DEA agents raided the ASPC dispensary in San Bernadino. The agents "descended in force," making arrests and confiscating evidence from the store.

Montana

Last Thursday, Chris Williams rejected a post-conviction plea offer from federal prosecutors that would have cut his prison sentence from as much as 85 years to as little as 10 years. Williams was part of Montana Cannabis, whose other partners have all either been convicted or pleaded guilty to federal drug charges. He faced the decades-long sentence because four or his charges involved having a gun during the commission of a drug crime. Prosecutors offered to drop some charges if Williams dropped his appeals, but he refused. "I have decided to fight the federal government, because for me not defending the things that I know are right is dishonorable," Williams wrote. "Every citizen has a responsibility to fight for what is right, even if it seems like the struggle will be lost. It is the power of the people to control this government that is supposed to protect us. If we shun this struggle, this government will control us instead of protecting us."

On Monday, a state district court judge blocked the state from enforcing some provisions of its new medical marijuana law. District Judge Jim Reynolds said he will suspend enforcement of the law while evaluating its constitutionality. The suspended parts include the ban on medical marijuana providers receiving money for their product, and other provisions that advocates argue essentially shut the industry down. Voters in Montana will vote on throwing out the new, restrictive law next week.

Medical Marijuana Update

It's been a relatively quiet week on the medical marijuana front, with the big news being the DC Circuit Court's interest in determining whether Air Force vet Michael Krawitz has standing to challenge the federal government's refusal to reschedule marijuana. But that isn't all. Let's get to it:

National

On Monday, plaintiffs in the federal marijuana rescheduling case filed an additional brief at the court's request after it heard oral arguments last week. In the case Americans for Safe Access v. Drug Enforcement Administration, the DC Circuit issued an order last week seeking details on the harm sustained by plaintiff and disabled US Air Force veteran Michael Krawitz as a result of the federal government's policy on medical marijuana. The federal appeals court will use this additional briefing to decide whether the plaintiffs have legal "standing" to bring such a lawsuit against the government. The lawsuit argues that the government has acted arbitrarily and capriciously by keeping marijuana classified as a Schedule I substance, a dangerous drug with no medical value. By ignoring the overwhelming scientific evidence, ASA argues that the federal government has kept marijuana out of reach for millions of Americans who would otherwise benefit from its therapeutic value.

Arizona

Last Friday, a lawsuit against Maricopa County officials for refusing to process dispensary applications got underway. The White Mountain Health Center filed a lawsuit against Maricopa County after it refused to provide documentation and information required in order to obtain a dispensary permit under the voter approved 2010 Arizona Medical Marijuana Act. White Mountain was the first to apply for a dispensary permit under county jurisdiction, but Maricopa County DA Bill Montgomery opposes the Arizona Medical Marijuana Act because he says it would force public employees in Arizona to violate federal drug laws that prohibit the use, sale and cultivation of marijuana. Lawyers from the ACLU, who are representing White Mountain, argued that the state has the right to have a medical marijuana law, and that the federal government has not punished officials in any of the other 17 states where it is legal. The case continues.

California

Last Friday, San Francisco's first unionized dispensary opened. The Mission Organic Center applied for its permit more than three years ago, but had to navigate the permit process and overcome an appeal at City Hall before opening. Dispensary owner Eugene Popov has been paying rent on the storefront the whole time, as well as shelling out $10,000 in permit fees. The United Food and Commercial Workers Local 5 has supported the dispensary throughout the process and now has the union shop dispensary in the city.

Also last Friday, neighbors of a Berkeley dispensary threatened to sue the building owner if the dispensary does not stop "all illegal drug activities at the location" associated with the Perfect Plants Patient's Group. Residents complained of bags from the business in neighborhood yards, drug deals openly occurring on the street and kids loitering and smoking marijuana, all of which they attribute to the continued operation of the dispensary. The city is contemplating ordering the dispensary shut down, but the neighbors issued their lawsuit threats because they felt the city wasn’t moving fast enough. The dispensary is not on the city's list of permitted dispensaries.

On Wednesday, the San Francisco Weekly revealed that Mayor Ed Lee blocked a plan to let shuttered dispensaries operate on city property. The number of dispensaries in the city has shrunk from 30 to 20 under the federal onslaught, and city officials had bruited about the idea of letting some of them open on city property while they sought new locations. But Lee's office nixed the idea earlier this month, according to emails retrieved by the Weekly.

Late Wednesday afternoon, an alert went out on the San Diego Americans for Safe Access email list saying San Diego's only known dispensary, Next Generation on San Ysidro Boulevard, was being raided. The dispensary is "currently under attack and in full raid condition," the alert said.

Michigan

On Wednesday, a Big Rapids medical marijuana provider was sentenced to federal prison. John Clemens Marcinkewciz was a registered caregiver when he was arrested on state charges, which were then handed off to the feds. After the federal court ruled that he could not mention the state's medical marijuana law in his defense, he pleaded guilty to conspiracy and manufacture of 100 or more marijuana plants. While there was no word at press time what sentence he received, he was looking at at least a five-year mandatory minimum.

Oregon

Last week, Lane County authorities filed an asset forfeiture complaint against a dispensary they raided in August. They hit Kannabosm on August 30 and arrested the owner, Curtis Shimmin, on marijuana and money laundering charges. The store had been open for a year. Now, they want to seize $60,637 in cash, Shimmin's personal automobile, and an ATM machine that was at the business. Shimmin had argued that cash-for-marijuana transactions were not illegal under the Oregon Medical Marijuana Act because they were not technically sales, but compensation to growers for their expenses. Lane County begged to differ.

Medical Marijuana Update

The federal rescheduling petition got a day in court, the feds keep up the pressure in California, a dispensary may actually open in New Jersey, and those are just the headlines. There's much more going on, too. Let's get to it:

National

Last week, the National League of Cities adopted a resolution on medical marijuana. The resolution calls on the federal government "to consider a precise interpretation of the CSA to recognize and address whether the medicinal use of marijuana in prescribed circumstances is or is not in conflict with the CSA." The cities complained that they are wasting valuable resources trying to address the conflict between state laws allowing medical marijuana and the federal government's absolutist position.

On Tuesday, the DC Court of Appeals heard oral arguments on an appeal of the DEA's decision to reject the marijuana rescheduling petition. Click on the link to read our feature story on it.

Arizona

Last Friday, a medical marijuana patient sued the state after police seized her marijuana-infused oil. Charise Voss Arfa claims police wrongfully considered the oil labeled "Soccer Moms Tincture" a narcotic instead of marijuana. A tincture is typically an alcoholic extract of plant or animal material or solution. The lawsuit argues the statute defining cannabis is too vague and should not apply to medical-marijuana cardholders who legally participate in the state program. The lawsuit asks the courts to order police to return the oil; to ban police from arresting, prosecuting or taking property from medical-marijuana cardholders; and to declare the state's criminal statute related to cannabis void as it applies to medical-marijuana patients and caregivers.

California

Last Wednesday, the DEA and local police raided seven Long Beach dispensaries and arrested more than 40 people. The raid is just the latest, though possibly the largest, crackdown on medical marijuana in Long Beach since the city's ban went into full effect in August. The ban was a reaction by city officials to a court ruling that the city can't regulate the drug because it is illegal under federal law. City Hall had worked for two years to come up with a permitting system and regulations to control the number of collectives, and once that law was voided, the city council voted to ban medical marijuana rather than risk its unregulated proliferation throughout the city.

Last Friday, G3 Holistic dispensary owner Aaron Sandusky was convicted of federal marijuana charges by a jury that heard no mention of medical marijuana. Sandusky, who operated three Southern California dispensaries, was convicted on two charges, but the jury could not agree on four other counts. He is now looking at a mandatory minimum 10 years in federal prison, and up to a life sentence. Sandusky, who had been free on bail, was immediately jailed.

Also last Friday, Concord elected officials said they are considering an ordinance to restrict medical marijuana cultivation. The move comes after complaints from residents about smelly outdoor grows. "Perhaps looking at having the growth indoors instead of outdoors, that would take care of some of the major concerns we have," said Mayor Ron Leone.

Also last Friday, activists filed papers with the city of Los Angeles for a May referendum to regulate -- not ban -- dispensaries in the city. The Angelenos for Safe Access Committee needs to gather enough signatures to make the ballot. The proposed initiative would increase the city tax on dispensaries from 5% to 6% of revenues, require dispensaries to register with the city, require background checks for operators and employees, and require that dispensaries respect distance requirements from schools and churches. The move comes after the city council first banned dispensaries, then voted to un-ban them in the face of another, successful petition drive.

Also last Friday, the city of Covina took legal action to shut down a dispensary. The city attorney had sought and won a temporary restraining order to shut down the LPC Center, which had opened in the city during the summer, but the dispensary didn't shut its doors. The new complaint alleges that the dispensary operators lack a business license and that the dispensary is a public nuisance because it is in violation of the city's municipal code. There will be a hearing next week where a judge will consider granting Covina a preliminary injunction to force the cooperative to close. According to the complaint, "distributing marijuana, whether for medical purposes or otherwise, is not a permitted use" under Covina's municipal code.

Last Saturday, voters in Eagle Rock rejected most of the medical marijuana slate in neighborhood council elections. The neighborhood has been hit hard by police actions against dispensaries, with support from the neighborhood council. Dispensary operators and supporters had called on Los Angeles residents to vote in the neighborhood election in support of dispensaries, leading to charges of unfair election practices.

On Monday, DEA agents visited some LA dispensaries that had received federal threat letters in September. Agents visited up to 21 dispensaries, reminding them that they needed to shut down. "We do have a couple agents doing follow up," said DEA spokeswoman Sarah Pullen. "It's routine since these letters are going out. We wanted to determine the status of where these places are at." In late September, the DEA targeted 68 dispensaries with threat letters and raided three. The feds aim at wiping out dispensaries in Eagle Rock and downtown LA.

On Tuesday, DEA agents visited an Eagle Rock dispensary, prompting it to close its doors. The Together for Change dispensary had opened in May, after the American Eagle Collective, which operated at the same location, was raided and shut down by LAPD. Together for Change is one of the 68 dispensaries targeted by September federal threat letters.

Also on Tuesday, the Sacramento city council moved to prohibit outdoor marijuana grows. The council voted 8-1 to direct city staffers to draft an ordinance barring them. Council members said the grows were a magnet for crime and a nuisance to neighbors. The council also voted to keep in place existing location restrictions on medical marijuana dispensaries. Those restrictions prohibit the shops from operating within 1,000 feet of other dispensaries, 300 feet from residences and 600 feet from schools and parks. The city has a moratorium on new dispensaries following the federal crackdown, but allows 17 already existing dispensaries to operate.

Colorado

As of the end of July, the number of registered medical marijuana patients passed the 100,000 mark for the first time since September 2011. That's according to figures released last week by the state Department of Public Health and Environment. The number of patients had peaked at more than 128,000 people in June 2011 before shrinking over a five-month period to just over 80,000. The decline was variously attributed to increased dispensary regulations, a glut of medical marijuana available from growers, and the $90 fee for registering.

On Tuesday, Carbondale trustees narrowly rejected a dispensary application. They voted 4-3 to deny CMED a business permit, even though the dispensary has been open for two years. CMED owner Michael Weisser, who has been caught in a regulatory wringer the entire time, demanded to know whether the town was shutting him down and was told the trustees would let him know."You'd better do it quick, because I'm going to move immediately for an injunction against the board," Weisser replied.

Maine

Last Saturday, Maine police returned plants stolen from a medical marijuana grower in Ellsworth. Police initially hesitated to return the plants, citing concerns about violating federal law, but then relented. The grower said he was able to save only part of the crop.

Michigan

Last Thursday, the Michigan Supreme Court has heard oral arguments in a case that will help determine whether dispensaries can sell marijuana to patients who don't grow their own. The case involves a Mount Pleasant dispensary that allowed members to sell marijuana to each other. It was prosecuted by Isabella County authorities, and the conviction was upheld last year by a state appeals court.

New Jersey

On Monday, the Greenleaf Compassion Center in Montclair received state permission to open. It would be the first in the state, and the permission comes nearly three years after the Garden State approved medical marijuana.

On Wednesday, the Compassionate Care Foundation said it wouldn't open a dispensary until next year. The foundation, which plans to open a dispensary in Egg Harbor Township near Atlantic City, has faced delays because of the state's extensive background check process.

New Mexico

On Monday, advocates announced a campaign to keep PTSD as a qualifying condition for the state's medical marijuana program. PTSD is currently a qualifying condition, but its status is threatened by a request to remove it. Advocates aid more than 3,000 New Mexico residents with PTSD are enrolled in the state's program. The advocates, including the New Mexico Medical Cannabis Patients Alliance, the Drug Policy Alliance, and others are calling the campaign Don't Take Away Our Medicine. "We deserve access to effective medical treatments whether we’ve just come home from combat or we are suffering debilitating symptoms from other trauma," said Chris Hsu, NM Medical Cannabis Patient’s Alliance’s Vice President.

Rhode Island

On Monday, the Rhode Island Medical Society joined a lawsuit against the state health department over its recent decision to only allow physicians -- not nurse practitioners and physicians' assistants -- to sign medical marijuana applications. The state ACLU had sued last week on behalf of the Rhode Island Patient Advocacy Coalition, Rhode Island Academy of Physician Assistants and a Bristol patient. Applications signed by nurse practitioners and physician’s assistants had previously been accepted. The medical society said the new policy was arbitrary and that doctors needed to be able to delegate responsibilities to other medical professionals.

Marijuana Scheduling Case Heard By US Appeals Court [FEATURE]

The medical marijuana defense group Americans for Safe Access (ASA) and a number of individual plaintiffs took their case for the rescheduling of marijuana to the US Court of Appeals in the District of Columbia Tuesday. In oral arguments there, they urged the court to order the Drug Enforcement Agency (DEA) to reverse, or at least reconsider, its rejection of a decade-old petition seeking rescheduling.

Now, the battle over rescheduling has moved from DEA and HHS to the federal courts. (safeaccessnow.org)
Marijuana is Schedule I under the Controlled Substances Act, which means the government considers it to have no accepted medical use and a high potential for abuse. Other Schedule I drugs include heroin, ecstasy, and LSD. ASA is arguing that it should be down-scheduled, past Schedule II, which includes cocaine, methamphetamine and other amphetamines, and powerful opioid pain relievers (Oxycontin, morphine, Fentanyl), to Schedule III, which includes less harmful substances, such as steroids, less-powerful opioid pain relievers (hydrocodone, paregoric), and Marinol, or synthetic THC.

Medical marijuana advocates have thrice petitioned the DEA to consider rescheduling marijuana, citing increased knowledge about the medical efficacy of the herb. The first petition languished for more than two decades before the DEA rejected it; the second was finally rejected after seven years, and it took the agency a decade to reject the most recent one. In the intervening period, 17 states and the District of Columbia have moved to allow for the medical use of marijuana.

The DEA rejected the most recent rescheduling petition last year, saying there was no scientific consensus on marijuana's medical efficacy and that the plant has many "chemical components" that are not well understand. ASA and the individual plaintiffs appealed the decision in January. (Read the appeal brief here.)

In oral arguments Tuesday, ASA counsel Joe Elford charged that the DEA had ignored accumulating evidence of marijuana's benefits, and so acted "arbitrarily and capriciously" in rejecting the rescheduling petition last year. Federal law requires the agency to take such evidence into account, he said. Elford also accused the Department of Health and Human Services of creating a Catch-22 for medical marijuana advocates by strictly limiting researchers' access to marijuana, then arguing there is insufficient scientific evidence to merit rescheduling it.

"This game of 'gotcha' will continue indefinitely unless this court intervenes," Elford told the three-judge panel.

Despite the federal government's obstructionism, Elford was able to cite over 200 studies of marijuana's medical efficacy. He argued they helped prove that Schedule I is inappropriate for marijuana, and that its continued placement in Schedule I both harms patients and hampers research.

Elford accused the government of "bias" in its refusal to reschedule marijuana. It ignores its medical benefits and hypes its danger, which is the only way "the federal government could conclude that marijuana is as harmful as heroin and PCP and even more harmful than methamphetamine, cocaine, and opium," he told the court.

But the DEA was prepared to defend its position. Agency attorney Lena Watkins told the court the agency had already considered the evidence and it found the argument that marijuana should be rescheduled unpersuasive.

"They don't have the type of study that would allow them or any other expert to reach a conclusion about the medical utility of marijuana," Watkins argued.

Marijuana is scary stuff, she told the court. The plant has "adverse physical and psychological consequences" and has been "implicated in hundreds of thousands of hospital visits," Wilkins said.

Wilkins did not acknowledge any of the logical caveats to those statements. For example, hospital emergency rooms routinely ask about substance use and that even a person who had used marijuana and then been injured by a drunk driver would be coded as a "marijuana-related" emergency room visit. Additionally, actual marijuana-related emergency room visits typically are anxiety attacks or panic reactions, which are easily treated, and not life-threatening events like potentially fatal hard drug or alcohol overdoses.

"Marijuana is the most widely abused drug in America," Wilkins added, noting that abuse potential is one of the criteria for placing a substance on the schedule.

The court and the opposing attorneys also addressed the issue of standing. In rejecting the appeal of the second petition--from 1995--that the DEA refused to reschedule, the court never addressed the core issues of the case, instead throwing it out because petitioner Jon Gettman, a marijuana researcher and former national NORML executive director, could not demonstrate direct harm from the government's actions.

This time around, ASA has plaintiff Michael Krawitz, a disabled Air Force veteran from Virginia who is dependent on the Veterans Administration for his health care and who is prevented from even asking about medical marijuana to treat his pain. Krawitz is being directly harmed by federal policies and thus has standing, Elford argued.

"That seems pretty straightforward," said Judge Harry Edwards.

But the DEA's Watkins demurred, arguing that Krawitz could not legally obtain marijuana anyway because Virginia has not approved its medical use.

At the end of the day, it was unclear whether medical marijuana advocates had won their argument before the panel of veteran judges. The jurists appeared to question whether the courts had the right to second-guess the DEA.

"The real question is to what extent we have to defer to the agency," said Judge Harry Edwards.

"Don't we have to defer to their judgment?" asked Judge Merrick Garland. "We're not scientists. They are."

The pair of judges said they would not overturn the DEA's decision unless they found it to be "arbitrary and capricious." But that, of course, is precisely what Alford and the plaintiffs argued it is.

The appeals court will not hand down its decision for some months.

Washington, DC
United States

Medical Marijuana Update

The big news this week is that Oakland is suing the feds over their efforts to shut down Harborside. Meanwhile, the battles continue at the state and local level in California and beyond.

California

Last Monday, Citizens for Patient Rights handed in signatures in La Mesa for an initiative to allow and regulate dispensaries. They handed in more than 6,500 signatures; the San Diego County Registrar of Voters has 30 days to verify the successful submission of the 3,034 valid signatures needed in order to qualify.

Also on Monday, medical marijuana proponents rallied at an Obama campaign stop in San Francisco. Upset with the administration's campaign of repression aimed at dispensaries, they demanded that the administration freeze all actions being taken against medical cannabis providers and review their records of state and local compliance.

On Tuesday, the Los Angeles city council took its final vote to repeal the "gentle ban" on dispensaries. The council was forced to vote because medical marijuana advocates had gathered enough signatures to place a referendum on a city ballot asking voters to overturn the soft ban. The city council had to either repeal the ban on its own, or allow the question to go to the voters. Placing the question on the ballot for the upcoming election would have cost taxpayers up to $3 million at a time when the budget shortfall has forced reductions in core city services.

Also on Tuesday, the founder of G3 Holistic chain of three dispensaries went on trial in federal court for violating federal drug laws. Aaron Sandusky faces six felony counts. The feds accuse him of operating a for-profit business under cover of Proposition 215, but his attorney said he was running a perfectly legal business under state law and his cause is being championed by Americans for Safe Access. His trial is expected to last through the week.

Also on Tuesday, the Santa Monica city council approved a 45-day moratorium on new dispensary permits. City staffers called dispensaries a "risk to the public peace, health and safety" and will use the moratorium to come up with options for dealing with them. It could be extended for up to 22 months. Some city council members accused staff of Reefer Madness-style fear-mongering.

Also on Tuesday, the Clovis city council rejected a ban on medical marijuana grows. The city bans dispensaries but allows patients to grow their own indoors. The updated ordinance limits the size of gardens and requires them to be out of public view. The council rejected an outright ban after City Attorney David Wolfe said it would be costly to defend in court and hamper police efforts to control cultivation.

Also on Tuesday, an appeals court upheld Temecula's ban on dispensaries.  The Fourth District Court of Appeal ruled yesterday on the ordinance banning medical marijuana dispensaries from operating within the city. The panel ruled, 2-1, that the city may use its zoning powers to absolutely ban the dispensing of the drug, and that such regulation is not preempted by Proposition 215, the statewide initiative permitting the use of marijuana upon a doctor’s recommendation, or the Medical Marijuana Program Act that regulates the distribution of the drug for medical purposes. The case was City of Temecula v. Cooperative Patients Services, Inc.

Also on Tuesday, the Arroyo Grande city council voted to ban medical marijuana delivery services. It was the second vote by the council in as many weeks to do so, but some residents are vowing a fight-back.

On Wednesday, the city of Oakland filed a lawsuit to block the feds from closing the Harborside dispensary. Oakland took in $1 million in tax revenues from Harborside last year, but the city said it wasn't about the money, but about federal interference in the city-permitted business. "The federal government has acted beyond its authority by initiating the forfeiture action outside of the statute of limitations," said Cedric Chao, the attorney representing Oakland. "Moreover, the government has indicated for many years by its words and actions that so long as dispensaries and medical patients acted consistently with state law, the dispensaries would be allowed to operate. Oakland has reasonably relied on these assurances, and the government should be prohibited from disrupting Oakland's medical cannabis program."

New Jersey

Last Thursday, a state court panel upheld Health Department rules limiting the number of medical marijuana dispensaries and requirements that they all be run by nonprofits. Natural Medical, Inc., a for-profit company formed to open a dispensary had sued, arguing that the department had unlawfully limited the number of dispensaries to six. Nearly three years after former Gov. Jon Corzine (D) signed the state's medical marijuana law, no dispensaries are yet up and running. "Appellants simply have not shown that the Department acted unreasonably in limiting the initial issuance of ATC [dispensary] permits to the statutory minimum," the unsigned unanimous opinion said. "Beyond the mandated minimum, the Department has discretion to determine how many ATCs are needed to meet the demand for medical marijuana."

New Mexico

Last Friday, it was reported that half of the people using medical marijuana in the state are suffering from PTSD. The report comes as the Medical Cannabis Advisory Board reviews a petition from a psychiatrist to remove PTSD from the list of disorders that can be treated with marijuana. The board will conduct its review November 7, with the decision ultimately in the hands of the interim health secretary.

Rhode Island

On Monday, the ACLU said it will sue over a revision of the state's medical marijuana program that it says makes it more difficult for patients to obtain their medicine. While the ACLU was mum on the particulars, it appears it will challenge a decision this summer by the Department of Health to only accept patient applications signed by physicians. It had previously accepted applications signed by physician's assistants or nurse practitioners, as well.

Vermont

Last Thursday, the Rutland city council voted to ban dispensaries. The state has approved four medical marijuana dispensaries around Vermont, but also allows towns to opt out. The move came after Police Chief James Baker told aldermen last week that dispensaries had become crime magnets in other states. The measure passed without any debate.

Medical Marijuana Update

Mitt Romney (mis)speaks out on medical marijuana, the LA dispensary ban is repealed, and the feds keep on grinding away at medical marijuana providers with another conviction in Montana and a lengthy prison sentence in Michigan. And that's just for starters. Let's get to it:

National

On Monday, GOP presidential candidate Mitt Romney weighed in on marijuana policy. Asked by the Denver Post what he thought about Colorado's medical marijuana industry, Romney responded, "I oppose marijuana being used for recreational purposes and I believe the federal law should prohibit the recreational use of marijuana." Later the same day, his campaign clarified to the Washington Post that "Governor Romney has a long record of opposing the use of marijuana for any reason. He opposes legalizing drugs, including marijuana for medicinal purposes. He will fully enforce the nation's drug laws, and he will oppose any attempts at legalization."

Arizona

Last Thursday, the state ACLU joined a lawsuit supporting the Arizona Medical Marijuana Act. The lawsuit, filed by White Mountain Health Center, seeks to compel county and state officials to move forward with the dispensary permitting process. Maricopa County Attorney Bill Montgomery has refused to issue the documentation to any proposed dispensaries in Maricopa County because he claims the law is preempted by the federal Controlled Substances Act. The lawsuit lists Montgomery, Maricopa County, and the state Health Department and its director, Will Humble, as defendants. A hearing is set for October 19.

California

On Tuesday, the LA city council voted to repeal its recent ban on dispensaries. The 11-2 vote came after activists gathered enough signatures to put a referendum repealing the ban to a direct vote. Rather than hold a March election that could give an okay to dispensaries, the council is counting on federal enforcement to accomplish what it hoped to achieve with its ban. "That is our relief," Councilman Jose Huizar said of the DEA raids and threat letters to dispensaries that began last week.

Last Tuesday, the DEA raided an Anaheim dispensary, the Live Love Collective, seizing two kilos of dried marijuana, 75 kilos of marijuana-laced edibles, 900 grams of hash and a kilo of marijuana gel, according to DEA officials. The shop had been warned by the feds that it was violating federal law in November 2011 and was also among 128 dispensaries issued "cease and desist" orders by the city of Anaheim.

Connecticut

On Monday, the state's medical marijuana law went into effect. Doctors will now be able to go online at the Department of Consumer Protection and begin the registration application for qualifying patients. This is the first step in the fledgling program; the agency has until  July 1 to submit new regulations to the General Assembly on how it will be dispensed.

Michigan

On Monday, the Ann Arbor city council postponed action on amending its licensing ordinance. The suggested amendments including removing language suggesting involvement in regulating the industry by city staff, setting a cap of 20 on dispensaries in the city, and licensing 10 dispensaries. The council has steadfastly failed to move on the ordinance revisions since they were proposed at its January meeting, and they could die if not acted on within the next six months.

Also on Monday, a Monroe County caregiver was sentenced to 10 years in federal prison. Gerald Duval Jr. and his son Jeremy had been raided by the DEA and charged with federal marijuana cultivation and trafficking offenses. They were convicted after a trial in which Michigan's medical marijuana law, with which they were in compliance, could not be mentioned. Jeremy Duval was set to be sentenced Tuesday, but there is no word yet on his sentence.  Americans for Safe Access called the Duvals' case "another tragedy from President Obama's war on medical marijuana."

Montana

Last Wednesday, the Montana Cannabis Association asked the state Supreme Court to reconsider its September ruling that a ban on marijuana sales does not violate the constitutional rights of registered users or providers. The ruling overturned a lower court decision to block part of lawmakers' restrictive rewrite of state regulations, and sent the case back to District Court with new instructions. The association argued that a new state law should be held to a higher standard of review. The Supreme Court decision is in abeyance until the justices address the motion and formally send the case back to the lower court.

Last Thursday, a medical marijuana provider was found guilty in federal court of multiple federal charges, including conspiracy to manufacture, possess and distribute marijuana and firearms charges. Chris Williams was the greenhouse operator for Montana Cannabis, where DEA agents seized 950 plants in one of the March 2011 raids that swept the state, decimating its nascent medical marijuana industry. As per usual, he wasn't permitted to argue that he followed state laws regulating medical marijuana.  He said he would appeal. One of his partners in Montana Cannabis, Tom Daubert, recently received a probationary sentence after pleading guilty, but another set of partners, the Flor family, weren't so fortunate. They all got prison sentences, and 68-year-old Richard Flor died in federal prison earlier this summer.

(This article was published by StoptheDrugWar.org's lobbying arm, the Drug Reform Coordination Network, which also shares the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)

Medical Marijuana Update

The DEA strikes again in Los Angeles, and the feds are moving to eliminate dispensaries in downtown LA. But the pushback against the crackdown continues. Let's get to it:

California

Last Thursday, demonstrators gathered outside Obama campaign headquarters in Sacramento to protest the crackdown on medical marijuana dispensaries. The demonstration was part of a series of protests at Obama campaign headquarters across the nation sponsored by Americans for Safe Access.

Also last Thursday, the two candidates for LA County DA said they would continue to go after  dispensaries. The remarks by Chief Deputy District Attorney Jackie Lacey and Deputy District Attorney Alan Jackson differed came as the two engaged in their last public debate. Responding to a question from moderator Gene Maddaus of the LA Weekly both took roughly the same line. "It's my position that over-the-counter sales for money of marijuana are illegal," Lacey said. "Those folks are simple drug dealers," Jackson said.

Last Saturday, the Trinity County Sheriff's Office reported it had raided six medical marijuana grows, saying they were all illegal commercial grows hiding behind Proposition 215. The raids resulted in 14 arrests for cultivating and preparing marijuana for sale, and deputies seized $180,000 in cash, 406 plants, and 150 pounds of processed marijuana. The sheriff's office said the amount was far in excess of the personal use amounts for the 14 people, but acknowledged that some of them said they were members of cooperatives.

On Monday, initiative campaigns in San Diego County announced they had scored big endorsements in their bid to allow and regulate dispensaries in Lemon Grove, Del Mar and Solana Beach (Propositions T, H and W, respectively). The endorsements include the San Diego County Democratic Party, the San Diego County Libertarian Party and the San Diego County Green Party.

On Tuesday, the feds targeted 71 Los Angeles dispensaries, with the DEA raiding three.  Federal prosecutors filed asset forfeiture lawsuits against three properties housing dispensaries and sent threat letters to 68 other dispensaries. The feds are targeting every known dispensary in the Eagle Rock and downtown areas of the city, as well as the single store known to be operating in Huntington Park. The federal actions in Los Angeles were done with cooperation from the Los Angeles Police Department, the Los Angeles District Attorney's Office, and the Los Angeles City Attorney's Office. The three dispensaries hit by the DEA with help from the LAPD were the Happy Ending Collective, the Green Light Pharmacy, and Fountain of Wellbeing. Federal enforcement actions -- the asset forfeiture lawsuits and warning letters -- have now targeted more than 375 dispensaries in the Central District of California.

On Wednesday, the feds joined up with local law enforcement in Santa Rosa to swarm a southwest neighborhood in what was described as the region's largest ever mass residential grow bust. Participants included personnel from the Sonoma County Sheriff’s Office, Probation Department and District Attorney’s Office, Santa Rosa Police Department, California Highway Patrol and federal departments of Homeland Security and Immigration and Customs Enforcement. A sheriff's spokesman said the operation was planned after authorities discovered that suspected pot cultivation in the neighborhood had become rampant. "We just looked into this neighborhood and, literally, probably every backyard but two or three have a (marijuana) grow," O'Leary said. "Our goal is to go in there to rid the neighborhood of these, what we think are probably illegal grows."

Michigan

Last Wednesday, a federal appeals court upheld the firing of a Walmart worker who was terminated after testing positive for marijuana even though he was a registered patient. Joseph Casias, who has an inoperable brain tumor, was fired by the Walmart store in Battle Creek after failing the drug test. He sued, but the case was thrown out in district court. The appeals court upheld the ruling of the lower court that the state's medical marijuana law does not regulate private employment, but merely provides protection from criminal prosecution or other adverse state action.

Montana

Last Friday, a federal judge hamstrung the defense of medical marijuana provider Chris Williams, a co-owner of the now-defunct Montana Cannabis. US District Court Judge Dana Christensen held that Williams cannot argue that government officials entrapped him into believing he would not be prosecuted and warned jurors that they must "disregard any statements or argument about the defendant or others purporting to comply or not to comply with state laws concerning marijuana." Williams is the only one of the people charged after a series of March 11 raids to go to trial. One of his partners in Montana Cannabis, Richard Flor, died in federal prison last month, while another, Tom Daubert, was sentenced to probation. The trial was still going on as of Tuesday night.

On Tuesday, federal prosecutors' thresholds for prosecution were revealed. Cases involving less than 500 plants or 100 kilograms will be "disfavored for prosecution in federal court," according to a July memorandum from Montana US Attorney Michael Cotter that was obtained and published by The Independent. In their March 2011 raids, the feds in several instances targeted grows that contained fewer plants than that.

Washington

Last Thursday, protestors in Seattle denounced the federal crackdown on dispensaries there, holding a city hall news conference before rallying at the federal courthouse. In August, the DEA sent threat letters to 26 local dispensaries it said operated within 1,000 feet of a school zone, threatening forfeiture if the businesses didn't shut down within 30 days. The protest was one of a series called across the country by Americans for Safe Access.

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