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Oakland Marijuana Lawsuit

08 November, 2013
Medical Marijuana Industry Is Unnerved by U.S. Crackdown

Before I discuss the Oakland Marijuana Lawsuit I’ll just say that writing has gotten irratic for me, faithful followers. Where I used to have a distinct schedule, I now have none. Could it be the new boyfriend? Or NaNo? Yes, to both. It seems Bill is off work at least one of the days I am to blog with you. This screws with me no end. Half the time I forget what day it is. A day or so later, I’ll say “Oh Shit!!” and remember. By that time, I’m a blog behind. And NaNo….What can you say about National Novel Writing Month? Fifty thousand words in 30 days sounds pretty exciting–and doable. But alas, I am into day 7 and I have only written about a day’s worth of words (1667 wc) and none of it is in book form. It seems to mostly be a bunch of random thoughts, notes, and more of a journal than anything else. So NaNo is going nowhere….

Which brings us to this blog. A few days late. Overlapping on the one due tomorrow. Plus I think I missed last Friday too. So let’s give this a shot, shall we? Let’s finish out the week on a positive note….

Oakland Marijuana Lawsuit

Right now, at this minute, Oakland CA is the Toke of the Town. Oakland is taking on the Feds by legally challenging it’s right to shut down a bay area dispensary. The Oakland case is the first one where a local public entity has taken action to keep a traditionally illegal substance available. In most cases, the city obviously welcomes the Feds to close down Crack houses by applying forfeiture laws. Well, these laws are being used against the Oakland dispensary. The difference is obvious. In this case, the controlled substance is only being used for legitimate medical purposes. (It is also prescribed under the strictest state and local regulatory regime.)

Less obvious is why this legal struggle is going on at all. In light of the undeniable humane benefits at stake, it should be a slam dunk for the City of Oakland. You’d think…

Here’s how it went…Oakland filed it’s complaint with the U.S. District Court, seeking to stop the federal government from closing down the city’s Harborside Health Center (The nation’s largest dispensary with 108,000 patients.) In October of 2011, California’s four U.S. Attorneys announced and escalation against medical marijuana providers. Harborside had already been in business for 5 years, at this point.

The DEA allowed civil forfeiture to confiscate property and possessions from property owners who rent to dispensaries. (Including Harborside) Hundreds of dispensaries closed down over night after feds told the landlords to either evict them (the dispensaries) or face losing their real property. Currently, there are only four dispensaries in Oakland generating $1.4 million in business tax revenue, not including sales tax.

Pressure has been mounted on banks and credit card issuers. At this time, you cannot use anything but cash at a dispensary. DEA spokesperson, Karl Nichols, says, “the agency does not engage in organized efforts to get outside parties to sever relationships with dispensaries.” BUT, he does say, “DEA operatives will advise companies that contact them of the “hazards” of those relationships, including possible prosecution for money laundering and bank law violations.” The District Court has already determined that the city has no standing to block the federal government from shutting down Harborside completely.

The story is: only the dispensary itself and it’s property owners (those subject to forfeiture) can contest the forfeiture action. The City of Oakland itself has filed an appeal with the Ninth Circuit, it will be heard in early 2014.

Cedric Chao (a partner at DLA Piper) says, “…the appeal, and Oakland’s underlying claims, will make new law. A relatively unknown, but nonetheless vibrant doctrine of equitable estoppel has been used to block government action where the government previously led others to believe that the conduct in question was acceptable and others then acted in reliance on the government’s statements or actions.”

Seems the government has totally reversed itself since it gave the dispensaries permission to operate back in 2006. But there is so little applicable case law using this premise that precedence will be hard to set.
Although Oakland is neither the dispensary or the owner of the real property, a lawsuit could be filed as an aggrieved third party, injured by the forfeiture even though there is no direct interest in the property being forfeited. (A separate lawsuit has been filed under the Administrative Procedure Act.)

In fact, Oakland’s legal strategy has surprised the Department of Justice. The DOJ is protesting that Oakland is doing an end run around the statute and decades of settled case law. The DOJ has even used scare tactics, such as suggesting that the friends and families of rapists and murderers could also file cases as aggrieved parties (in their particular situations). However, Oakland’s claims are significant and unique because Congress could not have intended that the municipality and it’s 400,000 residents can be denied access to the courts to seek redress.

So, why is this Oakland thing so important? Especially since Twenty One states and DC have legalized Cannabis is some way. The Controlled Substances Act has even been unenforced due to Medical Need. Scientists clearly maintain that Cannabis does have Medicinal Qualities. Several governmental agencies hold patents in the Marijuana field. One, DHS (Department of Health Services), has even applied their patent to a bioscience company called, KannaLife. If not to deal commercially, why would they do this?

In my opinion, it’s going to get interesting in the next few years. I am interested in what the Arkansas vote (from last Tuesday) turned out to be. And I will be watching Oakland. Or Oaksterdam, as we called it when I lived in Cali…..

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