Oakland Pursues Case against Federal Government to Uphold City's Right to Regulate Medical Cannabis

In October 2012, I filed a complaint in U.S. District Court against the U.S. Attorney and U.S. Attorney General to stop the federal government's attempts to seize a building that one of Oakland's permitted medical cannabis dispensaries rents.

At the time, the federal government was aggressively cracking down on medical cannabis in Oakland and elsewhere, despite assurances by federal officials that the government would not pursue licensed dispensaries that are in compliance with state law. Just a few months earlier, agents from the IRS and other agencies had raided Oaksterdam University, one of the pioneers of the medical cannabis industry in Oakland, an action that ultimately devastated the business.

A lot has changed since in the three years since Oakland challenged the U.S. Attorney's forfeiture action, which asks the Court to seize the building in which Harborside Health Center operates its dispensary under California law and Oakland's strict licensing regulations.

Recreational marijuana is now legal in a number of states. Congress's 2015 Appropriations Act prohibits the Department of Justice from expending funds in connection with the enforcement of any law that interferes with California's ability to implement its own state law that authorizes the use, distribution, possession or cultivation of medical marijuana. And in October, U.S. District Court Judge Charles Breyer ruled that Congress's action prohibits federal law enforcement authorities from taking actions to shut down medical cannabis businesses that are complying with state law.

I wholeheartedly endorse Judge Breyer's decision. Although it is not clear how the decision will affect Oakland's case against the federal government or whether the government will appeal Judge Breyer's decision, it is a just and major legal victory for the countless patients who rely on this medicine.  

In our lawsuit, we advised the federal trial and appellate courts that Oakland relied on numerous assurances by federal officials, including statements by President Obama and the U.S. Department of Justice, that the government would not interfere with dispensaries complying with state law. The District Court ruled in 2013 that it had no jurisdiction over the City's complaint, despite the unique and serious harm to legitimate medical patients, Oakland taxpayers and the City's regulatory rights that would result from the federal government's action. 

However, the District Court granted the City's request to stay forfeiture proceedings as to Harborside and its sister dispensary in San Jose pending appeal. As a consequence of the litigation and the stay, these two dispensaries have remained open since the date the federal government filed its forfeiture complaint in July 2012.

In August, the Ninth Circuit Court of Appeals affirmed the District Court's dismissal of Oakland's case. The Court of Appeals three-judge panel ruled that Oakland does have standing because the City would be injured by the closure of Harborside, but the City has no right to proceed under the forfeiture statute because we have no interest in the real property.

 

On October 5, we filed a Petition for Rehearing and Rehearing En Banc asking for a hearing before 11 of the judges on the Ninth Circuit bench. We also sent a letter to the Court apprising the appellate judges of Judge Breyer's recent decision.

On October 30, the Ninth Circuit denied our petition for rehearing. We are evaluating our options.

Whatever the ultimate outcome of our case, the federal government is fighting a losing battle. The war against marijuana has empowered psychopathic drug cartels south of the border, and it has fueled the massive expansion of incarceration of poor people and people of color in our country. But it has not stopped the widespread use medicinal cannabis by many Americans.

Given the evolution of the law and changes in public opinion and national politics on this issue, it is particularly disheartening that the U.S. Attorney's Office continues to focus so much of its attention and scare resources on denying patients with cancer or other conditions access to the legitimate benefits of medical marijuana.

The U.S. Attorney should heed the direction of Congress, President Obama's pronouncements and the will of California voters and end this pointless waste of law enforcement resources.

I want to again thank attorney Cedric Chao, senior partner at DLA Piper, for handling this case on a pro bono basis, i.e., at no cost to the City.

City Attorney Accepts Public Lawyer of the Year Award 
                          

Yvonne retired as head of operations for the City Attorney's Office in August of this year. She served the employees and citizens of Oakland for 10 years in this office and as a Human Resources Manager in the Office of Human Resources. Her 46-year career in municipal government began in 1969 when she joined the L.A. County Department of Hospitals as a stenographer. In her career as a public servant, Yvonne worked for the cities of Los Angeles, San Francisco and Oakland in departments of social services, libraries, employee relations and human resources, and always did so with distinction, expertise and the highest level of integrity.