The Wild West Lives
By James D. Davis
For proof that the wild west lives, one need only look at the disintegration of Vallejo, California (where I live), a small town across the Bay from San Francisco. Over the past decade the city has descended into a crime-ridden, bankrupt community, now overrun by medical marijuana clinics (6 in 2007, 24 at the beginning of 2012). And Vallejo is just one example of marijuana laws having gone awry; there are cities throughout the state struggling with marijuana clinics and their role in the state’s medical marijuana program.
The multiplication of clinics selling marijuana didn’t reach a crescendo in Vallejo until a few years ago, and the city wasn’t sure what to do about it. All it takes to start a clinic is marijuana, patients, and an empty store (we have many). There is no authorizing agency for clinics, no license to get, and no fee to pay—at least not in Vallejo. (You can’t get a business license in Vallejo for a clinic, but somehow 24 clinics sprung up; the police have closed down four or five since the beginning of the year, so we may be down to 19). The city thinks if it doesn’t list clinics as a type of authorized business, they can’t be legal, despite state law, and despite their reality. The voters, however, being more pragmatic, recognized the reality of the clinics, and passed a law to tax them (3/4 of voters approved a 10% tax on clinics, which is substantial revenue for a city just emerging from bankruptcy). A little over a year ago the city began working on an ordinance to regulate the quality and number of these clinics, but the city’s work was abruptly interrupted when a California court of appeal said cities cannot regulate medical marijuana clinics. That decision and its efficacy are discussed below.
According to the city attorney, the city will not continue working on regulating our clinics, because of the appellate decision. The Supreme Court of California is expected to rule by the end of the year on the right of a city to regulate its clinics (maybe after the November election).
Clinic Operators Are Turned Into Criminals. In the meantime, despite the hold on regulation, the chief of police is waging a war on clinics. In January, squads of police began raiding clinics, one by one, charging the operators with crimes, notwithstanding the 1996 state-wide vote that approved clinics [whether the voters “approved” clinics or merely “decriminalized” them is a fine legal distinction, discussed below]. Using police officers to close down clinics has enabled the city, in effect, to save the money it would have spent administering clinics, and unfortunately to lose the revenue from the clinics, some of our most successful businesses. The city has turned deficient clinic operators into criminals. The city council and city manager have thrown up their hands in helpless surrender, turning the matter over to the chief of police, who is showing his crime-fighting creds in newspaper headlines: “EASY-ENDINGS CLINIC RAIDED FOR SECOND TIME.” The wild west. If I were counseling the city, I would caution that this kind of duplicitous, wishful thinking can result in a lawsuit against the city and its drug czar for false arrest, malicious prosecution, and civil rights violations (charging crimes without evidence of crimes). Civil rights violations can result in verdicts consisting of actual damages, punitive damages, expenses of litigation, and attorney fees against the city. Vallejo’s decision to arrest all these people, hire attorneys to prosecute them, pay litigation costs, bring justice to the scalawags, and clog up the courts with this nonsense is regrettable. These kinds of crusades may be useful in a city with plenty of money and no real crime, but that is not Vallejo. In view of Vallejo’s high number of murders, burglaries, robberies, rapes, assaults, car thefts, and shootings, one would be hard-pressed to explain why we use police resources for victimless crimes. Except that Elliot Ness gets another headline.
Despite the high level of actual crime in Vallejo, it is no joke to say our police officers are dressing up like medical marijuana patients, trying to make undercover marijuana buys, surveilling marijuana clinics and their patients, identifying patients, checking their criminal records, and preparing to raid another clinic that uses poor business practices (converted into crimes by the police).
The types of deficiencies at the clinics that caused the chief to put the operators and employees in handcuffs; confiscate their marijuana, computers, phones, cash, guns, and plants; padlock the door; and put them in jail, were such as this:
too much marijuana at the clinic;
too much cash in the drawer;
a gun (not many people would run a business in this crime-infested city without a gun);
some other drugs;
some patients served without a doctor’s recommendation;
some employees selling marijuana out the back door;
and poor record-keeping, etc.
This is a compilation of all the infractions found, not for each clinic, but a summary, and they are sloppy business practices indeed. But these businesses are brand new; there are no models for operators to follow. Indeed, our best-run clinic in Vallejo, Greenwell Cooperative, was the first to be raided (making an example of it), and a clinic in Oakland called Oaksterdam (the “Harvard of the medical marijuana program”) was raided by the feds. It is the wild west, taking down the only clinics that could show the way to good business practices. There are guidelines put out by the California Attorney General and the Solano County District Attorney, but they are just guidelines, not law. If operators need instructions on how to operate, nudges to follow rules, inspections to ensure safety, accounting reviews to ensure proper reporting, and audits to verify the payment of fees and taxes, the city should ask for compliance, remind an operator if necessary, fine an operator if necessary, and close down the operation if necessary. But to start off with jail is way out of line and may constitute the tort known as abuse of process. Clinics are businesses, not criminal enterprises. The city should respect these businesses and expect them to respect us, with clean, responsible business practices that contribute to the community and the treasury. If they need help in running a responsible business, we can help them, not jail them (unless they refuse to pay attention, after repeated warnings).
Make no mistake, the flood of clinics in Vallejo, reports of people hanging around, and reports of people smoking marijuana in the streets describe anti-social actions. I am not saying everything is all right. It is not. It is a mess, the wild west for clinics and for police. But the people running these clinics are not criminals. They are trying to earn a living, selling legally to patients who get relief from marijuana (and sometimes apparently selling illegally to non-patients, just as some clerks sell cigarettes and alcohol to minors). It can’t be denied that some portion of patients are fake patients—people who get a physician’s recommendation without presenting a very convincing case for relief; some doctors are relaxed about the process. But the usefulness of marijuana for some sick people cannot be denied; closing down a clinic takes away their only source, other than the black market. I envisage for Vallejo, a town of 135,000, zoning laws that allow one clinic for every40,000 people, which would give us three, each superbly managed and monitored, in strict conformance with the law, providing a needed medicine, jobs for people, and badly needed revenue for the city. Maybe a drive-through window. It doesn’t have to be the wild west. The city can step up and manage these businesses, telling Elliot to do more constructive things with his officers than arrest harmless people.
The city says, “You don’t understand, Jim; it’s very complicated. We could be sued if we try to restrict or regulate clinics in any way.” Their default position is raid-confiscate-arrest-and-prosecute. I suppose the city attorney told them they are less likely to be sued for using the criminal process than the regulatory process. (“So we’ll say that failure to follow the guidelines takes away the immunity and we’ll turn it into a criminal investigation.” That doesn’t seem to be a rational or constructive approach—businesses closed down, lives destroyed, patients left to turn to the black market, criminal transfers of marijuana and money, along with the guns that go with the criminality. Does this police chief really think he’s going to stop the widespread use of marijuana? His own war on drugs? He offers no option for the patients, who are legally entitled to buy marijuana in clinics.
Umbrella of Prop 215. California law says “patients and their primary caregivers” are not subject to criminal prosecution (doctors are also exempt). Given the bare-bones statutory scheme of the medical marijuana program, the protective umbrella will probably be extended to other players. For example, the umbrella has already been extended by statute to the “cultivation of medical marijuana.” There have to be growers. And courts have found an implied defense to the transportation of medical marijuana. There has to be movement along the whole chain, from farm to seller. Most clinic operators are probably marijuana patients themselves. They may also qualify as “caregivers,” which would exempt them from the criminal law. These legal conclusions can be argued, but the point is, they are arguable. This is a new area of law and the rules have not been set, despite guidelines from the California Attorney General and the Solano County District Attorney. Which is not to say any set of guidelines should be ignored by operators, but individual failings in some circumstances should be treated as administrative infractions, not crimes.
An attempt in the guidelines to limit the weight of marijuana that can be possessed or number of plants that can be grown, if one wants to stay under the protective umbrella, was declared unconstitutional by an appellate court, because it was an attempt to amend Proposition 215, which says nothing about limits other than the amount that is appropriate for the patient (see People v. Kelly (2008) 163 Cal.App.4th 124). Guidelines are akin to administrative rules implementing, not amending, a statute. Violations of administrative rules rarely constitute a crime. The California AG’s guidelines, after recognizing that storefront clinics may be lawful under California law, warn clinics that the protective umbrella may be lifted if the clinic does not “substantially comply” with the guidelines. (It should be noted that despite the AG’s attempt to give an example of what she thinks should lift the umbrella—having new members sign a sheet that automatically makes the clinic the patient’s caregiver--the AG cannot say what lifts the umbrella of protection; “substantial compliance” is a legal determination to be made by judges and juries, if indeed that is the standard to be applied.)
One would expect that good faith attempts to operate a legitimate clinic would be persuasive on criminality. Even all the infractions found by the Vallejo police were not clearly “substantial”noncompliance; the clinic operators and employees were really trying to run a business, albeit with short cuts and carelessness. The infractions should be taken seriously and a warning given:
Smoky Mountain Cooperative: On Thursday, our inspector observed $30,000 in cash (an excessive amount in view of your sales figures), 20 lbs of marijuana (a large supply for your volume of business), and a 9mm handgun. These are infractions of the AG’s guidelines. We expect them to be corrected. Reply within 30 days to explain the corrective actions you have taken. Delay will result in monetary fines and may result in closure.
Stony Brook Collective: On Friday, our inspector observed inaccurate receipts for marijuana sold to patients (and sometimes the patient’s name missing), and the inspectorsaw an employee pass a quantity of marijuana to a person through a back door. These are infractions of the AG’s guidelines. We expect them to be corrected. Reply within 30 days to explain the corrective actions you have taken. Delay will result in monetary fines and may result in closure.
That’s how it’s done. And it doesn’t cost anything, because the clinics pay for their own monitoring (under our soon-to-be written rules and reactivated tax ordinance), which promotes strong levels of compliance. Indeed, recognizing these clinics for what they are, rather than treating them as criminal enterprises, may create a few jobs, not to mention a little money for streets and schools.
The city of Vallejo and the Solano County District Attorney have decided on their own to consider business deficiencies crimes. That’s overreach. These clinic operators and their employees, who did nothing more than try to start a business, have been turned into criminals. They now have arrest records that will stick with them for a lifetime. And maybe convictions and jail time. All this for starting a business offering a medicinal aid to sick people whose doctors recommend marijuana under a state law approved by the voters.
Appellate Ruling on Regulation.
The decision that put regulation on hold in Vallejo—but not arrests and criminal prosecutions—is Pack v. Superior Court of Los Angeles; City of Long Beach (2nd Dist.) (2011) 56 Cal.App.4th1532. The court in Pack says first that our state marijuana laws--the Compassionate Use Act (CUA) and the Medical Marijuana Program Act (MMPA)--are not preempted by federal law. This is because all they do is “decriminalize” medical marijuana; they don’t “authorize” it. On the other hand, the Long Beach ordinance under consideration, by issuing “permits” to approved clinics, “authorized” clinics. Therefore, Long Beach couldn’t regulate its clinics—not even limit their number--because any regulatory activity “authorizing” clinics had been preempted by federal law. Packis under review by the California Supreme Court, with a decision expected before the end of the year.
What the court does in Pack is recognize that California has set up a special group (patients, caregivers, recommending-physicians, growers, and transporters), with special rules, and decriminalized their behavior. In the real world this would mean clinics are authorized under California law, but the court avoids this conclusion. It seems to me that if you tell an operator she won’t be prosecuted if she starts a clinic, she will probably hear that as an authorization to start a clinic. In America if you’re not restrained by a law, you’re pretty much free to do whatever you want.
So California, despite having set up a scheme for distributing marijuana to medical patients, even going so far as to prescribe in guidelines the form of business to use (collective or cooperative), does not conflict with federal law; clinics are fine under state law, according to this court, in the sense that they’re not preempted by federal; they are certainly “legal” in the sense that conducting clinic business is not criminal activity under state law and is not preempted by federal law; but don’t let a city try to regulate them or limit their number. Surely the court couldn’t have intended this result. We are faced with blossoming clinics, which are obviously authorized by the state. Even though the state avoided for the most part saying “authorize,” it did everything short of that; it actually uses the word “authorize” in one statute, but the court said the state couldn’t have meant it. But when the Long Beach regulation “authorizes” clinics by issuing a limited number of “permits,” to preventhaving a clinic on every corner, it crosses the line into federal territory. This is the court’s conclusion. It is one of those cases that follows a judicial ideology over the cliff. The court makes a brilliant argument that produces a noxious result: Now we have clinics we can’t regulate (or at least cities can’t regulate them). The wild west.
It should be noted that the court had a pragmatic reason for saying that the California medical marijuana program is not preempted by federal law; if it had found the California program preempted by federal law, the stage would have been set for a confrontation between the two biggest players—California and the federal government. Can the federal government tell California how to treat marijuana? The federal government says marijuana has “no medicinal properties.” California respectfully disagrees, not in a court decision or an act of the legislature, but in a state-wide vote. It will take a bold U.S. Supreme Court to tell California it is wrong (on decision day, the Court might think about alerting the National Guard). The court in Pack conveniently focused on the city’s regulation, saying the city had no authority to regulate because regulation was a direct affront to the federal scheme.
U.S. Attorney General Attacks. For some reason, President Obama has instructed the Attorney General of the United States to intimidate, threaten, and actually close down some of our clinics. Thanks to Mr. President, everyone is afraid to participate in the medical marijuana program. California law be damned, says Mr. President. U.S. attorneys are threatening patients, caregivers, doctors, growers, transporters, processors, clinics, and any city official who has the temerity to regulate the clinics. Talk about a witch hunt. U.S. attorneys, on the orders of the President, are surveying the state to ensnare anyone who participates in this program authorized by the voters. Vallejo council members can be charged with a federal crime for regulating medical marijuana clinics, incur thousands of dollars in attorney fees, and face the possibility of a conviction and jail time. The chief’s campaign to rid the city of clinics is joined by the United States Drug Enforcement Administration (DEA), United States Attorney’s Office Eastern District of California, the State of California Board of Equalization, the State of California Franchise Tax Board, the Solano County District Attorney Office, and the Solano County Narcotic Enforcement Team. All this so marijuana clinics can be closed down. One would think the President has more important concerns.
California voters have approved a medical marijuana program and the government and courts are trying to work it out, aside from the collapse of governments like Vallejo, resulting in default to the police. The Vallejo government thinks the issue is too complicated to deal with (“what if we’re sued?), so the city manager turns it over to the police chief, an enthusiastic enforcer of the law (as he understands it). Relying on the criminal law to address a social problem is misguided for a lot of reasons.
Californians don’t need the Attorney General of the United States and his minions telling us we’re wrong and threatening us with prosecution; we are not criminals. Doesn’t the Attorney General have some federal problems to work on? What about Wall Street thieves, immigration, illegal drug trafficking (which does not include our program; he should go down to the Mexican border if he wants to conduct a war on drugs), and more. The President insults the entire State of California by insisting on his war against medical marijuana. We do not need Big Brother.
It should be said that California’s program was not worked out very carefully in advance. For example, a woman diagnosed with breast cancer and undergoing chemo and radiation, with the attendant nausea, loss of appetite, headaches, and loss of energy, shouldn’t have to buy a book (Marijuana-for-Dummies), buy plants, raise them, cut them at the right time, and process her marijuana into cigarettes or food-products. She should be able to go to a doctor, discuss marijuana, and get the doctor’s “recommendation” for marijuana if the doctor thinks it will help. Then she should be able to go to a clinic and purchase marijuana, as a rolled cigarette or as a food product containing marijuana. That means clinics have to be part of the program. There has to be a chain from planting, watering, harvesting, transporting, processing (into cigarettes or food products), and selling. That structure is not obvious from the law. The law needs clarifying. Arizona is currently implementing a regulatory scheme the state hopes will avoid the laxness of the California law, and may serve as an example for California to follow.
Until the law is clarified, the President should concentrate on national and international matters (maybe national security leaks in his administration, jobs for the millions of unemployed folks, Afghanistan, the China Sea, or Pakistan), not our medical marijuana program. Californians are quite capable of taking care of themselves. Didn’t the President ever hear of states’ rights? Talk about a lack of leadership.
(Jim Davis is a retired legal writer/appellate attorney living in Vallejo, California)