Sep 302011

Federal law enforcement officials are the wild card in the regulation of medical marijuana in California. Sometimes they play the trump. Sometimes they’re not even in the game.

When storefront shops selling medical marijuana first appeared in Kern County, the Drug Enforcement Administration aggressively raided them and federal prosecutors filed charges against the operators.

Then federal intervention slacked under a new administration and the burden of hefty law enforcement costs, James Burger reports in the Bakersfield Californian.

Now, U.S. Attorneys’ offices are warning California cities and counties that they could face criminal or civil action if they try to regulate marijuana under state law.

Kern County has received that threat and taken it seriously — factoring it into an Aug. 9 decision to ban storefront collectives and cooperatives in unincorporated county areas.

But is there really a risk of federal prosecution? It’s unclear.

“We recognize that cities and counties are in a difficult situation,” Benjamin Wagner, the U.S. Attorney for the Eastern District of California, said Thursday. “While we don’t have any particular desire to prosecute city and county officials, we can’t rule it out.”

Wagner said his office is not as concerned about local governments that are trying to limit the proliferation of medical marijuana growing and distribution as it would be with municipalities that might consider offering land to large growers or helping set up growing or distribution operations.

And, with limited resources, the office has to pick the cases it brings carefully, he said.

But Wagner said his office retains the power to prosecute or file civil suits against local governments that act to permit medical marijuana activity.

That, said Kern County Counsel Theresa Goldner, leaves Kern County in legal danger.

“It is my job to advise the Board of Supervisors of the risk that regulation entails to the county, county officials and county employees. I am satisfied that it is a genuine risk,” she said. “But it is a risk that is difficult to quantify.”

On Aug. 9, Kern County supervisors passed a ban on medical marijuana collectives and cooperatives over the objections of a vocal, impassioned crowd of advocates who called for the county to regulate, not outlaw, the storefront operations.

Marijuana, even for medical purposes allowed under California’s 1996 Compassionate Use Act, is illegal under federal law.

In making their decision, supervisors relied on an Aug. 4 letter from Wagner, sent at the request of Goldner, which indicated that by regulating medical marijuana growing and distribution, counties and cities would essentially be putting themselves in business with criminals.

Wagner’s letter was largely boilerplate — much of the language was identical to that in letters sent to local governments across California.

But supervisors also had a report from Chico city staff who received one of Wagner’s letters and met with him to ask just how serious he was about prosecuting cities and counties.

The report stated that Chico left that meeting with the clear understanding that there is a “real but unquantifiable risk” to public employees of civil or criminal action.

Humboldt County Sheriff Michael Downey is a self-proclaimed conservative Republican who said he spent much of his law enforcement career finding and eradicating marijuana growing operations in one of the most active cultivation centers in the state.

But he discounts the threat letters from U.S. Attorneys’ offices.

The letters only go out to jurisdictions that ask for them, Downey said. Humboldt County hasn’t received a letter, he said, because it hasn’t asked for one.

Growing operations in Humboldt County are worse now than he’s ever seen them.

He’d welcome help from the U.S. Attorney for the Northern District of California in fighting the obviously illegal growing operations.

But he’s not getting it.

“The U.S. Attorney in San Francisco has not taken a marijuana case in Humboldt County for I don’t know how long,” Downey said. “Years.”

The feds simply do not have the resources to pursue cases, he said.

So he has trouble believing that city or county officials would be on the U.S. Attorneys’ prosecution priority list.

Local regulation, he said, is the only way to confront the problems he’s facing with marijuana cultivation and the upcoming challenges he expects from medical marijuana dispensaries that are in the process of being permitted.

Growers must register, pay a fee and submit to inspections. If they don’t, Downey said, he rips out their plants.

Kern County Sheriff Donny Youngblood, who Downey said he counts as a friend, has a different approach.

When he took office in 2007, Youngblood made it clear that he wouldn’t enforce the ordinance in place at the time that allowed up to six medical marijuana dispensaries — because it violated federal law.

His stance hasn’t changed.

“I will not take part in any regulation of anything that is a violation of federal law,” Youngblood said.

He sees medical marijuana collectives and cooperatives as illegal. Period.

Banning them is the right path for Kern County, Youngblood said.

But, at the moment, Kern County cannot ban collectives and cooperatives.

Last week, a petition circulated by medical marijuana advocates to block implementation of the county ban was certified as sufficient to stop the law — forcing supervisors to either repeal the law or send it to county voters on a ballot.

On Tuesday, supervisors declined to choose between the two options, saying they needed more time and more information.

Goldner said the county will only be completely safe from federal prosecution if they either ban collectives and cooperatives or take no regulatory action at all — allowing total freedom to medical marijuana growers and distributors.

The county took a bit of a risk in August when it also placed a 12-plant limit on any marijuana grown on a parcel of land in unincorporated parts of the county.

Wagner said that while those small grows are still a felony under federal law, “in the real world” of limited resources and larger problems, that “would not be a priority for us.”

But Wagner was careful, even in saying that, not to relinquish the federal government’s right to prosecute small grows.

And that is what troubles Goldner as she tries to advise supervisors on how to move forward with regulation of collectives and cooperatives.

An ordinance that controls collectives will demand enforcement by the county.

“It’s going to require a great deal of regulation. And that translates into a great deal of taxpayer money and involves a great deal of county employee time and resources,” she said.

And “the more involvement the county has, the closer the county gets to being in the danger zone in terms of federal prosecution. And that’s the rub.”

Wagner told her as much on Thursday, she said.

“The message that I got from Mr. Wagner, loud and clear, is there is no safe harbor,” Goldner said.

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