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Is the Federal War on Medical Marijuana Over?

Photo by David Downs


Is the Federal War on Medical Marijuana Over?

With the pending dismissal of the federal government’s highest profile case against a state-legal medical marijuana dispensary, Harborside Health Center — many in the pot industry are asking: ‘Is the federal war on medical marijuana over?’

The answer is: ‘not yet, but it’s trending that way.’

According to Harborside’s attorney Henry Wykowski, a Congressional cease-fire in the war on medical pot is beginning to take effect in America.

And the Congressman who championed it, Rep. Dana Rohrabacher, said now is the time for the American people to stand up and let Washington D.C. know America is governed by the people, for the people. About 78 percent of Americans support safe access to medical cannabis.

“This is a great day for freedom in America,” Rep. Rohrabacher told Cannabis Now Monday in an interview. “This is a recognition by our government that the American people aren’t going to put up with this kind of tyranny and aggressive overreach that the War on Drugs has demonstrated time and again.”

Federal prosecutors had been working to seize Harborside Health Center’s building in Oakland since 2014, part of a broad, statewide crackdown on medical cannabis in California in effect since 2011. Hundreds of landlords have been threatened, and many dispensary operators and cultivators imprisoned.

But in 2014 and again in 2015, Congress used its power of the purse to block the Department of Justice from “interfering” with state-legal medical cannabis activity; via what’s been dubbed the Rohrabacher-Farr Amendment.

The Justice Department has since been working to litigate the definition of “interfere”, so the Amendment is interpreted narrowly. That effort is failing.

Rohrabacher-Farr helped end the persecution of Lynnette Shaw in a similar case in Northern California this Spring. And Wykowski said when Harborside promised to raise Rohrabacher-Farr in its forfeiture trial, the federal government entered into negotiations to dismiss the case.

After negotiations last week, federal prosecutors had Wykowski and Harborside founder Stephen DeAngelo sign an agreement outlining the dismissal, including the provision that Harborside would not sue for damages or recovery of legal fees.

The U.S. Attorney is not commenting on the case, but Wykowski and DeAngelo speculate that public opinion, combined with the prospect of a major federal loss in court based on Rohrabacher-Farr, caused prosecutors to back down.

DeAngelo said, “we would, of course, have invoked that law as soon as the government tried to take us into court on this next hearing,” he said. “Hopefully what we will see in the coming weeks is the dropping of other cases. All of these actions should stop immediately.”

“I think that they came to the realization that this is not what the people of the United States supported, and I hope that this is the end of these types of cases all across the country,” Wykowski said.

Cedric Chao, now partner at DLA Piper and a former attorney in the case said, “this is a great morning. The legal system does work. In the last three years, the ground has shifted under the Department of Justice. Public opinion has swung very dramatically and that helped contribute to the Justice Department’s decision not to continue.”

Any lawful medical cannabis operator in the 24 states it is legal can raise the same argument Harborside did, and so long as Rohrabacher-Farr is renewed each year, and the state operator is following state law, federal prosecutors can’t spend a dollar interfering, or they are committing a felony under the federal Anti-Deficiency Act, Rep. Rohrabacher said.

Rep. Rohrabacher said he has written letters to judges in four separate cases where prosecutors are testing the meaning of “interfere”.

“This idea that there’s a debate over the meaning of the Rohrabacher-Farr amendment is total arrogance and fraudulent,” Rep. Rohrabacher said. “The law in our country is what the American people want it to be. The people make the law and the prosecutors got to quit playing games pretending they don’t understand what simple language means.”

Rep. Rohrabacher said the upcoming primary and general election is a great time to hold local lawmakers’ feet to the fire on states’ rights to medical marijuana.

“We have to make sure when people got to vote for their Congressman, they should be asked whether or not they will support state’s rights and the Constitution and 10th Amendment to the Constitution to let the state decide what the legal status of cannabis will be in their state and leave that up to the states — get the federal government out of that issue.”

More than the renewal of Rohrabacher-Farr this year, or the passage of the CARERS Act to make the cease-fire permanent, the public must rise up, he said.

“The most important thing is for the feds to get the message, at least, that the states and the people within those states are going to determine what the policy will be in terms of the medical use of marijuana, and that’s the first step — the states will determine what policy they shall have for any use of marijuana whether it’s medical or recreational,” he said.

Major Berkeley dispensary Berkeley Patients Group is still the subject of a federal forfeiture action, and it remains to be seen if the government drops that case as well.

Congressman Barbara Lee stated, “It’s past time for the federal government to stop standing between these patients and their medicine.”

“While today’s action is a victory for Harborside, other dispensaries, including one in my district, face harassment from the federal government for their state-legal businesses.

“I am pleased by today’s victory but I will keep fighting until the federal government stops erecting barriers between patients and their medicine.”

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