By Jesse Marx
By Chris Parker
By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
If one were a cynic, one might also view U.S. Attorney Laura Duffy's threat to target advertising as a less than subtle threat to control the debate.
True: Federal law prohibits advertising illegal drugs. Google, for example, agreed to pay a $500 million fine this summer for taking online ads promoting "rogue" Canadian pharmacies.
But pot dispensaries are legal businesses within their states. Under Duffy's threat, the feds will have their say, while the pro-pot message would be erased from public view.
Kent Scheidegger, legal director for the conservative Criminal Justice Legal Foundation, tells City Pages that Duffy's threat gave him the willies. "They're on much thinner ice going after the newspaper," says Scheidegger, who otherwise believes the feds should enforce its own laws against marijuana. "... Maybe there is a political strategy." It's called the "shut them up" strategy.
Federal law is, for now, on the side of the prohibitionists. Scheidegger downplays the state victories handed to medical marijuana. He says if the American people want to change the law, they need to encourage Congress to do so. Yet that ignores a basic political reality: It's extremely difficult for any politician to stand up for marijuana. He or she will be quickly painted as pro-pothead. Like women's suffrage, the medical marijuana movement has—in 10 states, anyway—benefited by the direct democracy of citizens initiatives. These elections have taken the pulse of voters in a way that congressional elections cannot. In six other states and Washington, D.C., medical marijuana was legalized by local lawmakers. Other states are bound to vote in favor of decriminalizing pot in the next few years in spite of federal laws. Phoenix attorney Ty Taber sees it as a major states' rights issue. "Basically, the citizens of these states ... they want marijuana legalized," he says. If Obama wants to play hardball, he says, "You're going to get pushback." Taber represents Compassion First, a company that helps set up dispensaries. The firm sued Arizona after Gov. Jan Brewer, in blatant defiance of voters' wishes, derailed the dispensary portion of Arizona's new law by instructing the Department of Health to reject applications. She simultaneously sued the federal government, asking a judge to rule on whether the state's new law was legal. (Ironically, the U.S. Justice Department's civil department is defending against the lawsuit—and if the feds win, Arizona might just get its first dispensaries.)
Compassion First wants the program implemented as Arizonans intended, and to remove blockades Brewer has thrown in its path. For instance, Arizona requires dispensary owners to have been residents for at least three years.
But the point isn't so much whether or not the company will win its lawsuit or not—it's that they're fighting back, and they're not alone.
Across the country, advocates are returning fire of their own in the court system. Which means Obama won't be able to do battle by the relatively cheap means of letters and threats. He'll likely end up burning through millions of dollars in litigation—money he doesn't have. Taber thinks the president may have underestimated his foe. "The people behind this marijuana movement—they're committed. They are zealots. And these are smart people—not stoners saying, 'Hey dude, pass another slice of pizza.'"
The latest crackdown will be bad for the pot business. No question. But Obama could be doing much, much more. He could go after patients. Over the summer, a federal judge ruled that the DEA could peek at the names on Michigan's patient registry. Because marijuana is illegal under federal law, said Judge Hugh Brenneman Jr., patients can't expect privacy.
The feds could also hit pot-tolerant cities. The law doesn't allow municipal workers to be jailed in such prosecutions, but cities or counties could be heavily fined just for setting up zoning requirements for dispensaries.
There's a huge downside to that, of course. Obama will only appear mean and small for having sickly grandmas arrested. And fining cities just enrages residents picking up the tab—the very people the president will need a year from now.
All of which leaves him fighting at partial speed. That, in turn, leaves the "zealots" Taber mentions betting their money and freedom that even if the feds throw the book at some, it won't be them.
Last week, the feds raided several growing operations in California and Oregon, including one in Mendocino County that appeared to be playing by the state rules. But it seems safe to assume that the hundreds of other growers in Mendocino County did not uproot their crops in response—just as the hundreds of dispensaries in California did not immediately close their doors after the feds' ominous warning on October 7.
The industry seems to be practicing a form of civil disobedience. And it has tens of thousands of seriously sick people behind it, who will holler loudly if they're forced back to the black market.
Indeed, there are some signs that Obama's crackdown will be what the SF Weekly's Chris Roberts calls a "Passive Aggressive" strategy. Rather than offend Americans with news footage of police raids, Obama has launched a war of attrition.