U.S. Attorney Flouts New DOJ Pot Policy

On August 30, the day after Deputy Attorney
General James Cole
announced a new policy of prosecutorial restraint for marijuana
growers and sellers who comply with state law, Melinda Haag, the
U.S. attorney for the Northern District of California,
said it would not affect her work. She has been true to her
word. The East Bay Express notes
that Haag continues to pursue forfeitures aimed at shutting down
the Berkeley Patients Group and Oakland’s Harborside Health
Center. Haag argues that the Berkeley dispensary is too close to a
preschool, a claim the city’s mayor disputes. She cites the sheer
size of Harborside, the state’s biggest dispensary, as cause for
concern. As the Express points out, neither of those
rationales seems to fit any of the eight “enforcement priorities”
that Cole listed in his
August 29 memo as reasons for federal intervention.  
  

The memo did mention preventing underage consumption, but that
does not really seem relevant, unless Haag thinks 4-year-olds are
scoring marijuana at the Berkeley Patients Group. As for
Harborside’s size, Cole explicitly said, in a departure from prior
Justice Department policy, that  “prosecutors should not
consider the size or commercial nature of a marijuana operation
alone” in deciding whether targeting it is an appropriate use of
their resources. The Express notes that both
dispensaries have the backing of city and state officials:

Neither BPG nor Harborside has broken state law, which is why
Governor Jerry Brown has denounced the federal court actions and
why the cities of Oakland and Berkeley have moved to block the
forfeitures. Oakland sued Haag in October of 2012, and Berkeley
moved to intervene in the BPG case in July of this year.

At an October 29 conference, BPG’s attorney reports, the “judge
questioned why this case was proceeding in light of the Cole memo,”
and “the U.S. attorney had a very difficult time articulating an
answer.” By contrast, André Birotte, the U.S. attorney
for the Central District of California,
dropped several forfeiture cases against dispensary
landlords in Irvine, Santa Ana, and Los Angeles in the wake of the
Cole memo.

The Cole memo leaves
lots of leeway for prosecutorial discretion, depending on how
the enforcement priorities are interpreted and whether new ones are
invented on the fly (a possibility the memo itself contemplates).
But if Haag’s continued crackdown is consistent with the new
policy, it clearly does not mean much in practice. Likewise if U.S.
attorneys feel free to flout it.

[Thanks to Richard Cowan for the link.]