Oakland Sues Eric Holder, Challenging Forfeiture of City-Licensed Medical Marijuana Dispensary

Yesterday the city of Oakland, California, sued Attorney General Eric Holder and Melinda Haag, the U.S. attorney for the Northern District of California, challenging the Justice Department's forfeiture of the property that has been occupied by Harborside Health Center, the state's largest medical marijuana dispensary, since 2006. The city's complaint, prepared by the San Francisco firm Morrison & Foerster, argues that the forfeiture action, initiated last July, exceeded the five-year time limit prescribed by federal law, since by that point the city-licensed dispensary had been operating for almost six years. More intriguingly, the city argues that the forfeiture is barred by the principle of estoppel because for years Oakland officials reasonably relied on the federal government's assurances that it would not target medical marijuana suppliers unless they violated state law. Based on that understanding, the city created a regulatory system for dispensaries with which Harborside complied, and now the feds are saying all bets are off.

Although I doubt the latter argument will fly in federal court, the lawsuit usefully highlights the glaring inconsistency between the Obama administration's intensified crackdown on medical marijuana and promises like these:

Barack Obama, March 2008: "I'm not going to be using Justice Department resources to try and circumvent state laws on this issue."

Obama campaign spokesman Ben LaBolt, May 2008: "Obama supports the rights of states and local governments to make this choice." According to the San Francisco Chronicle, "LaBolt also said Obama would end U.S. Drug Enforcement Administration raids on medical marijuana suppliers in states with their own laws."

White House spokesman Nick Shapiro, February 2009: "The president believes that federal resources should not be used to circumvent state laws,"

Attorney General Holder, February 2009: "What he said during the campaign is now American policy."

Holder, March 2009: "The policy is to go after those people who violate both federal and state law."

Deputy Attorney General David Ogden, October 2009: U.S. attorneys "should not focus federal resources in [their] States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana."

Holder, May 2010: "We look at the state laws, and what the restrictions are….Is marijuana being sold consistent with state law?"

Holder, June 2012: "We limit our enforcement efforts to those individuals, organizations that are acting out of conformity…with state laws."

According to the Chronicle, Haag, the U.S. attorney going after Harborside, says the dispensary "is not complying with California's law because it is a large-scale operation that processes millions of dollars worth of business." Yet California's Medical Marijuana Program Act, which specifically contemplates "collective, cooperative cultivation projects" by patients and caregivers involved in "selling, serving, storing, keeping, manufacturing, or giving away" marijuana, imposes no size limit on such organizations, so this distinction seems to be Haag's invention. When she announced the forfeiture action, Haag argued that "the larger the operation, the greater the likelihood that there will be abuse of the state's medical marijuana laws and marijuana in the hands of individuals who do not have a demonstrated medical need." Maybe, but that is a matter for state and local officials to address.

The truth is that Haag, like the Obama administration in general, is talking out of both sides of her mouth. In a February 2011 letter to Oakland's city attorney, she declared, "We will enforce the [Controlled Substances Act] vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law" (emphasis added). As a spokesman for her colleague André Birotte Jr., the U.S. attorney in Los Angeles, admitted a year ago, "At the end of the day, California law doesn't matter." And neither do the president's promises.