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.]