7greeneyes
MedicalNLovingIt!
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URL: hMPp://www.forbes.com/sites/richardlevick/2013/11/06/the-medical-marijuana-fracas-the-toke-of-the-town/
Right now the City of Oakland is making a bit of history by legally challenging the federal governments right to shut down a Bay Area medical marijuana dispensary. Along with gay marriage and Obamacare, its one of at least three significantly newsworthy issues that involve ongoing tension between federal and state powers.
The Oakland lawsuit is unique because it is the first time that a local public entity has taken such action to keep a traditionally illegal substance available. Cities obviously welcome federal efforts to close down their crack houses by applying the very same forfeiture laws now being used against the Oakland dispensary. The difference is equally obvious. Here the controlled substance is not only consumed for legitimate medical purposes, but is prescribed under the strictest state and local regulatory regime.
Whats less obvious is why this legal struggle is going on at all. In light of the undeniable humane benefits at stake, it should be a slam dunk for Oakland, notwithstanding any residual public resistance to legalizing marijuana for all purposes. Instead, the legal struggle has been labyrinthine.
Oakland filed its complaint in U.S. District Court, seeking to stop the federal government from shuttering the citys Harborside Health Center, the nations largest dispensary, serving 108,000 patients. In October 2011, Californias four U.S. Attorneys announced an escalation against medical marijuana providers; at that point, Harborside had already been in business for five years.
DEA raids followed on, as did civil forfeiture cases to allow the confiscation of property and assets from property owners who rent to dispensaries, including Harborside. Several hundred California dispensaries closed after federal prosecutors told their landlords, starting in October 2011, to evict them or face property loss. (There remain four dispensaries in Oakland generating at least $1.4 million in business tax revenue, not counting sales taxes.)
Pressure mounted on banks and credit card issuers; in fact, you cant use a check or card to buy from a cannabis dispensary. DEA spokesperson Karl Nichols says the agency does not engage in organized efforts to get outside parties to sever relationships with the dispensaries. But, he acknowledges, DEA operatives will advise companies that contact them of the hazards of those relationships, including possible prosecution for money-laundering and bank law violations.
The District Court ruled that the city has no standing to block the federal government from shuttering Harborside; only the dispensary and its landlords with a direct economic interest in the real property subject to forfeiture can contest the forfeiture action. Oakland has appealed to the Ninth Circuit, where a hearing is expected in early 2014.
Cedric Chao, a partner at DLA Piper representing the City of Oakland, believes the appeal, and Oaklands underlying claims, will make new law. (Full disclosure: my firm has a business relationship with DLA Piper.) First, he says, a relatively unknown, but nonetheless vibrant doctrine of equitable estoppel has been used to block government action where the government previously led others to believe that the conduct in question was acceptable and others then acted in reliance on the governments statements or actions.
According to Chao, the government has clearly reversed position since it did green-light the Oakland dispensaries when they first opened in 2006. Yet theres so little applicable case law in terms of actually using equitable estoppel against government entities that whatever decision is reached will be precedential.
Second, existing forfeiture law affirms that only parties with an economic interest in the real property being forfeited can file claims in the forfeiture proceedings, which excludes Oakland in this case. But Chao noted that there was no on-point case precedent in the Ninth Circuit holding, one way or another, if Oakland could collaterally challenge the forfeiture proceeding as an aggrieved party i.e., injured by the forfeiture without a direct interest in the property being forfeited so he filed a separate lawsuit under the Administrative Procedure Act (APA).
Its the craft of business law brought to bear in a most incongruous context. Chao, who is both a business litigator and international arbitration practitioner, says that Oaklands legal strategy took the Department of Justice by surprise. The DOJ protested bitterly that Oakland is doing an end-run around the forfeiture statute and decades of settled case law. He adds that the DOJ even used scare tactics, claiming that, if Oakland prevails, the friends and families of rapists and murderers will, likewise as aggrieved parties, flood the courts on behalf of their convicted kin. Chao told the District Court, however, that Oaklands grievances were unique and significant, and that Congress could not have intended that a major municipality and its 400,000 residents can be denied access to the courts to seek redress.
If its new law, it seems far more adherent to the spirit of the law than the governments position. Not only is that position inconsistent with the governments past inactions not only does it, in effect, say that the 400,000 citizens of an American city do not have standing to redress their grievances it simply poses a public health hazard. If the DOJ wants to conjure up menacing scenarios, how about the specter of innocent sufferers wandering the mean streets of Oakland in search of untested marijuana to deaden their pain?
Which brings us back to our original question: why is this dispute raging on so? Twenty-one states and the District of Columbia have legalized cannabis for medical purposes and opinion polls show decisive public opposition to enforcing the Controlled Substances Act in cases of medical need.
Government scientists themselves have persistently maintained that marijuana has multiple medical uses. It was government scientists who applied for U.S. and international patents for synthetic cannabis. The Department of Health Human Services holds a patent for synthetic cannabis, and HHS has licensed that patent to a bioscience company, KannaLife. For what other reason than commercialization would it do so?
News analysts have suggested that, in fact, there is conflict on this issue within the DOJ itself, and that DEA field operatives are actively ignoring directives from Washington. One reason the government may be digging its heels in is that some staffers at Harborside also favor legalization of recreational marijuana. Thats a discussion the government doesnt want to have. (Recreational pot has been legalized in Colorado and Washington State.)
More importantly, theres a missing element here that likely allowed this issue to fester. A sizable majority of Americans may well agree with Oaklands position but where is the groundswell of impassioned public opinion that would force the governments hand? At some level, medical marijuana is still seen as an exotic nice-to-have, not a balm of significant value. Try searching Google for medical marijuana benefits and you wont really find the value equation spelled out, and no compelling testimony that I can see from average citizens whove benefitted from its availability.
Real emotions attach to the gay marriage issue, a concern for the people whose lives are affected. Thats why the public finally overcame one of its most deeply held antipathies. Here, the battle encompasses an even simpler communications strategy, for were talking about nothing more complicated than the regulated easing of human pain.
Morphine is readily available as needed, isnt it?
Right now the City of Oakland is making a bit of history by legally challenging the federal governments right to shut down a Bay Area medical marijuana dispensary. Along with gay marriage and Obamacare, its one of at least three significantly newsworthy issues that involve ongoing tension between federal and state powers.
The Oakland lawsuit is unique because it is the first time that a local public entity has taken such action to keep a traditionally illegal substance available. Cities obviously welcome federal efforts to close down their crack houses by applying the very same forfeiture laws now being used against the Oakland dispensary. The difference is equally obvious. Here the controlled substance is not only consumed for legitimate medical purposes, but is prescribed under the strictest state and local regulatory regime.
Whats less obvious is why this legal struggle is going on at all. In light of the undeniable humane benefits at stake, it should be a slam dunk for Oakland, notwithstanding any residual public resistance to legalizing marijuana for all purposes. Instead, the legal struggle has been labyrinthine.
Oakland filed its complaint in U.S. District Court, seeking to stop the federal government from shuttering the citys Harborside Health Center, the nations largest dispensary, serving 108,000 patients. In October 2011, Californias four U.S. Attorneys announced an escalation against medical marijuana providers; at that point, Harborside had already been in business for five years.
DEA raids followed on, as did civil forfeiture cases to allow the confiscation of property and assets from property owners who rent to dispensaries, including Harborside. Several hundred California dispensaries closed after federal prosecutors told their landlords, starting in October 2011, to evict them or face property loss. (There remain four dispensaries in Oakland generating at least $1.4 million in business tax revenue, not counting sales taxes.)
Pressure mounted on banks and credit card issuers; in fact, you cant use a check or card to buy from a cannabis dispensary. DEA spokesperson Karl Nichols says the agency does not engage in organized efforts to get outside parties to sever relationships with the dispensaries. But, he acknowledges, DEA operatives will advise companies that contact them of the hazards of those relationships, including possible prosecution for money-laundering and bank law violations.
The District Court ruled that the city has no standing to block the federal government from shuttering Harborside; only the dispensary and its landlords with a direct economic interest in the real property subject to forfeiture can contest the forfeiture action. Oakland has appealed to the Ninth Circuit, where a hearing is expected in early 2014.
Cedric Chao, a partner at DLA Piper representing the City of Oakland, believes the appeal, and Oaklands underlying claims, will make new law. (Full disclosure: my firm has a business relationship with DLA Piper.) First, he says, a relatively unknown, but nonetheless vibrant doctrine of equitable estoppel has been used to block government action where the government previously led others to believe that the conduct in question was acceptable and others then acted in reliance on the governments statements or actions.
According to Chao, the government has clearly reversed position since it did green-light the Oakland dispensaries when they first opened in 2006. Yet theres so little applicable case law in terms of actually using equitable estoppel against government entities that whatever decision is reached will be precedential.
Second, existing forfeiture law affirms that only parties with an economic interest in the real property being forfeited can file claims in the forfeiture proceedings, which excludes Oakland in this case. But Chao noted that there was no on-point case precedent in the Ninth Circuit holding, one way or another, if Oakland could collaterally challenge the forfeiture proceeding as an aggrieved party i.e., injured by the forfeiture without a direct interest in the property being forfeited so he filed a separate lawsuit under the Administrative Procedure Act (APA).
Its the craft of business law brought to bear in a most incongruous context. Chao, who is both a business litigator and international arbitration practitioner, says that Oaklands legal strategy took the Department of Justice by surprise. The DOJ protested bitterly that Oakland is doing an end-run around the forfeiture statute and decades of settled case law. He adds that the DOJ even used scare tactics, claiming that, if Oakland prevails, the friends and families of rapists and murderers will, likewise as aggrieved parties, flood the courts on behalf of their convicted kin. Chao told the District Court, however, that Oaklands grievances were unique and significant, and that Congress could not have intended that a major municipality and its 400,000 residents can be denied access to the courts to seek redress.
If its new law, it seems far more adherent to the spirit of the law than the governments position. Not only is that position inconsistent with the governments past inactions not only does it, in effect, say that the 400,000 citizens of an American city do not have standing to redress their grievances it simply poses a public health hazard. If the DOJ wants to conjure up menacing scenarios, how about the specter of innocent sufferers wandering the mean streets of Oakland in search of untested marijuana to deaden their pain?
Which brings us back to our original question: why is this dispute raging on so? Twenty-one states and the District of Columbia have legalized cannabis for medical purposes and opinion polls show decisive public opposition to enforcing the Controlled Substances Act in cases of medical need.
Government scientists themselves have persistently maintained that marijuana has multiple medical uses. It was government scientists who applied for U.S. and international patents for synthetic cannabis. The Department of Health Human Services holds a patent for synthetic cannabis, and HHS has licensed that patent to a bioscience company, KannaLife. For what other reason than commercialization would it do so?
News analysts have suggested that, in fact, there is conflict on this issue within the DOJ itself, and that DEA field operatives are actively ignoring directives from Washington. One reason the government may be digging its heels in is that some staffers at Harborside also favor legalization of recreational marijuana. Thats a discussion the government doesnt want to have. (Recreational pot has been legalized in Colorado and Washington State.)
More importantly, theres a missing element here that likely allowed this issue to fester. A sizable majority of Americans may well agree with Oaklands position but where is the groundswell of impassioned public opinion that would force the governments hand? At some level, medical marijuana is still seen as an exotic nice-to-have, not a balm of significant value. Try searching Google for medical marijuana benefits and you wont really find the value equation spelled out, and no compelling testimony that I can see from average citizens whove benefitted from its availability.
Real emotions attach to the gay marriage issue, a concern for the people whose lives are affected. Thats why the public finally overcame one of its most deeply held antipathies. Here, the battle encompasses an even simpler communications strategy, for were talking about nothing more complicated than the regulated easing of human pain.
Morphine is readily available as needed, isnt it?
