It was harvest time, and the group of about 25 people had settled in for the day's work of trimming at a grow site in the hills above downtown Windsor. Suddenly, the Sonoma County Sheriff's narcotics unit was at the door, rifles up and search warrant out. "It was just guns-pulled, cowboy-style," says "Mitch," owner of the 36-acre property and one of the leaders of the California Patient Provider Association, a 22-member medical-marijuana collective.
By the end of the day, Mitch's brother and one other person had been arrested, and the remaining trimmers had been cited for possession of marijuana with intent to sell. The case is one of many to hit North Bay courtrooms this year involving collectives that believe they're operating under state and local medical-marijuana ordinances but still find themselves on the wrong side of the law.
"Vincent," who identifies himself as a collective board member, was also there that October morning, and says he's not sure why the raid occurred, though he admits some of the hired trimmers were carrying expired doctor's recommendations. Vincent notes that each garden had about 75 to 90 plants, with posted recommendations for two to four members at each site. All of the plants were destroyed.
According to Sonoma County's medical-marijuana guidelines, established in 2006, patients, caregivers and collectives are allowed to cultivate up to three pounds per year, per patient. Gardeners may cultivate up to a 100-square-foot plant canopy and up to 30 plants per patient.
A look through the official police report from that October morning shows descriptions of a rural property populated with houses, trailers and gardens, a Winchester rifle in an upstairs bedroom and $16,200 in a drawer. In all, a total of $36,000 in cash was taken as evidence from the site, all growing equipment was confiscated and the plants destroyed. In addition, according to the report, three binders with copies of the collective's physician recommendations sat on a table used for trimming, next to paperwork for the collective.
After individually questioning people, the officers searched the house and the rest of the property, collecting any cash on hand or in pocket. (They returned $20 here and there for gas money to those that grumbled, says Vincent, who had $2,000 taken as evidence.) Officers then left, saying that citations would be arriving in the mail. Later that month, Vincent received a letter informing him of the charges and of his first court appearance.
"We were doing the best that we could," claims Vincent.
But the line between legitimate medical cannabis and cultivation for profit can be unclear, to say the least. Combined with law enforcement officials who may not take the time at the ground level to decipher whether a site is following medical-marijuana guidelines before enacting a raid, and with increasing federal crackdowns on dispensaries in medical-marijuana-friendly states, sometimes the subjective "best" just isn't good enough.
While the exact legalities of medical marijuana have been confusing since the voter-approved Compassionate Care Act of 1996, tension began rising last fall as the federal government ramped up pressure on the exploding medical-marijuana industry. On the morning of Oct. 13, DEA agents raided Northstone Organics collective, a nonprofit known for scrupulously following rules and regulations ascribed by the state and county (down to an innovative collaboration with the Mendocino County Sheriff's office that's since been discontinued).
Next, the IRS hit the state's largest dispensary, Harborside Health Center in Oakland, with a $2.5 million bill for back taxes—it's being disputed by executive director Steve DeAngelo—and told the center that it could not deduct business expenses because of its position as a "criminal drug-trafficking organization." And the intensity of the high-profile hits has only increased in 2012, namely with the April 2 raid on Oaksterdam University, which was founded in Oakland by Richard Lee, who is probably the state's most vocal advocate for the legalization of marijuana.
Marin saw its share of the crackdown when the state's oldest dispensary, the Marin Alliance for Medical Marijuana, closed its doors on Dec. 17 after receiving a threatening letter from Melinda Haag, United States attorney for the northern district of California. Three hundred or more of these letters have been sent to dispensaries across California. Most claim to be operating in accordance with the law, but Haag has brought it all down to base geography. "I have a hard time making that distinction [between good and bad dispensaries]," Haag told KQED in March. "When a dispensary comes to my attention that is close to a school, a park, a playground or children, that's a line I've decided to draw."
On April 23, federal prosecutors threatened to seize the property that houses two Novato dispensaries, Green Door Wellness Education Center and its neighbor, Green Tiger Collective. Federal prosecutors, including Haag, filed complaints regarding violations of federal law and municipal zoning codes, though the dispensaries are located in an industrial area that doesn't appear to be in close proximity to a school or park.
At press time, no Sonoma County dispensaries have been targeted by the DEA or federal prosecutors, but the county isn't immune to struggles between what's allowed and what's illegal when it comes to cannabis collectives. Proposition 215 may have eased access to cannabis for those who use the plant as medicine, but it's also opened up a situation where ordinances and laws become as slippery as wet fish in the hands of law enforcement officials who have the power to make on-the-spot decisions concerning whether the marijuana being grown is for medical use or not.
Kumari Sivadas of the Sonoma Alliance for Medical Marijuana (SAMM) says that since 2010, there's been an increase in prosecutions against groups that appear to fall within medical-marijuana guidelines.
"We've observed that there have been more seizures, more arrests, more prosecutions of collectives," says Sivadas. "These are collectives that have, for the most part, tried to be as legal as possible."
Of course, trying is not always the equivalent of succeeding, and Richard Ingram, a Sonoma County attorney with 25 years experience working actively on cannabis cases, says that one of the issues is the "moving target" nature of the laws themselves.
"What's good today might change tomorrow," he says. "I see people who are trying to do the right thing legitimately in medical-marijuana use, but they're not always on top of the current state of the law, so police arrest them because they haven't dotted i's and crossed t's."
Cases are then referred to the court system, where they might go on for months or even years, depending on whether the defendants accept deals offered to them by the district attorney's office.
In February, charges were dropped for about half of the defendants in the California Patient Provider Association case—mainly trimmers who were hired hands—but for those known as the "Windsor 16," the case has entered its seventh month. Only about four or five have private attorneys; most requested court-appointed legal representation. An April 5 arraignment saw almost all of the defendants, their respective lawyers, bailiffs and other court employees packed into a Sonoma County superior court room. One public defender, who declined to be identified, said bitterly that the hearing was like a "circus."
And more potential medical-marijuana cases are funneling into the Sonoma County court system in 2012, including one involving members of the Emerald Empire Gardens, a collective out of Santa Rosa, who are being called into court this month on charges of cultivation and intent to sell.
"We have 27 lawyers, and every one of them has got a marijuana case, and I'm confident that they have perhaps dozens each," says Kathleen Pozzi, chief public defender of Sonoma County.
Pozzi will not comment specifically on the California Patient Provider Association since it's pending, but she says that there are a large number of multiple marijuana cases in the system right now. She adds that critics shouldn't quickly assume that all defendants are people who have been operating within the law.
"Now, the prosecution's theory is, generally speaking, that this is an organization that is growing medical marijuana not for medicinal purposes, but for profit," says Pozzi. "If it wasn't their theory, they wouldn't file charges."
Mary Pat Jacobs, a spokesperson for the Sonoma Alliance for Medical Marijuana, says that more work needs to be done to prevent the cases from entering an overloaded and budget-strapped justice system. Last year, the public defender's office saw its budget slashed by 8 percent, even as 2009–2010 caseloads rose to 115,000, up from 71,000 10 years ago.
Jacobs says the problem is further compounded when defendants are dragged across court systems for years. Most of those cases never make it to jury trial. "The reason we're not seeing any cases actually litigated in the people's court or going to jury trial is that it's dragged out for so long, the money is unavailable anymore," she explains. "Their lives are on hold, so ultimately they plead guilty to a misdemeanor."
Nearly all medical-marijuana advocates agree that the tumult surrounding collectives' rights to cultivate, transport and distribute cannabis has been exacerbated under the Obama administration. Despite recent Gallup Polls revealing a record-high 50 percent support for medical marijuana in the United States, and President Obama's own 2008 campaign promise to support state's rights for medical marijuana, this administration has been declared the worst ever when it comes to actual support, according to groups like the Marijuana Policy Project.
Obama recently told Rolling Stone magazine, "I never made a commitment that somehow we were going to give carte blanche to large-scale producers and operators of marijuana—and the reason is, because it's against federal law." He then cited the "murky" area where large-scale commercial operations supply not only medical marijuana users but "may also be supplying recreational marijuana users."
The question of legality, not to mention backtracking on campaign promises, has also come to play in Sonoma County.
Sarah Shrader, of the Sonoma County chapter of Americans for Safe Access (ASA), says that it's difficult to track whether marijuana cases are medical or not, since charges will note simply "cultivation" or "possession" without mention of doctor's recommendations. But she does say that she's seen an uptick in cases under Jill Ravitch's term as district attorney. Critics charge this is in contradiction to statements Ravitch made at a 2010 candidate forum at the Sonoma County Library, where she told the audience of over a hundred that what was most important regarding medical marijuana is that there is safe access for qualified patients.
"I understand that there is a place for it," she said, "and I understand that the law requires that there be safe access in our community." Later in the debate, she went on to say that enforcement would be on a "case-by-case basis," adding that Sonoma County was enlightened when it came to medical-marijuana laws.
Pozzi says that she's spoken to public defenders in counties like Kern, Tulare and San Bernardino, and from what she's heard, Ravitch is lenient in comparison.
"I know marijuana cases are not her priority," says Pozzi. "Her priority in prosecuting cases are crimes of violence and elder abuse."
But Shrader says she's getting calls about new cases every week and that she's currently tracking at least a dozen medical cannabis cases, the majority of which have multiple defendants. She does say that Ravitch has been willing to sit down and review cases and changes in case law with advocates from SAMM and ASA, but that it's been over a year since they've met with her.
The district attorney's office did not respond to repeated requests for an interview.
Untangling the Mess
In December 2011, California Attorney General Kamala Harris sent out a memo detailing her concerns about the lack of regulation for medical dispensaries and collectives in the state, while at the same time affirming her commitment to maintain access for qualified patients to physician-recommended marijuana. But to do so, lawmakers must first "define the contours of the right to collective and cooperative cultivation," wrote Harris, citing Section 11362.775 of the Health and Safety Code.
"By articulating the scope of the collective and cooperative cultivation right, the Legislature will help law enforcement and others ensure lawful, consistent and safe access to medical marijuana," she continued.
Spokesperson for SAMM Mary Pat Jacobs says that a state-wide regulatory agency for dispensing collectives might be the solution, at least to solve confusion about what's legal and what isn't at a local and state level. Of course, such an agency wouldn't remedy anything at the federal level, where marijuana is still considered to be dangerous, illegal and without any medicinal use. Jacobs points to a bill proposed by Assemblymember Tom Ammiano that would establish a regulatory framework for medical marijuana in California, which passed out of the Public Safety Committee on April 17.
"It might be the solution to the problems going on right now," she says.
It remains to be seen if the "Windsor 16" will end up with jail time, probation or fines, or, for that matter, whether they were operating within proper legal guidelines. Mitch says that, for now, his wife has put in a vegetable garden, and that the most potent thing they're growing is tomatoes. He still seems baffled by the sheriff's raid and the eradication of the gardens on his property.
"If it doesn't work with your attorney there watching you to make sure everything's good," says Mitch, with a sigh, "then I don't see how people have a chance."