WEARY AND WARY: Valerie and Michael Corral, shown here in an October 2008 photograph, aren't hailing the settlement as a victory. For one thing, a future administration could revive the suit.
Pot Half Full
For WAMM, last week's dismissal of an 8-year-old lawsuit was a draw. For medical marijuana, though, it's a clear victory
By Jessica Lussenhop
THE MORNING of Friday, Jan. 22, was a long time coming for Michael Corral. As he walked up to the doors of the federal courthouse in downtown San Jose, members of the Wo/Men's Alliance for Medical Marijuana, the collective he helped found in Santa Cruz in 1996, were slowly gathering outside the glass doors. Some leaned on canes and walkers. One member had a seeing-eye dog, another a wheelchair.
"It's a draw. They didn't win, we didn't win," Corral said. "This has gone on so long, it was time for it to end."
The group moved slowly through the metal detectors and into the elevators taking them up to Judge Jeremy Fogel's U.S. District courtroom on the fifth floor. As the doors closed behind them, a security guard joked, "Toke up party afterwards!"
After the eight years it took to get to this point, the hearing was very brief, just minutes long. Judge Fogel looked out over the assembled group of about 30 WAMM patients and supporters and commented on the attendance. "It's rare that dismissed-case management draws this big a crowd," he remarked.
But this was no ordinary case dismissal. Not only was the federal government standing down from its defense of a 2002 raid on WAMM property by DEA agents, the settlement was also a formal recognition of Attorney General Eric Holder's October 2009 memorandum titled "Medical Marijuana Guidance" and the sea change in federal policy that it represents.
"Based on that new philosophy, if you will, by Eric Holder, [Judge Fogel] has urged us to resolve the case," says Santa Cruz attorney Ben Rice, who has represented WAMM for the last 15 years. "It's a terrific win for WAMM as well as the people of this community."
WAMM formally became a nonprofit in 1996, just after the passage of Prop. 215.
Despite the perceived protection extended to WAMM by the state's legalization of medical marijuana and local deprioritization ordinances, the Bush administration was hardly on board. In the early morning hours of Sept. 17, 2002, 30 federal DEA agents drove up to the Corrals' property in the Santa Cruz Mountains and arrested them both at gunpoint before chopping down 167 marijuana plants. At the time, the garden provided for the 250 ill and indigent WAMM members who received a weekly allotment of the drug for free. Although the Santa Cruz community rallied behind the Corrals, the raid decimated the collective's membership numbers and donations.
Attorney Rice, along with Santa Clara University law professor Gerald Uelmen and, eventually, the American Civil Liberties Union Drug Law Reform Project, put together the lawsuit against then–Attorney General John Ashcroft and the DEA. The city and county of Santa Cruz later joined the lawsuit, siding with WAMM.
"The argument is that while the federal government is free to enforce their laws in our state, they can't force our state to change our laws by selectively enforcing the federal laws. It makes it impossible for the state to distinguish between legal and illegal marijuana use, and that's a violation of the 10th amendment," says Rice.
While the Bush administration fought to have the lawsuit tossed out, the entrance of the Obama administration marked a dramatic attitude shift that came into clearer focus with the release of the October 2009 memorandum to U.S. attorneys. It stated: "As a general matter, pursuit of (illegal drug manufacturing and trafficking networks) should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." According to both a representative for the U.S. Department of Justice and the ACLU attorney representing WAMM, this memorandum set the stage for the settlement. "It was pretty clear to everyone, including the judge, that the change in policy meant it was time to talk about settling the case," says ACLU lawyer Allen Hopper.
Dreams of Genies
The settlement says, in essence, that the government agrees to leave WAMM alone as long as it abides by state laws. It also agrees that should the feds renege on their promise, the lawsuit can pop right back up in Judge Fogel's courtroom and proceed. Although Uelmen acknowledges that the settlement does not establish precedent, the decision is an important milestone. "It's a level of commitment," he says. Hopper adds, "All these decisions have been reviewed at the highest level in the Justice Department."
The WAMM members themselves were less effusive in their reactions. Valerie Corral called it a "wink" from the government. "This isn't a huge personal victory for Michael and I," she said in the hallway outside the courtroom. "But we've done two things: we've helped take medical marijuana mainstream, and we've kept the case open. If they break their promise—" "We can spank them," interrupted Michael, smiling wryly.
Medical marijuana is most definitely mainstream these days. Fourteen states now have medical marijuana legalization laws, and a dozen more are heading in that direction. California is ahead of the pack, of course, and District 13 Assemblymember Tom Ammiano has taken it a step further by getting a marijuana legalization bill, A.B. 390, through committee for the first time in U.S. history. Although time ran out before it could make it on to the Assembly floor, the San Francisco representative plans to reintroduce A.B. 390 in early February.
The bill is of interest to District 27 Assemblymember Bill Monning, though not of course without some caveats. "I favor decriminalization, but with strict controls. My concern on legalization is that it perhaps sends the wrong message to young people and families," he says. Nevertheless, he does take into consideration the potential boost to state coffers that marijuana taxation could provide. "If you remove it from the criminal justice system, you also save money on prosecutions, in courts, jails, prisons. I think one of the strong arguments in favor of the Ammiano bill is if you remove it from the criminal underground, the related violence and felony activity goes along with it. That's a savings that needs to be better understood."
As for the WAMM decision itself, the lawyers involved concede that it's a commitment from Obama and Holder, that's all—nothing enforceable. But when asked whether a change in administration could yank that commitment, Hopper says he doubts it. "By then we'll have had these years where states have set up these procedures, the sky didn't fall [and] there will have been additional tax revenue to local governments. It's going to be very difficult for a future administration to say, 'Whoa, stop.' It's kind of hard to put the genie back in the bottle."
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