San Francisco Resists Medical Marijuana Raids

By Ann Harrison, AlterNet. Posted February 14, 2002.

The U.S. Drug Enforcement Administration touched off a firestorm of protest in San Francisco this week when DEA agents raided a medical marijuana club and arrested three medical marijuana activists. An arrest warrant has been issued for a fourth activist who is currently in Canada and may seek political asylum there if the U.S. attempts to extradite him.

The arrests underscore the ongoing conflict between federal and state laws which regulate medical marijuana in the U.S. The federal Controlled Substances Act prohibits the growing and consumption of marijuana. But California's Compassionate Use Act (Proposition 215) permits seriously ill patients to consume marijuana for medical purposes and allows marijuana plants to be grown for medicinal use. Eight U.S. states have passed medical marijuana laws.

The San Francisco DEA operation took place on Feb. 12, the same day as President George W. Bush unveiled his administration's new anti-drug strategy aimed at cutting use of illegal drugs by 10 percent over two years and 25 percent over five years. Top DEA official Asa Hutchinson was heckled by audience members when he outlined the government's anti-drug agenda during a speech in San Francisco later that evening.

San Francisco has declared itself a sanctuary for patients who use marijuana to treat the symptoms of serious ailments such as glaucoma, AIDS and cancer. Hutchinson was condemned by city officials and San Francisco District Attorney Terence Hallinan, who supports medical cannabis. "The voters should be outraged," Hallinan told a crowd of chanting protesters gathered outside the hall where Hutchinson spoke. "This is the federal government trying to make a point in opposition to the voters of California."

The raided medical marijuana club, known as the "Harm Reduction Center," is one of approximately 30 such clubs in the San Francisco Bay Area, which is the center of the medical marijuana movement in the U.S. A temporary injunction against another Bay Area club, the Oakland Cannabis Buyers' Cooperative (OCBC), was reviewed by the U.S. Supreme Court last year. The court determined that the club could not use a "medical necessity defense," but it chose not to address constitutional issues. Robert Raich, an attorney for the OCBC, has filed a motion in U.S. District Court to dissolve or modify the preliminary injunction against the club based partly on a federalist interpretation of states rights.

San Francisco city supervisor Mark Leno said he spoke with Hutchinson the day after the arrests and expressed his concern about the DEA operation. Leno says he is authoring a resolution to put before the board of supervisors on Feb. 18 urging the DEA to reconsider their action and "refamiliarize" themselves with the city's medical cannabis identification card program. He says the government should focus on the more serious problems of heroin, cocaine and crack instead of targeting medical marijuana.

"I believe this to be a direct assault on the public health of San Francisco as well as a direct assault on the voters of California, who by nearly 70 percent approved Prop. 215 in 1996, allowing for the compassionate use of medical cannabis," said Leno. "Our city, including the board of supervisors, mayor, city attorney, district attorney and law enforcement will continue to support the right of every patient to safe and affordable medical cannabis."

Hutchinson told his San Francisco audience that the DEA is compelled to follow federal drug laws which are set by Congress. Richard Meyer, a spokesperson for the DEA San Francisco Field Division, noted that under the Controlled Substances Act, marijuana is classified as a Schedule One substance with no medicinal value and high potential for abuse. Meyer said the investigation did not initially target the marijuana clubs, but was focused on marijuana trafficking and smuggling.

The Harm Reduction Center, which has been closed, was one of eight locations in the San Francisco Bay Area that was searched on Feb. 12. Meyer said 8,135 marijuana plants were seized from the sites. Computers were also taken from the club, but Meyer said no patient records were removed.

The Rev. Lynnette Shaw, founder and owner of a Bay Area medical marijuana club called the Marin Alliance for Medical Marijuana, says she is concerned about her club being raided by federal authorities. "This is an abhorrent violation of our civil rights in America," said Shaw. "This is not just about four people sitting in jail, this is about a thousand patients today who have no medicine and they will just get sicker."

In affidavits in support of the search warrants, DEA agents allege that Kenneth Hayes, who operates the Harm Reduction Center, heads an organization that cultivates and distributes large quantities of marijuana, imports and distributes marijuana from Canada, and launders drug proceeds in the U.S. and Canada. According to the affidavit, an informant claimed to be selling marijuana from British Columbia to the club. A second informer alleged that the club was selling to non-patients and allegedly purchased marijuana from club employee Richard Watts at Watts' home using DEA funds. The same informer allegedly returned to the club to buy more marijuana and 400 young plants from Hayes.

Hayes and Watts, the son of philosopher Alan Watts, were both charged with two counts of cultivating more than 100 marijuana plants after DEA agents found over 600 plants growing in the club. The charges carry a maximum penalties of 40 years in jail and $2 million in fines. They were also charged with a third count of maintaining a place for the purpose of cultivating marijuana, for which they could face 20 years in jail and a $500,000 fine.

Edward Rosenthal, author of the Marijuana Growers Handbook, was also charged with cultivating more than 100 marijuana plants and maintaining a marijuana cultivation site in Oakland, CA. He faces similar penalties. The DEA claims that Rosenthal produces marijuana for Hayes and Watts. "The Controlled Substances Act, which was passed in the 1970's, was based on judgment and information ... that is thirty years old," said Rosenthal's wife, Jane Klein, at his bond hearing. "We need laws that are based on current research."

In a separate complaint, James Halloran of Oakland was charged with one count of cultivating more than 1,000 marijuana plants, which carries a maximum penalty of life imprisonment and a $4 million dollar fine. He also faces another count of maintaining a place to manufacture marijuana. According to the affidavit, Halloran came to the attention of authorities after a paid DEA source pointed agents to his cultivation site in Oakland.

It is unclear whether any of the defendants are medical marijuana caregivers who are permitted to grow for patients under California state law. The DEA alleges that it received a complaint from a patient and a medical marijuana dispenser named Father Nazarin that the Harm Reduction Center was selling marijuana out the back door to non-patients. The DEA also alleged that one of its agents was able to get a medical marijuana recommendation from a San Francisco doctor without showing a prescription or medication for his condition. OCBC attorney Robert Raich notes that if clubs were found to be importing cannabis from Canada, it would undermine a possible Commerce Clause argument which asserts that Congress has no power to prohibit the production and sale of medical marijuana inside California.

Watts is still in custody. Rosenthal and Halloran both posted a $500,000 bond on Feb. 13 and have been released. Hayes was arrested in Canada on Jan. 12, after he allegedly chartered a small plane to land in a remote airfield south of Vancouver with $13,000 in U.S. currency hidden in his clothes. According to the DEA, he was held by the Royal Canadian Mounted Police, which conducted thermal imaging of his Vancouver residence to detect cannabis cultivation. The DEA says he was deported by Canadian immigration to the U.S. Customs Service to face a pending U.S. arrest warrant.

But his Canadian lawyer, John Conroy, says Hayes was charged on Feb. 12 with one count of production of marijuana under Canadian law. Conroy says Hayes, who uses medical marijuana for a chronic pain condition, was interviewed by Canadian immigration authorities and released without bail for a six-month visitor's stay. The case may take up to a year to settle during which time Conroy says Hayes can remain in Canada. If Hayes is found to have been cultivating marijuana for his own medical purposes or for a "compassion club," Conroy said he would likely get an "absolute discharge," in which his conviction would be overturned and purged from police records.

Conroy said Hayes initially intended to apply for political asylum, but U.S. authorities have yet to request his extradition. If an extradition warrant is served, Conroy says his client will seek bail, await an extradition hearing, and plead his case all the way up to the Supreme Court of Canada. The San Francisco U.S. Attorney's Office, which has until March 5 to indict the defendants, would not comment on whether they would seek to extradite Hayes.

"At any time in this process if there is an attempt to take him to the border and deport him or if the extradition is made, we will make a refugee claim based on a well-founded fear that if he is returned to the U.S., he will be persecuted," said Conroy. "He is from a well-defined group that is being persecuted in the U.S., the medical marijuana community."

Ann Harrison covers technology and politics from San Francisco. She can be reached at ah@well.com.

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