San Francisco District Attorney George Gascón issued a memo this month stating that all of San Francisco's permitted dispensaries are illegally selling marijuana. Could such a position jeopardize safe access to medical cannabis at the epicenter of the movement? "Yes," said David Goldman, a medical cannabis patient and leading member of Americans for Safe Access in San Francisco. "It doesn't look good. It severely jeopardizes safe access."
The memo from Gascón's office began circulating last weekend. Gascón's office filed the memo in San Francisco County Superior Court in a case against a medical cannabis dispensary that delivered the anti-nausea drug to a collective member. The name of the dispensary is redacted in the memo, but according to the club's attorney, law enforcement intercepted and arrested the dispensary's delivery driver. The dispensary's attorney objected, and District Attorney Gascón responded with the memo, outlining how all medical cannabis sales are illegal in San Francisco.
"The People respectfully submit the following memorandum of points and authorities regarding the continued illegality of selling marijuana ... a marijuana mega-myth has been perpetuated: selling marijuana over-the-counter at marijuana selling outlets is legal. While California's medical marijuana laws may be complex, the law is clear that marijuana sales are illegal. The semantogenic shell game that continues to be played with medical marijuana immunities does not change that conclusion," the memo states.
This is the political position of Steve Cooley, district attorney of Los Angeles and former candidate for state Attorney General. Gascón "worked his way up the ranks at the Los Angeles Police Department from officer to Assistant Chief," Gascón's online biography states. "This sounds like something right out of the Steve Cooley playbook," Goldman said. "This is so the opposite of what previous DAs [Kamala] Harris and [Terrence] Hallinan said."
Omid Talai, assistant district attorney, did not respond for comment.
In 2009, San Francisco Mayor Gavin Newsom — a solid supporter of medical cannabis access — hired Gascón as San Francisco's chief of police. Gascón had been the chief of police in Mesa, Arizona, since July 2006 after his career with LAPD.
Last June, Gascón spoke in front of Americans for Safe Access San Francisco and made his bid for DA. Gascón said he supported medical cannabis, and when pressed by the group, dropped charges against a San Francisco cultivator, according to Goldman. Gascón never mentioned bringing Los Angeles' sturm-und-drang approach to drug law to the city. He won the race for DA in November and was sworn in this January.
"We did not see this coming," Goldman said. "We were really blindsided by this."
Gascón's memo details how growing, harvesting, transporting, and selling pot is still illegal in California, and how voters in 1996 and the legislature in 2003 carved out medical defenses against prosecution for such crimes. However, the medical defense is provisional, Gascón states, and it doesn't cover dispensaries selling pot.
"There is no provision for associating in order to sell medical marijuana," the memo states.
Signed by Assistant District Attorney John Ullom, who operates under Gascón's supervision, the Office of the DA claimed to know the "intent of the voters" in 1996's Compassionate Use Act, and the will of legislature regarding SB 420, the state's medical marijuana program.
But according to a February 7 letter from retired California Senator John Vasconcellos, who authored SB 420, the laws are deliberately vague, and arguments over whether dispensaries can sell medical cannabis for a profit are misguided. The issue of profit — which come from sales — was the main skirmish line in a behind-the-scenes battle over SB 420, Vasconcellos wrote, so the skirmish was avoided through vagueness. "[SB 420] is, of course, completely silent on the issue of profit," Vasconcellos wrote. "It was certainly true that one side wanted to outlaw any profit-making, while the other side did not and would not. ... We catered to neither side on this issue."
Since then, California has existed in a gray area where some cities can provide safe access, while others like Los Angeles are allowed to dig in their heels. Many police, prosecutors, and judges — and now Gascón — have since sought to decide the issue for all Californians. But that decision may be reserved for the California Supreme Court, which is reviewing several conflicting appellate decisions about dispensary bans and operations.
In the meantime, Goldman said Gascón is undermining city taxes, jobs, and regulation of some twenty dispensaries. Goldman also points out that the City of San Francisco is still issuing permits to open new medical cannabis dispensaries, creating a potential defense in the delivery case. A city agency is permitting an activity while the county is prosecuting it, which could be grounds for a so-called estoppel challenge.
The political facets of the memo cannot be ignored, either. In 2005, then-supervisor Ross Mirkarimi promulgated San Francisco's medical cannabis regulations. Mirkarimi had worked for then-San Francisco District Attorney Hallinan. Hallinan's law firm represents the dispensary currently in trouble.
In 2012, Gascón charged now-San Francisco Sheriff Mirkarimi with spousal abuse. Mirkarimi and Gascón don't have any love for each other. Neither do Hallinan and Gascón, Goldman said.
"There may be a political spin, in that it's an attack on Mirkarimi, who worked in Hallinan's DA office and was author of our medical cannabis act in 2005," Goldman said.