Interview w/ US Attorney Haag on Pot Operations: ‘If it’s close to children, that’s a line we’re going to draw’
Last October California’s four U.S. attorneys announced a series of enforcement actions intended to curtail the state’s booming marijuana industry. The effort prompted angry criticism from medical marijuana advocates, who accused the Obama administration of backtracking on pledges to allow states to go their own way, at least when it comes to medical marijuana.
Since then, hundreds of medical marijuana outlets have closed shop, including at least 10 in the Bay Area. Michael Montgomery recently spoke to Melinda Haag, U.S. Attorney for California’s Northern District, in her first extensive interview about the crackdown. Here’s an edited transcript:
What were the central motivating factors behind this statewide coordinated action launched by California’s four US attorney’s last October?
I have to go back a little bit to let you know that my office receives phone calls, letters and emails from people every day expressing great concern about the explosion and proliferation of the marijuana industry as a result of the passage of legislation regarding medical marijuana.
In the view of the people that contact my office, the demand for medical marijuana in California is fueling an industry that’s ruining other parts of the state.
In the view of the people that write to my office and call my office, the demand for medical marijuana in California is fueling an industry that is ruining other parts of the state. We have huge swaths of land in the Central Valley and in Northern California that are now devoted to the cultivation of marijuana.
I get letters that tell me that the writer lives in a small community and that community has six marijuana dispensaries. And they watch people come from all over the state and outside the state come and purchase marijuana in their small community and they express grave concerns.
I receive letters from people who tell me things like my business is across the street from a high school and a dispensary and I watch kids all day long go in and out and then into the high school. And then I hear that they have a tremendous problem in that high school with marijuana use by the students.
Marijuana is illegal under federal law and I felt like I had to do something to respond to those members of my community that don’t support it and don’t support the impact they believe it’s having. The main complaint and the main theme expressed by the people that I’ve heard from is the impact on children, so with my limited resources I decided to focus on children.
As an initial matter we identified dispensaries that were very close to schools and parks and playgrounds. That’s what led to my decision and the effort we’ve engaged in in the Northern District of California.
We were hearing the U.S. attorneys are not going to take any actions with respect to marijuana in California because of the 2009 Ogden memo…We felt we needed to send a message that wasn’t correct.
The reason that the four California U.S. Attorneys announced our efforts together is that we were all experiencing the same thing, which is that everyone was saying we were hearing and everyone was saying the U.S. attorneys are not going to take any actions with respect to marijuana in California because of the 2009 Ogden memo [full text]. So it’s fair game. We can have grow operations, we can have dispensaries, we can do anything we want with respect to marijuana because the Department of Justice in 2009 in the Ogden memo said that the California U.S. attorneys will not take action.
That was incorrect. And we felt that we needed to send a message that it wasn’t correct. I actually felt that it was more fair to send a message because, for example, I was hearing from Oakland that it was going to issue licenses and allow large-scale grow operations in warehouses. And what was described to me was that they were going to be quote “Walmart-sized.” And I was hearing that everyone believed that would be okay and that my office would not take any action. And I knew it isn’t okay, it is a violation of federal law.
When you’re talking about that scale grow-operation across the bay in Oakland it wouldn’t be something that I could ignore. I didn’t think it was fair to stand by, be silent, let people pull licenses in Oakland, put millions of dollars into setting up a grow operation in a warehouse and then come in and take an enforcement action.
Yours was the first letter that went out. Did you think that within a few months of your letter to officials in Oakland that there would be this proliferation of similar letters from U.S. attorneys around the country?
I certainly only focus on my own district. I wasn’t focused on what my colleagues around the country might or might not do as a result.
If there are people who are ill and they believe that marijuana will help them or their doctors believe it will help them, the U.S. attorneys are not ordinarily going to bring any kind of enforcement action. That’s really all that the Ogden memo says.
At your press conference last fall, we heard the term “commercial industry” used quite a lot in relation to marijuana in California. What does that mean? Is it the scale, the way they operate?
If you actually read the so-called Ogden memo from 2009 from the Department of Justice, what it says is that U.S. attorneys will not ordinarily use their limited resources to bring actions against seriously ill individuals or their caregivers. That’s the direction we were given. And I think it was clear from the department and clear from Washington D.C. that if there are people who are ill and they believe that marijuana will help them or their doctors believe marijuana will help them, the U.S. attorneys are not ordinarily going to step into that fray and bring any kind of an enforcement action.
But that’s really at its heart all that the Ogden memo says. It also makes clear that a marijuana industry is not off-limits. And if we have significant grow operations, if we have for-profit operations, certainly if those operations are having negative impacts on their communities, that it isn’t something that we’re able to ignore.
You have taken more actions recently…
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.
The main theme that I was hearing from members of this community, members of our community in the northern district of California was a concern about children. And it has to do with marijuana use leading to other drugs, it has to do with brain development. I was hearing from psychologists who were sending me reports that find that brains are not fully developed until your mid 20s and use of marijuana or alcohol or anything else like that is more harmful than perhaps it is than when people are a little bit older and their brains are developed.
he other concern that people have expressed to me is safety. There is a belief, backed by facts, that marijuana operations are often times the victims of criminal activity. Armed robberies at dispensaries, armed robberies at grow operations, and people who are nearby are at risk as a result of that.
And there have been some illustrations of that concern recently in my district. For example there’s a dispensary in Santa Cruz that is next to a preschool, and it came to my attention that dispensary was the subject of an armed robbery in the middle part of February. And I heard that the parents of the preschoolers, the operators of the preschool, and the community were very concerned. So I sent a letter to the owners and operators of that dispensary putting them on notice that the dispensary is close to a preschool that it’s in violation of federal law, giving them 45 days to close it down before we take action.
On another end of the spectrum we indicted a case two weeks ago in Humboldt County. There’s a grower there who allegedly had a 1500-plant grow operation. He allegedly hired undocumented workers from Central America and the indictment alleges that when those workers came to him and asked to be paid, he instead pulled out a gun, shot and killed one of them, and chased the other one through the woods, shooting.
I believe there’s this notion out there that the marijuana industry is just full of organic farmers who are peacefully growing an organic natural plant and that there’s no harm associated with that. And what I hear from people in the community is that there is harm.
One thing we’ve heard in response is that this is a good dispensary. This is a dispensary that’s patient-run, or they consider themselves to be a good actor in the marijuana space. I hear them, but I have a hard time making that distinction. I’ve already drawn a line.
You’ve also taken action against dispensaries in San Francisco and the Berkeley Patients Group.
One of my concerns about dispensaries that are in proximity to schools and parks and playgrounds is the possibility they could be the target of violence or armed robbery. People in the community may be supportive of the dispensary being in their community until there’s a robbery and people come running out of the dispensary shooting guns.
I’m concerned about that circumstance with respect to every dispensary. I simply don’t have the resources to take action with respect to every dispensary in the northern district, so I’ve had to make some decisions about how to best use my resources. So I’ve decided to focus on dispensaries that are near kids.
Some people say “wait a minute, we’re doing fine.” For example, the situation in Berkeley. They say, “we haven’t had any problems.” The school across the street is happy with us. Why pick on us? Go somewhere else. What’s your response?
Marijuana dispensaries are full of cash and they’re full of marijuana and everybody knows that. And many of them are very public about their operations. Some of them go on television, most of them have web sites, and everybody knows where they are. They are at risk of being robbed and many of them are robbed. I spoke to a police chief today about another topic and I asked him have you had any marijuana dispensaries robbed recently and he ticked off three in the last week in his community. Any given dispensary may not have been robbed to date, but they could very well be robbed in the near future and there very well could be violence associated with that. I’m concerned about the people in the dispensary, certainly; I’m also concerned about the people in the vicinity of the dispensary. Which is again why I’ve drawn this line. 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.
Does that mean any dispensary that’s near a school?
-If a location is subject to one of these letters, can they move? That is, could that remove the issue cited in the letter?
We’ve sent letters to a number of dispensaries and we certainly hear back from most if not all of them, or lawyers representing them. And one thing we’ve heard in response is that this is a good dispensary. This is a dispensary that’s patient-run, or they consider themselves to be a good actor in the marijuana space. And I hear them, but I have a hard time making that distinction. I’ve already drawn a line. If it’s close to children then that’s a line we’re going to draw. If I then start trying to get in and figure out which ones are quote good or not, it’s just not something I’m capable of doing. So I’ve decided to keep that line fairly bright.
If a location is subject to one of these letters, can they move? That is, could that remove the issue cited in the letter?
When it comes to marijuana cases, are you relying on civil forfeitures more than criminal prosecutions because they require fewer resources?
We take on many things in the U.S. Attorney’s office that are labor-intensive. We have a case that involves the failure of a bank and a nearly $500 million loss, where the discovery and data is measured in terabytes. And I could cite many other cases where the resources involved in bringing the case are significant and we take them on.
We’re not really afraid of the use of resources. I don’t agree that we’re doing it because it’s easier. Marijuana is illegal under federal law and there are many things I could do as a result. I can bring a criminal action, I can bring a forfeiture action, or both. I just believe that it’s appropriate under these circumstances to bring a forfeiture action at this point.
I can’t promise going forward that it won’t change. I can’t promise that we very well may find an appropriate case for criminal prosecution. We very well may find a case where it’s appropriate to not give notice to the owner of the property but simply to institute an asset forfeiture action.
I don’t want to send the message that if you are more than 1000 feet from a school you will not be targeted. I don’t know that.
I cannot promise that we will not bring actions against dispensaries that are not close to schools and parks and playgrounds but for some other reason we felt that it was appropriate to expand our look. So I don’t want to send the message to people that if you are more than 1000 feet from a school you will not be targeted. I don’t want to send the message that you will never be criminally prosecuted. I don’t know that.
Right now, how would you assess the impact of this state-wide enforcement action?
We certainly got people’s attention. There’s one big positive from my perspective. And that is that I was hearing from a lot of people in this community that they believed that they could take a warehouse that they owned or a property that they owned and turn it into a large-scale marijuana grow operation and that there would be no repercussions. I was hearing from very upstanding members of the community that there were plans to do that kind of thing, to take a warehouse that they’d had trouble leasing in west Oakland and to lease it to a marijuana grow operation. I’m gratified to hear that people understand that they can’t do that and feel that nothing will ever happen. Something might happen. There might be a criminal prosecution. There might be an asset forfeiture action. It is illegal, whether you agree with it or not, under federal law, and it’s not something people should take lightly.
What do you say to the argument that your actions are preventing seriously ill people from getting their medicine?
There are an awful lot of marijuana dispensaries in the Northern District of California, and the number that we have taken action against is relatively small. So I am assuming that people who need access to medical marijuana still have access to it through dispensaries.
I also think that the Ogden memo and frankly California state law contemplated a much smaller scale with respect to medical marijuana. When I read California state law, when I read the Ogden memo, what those look like to me is that what was contemplated was people believed they need marijuana, or whose doctors believe they could benefit from marijuana, would be growing it personally or a friend or a caregiver or community member or church member would be growing it for them and it would be relatively small scale.
What we have seen is an absolute explosion of the marijuana industry in California where it is not at all small scale but instead huge swaths of farmland, huge grow operations in all of the counties north of San Francisco and indoor grow operations in the more urban areas, are really taking over and are really impacting negatively on communities.
What do you think of calls from Kamala Harris and others for the state to tighten its laws or create a regulatory system when it comes to medical marijuana?
I think I have to wait and see what happens.
When you took this job in 2010, did you have any idea that a lot of time and attention would be required concerning something like marijuana?
I had absolutely no idea. I can tell you that amount of press attention with respect to medical marijuana is completely disproportionate to the tiny percentage of resources of my office that is used to address it.
For the most part we’re prosecuting violent gangs, bringing gun and drug cases and gang-related cases, bringing significant white collar cases, bringing public corruption cases against law enforcement officers and others, bringing child exploitations, prosecutions against people who are abusing children, human-trafficking prosecutions.
You and the other U.S. attorneys in California have been criticized for taking these enforcement actions against medical marijuana operators. Some people say the feds need to end the war on pot and other drugs. What’s your response?
I certainly read and understand that there are people who disagree with what I’ve done in terms of the enforcement actions we’ve taken. And most of those sentiments conclude that it should just be legalized. That is, “you shouldn’t be doing this, instead it should be legalized.”
My answer to that is those people need to go to their representatives in Congress, who are the only people with the power and ability to change federal law. I don’t have the power and ability to change federal law.