SF District Attorney George Gascón: All sales of marijuana are illegal 

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The City’s 21 licensed medical marijuana dispensaries are all illegal, according to a court filing by District Attorney George Gascón that could portend a seismic shift in San Francisco cannabis policy.

City law allows medical marijuana to be bought in businesses called dispensaries and delivered to patients who have been prescribed marijuana by a licensed physician. Dispensaries must acquire business licenses and seller’s permits from the state Board of Equalization before receiving city Department of Public Health permits to sell marijuana.

Yet in December, a woman was arrested for making a delivery on behalf of Mr. Nice Guy, a city-licensed dispensary whose storefront was shut down under pressure from the federal Justice Department. Police said the woman was arrested with $631 in cash, more than 100 plastic bags of dried marijuana buds and hashish, and 48 “edibles” — marijuana-laced cookies, brownies, or other treats.

Despite being presented with paperwork showing that the woman and buyer were licensed patients and that she was working on behalf of a registered dispensary, the DA charged her with two felony counts for marijuana possession and sales, said her attorney, former District Attorney Terence Hallinan.

In a legal brief, Gascón argued that the law is not on her side.

“While California’s medical marijuana laws may be complex, the law is clear that marijuana sales are illegal,” Gascón wrote. “The ... shell game that continues to be played with medical marijuana immunities does not change that conclusion.”

Gascón’s office cites the 1996 Compassionate Use Act as well as state court decisions to make his argument, which says medical marijuana patients must “participate directly in the cultivation of marijuana” to enjoy protection under the law.

“This means that people with AIDS have to be out digging in the dirt to enjoy protection under the law,” countered former District Attorney Terence Hallinan, who is representing the woman in court. “This is impossible.”

Gascón’s office declined to comment on the pending court case, but spokeswoman Stephanie Ong Stillman said the brief in question actually dates back to the administration of former District Attorney Kamala Harris, who is now state Attorney General. Her nuanced comments suggest that the DA’s office may be having second thoughts about its position.

“We have since reviewed the brief and while it accurately reflects state law, we have determined it needs to be revised to reflect the positions of the city of San Francisco and also the policies of the District Attorney’s office,” Stillman wrote via email.

Local defense attorneys say they haven’t previously seen this argument in San Francisco, and that it resembles filings made in Los Angeles by District Attorney Steve Cooley, who ran against Harris and lost in 2010.

“It’s disappointing to see the San Francisco district attorney’s office parroting the garbage spewing out of Steve Cooley’s office when they try to torture an interpretation of [state law] beyond any recognition,” said Oakland attorney Robert Raich, who argued a 2005 medical marijuana case before the United States Supreme Court.

The inconsistent policies — with one county agency calling illegal what another one issues permits for — is “emblematic of the ongoing disconnect in San Francisco with regard to the city’s approach to medical cannabis,” complained Assemblyman Tom Ammiano, D-San Francisco.

CORRECTION: This story was updated on March 28.

An earlier version of this story misquoted a legal brief filed by the office of District Attorney George Gascón. The story originally quoted the brief as saying that "the law is clear that all sales of medical marijuana are illegal." A portion of that erroneous quote also appeared as a headline on page one of that day's newspaper. In fact, the brief stated that "the law is clear that marijuana sales are illegal." The brief did argue that the sale and possession for sale of marijuana remain illegal despite local and state medical cannabis laws.

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Chris Roberts

Chris Roberts

Chris Roberts has worked as a reporter in San Francisco since 2008, with an emphasis on city governance and politics, The City’s neighborhoods, race, poverty and the drug war.
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