Allison B. Margolin
Criminal Defense Attorney

As the Obama administration attempts to steer federal agents away from prosecuting marijuana dispensaries, the Los Angeles District Attorney and City Attorney’s Office is attempting to undermine that shift by articulating a deceitfully narrow view of the state law.

Despite reports of trillion dollar deficits nationally and a collapsing state economy, District Attorney Steve Cooley says his office is committed to closing down revenue-generating medical marijuana dispensaries and the LA District Attorney’s office continues to take prisoners of war in their fight against safe access to medical marijuana.

In doing so, LA City is threatening to plunge the state’s economy into further collapse by taking potential tax revenues that could be going to the state treasury. Moreover, the City’s position threatens to generate crime by forcing the huge demand for marijuana back to the street. If the free market has allowed for the proliferation of dispensaries, that demand is not going away. The avenue for its fulfillment will simply change and could go from safe to entrenched in the poly-drug trafficking black market economy.

Most alarming, perhaps, is that the District Attorney seeks not only to thwart the proliferation of these establishments but seeks to create a whole new class of felons – medical marijuana operators. And the DA’s view of the state law - that it does not allow for the operation of dispensaries - is not just shocking. It flies in the face of case law handed down by the California courts.

Just this past August, the Fourth Circuit of the California Court of Appeals (in People v. Hochanadel) affirmed what Attorney General Jerry Brown announced last year, that storefront dispensaries that receive money in exchange for marijuana, may qualify as legal cooperatives.

Furthermore, in that case, the California judiciary upheld a 2005 interpretation of the marijuana sales law allowing for cash for marijuana transactions. As the court appeals said in the 2005 Urziceanu case, speaking about the State legislature’s expansion of the 1996 medical marijuana referendum,

“This new law represents a dramatic change in the prohibitions on the use, distribution, and cultivation of marijuana for persons who are qualified patients or primary caregivers and fits the defense defendant attempted to present at trial. Its specific itemization of the marijuana sales law indicates it contemplates the formation and operation of medicinal marijuana [***64] cooperatives that would receive reimbursement for marijuana and the services provided in conjunction with the provision of that marijuana.”

These two decisions also affirmed the notion that simply because some of the marijuana being sold at medical marijuana cooperatives may have been purchased from people who are not members of the cooperative does not invalidate the medical defense, or make the possession of that marijuana illegal.

Yet, the District Attorney’s office prosecutes people simply on the basis that some of the marijuana at a dispensary allegedly came from non-members, or that the marijuana is sold for more than that for which it is bought. The fact that a dispensary has gross profits does not mean that the owners are making profits. Yet again, the District Attorney’s office has used the gross-profit theory to deprive people their freedom, incarcerate law-abiding citizens, and attempt to create another class of felons.

The District Attorney’s policy and deliberate misinterpretation of the law begs the question: why?

Perhaps law enforcement enjoys marijuana dispensary busts more than others because the defendants are generally civil, non-gun-toting law abiding civilians. Perhaps it's the money, but strangely enough, in cases I have represented recently, the state does not always keep the proceeds from dispensaries.

Even where the state prosecutes the cases, in Los Angeles’ Criminal Court Building, in the heart of Downtown Los Angeles, the DA’s office has been turning over assets seized from medical busts over to the federal government.

Whatever the perverse reasons motivating the District Attorney’s position, the issue is not why but how to stop this alarming waste of resources. The media has focused on the fact that dispensaries in LA have mushroomed over the past year, and on the ease with which marijuana users are obtaining recommendations.

No one has focused on the fact that the war against dispensaries is another chapter in the escalation of the drug war, another excuse to send people to state prison, another mechanism to disenfranchise people whose medicine is not respected by law enforcement or the LA District Attorney’s office as legitimate.

This has to stop. In the wake of prison overcrowding and budget crisis, sending more people away, depriving the state of taxes they are currently reaping from dispensaries, is not the answer.

The District Attorney is supposed to aim to do justice, not to obtain as many convictions as possible. The District Attorney, representing the State of California, is not supposed to deliberately ignore the state law as a vehicle to fund police departments and exert its power.

It is time for the people of the State of California to take back their power, to tell their DAs that they represent the People and the People don’t want medical marijuana operators to be treated as criminals.

This week, the District Attorney’s Office is expected to unleash the LAPD on medical marijuana dispensaries across the City. The time for action is now – before more people are caught up in the system, before more resources are wasted, before more lives are ruined.

Editor’s Note: Ms. Margolin, a Harvard law grad, is a criminal defense attorney practicing state and federal criminal law in Los Angeles. She was Adjunct Professor of Law at University of West Los Angeles in 2008, teaching “The American Drug War: From Marijuana to Meth.”