Sometimes you know you've lost.
Other times, you have to be dragged from the field, long after the lights are shut off and the crowd has gone home.
Intervention is needed right now in the East Bay, the only place in the United States where the federal Justice Department is trying to seize private property used for a legal enterprise.
Emphasis on “trying.”
Since 2012, United States Attorney for Northern California Melinda Haag has been attempting to put a pair of pot clubs out of business: Berkeley Patients Group and Oakland's Harborside Health Center. Prosecutors in Haag's office filed asset forfeiture proceedings against the two city-licensed, taxpaying dispensaries in 2013 and 2012.
Note the date. It's now 2015. Both cases are still tied up in court, and following a Feb. 6 ruling, they could easily be tied up in court until 2017.
It is entirely possible that marijuana could be legal in California and retail cannabis stores in operation by the time the Justice Department is through trying to shut down the two dispensaries, which continue to sell cannabis to hundreds of people every day. The dispensaries, which are legal under state law, came under target by the feds, which claim the pot clubs are too big and too close to schools.
This charade could end now. The government has a chance to listen to the voices, and kindly say it's past time to stop and bow out.
You've heard the story before: California's cannabis industry got too big too fast. The state's pot clubs might have taken in over a billion dollars in revenue as of 2007, the state Board of Equalization estimates. It might sound outlandish until you consider this: One Hayward dispensary, the Compassionate Patients' Cooperative of California, recorded $26.3 million in revenue in the first six months of 2007.
You can only make millions under the feds' noses for so long. A big raid and subsequent criminal proceedings ended the CPCC's ride (the clubs' operators, the twentysomething Norton brothers, accepted plea deals and took six-month sentences in 2013), and the industry got the message — for a little while. Obama was elected, and the industry boomed again.
This time, the feds trimmed things back using only lawyers. The U.S. Justice Department threatened pot clubs with asset forfeiture proceedings, forcing the closure of hundreds of shops around the state. Only a few in the Bay Area stood fast and fought the government in court.
So far, the feds are 0 for 1. Late last year, the landlord of Shambhala Healing Center in the Mission District accepted a plea deal from the government. In return for $150,000, the Justice Department dropped its claim and gave up trying to grab a piece of the Mission.
Uncle Sam still wants a piece of San Pablo Avenue in Berkeley and the Oakland Embarcadero. The claims against BPG and Harborside are still pending.
Both are the biggest pot clubs and biggest taxpayers in their respective cities. (BPG pays $1.3 million in annual state sales tax, on top of another $526,000 annually to the city of Berkeley; the most recent figures for Harborside were not immediately available).
Both clubs may owe their continued existence to their home cities. BPG's case is on hold pending the outcome of an appeal filed by the city of Berkeley, which is trying to be added to the lawsuit on BPG's side. On Feb. 6, a judge put the forfeiture case on hold until Berkeley's case is completed, which could take two years. Oakland is similarly trying to get involved on Harborside's side.
Even U.S. Rep. Barbara Lee, whose district includes both dispensaries, introduced legislation in the House of Representatives that would ban the Justice Department from filing asset forfeiture lawsuits against medical marijuana dispensaries that are following state law. That would codify the provision put into the Cromnibus spending bill, which Congress passed in December, removing funding for Justice Department enforcement efforts against state-legal cannabis enterprises.
The feds have received the message that the war on medical marijuana is over. The U.S. Surgeon General earlier this month admitted that marijuana “can be helpful.” Lawmakers in the reddest of red states are introducing bills that would give sick kids access to cannabis oil. Nowhere else in the country are there asset forfeitures pending against state-legal dispensaries, industry legal experts believe.
Even the federal judges sitting on the cases have openly questioned the wisdom of continuing an unpopular fight to the end.
Only in the Bay Area is the Justice Department acting like Uncle Rico in Napoleon Dynamite and still insisting that it's fit to play the game, years after the fourth quarter ended.
Exit strategies are available. There are settlement options, like the one pursued in San Francisco, or one put forth by a mediator.
“We've offered to take it to mediation,” said Lara DeCaro, BPG's counsel. “But they've refused.”
A message left with Haag's spokeswoman was not returned. And it probably never will be. The Justice Department has rarely commented publicly on the local war on legal weed, except to say that the dispensaries were targeted for closure because they were too big.
That's a condemnation of the people. Without them, there would be no demand for cannabis in America, which is valued at several billion dollars — and counting.
Haag lives in Berkeley, not far from BPG. Maybe it's personal. Maybe she's waiting until 2017 when Obama will be termed out.
There will be a new U.S. attorney then. One of his or her first acts could be to call it quits on this fight.
The score is in. The war is over. As soon as one of the players realizes it, we can move on.
It's their move.