Selective Prosecutions: The Feds Handle Their Pot Busts Very, Very Quietly

Barack Obama earned abreak. In search of a home game after a long autumn in Washington full of shutdowns and broken Web sites, the president flew to San Francisco last week. He found the friends and dollars he was after, but at a pair of invitation-only speeches in front of handpicked audiences, the president also found hecklers. The shouts inside on immigration reform were mellow compared to the scene outside: grandmothers in pink and Iraq War veterans playing drone war-dead in the streets, and a giant, black, faux Keystone XL pipeline promising more death if Obama let it go forward. “I don't know what they're yelling,” Obama joked, but he had to notice that this deep-blue crowd had become a little hostile.

Yet the president did get a pass. No signs or shouts from the drug-reform movement were waiting for Obama, as they had been the last few times the president showed up in town. That was Obama's reward for a series of bones thrown marijuana advocates' way: his attorney general's announcement in August that if the states wanted to legalize marijuana, they could; and a federal judge handing in October sentences of six months in prison to Abraham and Winslow Norton, the two East Bay brothers who ran what had been the area's biggest legal weed operation. The plea deal, six years after their Hayward dispensary had been raided, was a victory: It wasn't the 10-year minimums they risked. At least on drugs — at least on the drug on which California collects taxes — the president was obeying the polling, and at last mellowing out. The federal raids that went down only a few days before, with dispensary windows smashed and plants hauled away with front-end loaders, were far away in the snows of Colorado.

Or maybe the pot people had finally learned their lesson. The last time there'd been a major demonstration — April 2, 2012, when federal law enforcement raided Oaksterdam University across the bay — it ended with the state's biggest legalization pusher, Richard Lee, out of business and a protester led away in handcuffs. That day, in the crush of people outside a downtown Oakland cannabis dispensary from which the feds were removing cash and pot plants, Sonoma resident Jose Gutierrez made contact with a federal marshal. Prosecutors say Gutierrez, wearing a pig mask to mock the cops, struck him from behind with a sign he'd been carrying; Gutierrez's attorneys say he was pushed from behind and was trying to break a fall (and was wearing a bull mask, with horns).

Either way, on cops' testimony and on shaky video footage, Gutierrez was found guilty Oct. 4 of assault. He could be sentenced to up to eight years in federal prison in January — and meanwhile, cannabis protesters have been steering clear.

Gutierrez's attorney, the septuagenarian, poetry-quoting, tax-evading (who's gone to federal lockup twice for it), “old-fashioned Marxist” J. Tony Serra is plotting an appeal — based in part on the fact that the jury didn't even get to see the worst of it. At the judge's order, video played during the trial ended at the point of contact. Jurors didn't see Gutierrez tackled by a gang of marshals in Kevlar, and seeking medical attention at an area hospital afterward. A man in his 50s with a back broken by decades of working as a roofer who freelances for far-left radio station KFPA, Gutierrez was made an example of: Since he was convicted of assault, he has a snowball's chance of winning a civil suit filed against the cops. There's the lesson: “They can beat the shit out of you with impunity and charge you with felonies,” Serra says. “That kills the movement — it sends a chill. People won't go to a demonstration.”

The irony is that skulls cracked over weed at an Obama appearance would be exactly what the drug reform movement needs: a public spectacle so outrageous that even moderate fence-sitters would demand an end to the madness. The government's too smart for that. Nowadays, the biggest legal operations are taken out quietly, with civil suits. In a post-9/11 world, police are our friends: Public opinion won't be behind someone who mocked and perhaps hit a cop. Obama worked hard for his break — he earned it.

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