Berkeley could rebuff feds with sanctuary law for cannabis
Feb. 13--Berkeley's cannabis industry could soon be protected by an unprecedented new law that takes a cue from California's efforts to protect undocumented immigrants.
The City Council on Tuesday will vote on a resolution to declare Berkeley a sanctuary for legal adult-use cannabis and properly licensed business operations. The municipal measure -- believed to be the first of its kind in any state where cannabis is legal -- is modeled after California's sanctuary law, which bars state agencies from cooperating with federal immigration enforcement in the absence of a court order.
Berkeley's resolution, if passed, would prohibit city agencies and employees from using resources and funds to assist in enforcing federal marijuana laws. Agencies would also be prohibited from turning over information on legal cannabis activities -- as defined by state law -- to federal authorities.
Councilman Ben Bartlett, who wrote the resolution along with Mayor Jesse Arreguin and Councilwoman Cheryl Davila, called Berkeley the original sanctuary city and first cannabis city. Bartlett added that there is no shortage of demand or opportunity for legal pot providers in Berkeley.
"The lines are around the door for the cannabis industry," he said. "The genie is already out of the bottle."
While the resolution would send a dual message of support and resistance to the cannabis industry and federal government, respectively, lawyers and advocates admit that the actual protections local agencies can provide remain limited.
"Theoretically, there isn't such a thing as legal marijuana anywhere in the United States of America," said Dale Gieringer, the California director of the National Organization for the Reform of Marijuana Laws.
The federal government still considers marijuana a Schedule I drug, which like heroin, ecstasy and LSD are defined as substances with no acceptable medical use and a high potential for abuse.
Berkeley's vote on the sanctuary resolution was motivated by a "Marijuana Enforcement" memo by President Trump's attorney general, Jeff Sessions, who removed guidelines that directed federal prosecutors to refrain from going after cannabis businesses and users that follow state laws.
"Sure they can raid them at any time, but they haven't bothered," Gieringer said. "What this is saying to the federal government is that if you want any enforcement, you have do it yourself."
Berkeley has a long history of shielding its cannabis culture. The 1979 Berkeley Marijuana Initiative directed the police department to make marijuana enforcement its lowest priority. A 2008 resolution declared Berkeley a sanctuary for medical cannabis providers and patients, opposing efforts by the U.S. Drug Enforcement Agency to shut down medical marijuana dispensaries.
Similar sanctuary measures have also been considered at the state level.
A bill last year by Assemblyman Reggie Sawyer-Jones (D-Los Angeles) sought to block state and local agencies from assisting federal agencies with enforcing action against cannabis activity that is legal under state law. AB1578 passed the Assembly but was designated inactive at the end of last year's legislative session. Sawyer-Jones said in January that he would move to bring it back for Senate consideration.
"What Jeff Sessions is proposing is not a return to 'Rule of Law,' as he claims," Sawyer-Jones said in a statement. "Instead he is taking away access to cannabis for children with chronic diseases, cancer patients, seniors and veterans. We can't let that happen."
Neither the Assembly bill nor the Berkeley resolution would limit local assistance on enforcement against illegal, unlicensed cannabis operations. Sawyer-Jones has framed his bill as a refusal of compliance when state laws are upheld rather than a blanket sanctuary for cannabis.
As public opinion on cannabis has shifted, California's elected officials and law enforcement have grown more interested in pushing the industry to follow state regulations than in eradicating cannabis, Gieringer said.
"A lot of people, including law enforcement and those in the industry, have all invested a lot in making that system work," he said. "Even the right-wing Republicans and the law-and-order types aren't crying for bringing in the feds."
Federal marijuana crackdowns frequently consist of asset forfeiture, which often targets landlords, or raids and seizures by the DEA. Both operations rely on some level of cooperation from local agencies for information and manpower. DEA raids on marijuana growers frequently rely on joint task forces with local police departments, which receive a cut of the funds for the enforcement operation.
But the information that police departments may turn over to -- including home and business addresses, phone numbers, Social Security numbers and financial data -- can easily be tracked down by federal authorities themselves.
Lara DeCaro, an attorney who represented the Berkeley Patients Group dispensary in its forfeiture case, said that even the most sweeping sanctuary protections could only slow, not fully halt, federal enforcement.
"It's really trying to hamstring the DEA's ability to target licensed facilities," she said. "It's otherwise obtainable, but they're not very well resourced."
Without local agencies' help, DeCaro added, the DEA might lack the manpower needed to carry out its warrants and raids.
In 2016, the most recent year information is available, the DEA's cannabis eradication and suppression program seized 3.8 million plants and $10 million in related assets from California-based operations.
Other states are also weighing options to protect their cannabis industries. A bill introduced in the Massachusetts House would prevent local agencies from participating in federal cases against individuals and businesses that follow state cannabis laws.
Annie Ma is a San Francisco Chronicle staff writer. Email: firstname.lastname@example.org Twitter: @anniema15