In Mendocino County, a Sheriff's Department Split Over Marijuana Permitting

Last Tuesday the Mendocino County Board of Supervisors voted to end a unique program that placed medical marijuana cultivation under the supervision of the sheriff’s department, approving a watered down version of the ordinance (pdf), known as 9.31, instead.

The permit program was the first of its kind in the nation, but it ran afoul of the federal Controlled Substances Act. At least, that’s how US Attorney Melinda Haag’s office saw it. She warned the county that it faced litigation if the program continued, forcing the county’s hand.

But it’s not just federal law enforcement that opposed the effort. Mendocino’s own sheriff’s department has been deeply divided over whether to authorize pot growers, even if they are in compliance with state medical marijuana laws and county regulations.

Recently, I spoke with Mendocino County Sheriff Tom Allman, a strong advocate of the program. While several active deputies have spoken privately about their hostility toward 9.31 and their general view that medical marijuana is a sham, none has been willing to talk on the record. I did, however speak with retired sheriff’s lieutenant Rusty Noe, who did not support the permitting effort while he was head of the department’s investigations unit.

First, here's an edited transcript of my interview with Sheriff Tom Allman, who worked closely with some growers to come into compliance with the program. Stipulations included limitations on cultivation locations; limitations on noise, odor, and lighting; fencing requirements, and additional conditions.

Michael Montgomery: What did the program accomplish?

Sheriff Allman: What Mendocino County was able to accomplish with the program known as 9.31 was that it allowed people who have been underground in the past to come forward and legitimize their medical marijuana operations. And at the same time pay a substantial amount of money to government for the purpose of inspections on a monthly basis.

It also allowed us to comply with former Attorney General Jerry Brown's guidelines of allowing government to oversee marijuana cooperatives. Attorney General Brown was very generous in his opinion of allowing government to step in and say if you're going to have medical marijuana and it has an effect on government operations, then you should be able to get reimbursed for it.

Anyone who says medical marijuana doesn’t have an impact on local law enforcement, I would gladly debate. 9.31 allowed us to clearly document and clearly inspect and clearly have an idea of where the medical marijuana was being cultivated, so that we didn't have to send a bunch of deputies to every location every time someone called something in.

Talk about the culture shift, the idea that the program created this different relationship between growers and law enforcement...

There was clearly a shift. There are people who are pro-marijuana and people who are anti-marijuana. Proposition 215 put law enforcement in the middle. I'm not for it, I'm not against it; it's part of the law.

No one ever asks me what I think about the speed limit; they just say go out and enforce it. No one every asks whether I like medical marijuana or not; neither side wants to hear my answer. They just want to hear me as sheriff say I have an understanding of what the law is, and that we are going to make the law work as the courts, the judicial branch and the legislative branch have intended it to work. That's what 9.31 accomplished.

There are 16 states and the District of Columbia that have said in one way or another that we will deal with medical marijuana. But there's not a consistent law throughout our nation of what medical marijuana is. So there's this huge amount of confusion; you can call it a gray area , you can call it a lack of intestinal fortitude from the legislative branch. Call it whatever you want. But I'm calling it confusion as far as law enforcement goes.

We don't get up in the morning and say we want to violate someone's rights. What we do is say let's go enforce the law.

9.31 very clearly was allowing us to protect the rights of legitimate medical marijuana growers and enforce the law against those who were growing outside the boundaries of 9.31, cultivating a huge amount of crops.

When people hear the words Mendocino County they immediately think of marijuana. I want to remind people that last year alone Mendocino County eradicated almost 650,000 marijuana plants. So we're not embracing marijuana, saying bring us your sick, your ill, and your people who have sore shoulders. I don’t' want people to move to Mendocino County for the purpose of growing medical marijuana.

What we're doing is looking at what the legislative branch and the judicial branch through its interpretation of the law, and in this situation the voters, have given us. And we're trying to figure out a way to make it work.

Some people, including some of your own officers, say this whole effort was doomed to fail. What do you say to the idea that it never should have even been tried?

I say that if somebody can come up with a better idea, I am here 24-7. But we're not going to come up with an answer that everyone's going to embrace. If you look at where we are now in 2012 and in California where we were in 1996 when Prop 215 was enacted, things are being accepted now that never would have been accepted then.

We're trying to hone the rough edges of this problem, and get to the point where people say its palatable.

We're not going to come up with an answer that 80% of the people agree with. We're going to come up with a solution that 51% of our voters say 'that's a solution I can live with.' And once we get to that point we can deal with some other issues.

Were you surprised to find the US Attorney had threatened the county with civil action?

I'm surprised, based on some of the statements that President Obama and Attorney General Holder have made at the national level, that those comments are so contrary to the actions of the US attorneys.

Because I've had US attorneys in this office sitting in that chair right there assuring me that any legitimate medical marijuana program that Mendocino County adopts will be accepted by the US attorney. However, that person's not a US attorney anymore. So we've got a group of four US Attorneys whom I respect, and Melinda Haag -- she and I have had many conversations about other topics that we respect each other on.

As far as marijuana goes, I saw her last week and I merely said we can agree to disagree. But I said that this step that the US Attorney's Office took in California, in my humble opinion as an elected sheriff, was a step backwards. We're further away from a solution today than we were two months ago.

Does part of you feel that all the work you've done on this was for nothing?

Not at all. Because I absolutely believe that in the next 8, 10, or 12 months, we're going to get to the point where people say: you know, Mendocino county, you weren't wrong. You were doing it within the boundaries of the law, and we're going to get these files out, blow the dust off the zip ties, and say for 2013 let's take care of the problems we had from 2011. History will show 2012 as a 12-month hiatus in progress.

How can the county get around the line that the federal government has drawn?

The one consistent thing we can agree on about marijuana is that the situation is ever-changing. The highest law in the land as we know it is our constitution. We pay nine US justices to interpret that constitution. The best wish I have is for the Supreme Court to interpret the constitution to give these 16 states and the District of Columbia a clear direction. Because if there's one thing that's lacking from this whole conversation, it's a clear direction at a national level.

Do you think this move by the county to back away from the program will heal some of the rifts within your own department? You have plenty of deputies that don’t' like the program…

That hasn't been part of my thought process. I understand what my role is, as an elected sheriff in a rural county in California. That's to fairly enforce the law, protect the rights of my citizens, and to make sure justice is carried out. Protecting the rights of our citizens does not depend on whether my deputies are happy or unhappy about it.

As I've said many times, I've never smoked marijuana in my entire life, but if 57% of the voters in California have said legitimate medical marijuana will be respected, am I going to say that my deputies don’t think they should respect it so we're not going to? No. And if the voters say well we want a sheriff who goes against marijuana, in 2014 they'll have a chance at that.

As a sheriff, the constitution reigns. Until someone says that Prop 215 is contrary to the constitution, then we're going to continue respecting the rights of legitimate medical marijuana caregivers.

Was it hard for you to see the rights of one of your citizens arguably trampled? I’m referring to the DEA raid on Matt Cohen's Northstone Organics.

It disturbed me. It made me a little bit distrustful, because of one of the US attorneys sitting in this office saying we are going to respect the rights of legitimate medical marijuana caregivers in Mendocino County if they're compliant with our guidelines.

If the US Attorney 's office had come to me and said hey, we'd like to see this person's file, we would have had a little negotiation, but ultimately I would have sat down with them and said this is what we're doing. If you guys want to go along with us on one of our inspections maybe that could have been worked out.

I totally respect the US Attorney's office and the US Attorney General, but I'm hoping that this wasn't intentional saber-rattling -- if we show Mendocino County we mean business, then all of these other counties will back off.

Really? Then if that's the will of the legislative and judicial branch, then bring it on. Tell us what the law is. But it's very important that we understand the executive branch, and a prosecuting attorney is part of the executive branch.

We don't make the law; we don’t' interpret the law. We enforce the law. And if they're going to come in and enforce federal law, they have my blessing to do so in my county -- they don’t' need it, actually. But I'm asking them to follow through. If they come up and in the name of the federal government eradicate marijuana, then push it all the way up. Maybe this is a case that's going to get to our nine justices and we're going to have an answer. But we're not going to have an answer in 2012.

Law enforcement wants clear direction.

Now here's an edited transcript of my interview with retired lieutenant Rusty Noe, who opposes 9.31.

Michael Montgomery: A lot of growers thought 9.31 was really a success, and it was a tragedy that the program has to be ended. But what is the view of you and other law enforcement ?

Rusty Noe: Marijuana's illegal. When you take the oath and you swear to the badge, you uphold the law, you don't get to pick and choose what the law is. As far as I'm concerned, the board of supervisors can pretty much do what they want, and it's an accepted practice in this area and several other areas around us that marijuana's okay. But it's not. It's against the law. Whether its' federal or state laws on the books that makes it illegal.

What about the argument that this program was meant to help law enforcement distinguish between legal medical marijuana and illegal marijuana so it could use limited resources to focus on the big growers.

Well I understand that. But 9.31 is allowing cooperatives, and all these cooperatives are is just a license to grow a lot of dope. You can be a cooperative, and I don't really understand all the ways that the laws are written – they're unclear. But if you are going to be a part of a cooperative, seems to me that you should not benefit financially. If sick people need marijuana, I'm all for it. I have no problem with that.

But 99 plants, given the way they grow up here, that's far more than anybody's' cooperative should realize. Then you've got people like Matt Cohen -- what is the difference between someone who takes methamphetamine and transports it to San Francisco and Cohen, who transports it to San Francisco and sells it?

You've got these cooperatives and the primary role is to take marijuana, grow it, manicure it, process it and sell it. If you take methamphetamine to San Francisco, you're a drug dealer. You take marijuana to San Francisco and you're making a profit, there's no difference, you're still a drug dealer.

If you had a program that was low-key... But you start getting these co-ops that are transporting it to the Bay Area and even L.A., then the feds have to deal with it.

Some people say this is just a modest effort to get a handle on local marijuana cultivation, but you're saying that's not the reality.

The reality is that this is a good opportunity to make money, and a lot of money at that. I understand the history of this whole thing. When they passed Prop 215 it was understood people were going to be allowed to use it and grow it with limitations. But the law was written too ambiguously, so each county could interpret it differently. You could have 5 plants or 500 plants depending on what you were trying to get away with.

Then the state passes SB 420, which says what you can have, which is all law endorsement ever asked, to give us a clear line. Then all of a sudden 420 says unless the county chooses not to abide by these rules. So the voters in Mendocino county said enough is enough because of all the problems they were having, and they did vote to accept the rules of 420. It allowed all these people to move in here from all over the US and grow 100 plants in their backyards and realize thousands and thousands of dollars.

And 9.31 made it a more acceptable practice because the sheriff's office was licensing these people.

Just how much marijuana is the 99 plants that were allowed?

The way these cooperatives grow, minimum, a plant is going to produce 3 pounds of marijuana. Even if it's 2 pounds, that's 200 pounds of weed. The normal person, even chronic heavy users of marijuana, cannot physically possibly use more than 16 pounds, because mathematically, if you smoke a joint every hour, it works out to just about 16 pounds. So okay, what are you going to do with the rest?

What was the impact of this program, sanctioned by the sheriff, on the department?

People were upset. My own gut reaction was we shouldn’t have been in that business regardless of what the board of supervisors wanted. It's not the feds vs. California. You took an oath to uphold those laws. I know from all the research I've done and all the cases I've done that 85% of this is criminal activity. There are the poor sick people who have 3 or 4 plants in the backyard. And they're doing the right thing. And when we used to do our raids, we'd knock on somebody's door and say what's up, what's wrong with you and how much do you truly need? We would analyze the problem,

In my entire career, probably 20 cases out of hundreds were legitimate persons who were using marijuana for some ailment and had the proper amount to do the property thing with it, whether they used a vaporizer or smoked it.

Was there an aspect of this thgat had a demoralizing effect on the force?

Sure it did. You have the guys who want to go out there and take care of business, because it is a problem. Last year, I had neighbors move in next to me, first time in 16 years I couldn’t sleep with my windows open in the summertime because I couldn't stand that stench. But I couldn't do anything about it, because of 9.31. I think they were 9.31 because I went to Google Earth and did a search and saw that they had 99 plants exactly in their backyard.

These people were not from here. They were here during the summer, and once the marijuana was harvested they were gone.

The argument is that Mendocino County was getting a handle on the problem by bringing it into some kind of regulatory control. But you seem to be saying that all it did was attract more people to come in and take advantage of the system.

That's exactly it. Control, taxation, legalization, it's not going to mean anything in my opinion. If a guy's been growing marijuana since 1984 for instance, and he's made a hundreds thousand every year tax free, and all of a sudden you come to him and say you have to pay taxes on that, why would he? It's still illegal in the federal view. Why would he pay taxes to the state of California or Mendocino County? It doesn't legitimize it.

When DEA raided Matt Cohen's farm, was there a sense that it was long overdue that someone took action?

It's been an ongoing battle with the DEA doing raids and things like that. What tended to happen is the DEA does a raid and they take people's marijuana. The Hill family, they were just in your face, they were in the New York Times, people coming over every day filming. They were growing these monster plants. They were big advocates. The DEA comes and raids them. Same thing with Matt Cohen, another guy who's in your face. The Feds are telling him don't do it. And the sheriff is saying as far as we're concerned its legal. But he don't run the federal government. So when they did that raid I thought it was overdue. I think they need to take some of these people and prosecute them.

So there will be no more permits at least this year, and no more 99-plant exemptions, bringing it down to 25. Is that a positive move in your mind?

No, it's a stopgap measure to avoid any kind of federal prosecution. Is it going to change anything? No, they're still going to grow a hundred plants, permitted or not. There's no way law enforcement can deal with that. It's just too big an area with too many people doing it.

The sheriff's dept made $600,000 on fees from the program. Do you consider that dirty money?

Sure. It's from illegal gains. Those fees are about six to eight thousand dollars. Wouldn't I go get one of your $8,000 dollar permits so I can make my million dollars?

The argument was that they could use some of that money to target big illicit growers in the Mendocino National Forest...

That whole national forest thing is kind of a misnomer. Yeah they do grow a lot of marijuana there and nobody likes it. But the federal government has the tendency to throw lots of money at a problem. So if you're in the Mendocino National Forest, they're going to throw a lot of money at that. You don’t' need that 9.31 money because the feds are going to give you the money to combat that problem.

I don't know where this 9.31 money went, but I told the sheriff I don’t' want anything to do with it. I don't like it.

The number of department personnel involved in the program was actually very small, wasn't it?

Just about everyone I know in the department didn't want anything to do with it.

I'm sure you've heard the argument that you're stuck in an old way of thinking, and you need to accept that medical marijuana is here to stay.

I've been listening to that for years and years and have had all kinds of discussions about it. But all the federal government needs to do is reclassify marijuana. And it will take all this guesswork out of it. Reclassify it as a Schedule II prescription drug by a medical doctor. Then you'll have big tobacco coming in and growing and providing it, and the rest of it is illegal.

California passed this compassionate use law, but they didn't foresee that there's nothing compassionate about it. If I'm going to grow compassionately and turn around and sell it for $100,000 a year, then I'm not going to be voting for any regulatory effect. Because it's going to take money out of my pocket. 9.31 was a great program for dopers because they could make a million dollars. Now it's gone, boo hoo, everybody's crying. But it's not going to slow them down a bit. The argument that it's bringing illegality back into marijuana is nonsense, because it's already illegal.

Then you take poor sick grandma and maybe she does get some relief from marijuana. I'm not going to argue with that. But she's only got her two or three plants in the backyard. She gets 2-4 pounds she can use during the year to alleviate her pain. I really don’t care about those people.

But it's the people who are using medical marijuana to get rich and then thumbing their nose at the government and law enforcement, and saying you know what, this is our god given right. Those are the guys we need to deal with because those are the ones making the money.

So you're saying the program overwhelmingly benefited people who wanted to grow as much as they could within a legal framework to make money. Was that the motivating factor, not to help sick people?

Exactly. I can't think of anyone in my career who was growing that many plants who was ever actually a compassionate person, who was giving it away or growing it for people who actually needed it.