THE DRUG WAR SOLDIERS ON

Why Tom Ammiano's Well-Meaning Marijuana Ordinance Hasn't Tamed The Cops

It's been five months since the Board of Supervisors passed Sup. Tom
Ammiano's ordinance directing the San Francisco Police Department to
make cannabis busts its lowest possible priority.

But is it safe to say San Franciscans can openly smoke, grow, or
distribute cannabis without being harassed by law enforcement, as the
nighttime talk show hosts and news pundits are fond of pronouncing?

Eric Luce, who's worked as a public defender in Jeff Adachi's office
for the past four years, doesn't think so. He's seen a spike in
recent cannabis busts and has eight open cases right now involving
small-time marijuana sales.

"They're being charged every day," Luce said. "This is a fairly new
phenomenon, and I think it's linked 100 percent to getting felony
conviction rates up."

One of Luce's clients, a Salvadoran emigre, already faced a stacked
deck without trouble from the police. She's an HIV-positive,
transgender woman with a history of clinical depression. During a
string of undercover operations conducted by SFPD narcs throughout
March and April, an officer approached the woman (Luce requested that
the Guardian not publish her name), asking if she had crack.

No, she said, but she did have a little pot, what turned out to be
half a gram, hardly enough for a joint. The officer offered $5 for
it, but she declined and turned to leave, declaring that she'd rather
just smoke it herself. So he raised his offer to $10. She said yes
and was arrested.

More than a month later, she remains in jail, and although she was
granted amnesty in the late '80s and has spent the past 25 years in
the United States, Luce said, the arrest threatens her immigration status.

In another recent case, three men were arrested at Golden Gate Park
in early March for allegedly selling an eighth of an ounce to an
undercover narcotics officer. All told, police claim the trio
possessed a half ounce between them. One defendant spent a month in
jail for it, and Luce's client, a homeless man named Matthew Duboise,
was only released after Luce persuaded a judge that the officers had
searched him illegally.

If Luce's clients otherwise accept guilty pleas simply to get out of
jail, District Attorney Kamala Harris gets to characterize these
pleas as felony convictions of drug dealers -- a significant
distinction during an election year -- even as she claims publicly to
back the concept of low priority. Like so much about the drug war,
Ammiano's ordinance, joined by a handful of other piecemeal
legislative attempts in California to soften prohibition, creates as
many questions as it does answers.

How would police officers officially make cannabis a low priority?
Could they look the other way without sanction? Does the SFPD even
care what city hall decides if federal agents continue to insist
through their actions and words that possessing or using cannabis in
any form is still against the law?

In recent weeks we contacted the defendants in three additional local
cannabis busts, ranging from large to small quantities, but none of
them would speak to us even off the record about their cases, fearing
a backlash at pending court hearings. So we visited the very
unsophisticated criminal records division at the Hall of Justice on
Bryant Street for a crude statistical analysis of recent marijuana
charges filed in the city.

Using the hall's record index, we conservatively estimated there were
well more than three dozen cases filed by the District Attorney's
Office since the beginning of 2007 involving violations of
California's Health and Safety Code, section 11359, felony possession
of marijuana for sale. The tally is just for simple drug charges, and
that doesn't even count cases with accompanying charges, like weapons
possession or violent assault.

So where are all these cases coming from?

Sharon Woo, head of the DA's narcotics unit, points out that
Ammiano's legislation specifically exempts "hand-to-hand sales" in
public places and was amended -- notably at the 11th hour before its
passage -- to include such sales "within view of any person on public
property." She said most of the cases we identified, like the two
mentioned above, involved an SFPD response to grumbling from
residents about drug sales in certain neighborhoods. The resulting
undercover sweeps net 20 to 50 suspects each time.

"The [Police] Department is really answering a community request for
assistance, and we're prosecuting based on the information they give
us," Woo told the Guardian. "When it's in an open place, a public
place, we treat hand-to-hand sales of marijuana as seriously as any
other type of crime."

Those are only the cases for which there's a paper trail. Gary
Delagnes, president of the San Francisco Police Officers Association
(SFPOA) and a former narcotics officer, told us police in the city
are more than likely to simply book confiscated marijuana without
filing charges against the suspect to avoid paperwork and the
perceived inevitability by the SFPD rank and file that Harris won't
prosecute small-time users or growers, at least not with the zeal
they'd prefer.

That means the index we scanned wouldn't reflect instances in which
police simply confiscated someone's pot -- possessed legally or
illegally -- or cases in which a suspect was never arraigned in court
but still endured being ground through the criminal-court system. And
it's worth mentioning that at least under city rules, a qualified
medical marijuana patient can possess up to eight ounces of dried
cannabis, a considerable amount.

Delagnes says marijuana should be fully decriminalized. "But if
somebody calls us and says, 'Hey, look, there's a place next door to
me, and it stinks like marijuana to high heaven, and I just saw a guy
in the backyard with 50 marijuana plants,' what are we supposed to
tell the guy on the phone? 'Tough shit'?"

What's remarkable is that San Francisco has been through all this
before -- 30 years ago. Local voters passed Proposition W
overwhelmingly in 1978, demanding that law enforcement officials stop
arresting people "who cultivate, transfer or possess marijuana."

Dale Gieringer, director of California's National Organization for
the Reform of Marijuana Laws, said San Francisco all but forgot Prop.
W. So how do you prevent the same thing from happening to Ammiano's
ordinance? "You don't. Law enforcement is unmanageable," Gieringer
said. "You have to get state law changed. The only way I know to get
state law changed is you ... try to build up local support before you
finally go statewide, which is exactly what we did with medical marijuana."

Gieringer, who helped Ammiano's office pen the most recent law, said
it was modeled after a similar Oakland version, which explicitly made
an exception for street sales. "We were protecting private adult
cannabis offenses with the understanding that we didn't want
marijuana sold in the streets, which has been a real problem in
Oakland and other places," Gieringer said. "You get all of these
neighborhood complaints."

But in another case we reviewed from court records, a suspect named
Christopher Fong was pulled over in January near Harold Street and
Ocean Avenue and arrested for allegedly possessing five bags of marijuana.

He had a doctor's recommendation but no state-issued medical cannabis
card, according to court records. Under Proposition 215, passed by
voters more than 10 years ago, you still don't need a license to
prove to officers you're a cannabis patient, a fact Woo from the DA's
Office didn't seem fully aware of during our interview. San Francisco
state assemblymember Mark Leno simply created the license system in
2003 to encourage law enforcement to stay off your back with the
right paperwork.

So despite each of California's awkward lurches toward
decriminalization, without a complete, aboveground regulatory scheme,
users still exist in a form of criminal purgatory, and demand for
cannabis still spills onto the street. The most anyone can pray for
is being confronted by a cop who happens to be in a good mood that day.

"It still comes down to the discretion of the cop," Ammiano told us.

His law nonetheless quietly represents something that few other
decriminalization efforts have in the past: its premise does not
hinge on the notion that cannabis possesses medicinal qualities. It
simply says taxpayers are weary of spending $150 million statewide
each year enforcing marijuana laws and clogging courts, jails, and
the probation system with offenders.

The ordinance also includes the formation of a community oversight
committee composed of civil liberties and medical cannabis advocates.
They'll be responsible for compiling arrest rates and obtaining
complaints from civilians in the city who believe they've been
unfairly accosted by officers.

"I think [the department] would be more likely to take it seriously
if they received a lot of complaints about what they're doing," said
Mira Ingram, a cannabis patient and committee appointee. "So I'm
hoping with this committee, we'll be able to bring all of this stuff
out and be a sounding board for people who have problems with [police]."

Ammiano's office told us the ordinance simply codifies what was
already the prevailing attitude in the SFPD's narcotics unit. But it
remains doubtful as to how far the cannabis committee could go in
forcing fundamental changes in department culture, especially
considering the committee couldn't punish officers for violating the
lowest-priority law or even for refusing to provide detailed
information about individual cases.

"Until we can change that culture, it's not going to go away," admits
Michael Goldstein, another committee appointee. "It would be my hope
that ... eventually we would have some empowerment to forestall and
limit what they do in that regard. But you understand what it takes
to completely transform an organization like that. It ain't gonna
happen. I've been around [San Francisco] for 30 years."

While Delagnes told us that he's not altogether opposed to the idea
of repealing prohibition, the SFPOA has attacked local officials who
publicly support cannabis users, a signal that even after an
entrenched, decades-long war against narcotics, the Police Department
may be a long way from making marijuana a truly low priority.

Police commissioner David Campos, an aspirant to the District 9
supervisor seat now held by Ammiano, drew fire from the SFPOA when he
recently criticized a regular antagonist of the city's medical
marijuana dispensaries, an SFPD sergeant and particularly aggressive
drug cop named Marty Halloran.

"Commissioner Campos said Marty Halloran has no business being a
police officer," Delagnes angrily told the commission in April. "Oh
really? Well, for someone who has obviously dealt with this situation
with a complete lack of integrity and has failed to act in a fair,
impartial, and objective manner, I believe the opposite is true of
Mr. Campos, and perhaps you should not be sitting on this commission."

Does that sound like an end to prohibition looms?

For Luce, the most alarming recent trend is officers finding a
homeless street addict as a hook to direct them toward a more
prominent dealer. When the arrest occurs, both are charged with
felony possession of narcotics for sale.

"That's not the point of these undercover narcotics operations," he
said. "The point of them is to go after hardcore sellers. And what
they're doing is targeting the most vulnerable people out there,
these addicts. It's a way for the police to say, 'We're arresting dealers.'

Sam Devine contributed to this story.