January 2016

My thoughts on the Yuba County narc detective’s recent arrest for trafficking 247 pounds of cannabis out of state.

I respectfully reject the SacBee’s quote attributed to me in their recent article regarding Yuba County narcotics detective Chris Heath’s arrest for transporting 247 pounds of cannabis in Pennsylvania while armed with his duty gun and $11,000.  The reporter opened up the conversation by asking me if Heath’s situation “was like catnip” for attorneys like me.  I laughed, and joked that it was more like straight vodka.  The question was so silly that I thought the real interview started after that.  Lesson learned. 

Each and every one of my clients, and certainly anyone who has ever heard me speak publicly about the current state of cannabis law, knows that I take my task as a medical cannabis lawyer extremely seriously, perhaps to a fault.  Of course my early visceral reaction to discovery of Agent Heath’s abhorrent conduct was a brief spat of laughter due to the comic hypocrisy and fleeting moment of vindication, though under no circumstances do I think this is the time to celebrate with trite jokes.  Quite to the contrary, when a narcotics detective assigned to the investigation of cannabis cultivation in a County that has enforced a per se prohibition of all cannabis-related conduct blatantly dismisses both state and federal prohibition to engage in the sophisticated interstate trafficking of marijuana, a far more pernicious state of affairs become evident. What must this incident teach us?  Certainly Agent Heath’s actions do not teaching us that we act like cats after consuming catnip (I’m not a cat person, so I’m not even sure what this means. Do cats get drunk on catnip? Is it like caffeine?).  

First and foremost, I do not see how we can ignore that both Yuba and Butte Counties have prohibited the distribution of cannabis by banning dispensaries, as well as the cultivation of cannabis (Yuba to a slightly greater extent).  Both counties are known for aggressively prosecuting violations of the state law as well, creating a culture in their local government (law enforcement included) that vilifies and criminalizes any and all cannabis-related conduct.  However, most stakeholders seem to agree that cannabis-related activity is going to continue to proliferate in NorCal, in spite of the flood of local bans: if growers couldn’t be stopped under threat of state or federal arrest, they certainly can’t be stopped by a civil land-use ban.  Thus, when a grower has decided to continue with what is often times his or her life’s work in the face of a ban, he or she will just take greater precautions to not get caught, which often includes moving further into the woods and becoming more unregulated.  Without regulation, there will be a decline in good management practices in the rush to harvest quick, and the criminal mindset will undoubtedly fester. 

This phenomenon is supported by Agent Heath’s own statement to me early in November when I asked him, off the record in a case where he was testifying against my client, if he had seen a reduction in the number of grows in Yuba since the ban.  Over the course of November (the height of the NorCal outdoor season), I asked that same question to Agent Heath, another Yuba County Deputy assigned to marijuana abatement, and two Code Compliance officers, and each agreed that the number of grows had remained about the same, but that the sizes of the grows had increased, as had the trash around the gardens.  In Heath’s particular and very sad situation, this criminal mindset festered right on into Yuba County’s own Narcotics Task Force.

Secondly, how we want to treat Agent Heath now that he’s been caught speaks volumes about our various positions on cannabis prohibition in this new era.  While many rejoiced in the streets, a bay area attorney whom I admire, John Hamasaki, poignantly suggested that he didn’t agree with prosecuting Agent Heath for illegal trafficking because the cannabis laws are arcane and unjust in-an-of themselves.  Although I admittedly happen to be one of those people who sees great value in “reinventing the enemy’s language,” or using the power structures of the oppressor against them, John’s got a point.  If we want to abolish the criminal prohibition of marijuana, prosecution of anyone at all under such laws becomes inappropriate even here.  While Agent Heath would clearly constitute a per se bad actor under every interpretation of California’s cannabis laws, the argument is that, once we say even one prosecution for cannabis is appropriate, we’ve imposed a “moral center” for cannabis crime; a standard by which certain marijuana distribution is right (i.e. legal) and some is wrong (i.e. criminal).  Arguably, if we truly deem the substance itself to be non-deserving of criminal ramifications, then marijuana conduct should not constitute a public offense under any context.  I get it.  

But clearly the Chris Heath scenario is somehow different, or else why would so many in my area (Nevada/Yuba County) rejoice, particularly when those rejoicing are the ones who would usually lament the news of any random NorCal grower getting picked up out of state with 247 pounds?  The answer is obvious, of course: Heath violated the public trust.  And though I was raised in an era where I trusted the local marijuana growers a lot more than I trusted the racist cops who (on a good day) were “just doing their job” of enforcing nonsensical marijuana laws, meaning my trust in law enforcement was low from the outset, even I was incredulous to my very core when I learned of Agent Heath’s arrest.  The breadth of this violation of an officer’s solemn duty to protect and serve is nothing less than gut wrenching.   

Sadly, this is not the first time this has happened.  There was Jason Fredricksson in 2011, a San Leandro Police narcotics detective who was caught selling cannabis he stole from cases he was investigating. And who could forget the federal marshal who was federally indicted for robbing NorCal marijuana growers at gunpoint in 2014? (While that was the only crime for which the US Marshall was caught, he is also rumored to be responsible for the rash of marijuana robberies here in Nevada County after the first summertime round of light deprivations greenhouses are harvested in July.)  An El Dorado County Sheriff was arrested last year for stealing a bevy of drugs from evidence lockers, and I just heard about a Texas Sheriffs Deputy was indicated last for conspiring to distribute more than a ton (over 2,000 pounds!) of marijuana in that state.  The list does not stop there, not even close. 

I suppose it would be the more evolved course of action to demand our state and federal prosecutors refrain from charging these bad actors with violations of the criminal codes relating to cannabis, as there are likely more than enough criminal codes relating to the violation of their public oaths and various ancillary crimes (conspiring to cross state lines to commit a felony, for example) to put cops like these away for a long time. 

But at the same time, fuck those guys… 

In short, the answer remains unclear to me.  So what can I say I’ve I learned from this incident? Not much I suppose, except that reporters don’t have an “off the record” button and that cops like to transport marijuana just as much as the next guy.   

But the theoretical queries our community has been debating for decades about how to treat cannabis-related conduct in this new era stay the same, only with a new anecdotal feather in our cap.  As was made clear in my unreported comments to the reporter, this is an opportunity to discuss how civil bans and vehement criminal prosecutions make the Agent Heaths of the world a possibility.   

One thing does remain clear in all of this, however; this is no time for shallow celebration. And this sad situation is nothing like catnip (whatever the heck that is).