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James Benno wants his stuff back. All of it, everything that was confiscated for evidence or destroyed after the Shasta Interagency Narcotics Task Force raided his Happy Valley medical marijuana collective in 2014, including but not limited to his dignity.
Now that he’s been cleared of all 17 felony charges stemming from the raid, he just might get his wish.
Last week in Shasta County Superior Court, the final charge against Benno and his two sons, Logan and Jacob, was dismissed, handing victory to the Bennos in a legal battle that has simmered nearly four years.
Benno would like those years back, too, including the two months he and his sons spent in the perpetually overcrowded Shasta County Jail, for whatever that’s worth. Plus all the stuff. It’s not too extravagant of a list, yet.
The value of the 99 plants SINTF had carted off to a local landfill, along with 100 cubic yards of organic soil, 99 smart pots and 99 pallets, exceeds $1 million at then-market rates, by Benno’s estimate. More tangible items he’d like returned include his tax and business records, a personal computer and an assortment of firearms, including an AR-15, a shotgun and a pistol. A video camera and a regular camera. Three pairs of designer sunglasses. A pair of camo shorts.
Logan Benno would like the $5300 in cash belonging to him that was seized by SINTF returned as soon as possible. Logan and Jacob, like their father, were originally charged with 17 felonies and faced seven years in prison. At various times throughout the four-year ordeal, prosecutors offered each son a plea deal if they’d turn on their alleged co-conspirators. No Benno turned.
Sitting in his south Redding living room on the afternoon after the dismissal, amid a circulating crowd of longtime supporters and a half-dozen large dogs sniffing pant legs and occasionally climbing into laps, James Benno was uncharacteristically quiet, still absorbing the impact of a victory that, in the beginning, seemed highly improbable to many observers, most notably the Shasta County District Attorney’s Office, which has once again lost a high-profile medical marijuana case to the Tully & Weiss law firm.
The supporters included medical marijuana patients who’ve been members of the Benno collective for years and have stuck by him through thick-and-thin, some fellow growers who’ve had similar run-ins with the law, and a smattering of local medical marijuana advocates. Salt-of-the-earth types for the most part, working class people. Benno himself was a carpenter before the housing crash, after which he inadvertently morphed into a medicinal cannabis crusader.
“They’ve been harassing me since 2009, they’ve run me off of three rental properties,” he said, ticking off the damages he might claim against Shasta County and the City of Redding in the lawsuit he’s been preparing. When the conversation turned to the Happy Valley raid, during which Benno claims he was struck in the face with a rifle butt, and then, handcuffed and on his knees, humiliated by SINTF members in front of his sons, he added PTSD to the list.
There’s more than a few paranoid people around these parts, but in Benno’s case, the black helicopters are real. Like the CHP chopper that last summer orbited over the 24-plant outdoor grow in the backyard of the very house we were sitting in. The unmarked cars parked across the street at odd hours. The occasional surveillance might stress him out—not to mention the four-year legal battle—but it has so far never deterred him from his passion; growing medical marijuana outdoors.
One battle ends, a new battle begins, the marijuana war never ends. Benno has retained a Los Angeles civil attorney an intends to file suit against the city of Redding and Shasta County for damages, including the loss of his marijuana crop and what he views as violations of his constitutional rights, as well as the rights of his sons and the patients in his collective.
Will Benno get his stuff back? At least some of it, according to attorney Ashley Bargenquast, who, along with attorneys Joseph Tully and Randy Schram, successfully defended the Bennos.
“Shasta County does have to return all of the property that they seized,” she said. “They have no basis to keep it from the Benno’s any longer and everything, including the medicine seized, has to be returned. What kind of reimbursement is due for material that was destroyed is something that you would have to speak with a civil attorney about.”
Benno is testing new legal ground with his lawsuit. Only a handful of similar suits have been filed.
“We have exonerated many people from criminal allegations related to cannabis and several have pursued civil action thereafter,” Bargenquast said. “However, of those cases, none have made it through the system yet.”
As far as Benno’s concerned, he’s looking forward to the conflict.
“I wish them the best of luck,” he said of his longtime adversaries. “I’ve made this my life mission. I’m not going to stop.”
Meanwhile, Redding Bans Outdoor Marijuana Grows
With the Benno family exoneration, Shasta County taxpayers are now on the hook for their defense fees. Tully & Weiss previously prevailed in another high-profile Shasta County medical marijuana case, Planet Herb in 2015. It agreed with the county to work for a reduced rate for the Bennos two years ago, but the cost will still be substantial.
The firm has been winning similar cases throughout northern California for the past several years, as marijuana, medical and otherwise, has been gradually decriminalized. Bargenquast serves as the firm’s compliance associate and is responsible for keeping up-to-date on the various competing and shifting federal, state and local codes involved in any particular case.
She credits Prop. 64, the Adult Use of Marijuana Act passed in 2016 and put into full effect this year, for finally forcing Shasta County to drop its case against the Bennos.
“With the passage of Prop. 64, an entirely new avenue for dismissal was created by Health and Safety Code section 11361.8,” Bargenquast explained. “This code section allows any individual previously convicted or facing felony charges for behavior that is now lawful to have their case re-designated as a misdemeanor and possibly even dismissed with the records sealed.”
“This process requires that the district attorney show the behavior would be illegal even now, and we at Tully & Weiss hold them to that burden,” Bargenquast continued. “There are countless victims of the war on drugs who can finally have their records cleared for behavior that should never have been a crime in the first place.”
Prop. 64 has injected more than a little irony into the Benno case. Instead of throwing in the towel last December, when a jury acquitted the Bennos on all but one count, Shasta County prosecutors pursued the Bennos for months on the sole remaining charge of manufacturing cannabis oil with alcohol. At the very same time, the city of Redding was drawing up its recreational marijuana ordinance, which among other things, makes manufacturing cannabis oil with alcohol—in industrial quantities—legal beginning next year, as long as you qualify for a license.
Considering that a majority of the powers that be in Shasta County, along with an apparent majority of local voters, don’t particularly care much for marijuana, medical or recreational, Redding’s recreational ordinance is a fairly remarkable document.
There’s a certain shrill tone to the ordinance, the sound of city officials who, thanks to declining revenue and a looming deficit, have been dragged kicking and screaming into the recreational cannabis market. The introduction reads more like an argument for prohibiting marijuana, reminding us of all the reasons it must be “pervasively regulated” by the city: kids (anyone under 21) must be denied access, odors must be 100 percent contained, the black market must be curtailed (in order to maximize revenue from retail taxes and license fees).
Nevertheless, beginning next year, the city is willing to license a wide variety of cannabis businesses, including retail stores, delivery services, edible and concentrate manufacturers, testing laboratories and full-blown indoor grows in industrial-scale warehouses.
The vetting process for prospective licensees is intense, and once licensed, the regulations are indeed pervasive, controlling nearly every aspect of the business, including signage, advertising, waste disposal, odor control and dress code. All businesses must comply with the state’s track-and-trace system for taxation purposes. Licenses have to be renewed annually, with no guarantee of renewal.
It sounds like risky business, but people in the marijuana trade are accustomed to risk, and no doubt more than a few local entrepreneurs will be retailing recreational weed in proscribed areas within Redding city limits come next year. According to the city’s map, near-vacant Stillwater Business Park is eligible for cannabis-based businesses. Squint a little, and it’s not too hard to imagine one of those hangar-sized warehouses with high-intensity grow lights fed by cheap electricity from the Redding Electric Utility, going up in Stillwater.
But beyond these future pipe dreams, the new ordinance is most notable for the cannabis activity it prohibits. Citing competition from the black market, which drives the price down, and an abundance of odor nuisance complaints, Redding has banned all outdoor cultivation within its city limits.
Which means James Benno, who last year grew 24 plants in his south Redding backyard, is right back where he started before the Happy Valley raid four years ago.
“The worst possible thing they could do is what they’ve chosen,” Benno said, citing the environmental impact report that accompanied Prop. 64, which recommended outdoor cultivation with no artificial lighting as the most environmentally friendly alternative. He also thinks the ban violates the rights of medical marijuana patients.
“They’re throwing medical marijuana patients under the bus, even though Prop. 215 is still in effect,” he said. He predicted that some landlords who might otherwise permit a small outdoor garden will balk at allowing indoor grows, which can wreak havoc on home interiors and create fire hazards. Low-income patients will at any rate be unable to afford the transition indoors.
“They are not taking into consideration the right of the person to grow it,” he said. “Redding wants to declare a state of fiscal emergency, but somehow they have money for plant police.”
Plant police or not, Benno said he has no intention of heeding Redding’s ban on outdoor cultivation.
“I’m still growing 24 plants in my backyard, just like I did last year,” he said. “I don’t give a fuck.”
There’s a Lot of Weed in Them There Hills
Benno is correct that Prop. 215, the Compassionate Use Act passed in 1996, remains in effect with the passage of Prop. 64. Under Prop. 215, medical marijuana patients are permitted to possess larger amounts of marijuana, and patients under the age of 18 can gain access to medicine with a doctor’s recommendation. But when it comes to cultivation, cities and counties are still allowed to ban it outdoors, as long as it is allowed indoors.
Medicinal cannabis crusaders such as Benno and other risk-adverse individuals will undoubtedly ignore the outdoor bans in Redding and the unincorporated areas of Shasta County. But Bargenquast warns that being a medical marijuana patient doesn’t exempt you from following local ordinances.
“Unfortunately, currently there is no legal recourse for medicinal cannabis patients and caregivers regarding local restrictions placed on cultivation,” Bargenquast said. “The California Supreme Court found that Prop. 215 and SB 420 did not require any accommodation by cities or counties to allow for cultivation. This was true before Prop. 64, and since Prop. 64 did not change any Prop. 215 rights, it remains true now.”
What that means for medical marijuana patients (or recreational users) who choose to violate the outdoor grow ban in, say, Redding, depends on how the city enforces it. It could enforce the ban by issuing abatement notices to violators, giving them the opportunity to eradicate the garden and avoid any fines. If the violator ignores the notice, he or she could be charged with an infraction, and subject to fines ranging from $100 for the first infraction to $500 for the third.
If the violation is serious, the city could charge the grower with a misdemeanor, permitting it to charge violators as high as $1000 per day the ordinance is violated. In that case, Bargenquast said, some legal defense may be available.
“We have seen some instances of zoning violations being filed as misdemeanors,” she said. “Of the relatively few misdemeanor cannabis related zoning cases Tully & Weiss has defended, we have prevailed.”
These bans and penalties might deter your next door neighbor in Redding. But they mean next to nothing to the Mexican cartels and other shady characters operating throughout rural northern California. It’s an enormous black market that feeds off marijuana’s continued federal status as a Schedule 1 dangerous narcotic and the higher price-per-pound that prohibition fetches in states that haven’t decriminalized marijuana.
Just how large this market is is a matter of some conjecture. Back in 2014, Matthew Meyer, a medical marijuana activist who moderated the Sungrown In Shasta Facebook page before relocating to Tehama County, used the now familiar tactic of zooming in on marijuana gardens with Google Maps, and was stunned when he discovered the number of gardens strung throughout the foothills on both sides of the valley.
Meyer, who has a PhD in anthropology from the University of Virginia, did a whole lot of zooming in on Shasta County, and using an average garden size of 50 to 100 plants, producing an average of 100 pounds per garden, selling at the then-conservative market rate of $1000 per pound, he crunched the numbers. He estimated the value of county’s black market crop at $100 million. A recent study by the California Department of Food & Agriculture on outdoor cultivation has convinced Meyer his estimate was conservative.
“We now have better information in the form of the CDFA impact assessment,” he said. “That report shows that the 20 counties in the Inter-mountain and Sacramento Valley regions produced about 4.875 million pounds in 2016. That’s about 250,000 pounds per county on a straight average basis. Given that much of that weed goes elsewhere, the $1000 per pound wholesale value is still probably a reasonable number. That means each of the counties in those regions averages $250 million in wholesale value.”
This enormous black market supply, whatever its precise value, is obviously an obstacle to businesses and communities seeking to maximize profits and tax revenue in the post-Prop. 64 era. It’s turning some recreational marijuana advocates against their natural allies, outdoor growers of medicinal cannibas. As the number of people applying for state cultivation licenses picks up, murmurs of over-supply, a pot glut, are thick in the air.
Meyer, who recently started a new Facebook page, North State CannaPolicy Watch, worries that the recent announcement that the Shasta County District Attorney will be working more closely with the U.S. District Attorney for Northern California on serious gun and drug cases may be a signal that enforcement of marijuana cultivation outdoors is about to be stepped up.
“Getting more federal help trying to repress cannabis production in a state where 80 percent of the product goes out of state sounds like a great recipe for ongoing violence, environmental degradation, and police corruption,” Meyer writes. “Deep dishonesty and bad faith must be overcome if we are to work together to develop better policy. And better policy must involve serious federal reform, most likely complete de-scheduling of cannabis.”
For Medical Marijuana Patients, a Silver Lining Indoors
At the end of this year, in accordance with Prop. 64, the provisions in SB 420 that helped legitimize medical marijuana cooperatives and collectives will be phased out. However, for now those provisions remain in effect, and should law enforcement suddenly begin ramping up cannabis prosecutions, Bargenquast is concerned legitimate medical marijuana collectives will be caught in the crossfire.
“I think the biggest issue is going to be law enforcement simply not knowing the law,” she said. “For example, collectives and cooperatives are still allowed to operate in compliance with Prop. 215 and SB 420 until January 9, 2019. However, I am sure that many collectives will be prosecuted based solely on their lack of a state license.”
Bargenquast said that Tully & Weiss has seen no increase in federal enforcement since January, when U.S. Attorney General Jeff Sessions rescinded the Cole Act and two other Obama-era executive orders that restrained federal prosecutors from filing cases in jurisdictions that have decriminalized marijuana. She’s optimistic that will remain the case.
“In many counties, district attorneys are more apt to dismiss cases that are now misdemeanors after the passage of Prop. 64,” she said. “We have seen many of our cases get dismissed this year and prosecutors seem much less willing to go to trial on the cannabis cases they were previously aggressively pursuing before the changes in the law.”
She think Prop. 64’s mandate that individuals be permitted to grow up to six plants for personal use, if only indoors if the city or county decrees it, may turn out to be a boon for patients and recreational users—if they can afford the move indoors, with its increased costs.
“Ironically, there is some protection regarding the cultivation of six plants for personal adult use,” she said. “This protection was created by Prop. 64 and prohibits cities and counties from completely banning indoor cultivation. A city or county may still regulate such cultivation, and even require some kind of registration, but they cannot ban it. This leaves us in the ironic position where indoor adult cultivation has more protection than any medicinal cultivation ever had.”
Moreover, as far as qualified medical marijuana patients are concerned, the 6-plant limit may violate state Supreme Court precedent that permits patients to grow as much medicine as they require, even if it exceeds local limits. But don’t hold your breath waiting for James Benno to move his operation indoors anytime soon.
Benno belongs to the subculture that’s evolved around the concept of the medical marijuana collective, where patients are growers and growers are patients and medicinal cannabis is the medium of exchange. The medicine is generally grown outdoors, because it’s way more cost-efficient. It’s a tight community, and it’s fair to say activists from within this subculture, including Benno, were instrumental in making marijuana palatable enough to the general public that state after state has turned to the formerly noxious weed for a source of revenue. Now that California’s in the recreational game, the outdoor medical collectives are being phased out.
Benno won his four-year legal battle to operate a medical marijuana collective, and now he’s right back where he started: facing down public officials for the right to grow a plant in his own backyard. Like many people in the medical marijuana community, he opposed Prop. 64 from the beginning.
“With Prop. 64, the Legislature is attempting to do away with the protections and legislative intent of statewide protections of Prop. 215, and letting local municipalities wage war on law abiding patients,” he said. “The Compassionate Use Act is being monopolized and raped by the for-profit industry.”
In short, expect Shasta County’s marijuana problem to continue.