LIVERMORE — When police swooped in and effectively shut down the city’s lone medical marijuana collective in a raid in March, cannabis advocates weren’t surprised.
They said the action was emblematic of Livermore’s heavy-handed crackdown on medical marijuana patients, exerting a level of force unlike any they’ve seen in other major Bay Area cities. Police, on the other hand, insist the people they are arresting are manipulating the law and committing criminal acts.
Nineteen years after California legalized medical cannabis, advocates claim that numerous card-carrying Livermore residents have had their families broken up and assets seized, and lost their homes, for doing what they thought was allowed under state law.
“Livermore is cannaphobic,” said Ron Mullins, executive director of Sacramento National Organization for Reform of Marijuana Laws (NORML). “There’s this chaos about what is an appropriate amount (to grow), but on the enforcement end they can do whatever they want.”
Prop. 215 legalized medical marijuana, but it didn’t set limits for possession or cultivation, often leaving the practical applications up to interpretation.
“We need better regulation and laws so criminals can’t take advantage of that,” Livermore police Chief Mike Harris said. “What we really need is for the law to catch up and put restrictions and oversight on it.”
In a handful of recent criminal cases explored by this newspaper, residents claimed that they were targeted by police, sometimes with guns drawn, despite the fact they were growing marijuana for personal medicinal purposes as protected by state law. But police said they found evidence of a host of criminal acts, ranging from the cultivation of marijuana for illegal commercial purposes; child endangerment; and illegal possession of a firearm.
Chris Phillips had doctors’ recommendations hanging in his garage, copies at his outdoor garden and a state-issued medical marijuana card. But on a warm afternoon in July, according to Phillips, two unmarked vehicles rolled up to his driveway with assault rifles hanging out the windows.
Police cruisers followed, and one officer, Phillips said, pointed a gun at his girlfriend’s 16-year-old daughter, Hailey. Without presenting a warrant, Phillips said, officers entered the home, detaining him, his girlfriend Michele Sunderland, Hailey, and a friend, and searched for five hours.
Without going into specifics on the pending case, Harris said police had probable cause that Phillips was growing marijuana and manufacturing hash oil for his San Francisco-based cannabis collective, which would not be protected under state law. (Phillips denies the allegation.)
Typically, marijuana investigations are sparked by a resident complaint, Harris said, and when called upon, officers have to strike a balance between force and safety.
“The bottom line is we’re not looking to take people to jail who are using it legitimately,” Harris said. “People are trying to take advantage of the law, and they make it difficult for people who are following the guidelines … . We’re going to hold those people accountable.”
Phillips and Sunderland were charged with felony cultivation, possession for sale, child endangerment and contributing to the delinquency of a minor. They are next due in court in Hayward on June 4.
Phillips says the marijuana was for personal use, to relieve pain from injuries to his wrist and knee and Sunderland for her anxiety and nerve pain. The bust caused Phillips to end his licensed marijuana-delivery service, which served 2,200 patients from Santa Rosa to Fremont.
“It’s been devastating,” he said with tears in his eyes. “This shouldn’t be happening at this point in time. This is the most liberal county possible when it comes to medical cannabis, so why is this one little town throwing such a fit?”
In Alameda County, considered by many as the birthplace of the medical marijuana movement, enforcing laws on cannabis cultivation can be problematic, said Alameda County Sheriff’s Department spokesman J.D. Nelson.
After receiving a complaint, the tactics police use are determined by a number of factors, Nelson said, including the sergeant’s assessment of the situation, whether the grower has a criminal background or known gang affiliation, or if there’s reason to believe the grower might be armed.
If there’s a doctor’s recommendation involved, it’s either addressed after the fact by the District Attorney, Nelson said, or in some cases, the paperwork is verified and growers are simply left alone.
“There’s no black and white; it’s all gray,” said Nelson said. “It’s always difficult whenever you have a state law that conflicts with federal law. It’s learn as we go.”
When it comes to limits on plants, Livermore and the county adhere to the Attorney General’s guidelines of six mature or 12 immature plants per patient. But critics say police here are using force generally reserved for large-scale growing operations in rural counties.
“Police are still really looking at us as lawbreakers who can’t be trusted,” California NORML deputy director Ellen Komp said.
Livermore police made 47 arrests on suspicion of marijuana-related crimes in 2014, down from 75 the previous year. For comparison, neighboring Pleasanton police arrested 31 people for similar reasons in 2013 and 17 last year. In smaller Walnut Creek, police arrested 108 in 2013 and 116 in 2014, mostly on suspicion of possession for sale.
Among those arrested in Livermore in 2013 was Jessi McNulty, who came home two weeks before Halloween to find three family members in handcuffs. Police had raided with guns drawn, she said, pointing one at her 11-year-old nephew, Michael.
“I thought they would look at (the medical paperwork) and leave us alone, but that wasn’t the case,” said McNulty, who has had a medical cannabis card for 12 years.
Instead, McNulty said, officers ransacked the home, finding five immature plants outside. Police said they found a person smoking methamphetamine outside and confiscated a pound of marijuana, the limit for McNulty and her 68-year-old father, Timothy, who is legally blind and is on dialysis for kidney failure.
McNulty, her sister and cousin were arrested. Her nephew, Michael, was referred to CPS and put into a foster home in Oakland. The family is still waiting for him to come home.
Harris called the McNulty home a “known drug house” where investigators found pot littering the house in reach of children.
Prosecutors charged McNulty and her father with cultivating and possessing marijuana for sale, which the McNultys deny. Tim, who had prescription painkillers, was also charged with being a narcotic addict in possession of a firearm.
The McNultys said they wanted to fight the charges but prosecutors threatened to add a child-endangerment charge, meaning they may never see Michael again. McNulty said she “just gave up” and took the deal. The McNultys are serving out a year’s probation.
“We lost our home when this happened. The whole family split up. We had to go our separate ways,” Jessi McNulty said.
Citing their ordeal with police, Jeff and Andrea Sarbak moved out of their home on Via Seville in April, where they had lived for 19 years.
In September 2013, the Sarbaks were readying for bed when Andrea saw someone in the front yard. Jeff went outside, confronting a man and two others who leapt over the back fence, where the Sarbaks were growing marijuana.
Sarbak was beaten, stabbed and slashed in the face. The masked thieves made off with one plant and fled in a car. The Sarbaks called police; however, instead of focusing on catching the intruders, Sarbak says, officers began asking questions about his plants.
“We knew (the suspect’s) names,” Jeff Sarbak said. “The police didn’t want to do anything about it. They wanted to focus on us.”
Ten days after the robbery, police raided the home, seizing 10 pounds of marijuana from 26 plants, about 500 ounces of dried pot, and a digital scale.
Jeff, who has a doctor’s recommendation and a state-issued medical marijuana ID card, was charged with cultivating marijuana for sale, as was Andrea, who was Jeff’s caregiver but did not have a valid card.
Harris defended the department’s actions, calling large marijuana grows a danger to the public and a target for theft. “(Jeff) ultimately put his own family in danger,” Harris said.
Jeff, who had his spine fused in 2004, is fully disabled. The former Silicon Valley information technology professional claims he grew so much cannabis because he and his wife juiced it daily, requiring up to 8 ounces of plant material for each glass.
Andrea, a former Lawrence Livermore Laboratory employee who was diagnosed with breast cancer, said she used it to alleviate migraines and now for nerve pain from tumors.
Since the raid, Jeff Sarbak said he and his wife’s medical conditions have worsened; Andrea had a mastectomy on May 5.
Contact Jeremy Thomas at 925-847-2184. Follow him at Twitter.com/jet_bang.
about the law
Passed by voters in 1996, Proposition 215 legalized medical marijuana for qualified patients. But it didn’t set limits on cultivation or possession.
The Medical Marijuana Act of 2003 (SB 420) attempted to clear up the confusion, limiting patients to 8 ounces of dried marijuana and six mature or 12 immature marijuana plants. However, the act also says a patient or caregiver may possess an amount of marijuana “consistent with the patient’s needs” as determined by a doctor.
Further muddying the waters, the state’s Supreme Court unanimously ruled in 2010 in the case of People v. Kelly that limits imposed by SB 420 were invalid because they amounted to tampering with a voter-approved initiative.
In California, according to the latest Department of Justice figures, there were nearly 13,800 felony marijuana-related arrests in 2013, up from 13,434 in 2012, and down from14,082 in 2011.