State & Local Executive Branches

RSS Feed for this category

ACLU Sues Florida Governor on State Employee Drug Tests [FEATURE]

The ACLU of Florida Tuesday filed suit in federal court in Miami to block Gov. Rick Scott's (R) executive order mandating random, suspicionless drug testing of state employees. The lawsuit contends the drug testing amounts to an unlawful and unreasonable search and seizure, violating state employees' Fourth Amendment rights, and seeks an immediate halt to the practice.

Florida state workers, be prepared to submit one of these if Gov. Scott has his way. (Image via Wikimedia.org)
"We are taking this action to prevent Gov. Scott from trampling on your rights in Florida," said ACLU of Florida head Howard Simon during a Wednesday afternoon press call. "We don't have a system of government run only by the executive and the legislative branch. It's time for the courts to step up and defend the rights of Floridians. This is an abuse of government power."

The lawsuit was brought on behalf of the American Federation of State, County, and Municipal Employees (AFSCME) Council 79, which represents 50,000 state employees and an additional 200,000 county and municipal employees in Florida. Also joining the lawsuit is Florida Fish and Wildlife Conservation Commission research scientist Richard Flamm.

"AFSCME has for decades supported drug-free workplace policies while preserving the fundamental right of public servants to be free of extreme governmental intrusions," said Alma Gonzales, general counsel for AFSCME Council 79. "We negotiated objective standards for drug testing for reasonable suspicion or if there is a safety risk, but at no point has the governor's office ever contacted us to negotiate over this. We're talking about taking their bodily fluids without probable cause or consent," she pointed out. "It's surprising and disappointing that the chief executive of Florida is unaware or doesn't care that this is the law of the land."

"I've been a state employee for almost 18 years," said Flamm. "There is absolutely no suspicion based on my behavior at work that I am a drug user. I joined as a plaintiff in this lawsuit because I find this extremely costly and wasteful. There is no threat to society. As a Florida taxpayer, I find it outrageous that given our current economic climate, with the loss of services and public jobs, that we would be wasting millions with unnecessary drug tests. As a citizen of the United States, I find this executive order an egregious attack on the Constitution. I'm surprised more people haven't stepped up," the research scientist said.

Scott signed the executive order on March 22, and it called for state agencies to have devised drug testing regimes by May 21, but it is unclear whether any state employees have been subjected to drug testing at this point.

The US Supreme Court has held that suspicionless drug testing by the government is an unreasonable search under the Fourth Amendment. The only exceptions allowed by the high court are "special circumstances," such as employees who work in jobs where there is "concrete danger of real harm."

"This executive order is profoundly un-American," said Simon. "This is a governor who masquerades as a conservative, but who is a radical. We had a revolution in this country that led to the enactment of the Fourth Amendment and the bill of rights, and that was a reaction to warrantless searches by the troops of King George."

"When we were asked to look at this and represent AFSCME, we did a painstaking analysis of constitutional law precedents dealing with employee drug testing," said Peter Walsh, an ACLU of Florida attorney working on the case. "This isn't a case of a governor arguably acting within the bounds of the US Constitution or even pushing the envelope to test the limits; the governor has ripped the envelope apart and jumped way over the line of what is permissible. He has violated the Fourth Amendment's search and seizure clause and done so in a big way."

There is also precedent from the Sunshine State itself. The city of Hollywood, Florida, enacted a municipal employee drug testing law little more than a decade ago, only to have it thrown out by the Florida courts in 2000. Four years later, the state Department of Juvenile Justice's effort to conduct suspicionless drug tests on employees was also thrown out. The department is a state agency covered by the governor's executive order.

"I'm not surprised but a little bit shocked that the governor would go ahead with issuing an executive order when this is about as close to settled law as possible," said Simon. "Federal judges have struck such programs down as searches without probable cause and without reasonable suspicion."

"Employee drug testing by urinalysis is particularly destructive of privacy, offensive to personal dignity, demeaning and an affront to dignity," said Walsh. "Those are the words of Justice Antonin Scalia from his dissenting opinion in a seminal case on employee drug testing."

In that case, the high court upheld suspicionless drug testing by private employers. US law provides few worker protections from employer drug testing. But drug testing by the government is a different matter, and constitutional protections unavailable to private sector workers come into play.

"People say this is so widespread in the private sector that what's the big deal," said Simon. "But just because it's widespread doesn't make it right. Public sector employees are protected by the Fourth Amendment; they have more protection of their rights to privacy. We are proud to be filing this lawsuit on their behalf."

Simon also hinted strongly that the ACLU of Florida would soon be filing another lawsuit, this one aimed at the welfare drug testing bill Gov. Scott signed this week. Like state worker drug testing, the courts have frowned on the suspicionless drug testing of welfare recipients. The last state to try to implement such a plan, Michigan, had its law thrown out as unconstitutional by a US district court in 2003.

Gov. Scott ran on a platform of reducing needless spending in the public sector. But he's about to spend big bucks on defending an executive order that is constitutionally indefensible and likely to spend even more defending the welfare drug testing law that is just as constitutionally indefensible.

Miami, FL
United States

Chicago Housing Authority Wants to Drug Test Residents

The Chicago Housing Authority wants to require all current and future adult residents -- including senior citizens -- to pass a drug test. A positive drug test would result in an eviction notice for the resident.

The CHA wants you to pass a drug test if you live in the Kenmore or any other CHA properties. (Image courtesy CHA)
The proposal is one of several changes to the CHA's Admission and Continued Occupancy Policy submitted by CEO Lewis Jordan. Jordan and other agency officials argue they need more tools to fight crime and drugs in the housing projects.

The American Civil Liberties Union accused the CHA of subjecting the poor to a double standard, while resident leaders said the proposal was humiliating.

"The ACLU opposes drug testing in the absence of suspicion as a condition of residency in public housing," senior lawyer Adam Schwartz told the Chicago Sun-Times. "From our perspective, drug testing without suspicion is humiliating. It's stigmatizing. There's a double standard here," he said. "All across our city and our country, when most of us who are in whatever income bracket rent housing, we don't have to take a drug test. This is an emerging one standard for poor people and another standard for everyone else."

"Singling us out for this type of humiliation is a slap in the face of what this whole 'Plan for Transformation' supposedly is about," Myra King, chair of the central advisory council of tenant leaders for all CHA housing in the city, told the Sun-Times. "CHA says they're doing this plan to make us privy to the same standards as any other citizen in any other community. If that's true, why are we the only citizens to be drug tested?"

Lewis's "Plan for Transformation" also includes eliminating the "innocent tenant defense," which allows residents whose relatives or guests committed a drug offense or crime of violence to avoid eviction if they can show they were unaware of the activity. In a 2002 case, the US Supreme Court ruled that housing authorities could evict innocent tenants, but they are not required to. Former CHA head Terry Peterson had reached an agreement with tenants that allowed the continued use of the defense if it could be proved in court.

Spokeswoman Kellie O'Connell-Miller defended the proposals, pointing out that several CHA mixed-income properties currently require drug testing. "These are policies to help strengthen and improve the safety of our public housing communities," O'Connell-Miller said. "We're constantly hearing from law-abiding residents that they want us to hold the non-law abiding residents more accountable. We're trying to tighten up our lease with some of these issues. Drug dealers won't come where there are no buyers. If you remove the folks who are interested in drugs, hopefully it will remove some of the problems," she said.

Making the policy system wide would apply it to some 16,000 families living in family and senior public housing. The CHA has not estimated the cost of the proposal, O'Connell-Miller said.

The proposals are open to public comment through June 16, with a public hearing set for Thursday. If the proposal is adopted, it must then be approved by the CHA Board and then the federal Department of Housing and Urban Development.

And then the CHA can spend good money fighting (and most likely losing), the inevitable legal challenges. The precedent here is the state of Michigan's 1990s law mandating the suspicionless drug testing of welfare recipients. It was rejected by the federal courts in 2003 for violating Fourth Amendment proscriptions against unreasonable search and seizure.

Chicago, IL
United States

Florida Welfare Drug Testing Bill Signed Into Law

Florida welfare applicants and recipients, mostly women with children, will now have to undergo drug tests at their own expense to receive cash benefits after Gov. Rick Scott (R) signed into law a drug testing bill, HB 353, that passed the state legislature earlier this month. Scott also signed HB 1039, a law banning "bath salts," or new synthetic stimulant drugs.

Gov. Rick Scott (R) scores political points on the backs of the poor. (Image courtesy state of Florida)
More than 21,000 Floridians receiving benefits as heads of households will have to pay for and take the drug tests, as well as any new applicants. If they pass the drug test, they will be reimbursed for the cost. If they fail the drug test, they become ineligible to receive benefits for one year or until successfully completing drug treatment. Children of heads of household who test positive would still be eligible to receive benefits through a designated third party.

Scott and the Republican-controlled legislature argued that the law is necessary to stop welfare recipients from using the money to buy drugs. But opponents cited studies demonstrating that drug use is no more common among welfare recipients than among the general public.

"While there are certainly legitimate needs for public assistance, it is unfair for Florida taxpayers to subsidize drug addiction," Scott said in a press release. "This new law will encourage personal accountability and will help to prevent the misuse of tax dollars."

The ACLU of Florida was quick to attack the new law. It noted that the only other state law mandating suspicionless drug testing of welfare recipients -- one in Michigan -- was overturned by the federal courts in 2003 for violating the Fourth Amendment's proscription against unwarranted searches and seizures.

"Once again, this governor has demonstrated his dismissal of both the law and the right of Floridians to personal privacy by signing into law a bill that treats those who have lost their jobs like suspected criminals," said ACLU of Florida head Howard Simon in a statement Tuesday. "The wasteful program created by this law subjects Floridians who are impacted by the economic downturn, as well as their families, to a humiliating search of their urine and body fluids without cause or even suspicion of drug abuse."

Citing the Michigan decision, Simon continued: "Surely the governor knew this, and the ACLU testified in the legislature that the bill was a significant and unnecessary invasion of privacy. The new law rests on an ugly stereotype that was disproven by the state's own earlier experimental drug-testing program," he said. "Nevertheless, their zeal to score political points on the backs of Florida's poor once again overrode their duty to uphold the Constitution. Searching the bodily fluids of those in need of assistance is a scientifically, fiscally, and constitutionally unsound policy. Today, that unsound policy is Florida law."

Wednesday the ACLU of Florida announced it was filing suit against the governor over an executive order he issued earlier this year requiring suspicionless drug testing of state employees. At the same time, it promises an announcement soon about how it plans to respond to the welfare drug testing law. 

Tallahassee, FL
United States

New Jersey Attorney General Meets with Medical Marijuana Advocates (Press Release)

FOR IMMEDIATE RELEASE: 5/25/2011

CONTACT: Ken Wolski at 609-394-2137 or ohamkrw@aol.com, or Chris Goldstein at 267-702-3731

New Jersey Attorney General Meets With Medical Marijuana Advocates

[Trenton - New Jersey] Attorney General Paula Dow sat down with the Coalition for Medical Marijuana NJ (CMMNJ) on May 24th at her office in Trenton.  The AG and her staff held the meeting to hear concerns from local advocates about the compassionate use marijuana program that has now been suspended by Governor Christie.

Ken Wolski RN, the executive director of CMMNJ, was grateful for the interaction.

“Attorney General Paula Dow and First Assistant Phillip Kwon took time out their demanding schedules to listen to some very serious issues for New Jersey's medical marijuana law," said Wolski, "Qualifying patients continue to wait for this program and we hope that some of their concerns were heard. The Office of the Attorney General plays a key role in the implementation and administration of the compassionate use law.”

On April 22, 2011 Dow sent a letter to the Department of Justice in Washington DC requesting clarification about the medical marijuana law. Several US Attorneys have recently issued letters in other states with a clear description of how federal authorities will prosecute medical marijuana facilities, even if they are permitted under state law. In Washington, Montana and other states the letters were accompanied by DEA raids of local medical cannabis dispensaries.

NJ Attorney General Paula Dow stated in the meeting that she sent a follow-up letter to the US Department of Justice, addressed to US Attorney General Eric Holder, on May 23, 2011.

Paul Fishman, the US Attorney for New Jersey, has not sent any communication regarding the NJ medical marijuana law before or after Dow’s requests. A spokesperson at the US DOJ said the April 22nd letter from New Jersey had been received and was under review.

Chris Goldstein, the media coordinator at CMMNJ also attended the meeting.

“Not a single person in New Jersey has been able to register for medical cannabis, despite many promises from Governor Christie,” said Goldstein, “But I think that we had a meaningful exchange of new ideas with Attorney General Dow. The intent of The Compassionate Use Medical Marijuana Act is to grant legal access to seriously ill residents. There are some methods that the AG's office can explore to actively protect New Jersey’s medical cannabis patients today."

New Jersey passed the first compassionate use law in the country that forces patients into a centralized system of just six Alternative Treatment Centers to access all of their state-legal cannabis. There are no provisions in the NJ law to allow patients or caregivers to cultivate cannabis on their own. The law was supposed to have been fully implemented in the summer of 2010 but has suffered numerous delays.

CMMNJ’s Ken Wolski is looking forward to meeting with the one state official who has exercised the most influence over the medical marijuana law: Governor Chris Christie.

“It is long past time for Governor Christie to actually meet with patients and advocates in our state to discuss the compassionate use law.”

Location: 
NJ
United States

Arizona Governor Moves to Block Medical Marijuana Dispensaries

Arizona Gov. Jan Brewer (R) announced at a Tuesday afternoon press conference that she has instructed the state attorney general to file a federal lawsuit to seek clarification of the legality of the state's medical marijuana law. That means that the dispensary licensing portion of the program will most likely be put on hold pending a "declaratory judgment" sought by the governor.

Those scary US Attorneys get to another governor. (Image via Wikimedia.org)
Under the Arizona law, most patients would have to rely on a system of licensed dispensaries to obtain their medicine. They or their caregivers cannot grow their own unless they live more than 25 miles from a dispensary.

Brewer said she was prompted to act because of a threatening letter sent by US Attorney Dennis Burke. In that May 2 letter, Burke warned Department of Health Services Director Will Humble that the state's medical marijuana law conflicted with the federal Controlled Substances Act.

"Growing, distributing and possessing marijuana, in any capacity, other than as a federally authorized research program is a violation of federal law," Burke wrote. "Compliance with Arizona laws and regulations does not provide a safe harbor, nor immunity from federal prosecution."

Brewer said Tuesday that Burke's letter made her fear for state employees who would be issuing dispensary licenses and patient and caregiver registration cards.

"I just cannot sit on the sidelines and allow the federal government to put my state employees at risk," Brewer said. "That letter really muddied the waters... I intend to get answers because peoples' lives and careers are at stake."

Brewer's move comes little more than a month after the program went into effect, and 3,600 patients have already registered, but the dispensary portion of the program is not fully up and running yet.

"We are moving in the direction" of ordering the Department of Health Services not to issue dispensary permits, Brewer said.

A Brewer spokesman, Matthew Benson, told the Arizona Republic later Tuesday that the governor's advice to the department on dispensary permits was "imminent, in the next few days."

Brewer, who opposed last November's initiative making medical marijuana the law of the land, said she was not trying to overturn the election results, nor was she defending the medical marijuana law.

"We will not take a substantive position, either to thwart the will of voters or to try to impose our own policy views," Horne said. "We are simply saying to the federal court, 'We need a resolution of these competing pressures.'"

The Marijuana Policy Project (MPP), which helped draft the medical marijuana initiative, wasn't buying it. "We are deeply frustrated by this announcement," said MPP executive director Rob Kampia. "The law Gov. Brewer wants enjoined established an extremely well thought-out and conservative medical marijuana system. The law was drafted so that a very limited number of nonprofit dispensaries would serve the needs of patients who would be registered with the state. Governor Brewer is trying to disrupt this orderly system and replace it with relative chaos," he said.

"Patients would not purchase their medicine at state-regulated dispensaries, Kampia continued. "Instead, they or their caregivers would grow marijuana in homes across the state. Some will even be forced to find their medicine on the streets. We cannot think of a single individual -- aside from possibly illegal drug dealers -- who would benefit from Gov. Brewer's actions today. She has done a disservice to her state and its citizens."

Brewer is only the latest politician to use threatening letters from federal prosecutors as a reason to back away from medical marijuana dispensaries. Earlier this month, Rhode Island Gov. Lincoln Chafee halted the state's dispensary program after getting a letter from the feds, and Washington Gov. Chris Gregoire gutted a dispensary bill that had reached her desk citing the same reasons.

Phoenix, AZ
United States

Washington Medical Marijuana Dispensary Bill Dies

There will be no medical marijuana dispensary legislation coming out of Olympia this year. State Sen. Jeanne Kohl-Welles (D-Seattle), the chief legislative backer of the effort, announced Tuesday that she was giving up for this  session and called it the greatest disappointment of her career at the state house.

Dispensaries remain in legal limbo in Washington state. (Image via Wikimedia.org)
Earlier this year, Kohl-Welles successfully shepherded a dispensary and patient registry bill through the legislature, only to see it gutted by Gov. Chris Gregoire's (D) veto pen. Gregoire vetoed dispensary and patient registry provisions in the bill after federal prosecutors in the state warned that state employees involved in registering or licensing dispensaries could face federal prosecution.

The legislature does not have time to pass a compromise bill before the session ends Wednesday, Kohl-Welles told the Associated Press. She said she regretted not being able to get even limited regulation of dispensaries.

"By far, this represents the greatest disappointment of my legislative career," Kohl-Welles said.

After Gov. Gregoire vetoed most of her first bill, Kohl-Welles made two efforts to allow counties and municipalities to regulate dispensaries, but neither made it out of committee. That also means there will be no state-wide patient registry, a move designed to protect patients from arrest.

And it leaves dispensaries in a legal limbo. More than 100 operate across the state, but they are not explicitly approved under state law. Federal authorities have raided at least seven of them in the Spokane area, leaving patients to fend for themselves in the black market if they are too ill to grow their own.

Olympia, WA
United States

Supreme Court Upholds Order for California To Cut Prison Population

A closely divided US Supreme Court Monday upheld a court order requiring California to cut its prison population by tens of thousands of inmates because the state has proven unwilling or unable to provide adequate health care in its overcrowded prisons. The decision came in Plata v. Brown, a case originally filed in 2001.

Overcrowding at Mule Creek State Prison (Image courtesy CDCR)
In the 5-4 decision, Justice Anthony Kennedy wrote for the majority, saying the reduction in the number of prisoners was "required by the Constitution" to correct longstanding abuses of prisoners' rights. "The violations persisted for years. They remain uncorrected," he wrote.

He was joined by the high court's four Democratic appointees. The four Republican appointees all opposed the majority.

In his dissent, Justice Antonin Scalia said the court order is "perhaps the most radical injunction issued by a court in our nation's history." It would require the release of "the staggering number of 46,000 felons," Scalia complained.

The state of California could make substantial progress toward that goal simply by releasing the more than 28,000 persons imprisoned for violating the drug laws, including 10,000 doing time for simple drug possession and more than 1,500 doing time for marijuana offenses. Those year's end 2009 figures are the most recent available from the state Department of Corrections and Rehabilitation.

The court order is the culmination of more than a decade of litigation by prisoners' advocates, who successfully charged that mental and physical health in the state prison system was inadequate. In 2009, there was nearly a prisoner death a week that could have been prevented or delayed with better care.

The state's 33 adult prisons were designed to hold 80,000 inmates, but held more than 142,000 at latest count. The court order should bring that number down to slightly more than 100,000 within two years, although the figure could stay higher if Gov. Jerry Brown (D) moves ahead with plans to build more prison cells.

"The US Supreme Court was right to uphold the order to reduce California's prison population. Tough on crime policies have crowded prisons so severely with people convicted of nonviolent offenses, including drug possession, that they are not only unsafe and overly costly, but also a net negative for public safety," said Theshia Naidoo, staff attorney for the Drug Policy Alliance. "To end prison overcrowding, California must reserve prison for serious offenses and that requires sentencing reform. Even minor changes to sentencing laws could reap major rewards. By reducing the penalty for drug possession from a felony to a misdemeanor, for example, the state would save $450 million a year and reduce the prison population by over 9,000. We urge California to take the logical step of ending incarceration as a response to drug possession, while expanding opportunities for drug treatment in the community," continued Naidoo.

“This landmark decision opens an important new chapter in California's long struggle over whether to expand or contract our bloated prison system,” says Emily Harris, statewide coordinator for Californians United for a Responsible Budget, a broad statewide coalition working to reduce the number of people in California's prison system. "This is an important moment for California to push forward much needed parole and sentencing reforms to reduce California’s prison population, including for example amending or repealing three strikes, releasing terminally ill and permanently medically incapacitated prisoners, eliminating return to custody as a sanction for administrative and technical parole violations, reforming drug sentencing laws, and many other reforms that have been proven to reduce incarceration rates and corrections costs while improving public safety," continued Harris.

Gov. Brown has also talked about a "realignment" of the criminal justice system that would shift control of nonviolent, low-level offenders from the state prison system to county and municipal lock-ups. That's not a real solution, said Ruth Wilson Gilmore, author of Golden Gulag, which charts the dramatic rise of the carceral state in California. State spending on prisons as risen from 2% of the budget in 1980 to 10% now.

"County jail expansion does not solve the underlying problems," said Gilmore. "We know that public safety is a direct outcome of public education, affordable housing, and living-wage jobs. These are goals we can achieve now if we take this opportunity to shrink prisons and jails. Building bigger jails to ease prison numbers is the same as rearranging the deck-chairs on the Titanic: wasting the same dollars in different jurisdictions.  The US Supreme Court decision is a long-awaited cue for California's elected officials to stop messing around with superficial changes and start saving lives with real social investment, especially in communities where it makes the biggest difference."

CA
United States

DEA in New Spokane Medical Marijuana Dispensary Raid

In the latest round of the federal assault on medical marijuana in Washington state, the Cannabis Defense Coalition reports that the DEA conducted a Wednesday afternoon raid on Medical Herb Providers, one of the few dispensaries left in the city after a flurry of federal raids last month. It's not clear whether any other dispensaries are being targeted.

Spokane River
According to the CDC, a Medical Herb Provider manager reported that one employee was arrested.

The raids today and last month come as the state legislature and Gov. Chris Gregoire are struggling to come up with legislation to provide some sense of what is and is not allowed under the state's medical marijuana law. It currently does not explicitly allow for dispensaries, but that hasn't stopped dozens, perhaps more than a hundred, from opening.

Late last month, at least two Spokane area dispensaries were raided. Those raids came three weeks after the US Attorney for Eastern Washington, Michael Ormsby, warned the then 40 dispensaries in the area that they should shut down or face federal action.

The letter from Ormsby and a similar one from his counterpart in Western Washington, were crucial in persuading Gov. Gregoire to veto the portions of a medical marijuana patient registry and dispensary bill. They warned that state employees who licensed or registered medical marijuana businesses could be subject to federal prosecution.

Now, as Gregoire and the legislature tussle over what to do about medical marijuana, the feds are reminding everyone that they haven't gone anywhere.

Spokane, WA
United States

Urge Governors to Stand Up for Patient Rights (Action Alert)

 

Patients, Activists, and Friends—

In the past few months, United States Attorneys General in Arizona, California, Colorado, Hawaii, Montana, Rhode Island, and Vermont  have issued letters threatening federal action against any entity, including state employees, participating in state sanctioned medical cannabis programs.  While our community has seen these types of letters under previous administrations, it is disappointing to see President Obama sanction this behavior.

While many promises have been made by Obama to end raids on the medical cannabis community, these DOJ threat letters are yet another tactic of the federal government to interfere with patients’ right to safe access.  ASA recently issued Obama’s Medical Cannabis Report Card, showing he has failed at improving conditions for our community.  These threat letters are further evidence of the broken promises of the current administration and proof  that our community is under attack. 

Over the next couple of weeks, our community must call upon our state representatives for leadership.  We must urge our governors, whether they have received a threat letter or not, to join Americans for Safe Access in a push back against the U.S. Attorneys who have issued these threat letters against our community. 

In order to make this campaign a success, your governors needs to hear from you.  As a constituent, ask for his or her leadership against federal interference.  Call your governor today and use the following script.  Please find contact information for your governor below.  The District of Columbia should reach out to Mayor Gray whose number is listed below, and also included in the electronic action alert. 

Governor (or Mayor for DC Residents)—

As a concerned medical cannabis community member and your constituent, I am worried about the impact these threat letters from the Department of Justice and the potential for federal interference will have on safe access to medical cannabis in my state.  Letters have been issued to eight states so far, and we need to send a message asserting our state’s right to safe access. We need you the lead the charge to end federal interference and work toward creating policies that will resolve the federal conflict once and for all.

Thank you.


You may also participate in our online action alert by clicking here to ask your governor and congressional leaders to take a stand for safe access.

Thank you. 

Americans for Safe Access

REPRESENTATIVE CONTACT INFORMATION

ALASKA
Governor Sean Parnell
Tel: (907) 465-3500

ARIZONA
Governor Jan Brewer
Tel:(602)542-4331

CALIFORNIA
Governor Jerry Brown
Tel:(916)445-2841

COLORADO
Governor John Hickenlooper
Tel:(303)866-2471

DISTRICT OF COLUMBIA
Mayor Vincent Gray
Tel:(202)727-2980

DELAWARE
Governor Jack Markell
Tel:(302)577-3210

HAWAII
Governor Neil Abercrombie
Tel:(808)586-0034

MAINE
Governor Paul LePage
Tel:(207)287-3531

MARYLAND
Governor Marin O'Malley
Tel:(410) 974-3901

MICHIGAN
Governor Rick Snyder
Tel:(517)373-7858

MONTANA
Governor Brian Schweitzer
Tel:(406)444-3111

NEVADA
Governor Brain Sandoval
Tel:(702)687-5670

NEW JERSEY
Governor Chris Christie
Tel:(609)292-6000

NEW MEXICO
Governor Susana Martinez
Tel:(505)827-3000

OREGON
Governor John Kitzhaber
Tel:(503)378-4582

RHODE ISLAND
Governor Lincolin Chafee
Tel:(401)277-2080 ext 227

VERMONT
Governor Peter Shumlin
Tel:(802)828-3333

WASHINGTON
Governor Christine Gregorie
Tel:(360)753-6780

Americans for Safe Access

Please support ASA!

On The Web:

ASA's Mission

ASA Forums

ASA Blog

Take Action

ASA's Online Store

"Gear up" for medical cannabis activism with ASA's new T-shirts, hats, stickers, bags and more! All proceeds go to ASA advocacy

 

RI Judge Rules Medical Marijuana Growers Can Have Guns

In a case decided earlier this month, a Rhode Island superior court judge has dismissed marijuana cultivation and distribution and weapons possession charges against a registered medical marijuana patient. The state had argued that even if someone is a legal medical marijuana patient, he cannot possess a firearm. It is now deciding whether it will appeal the judge's ruling.

Medical marijuana patients don't forfeit their 2nd Amendment rights, at least in Rhode Island. (Image via Wikimedia.org
Dean Derobbio, the patient registered with the state, and his roommate and registered caregiver, Joseph Joubert, were arrested in January 2010 on charges of conspiracy to possess marijuana with the intent to sell it. Derobbio, who legally owned a 9mm hand gun found in his nightstand, was also charged with carrying a dangerous weapon while committing a crime of violence. The "crime of violence" was growing marijuana, according to prosecutors and police. That charge carries a mandatory minimum three-year prison sentence.

Under Rhode Island's 2006 medical marijuana law, a patient can grow or possess specified amounts of marijuana. The law does not mention guns, nor does it impose a limit on how many caregivers a patient can designate. Derobbio had two, Joubert and Joubert's mother.

Superior Court Judge Robert Krause noted those omissions when he threw out the charges earlier this month. "In my opinion," Krause said, "this is a poorly drafted statute, and I don't think... a defendant ought to be criminally liable for inartful draftsmanship."

He also rejected the state's contention that Derobbio could still be pursed on gun charges even if the court found he legally possessed both the pot and the pistol. The following exchange between Krause and Special Assistant Attorney General Michael McCarthy reported by the Providence Journal is illustrative:

"If I were to find that there was nothing unlawful about what these defendants had done by way of the medical-marijuana statute, and that they were within the framework of the statute, and did not exceed the amount of plants that are authorized, would you still pursue the prosecution [of the gun charge]?" Krause asked.

"With all due respect, your honor, I would," McCarthy said. He explained that he would prosecute it under a law that says you cannot legally grow marijuana while being in possession of a firearm. "And, your honor, if you are cultivating marijuana, and if you are in possession of a firearm, even though the law has stated you can grow marijuana, it is silent as to whether or not you can possess a firearm," McCarthy said.

"If you meet the requirements, if you have possession of plants that are within the legal limit under this marijuana act, and if you have a firearm at home, and you're not a convicted felon, both of these are legal, yes?" Krause asked.

"Yes," McCarthy said.

"But, nonetheless, you claim it's criminal conduct." Krause said.

"As is being intoxicated in possession of a firearm," McCarthy said.

Judge Kraus wasn't buying that argument. Nor did he agree with the state's contention that the 33 plants grown by Joubert and his mother were outside the limits of the law. The Rhode Island law limits caregivers to 24 plants, but does not limit the number of caregivers a patient may have.

"The statute doesn't make it unlawful for two caregivers to have the same patient, does it?" Krause said, adding, "What a wonderfully drafted statute we have. I don't know who drafted this thing."

It appears the state will appeal at least that portion of the decision. "Nobody can have collectively, or otherwise, more than 24 plants," said Stacey Veroni, criminal division chief in the attorney general's office. "This collective grow issue is an issue."

"It appears that the state is trying to circumvent the legislation's intent," said Derobbio's attorney Michael Campopiano. "Judge Krause is absolutely interpreting it right," he said.

Chalk one up for Rhode Island medical marijuana patients.

Providence, RI
United States

Drug War Issues

Criminal JusticeAsset Forfeiture, Collateral Sanctions (College Aid, Drug Taxes, Housing, Welfare), Court Rulings, Drug Courts, Due Process, Felony Disenfranchisement, Incarceration, Policing (2011 Drug War Killings, 2012 Drug War Killings, 2013 Drug War Killings, 2014 Drug War Killings, 2015 Drug War Killings, Arrests, Eradication, Informants, Interdiction, Lowest Priority Policies, Police Corruption, Police Raids, Profiling, Search and Seizure, SWAT/Paramilitarization, Task Forces, Undercover Work), Probation or Parole, Prosecution, Reentry/Rehabilitation, Sentencing (Alternatives to Incarceration, Clemency and Pardon, Crack/Powder Cocaine Disparity, Death Penalty, Decriminalization, Defelonization, Drug Free Zones, Mandatory Minimums, Rockefeller Drug Laws, Sentencing Guidelines)CultureArt, Celebrities, Counter-Culture, Music, Poetry/Literature, Television, TheaterDrug UseParaphernalia, ViolenceIntersecting IssuesCollateral Sanctions (College Aid, Drug Taxes, Housing, Welfare), Violence, Border, Budgets/Taxes/Economics, Business, Civil Rights, Driving, Economics, Education (College Aid), Employment, Environment, Families, Free Speech, Gun Policy, Human Rights, Immigration, Militarization, Money Laundering, Pregnancy, Privacy (Search and Seizure, Drug Testing), Race, Religion, Science, Sports, Women's IssuesMarijuana PolicyGateway Theory, Hemp, Marijuana -- Personal Use, Marijuana Industry, Medical MarijuanaMedicineMedical Marijuana, Science of Drugs, Under-treatment of PainPublic HealthAddiction, Addiction Treatment (Science of Drugs), Drug Education, Drug Prevention, Drug-Related AIDS/HIV or Hepatitis C, Harm Reduction (Methadone & Other Opiate Maintenance, Needle Exchange, Overdose Prevention, Safe Injection Sites)Source and Transit CountriesAndean Drug War, Coca, Hashish, Mexican Drug War, Opium ProductionSpecific DrugsAlcohol, Ayahuasca, Cocaine (Crack Cocaine), Ecstasy, Heroin, Ibogaine, ketamine, Khat, Marijuana (Gateway Theory, Marijuana -- Personal Use, Medical Marijuana, Hashish), Methamphetamine, New Synthetic Drugs (Synthetic Cannabinoids, Synthetic Stimulants), Nicotine, Prescription Opiates (Fentanyl, Oxycontin), Psychedelics (LSD, Mescaline, Peyote, Salvia Divinorum)YouthGrade School, Post-Secondary School, Raves, Secondary School