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Medical Marijuana Update

Oregon begins moving toward a regulated dispensary system, Massachusetts advances down the dispensary path, New Jersey's governor signs a medical marijuana bill, and much, much more. Let's get to it:

Arizona

Last Tuesday, the Cochise County Planning Commission voted to approve a medical marijuana farm. By a 5-3 vote, the commission gave the go-ahead for a company to cultivate the crop in part of a Willcox greenhouse. It is an almost eight-acre greenhouse superstructure built in the 1990s. Right now it grows mostly tomatoes and other vegetables, but Westedge LLC wants to use 85,000 square feet of the building to grow medical marijuana. Cochise County officials said if no one appeals this decision within a week, it will go through. Otherwise it will be up to the county board of supervisors to make a decision.

California

Last Tuesday, the Berkeley city council postponed approval of a fourth dispensary and a ranking system to select it. Instead, it asked the city's Medical Cannabis Commission to refine proposed regulations concerning cannabis collectives. The council wants the panel to examine limiting the size of collectives in Berkeley, changing their closing time, and requiring them to apply for a permit that would allow the city to track them. Current law allows groups of people to operate cannabis collectives in residential areas as long as the use is "incidental." In the last few years, however, at least three collectives have opened in commercial districts and operated almost like dispensaries, selling cannabis to hundreds or thousands of members. Berkeley has shut down two of those collectives, Perfect Plants Patients Group and Greenleaf, for violating city zoning ordinances. The city is trying to shutter 40 Acres on San Pablo Avenue as well.

Last Friday, a Kern County judge upheld the county's medical marijuana ordinance, but said the county has 30 days to come up with a plan to make the ordinance, Measure G, comply with state environmental laws. If the county fails to come up a review plan acceptable to the court, Measure G could be invalidated and tossed out. A group of county medical marijuana shops and patients sued Kern County after voters approved Measure G in June, 2012. The measure required medical marijuana collectives to be located only on industrial land along with a host of other restrictions. The shops had to be at least one mile away from schools, day care centers, public parks, churches or other marijuana dispensaries.

On Monday, medical marijuana and marijuana legalization advocates rallied in Rancho Cucamonga to protest an anti-marijuana conference organized by the Coalition for a Drug Free America. Members of Americans for Safe Access, Law Enforcement Against Prohibition, CANORML, and others were among the protestors, who garnered favorable press coverage.

Also on Monday, the Upland city council approved an urgency ordinance to ban medical marijuana delivery services. It also tentatively approved a permanent ordinance to ban them; the urgency ordinance is designed to implement the ban until the permanent ordinance is approved and goes into effect 30 days after approval.

On Tuesday, Fresno County supervisors gave first approval to a tougher grow ordinance. On a 5-0 vote, the supes approved the ordinance, under which those involved in marijuana grows in excess of 12 plants could be charged with a misdemeanor, which can include up to six months in a jail and a fine of up to $1,000. In addition, violations can be deemed a public nuisance, and the Sheriff's Office or other county official such as the health officer can ask the Board of Supervisors to okay an additional fine of up to $1,000 for every plant in excess of 12. The ordinance will get a final vote next month.

Also on Tuesday, Santa Cruz County supervisors gave preliminary approval to a new medical marijuana ordinance that would bar any new dispensaries from opening, limit the time of operation and location of existing dispensaries, and require outdoor grows to comply with environmental laws. The new rules prohibit dispensaries within 600 feet of schools or each other, and could ban them near parks that have playground equipment. They restrict hours and signage, and are likely to require background checks of either managers or a dispensary's board members. They also restrict home marijuana grows to 100 square feet indoors, and limits new outdoor grows to 1,000 square feet. Existing grows would have to comply with stringent environmental laws. The ordinance could still be modified before a final October 22 vote. If approved, it would go into effect in November.

Maine

On Tuesday, the State Housing Authority put off a decision on whether to revoke subsidies for medical marijuana users. The question is whether to allow medical marijuana users who receive housing vouchers from MaineHousing to use or grow marijuana in their homes. The board voted in August 2012 to terminate vouchers for medical marijuana users, but then instituted two consecutive six-month moratoriums after protests from medical marijuana advocates. The second of those moratoriums would have expired next month if the board hadn't extended it for another year on Tuesday. The authority cited lack of clear federal guidance for the delay. Of 3,800 Mainers receiving vouchers through the program, 14 are registered medical marijuana patients.

Massachusetts

On Tuesday, the Braintree town council approved a moratorium on dispensaries. It joins more than a hundred other Massachusetts communities that have moved to ban or restrict dispensaries before the state's medical marijuana regulation process even allows them to open. Braintree councilors said it was a temporary measure "to slow things down."

On Monday, the Department of Public Health okayed 158 out of 181 dispensary applicants. Fewer than two dozen were denied, with the department citing their failure to incorporate as nonprofits or a lack of financial viability. Those 158 applicants can now move on to the next phase of the selection process, which will end up with 35 dispensaries statewide.

New Jersey

Last Wednesday, a three-judge panel held a hearing on a lawsuit charging that the Christie administration had sabotaged the state's medical marijuana program with delays and missed reports. Superior Court Judge Marie Lihotz said the lawsuit presented "an interesting, novel issue," but rejected an allegation that state officials were dragging their feet intentionally as "innuendo" and said the court may not be able to consider those claims. Plaintiffs in the case asked the court to order state officials to expedite procedures, but the court made no ruling.

On Monday, Gov. Christie signed a bill that will allow children -- but only children -- to use medical marijuana edibles. The bill also removes a requirement that dispensaries provide patients with no more than three strains of medical marijuana. Christie vetoed an earlier version of the bill that would have allowed all patients to consume edibles.

Oregon

Last Friday, the committee charged with crafting rules for state-regulated dispensaries met for the first time. It includes police, prosecutors, marijuana lobbyists, lawyers, advocates and dispensary operators, and aims to finalize rules by January 31. The meeting is part of the effort to implement House Bill 3460, which was passed by the legislature this year and creates a registry for medical marijuana retailers.

Washington

Last Friday, the state Supreme Court ruled that people charged with marijuana offenses can argue a medical necessity defense even if they have not received a doctor's recommendation. The court held that people without recommendations can still argue they needed marijuana for medical reasons, but will have to show why complying with state law wasn't a viable option for them.

West Virginia

On Wednesday, an interim committee of the legislature held a hearing on medical marijuana. No word yet on how it went, but representatives of the Marijuana Policy Project and the National Conference of State Legislatures were set to testify. Medical marijuana bills have gone nowhere so far in the state legislature.

[For extensive information about the medical marijuana debate, presented in a neutral format, visit MedicalMarijuana.ProCon.org.]

Forced Drug Tests for College Students a No-No, Judge Rules

A US district court judge in Missouri ruled Friday that a technical college violated the Fourth Amendment's protections against unreasonable searches and seizures when it ordered all students to submit to mandatory, suspicionless drug tests. The judge did allow the drug testing of students in a small number of programs where school officials could make a reasonable argument that public safety was at stake.

The ruling by Judge Nanette Laughrey in Jefferson City came in Barrett v. Claycomb, a case filed by Linn State Technical College students against the college and its president, Donald Claycomb, after the college announced in 2011 it would require all incoming students to undergo drug testing.

Federal courts have traditionally held that drug testing by government entities without particularized suspicion that an individual is using drugs is unconstitutional. The federal courts have upheld only limited exceptions -- for minor school students, for certain law enforcement personnel, and for public safety -- but Linn State had argued that its policy was constitutional because some of its students were training in professions with public safety implications.

But citing the school's own admission that there had never been a drug-related accident in the 50-year history of the campus and closely reading previous federal court decisions on the public safety exception, Judge Laughery found that in only three academic programs of the 28 offered by the school was there a sufficient public safety interest that would allow suspicionless drug testing.

The judge issued a permanent injunction barring Linn State from conducting suspicionless drug tests of students except in those three programs. She also ordered the school to destroy all existing urine samples from students who are not in those programs and to refund the $50 drug test cost to all those students.

The students in the case were represented by the ACLU of Eastern Missouri, which challenged the drug testing policy in a 2011 lawsuit.

"Like most Americans, Missourians are tired of the War on Drugs and policies that assume that everyone is guilty of illegal drug use," said ACLU of Eastern Missouri executive director Jeffrey Mittman. "The court recognized that illusory safety concerns can be used 'to mask unconstitutional purposes.'"

"Forcing students to provide urine samples violates their constitutional rights," said Tony Rothert, legal director of the ACLU-EM. "To make matters worse, students had to pay the college $50 each for the tests that violated their privacy."

Jefferson City, MO
United States

Medical Marijuana Update

Comments in the Senate Judiciary Committee provided hope that medical marijuana's banking problems may be ending, California communities continue to tussle over the issue, and a New Jersey bill is signed into law. There's more, too. Let's get to it:

National

On Tuesday, a hint came that banking issues for dispensaries may soon be resolved. Deputy Attorney General James Cole told the Senate Judiciary Committee the Justice and Treasury Departments and banking regulators were working "to deal with this in accordance with the laws on the books." Cole's comments came after several senators prodded him on the issue. [Ed: If Treasury is involved, could that mean they'll deal with the IRS dispensary audit issue too? That would be huge -- arguably the audits are the biggest threat facing the medical marijuana industry, and they could just as easily hit the legalized marijuana industry too. - DB]

California

Last Thursday, the Napa Planning Commission canceled a meeting to begin the process of repealing the city's medical marijuana ordinance. The city said it needed more time to consider the implications of a federal memorandum regarding marijuana enforcement that was issued last week by the US Justice Department. Late last month, the city council had voted to effectively ban dispensaries, but now wants to rethink. The council had opted to repeal its existing ordinance that would have allowed a dispensary. Repeal of the ordinance would effectively ban dispensaries in the city because current zoning does not permit such activity.

Last Friday, a statewide dispensary regulation bill rose from the dead. The bill, AB 604, sponsored by Assemblyman Tom Ammiano (D-San Francisco) was killed earlier in the year, but Ammiano reintroduced it using the "gut and amend" process to dump it into an existing measure. The effort took on added urgency after the federal government late last month unveiled its latest approach to medical marijuana and legal marijuana states. A backup bill, SB 69, was introduced the following day. Only one of them needs to pass. The legislative session ends at the end of this week.

On Monday, a judge blocked a request for an injunction to force Long Beach to count all signatures submitted by organizers of an initiative to overturn the city's dispensary ban. The Long Beach Citizens' and Patients' Rights political action committee filed petitions with 43,159 signatures in February to place an initiative on a special election ballot similar to the medical marijuana regulations the City Council passed in 2010. However, City Clerk Larry Herrera conducted a random sample of 3 percent of the signatures and found only 31,294 signatures were valid, short of the 15 percent, or 33,543 registered voters required for a special election. The political action committee then sued. But federal District Court Judge Audrey Collins ruled that Herrera "acted reasonably rather than arbitrarily or fraudulently."

Also on Monday, the El Dorado County planning commission called for a dispensary regulation ordinance. The county's moratorium on dispensaries is set to expire at the end of October. The commission objected to a proposed ordinance from supervisors that would ban all dispensaries. Because the urgency ordinance expires Oct. 30, the board needs to adopt an ordinance at its Sept. 24 meeting.

On Tuesday, the Long Beach city council agreed to draft a new dispensary ordinance. In an 8-0 vote, council members directed the city attorney to draft an ordinance that would once again allow a limited number of collectives to operate within city limits. The council debate came a day after a group seeking to overturn the city's medical marijuana ban was dealt a blow in court. A federal judge ruled officials would not have to place a medical marijuana initiative on the city's April ballot, or do a full count of more than 43,000 signatures seeking a special election.

Also on Tuesday, Merced County supervisors approved an ordinance to limit medical marijuana grows. The ordinance limits medical marijuana cultivation to 12 plants per parcel of land, regardless of the property's size, whether it's an indoor or outdoor garden, or the maturity of the plants. Despite strong support from law enforcement and elected officials, a few medical pot users on Tuesday said the ordinance unfairly groups them with people who grow marijuana for profit. The ordinance would carry stiffer civil and criminal penalties, including abatement and cleanup at the owner's expense, an administrative procedure resulting in penalties or a misdemeanor charge resulting in six months in jail and-or a $1,000 fine.

Illinois

Last Thursday, Park City imposed a 120-day moratorium on dispensaries. Alderman said they wanted to give the city time to decide where proper locations for dispensaries or cultivation facilities might be.

Michigan

Last Wednesday, medical marijuana supporters rallied in Lansing, saying police are violating state law by punishing medical marijuana users. The rally featured live entertainment and showcased people who said they had been victimized by police.

Last Thursday, the Michigan Marihuana Review Panel heard testimony on adding PTSD to the list of debilitating conditions for which medical marijuana can be used. The review is the result of a citizen petition. The panel last month voted 7-2 to approve PTSD, but still has to make a final recommendation later this year.

New Jersey

On Monday, changes to the state's medical marijuana rules passed the Assembly. The changes were demanded by Gov. Chris Christie (R) when he issued a conditional veto on a bill that would have allowed qualified children to use medical marijuana. Christie demanded that the bill be revised to require that only minors can use "edibles" and that they would have to be approved by both a psychiatrist and a physician. The bill also removes the limit on the marijuana strains that may be cultivated and requires parental permission, according to the release.

On Tuesday, Gov. Christie signed the bill.

Pennsylvania

On Monday, the Pennsylvania State Nurses Association released a new position statement on medical marijuana. "It is the position of PSNA that medical marijuana is worthy of further rigorous clinical testing," the statement said. "In order to weigh the true risks and benefits of medical marijuana, there must be a discussion and openness at the federal level regarding the conversion of marijuana from a Schedule I to Schedule II drug classification. Schedule II classification would allow testing of consistent grade medical marijuana in a randomized controlled fashion in order to ascertain the drug's risk/benefit profile for a multitude of illnesses and symptoms. In addition, PSNA supports protection from prosecution for patients who currently use medicinal marijuana or for providers suggesting medicinal marijuana for relief of intractable conditions or symptoms. Lastly, PSNA shares concerns about the delivery system of smoking medication and, if this drug is approved, encourages the development of a more efficient drug delivery system." A bill to legalize medical marijuana in the state has been pending since 2009.

Washington

On Monday, officials suggested the state's dispensaries are criminal enterprises. The medical marijuana law was never intended to allow businesses to sell marijuana to patients, a task force of state officials told a legislative committee. The task force could come up with recommendations for shutting down dispensaries by January. Alternatively, the legislature could act to regulate dispensaries.

[For extensive information about the medical marijuana debate, presented in a neutral format, visit MedicalMarijuana.ProCon.org.]

DEA Must Pay $3 Million in 2010 Killing of LA Teen

A federal judge Tuesday awarded $3 million to the family of an 18-year-old Los Angeles honors student who was gunned down by undercover DEA agents in a parking garage in 2010. But the judge also ruled the officers were not negligent in their actions.

Zachary Champommier (justiceforazac.blogspot.com)
Zachary Champommier died when he drove into a Studio City shopping center parking lot to meet a friend. Also in the parking lot were a group of undercover officers, including DEA agents and LA County sheriff's deputies and LAPD officers who had been deputized by the DEA.

The cops were discussing a search warrant they had just served when they observed Champommier's friend walking in the parking garage. Suspecting the friend was breaking into cars, they detained him. When Champommier drove up, he saw his friend being accosted by people he didn't know and attempted to drive away from possible trouble.

Officers claimed that Champommier's vehicle struck a deputy as he attempted to leave the scene. Officers opened fire, killing the 18-year-old honor student and "band geek."

Both the DEA and the LA County Sheriff's Department said the shooting was justifiable because Champommier had tried to run down an officer.

"The nature of [Champommier's] aggressive actions, actually hitting the deputy -- that is not someone who is without some degree of fault," Sheriff Lee Baca said shortly after the shooting.

Champommier's mother, Carol, filed a wrongful death lawsuit, charging that federal and local drug enforcement officers were reckless in shooting at her son, who she claimed posed no reasonable threat.

US District Court Judge Michael Fitzgerald ruled that the DEA agents did have reason to believe they were in danger, but acted recklessly in shooting at Champommier's vehicle as it passed them because at that point they were no longer in danger.

Los Angeles, CA
United States

Federal Judge Finds NYPD's Stop-and-Frisk Practices Unconstitutional

A federal judge Monday found that the New York Police Department's stop-and-frisk search tactics violated the constitutional rights of racial minorities in the city and ordered a federal monitor to oversee broad reforms in the department. Federal District Court Judge Shira Scheindlin did not find stop-and-frisks unconstitutional in themselves, but ruled that NYPD's policy on them amounted to "indirect racial profiling."

NYPD practices stop-and-frisk techniques (nyc.gov/nypd)
The ruling came in Floyd v. the City of New York, in which plaintiffs represented by the New York Civil Liberties Union and the Center for Constitutional Rights challenged the massive program, which has resulted in hundreds of thousands of street searches each year (4.43 million between 2004 and 2012, according to trial evidence), the vast majority aimed at young black and brown people, and the vast majority of which resulted in no findings of drugs or weapons.

The stop-and-frisk program did, however, contribute to the arrest and temporary jailing of tens of thousands of New Yorkers caught with small amounts of marijuana. Possession of small amounts was decriminalized in New York in 1978, but the NYPD effectively invalidated decriminalization by intimidating people into removing baggies of weed from their pockets and then charging them with public possession, a misdemeanor. Such tactics helped make New York City the world leader in marijuana arrests.

In her ruling Monday, Judge Scheindlin argued that the city's stop-and-frisk policies showed disregard for both the Fourth Amendment's protection against unreasonable searches and seizures and the 14th Amendment's equal protection clause. She said the evidence showed that police systematically stopped innocent people in the street without any objective reason to suspect them of wrongdoing.

Scheindlin didn't limit her criticism to the actions of police officers, but also held high NYPD and city officials responsible for what she called a "checkpoint-style" policing tactic.

"I also conclude that the city’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner," she wrote. "Blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites," she noted.

While Scheindlin wrote that she was "not ordering an end to practice" of stop-and-frisk searches, she said that the racially disparate manner in which searches were carried out demanded reforms that "protect the rights and liberties of all New Yorkers, while still providing much needed police protection."

In addition to the outside monitor, Scheindlin ordered other remedies, including a pilot program in which officers in five precincts will be equipped with body-worn cameras to record street encounters and a "joint remedial process" where the public will be invited to provide input on how to reform stop-and-frisk. 

While Scheindlin noted NYPD's expressed purpose in the widespread searches was to reduce the prevalence of guns on the street, she said police went too far in their zeal, stretching the bounds of the Constitution as they did so.

 "The outline of a commonly carried object such as a wallet or cellphone does not justify a stop or frisk, nor does feeling such an object during a frisk justify a search,” she ruled.

And, after hearing more than two months of sometimes wrenching testimony from stop-and-frisk victims, Scheindlin deplored what she called "the human toll of unconstitutional stops," calling them "a demeaning and humiliating experience."

"No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life," she wrote. And it wasn't just fear of being stopped. Racial minorities in the city "were more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband."

The city and the NYPD had argued that the targeting of young people of color was justified because they were more likely to commit crimes, but Scheindlin wasn't buying, especially since the searches usually came up empty.

"This might be a valid comparison if the people stopped were criminals," she wrote. "But to the contrary, nearly 90% of the people stopped are released without the officer finding any basis for a summons or arrest." The city had a "policy of targeting expressly identified racial groups for stops in general," she noted. "Targeting young black and Hispanic men for stops based on the alleged criminal conduct of other young black or Hispanic men violates bedrock principles of equality," she ruled.

The ruling didn't sit well with Mayor Michael Bloomberg, who has defended and championed stop-and-frisk as an effective crime fighting measure. In remarks after the verdict, Bloomberg lashed out at the judge and the ruling.

"This is a very dangerous decision made by a judge who I don’t think understands how policing works," Bloomberg said."The judge clearly telegraphed her intentions, and she conveyed a disturbing disregard for the intentions of our police officers, who form the most diverse police department in the nation. We didn’t believe we got a fair trial," he complained.

“Our crime strategies and tools -- including stop, question, frisk -- have made New York the safest big city in America," Bloomberg said. "We go to where the reports of crime are," he added. "Those, unfortunately, happen to be poor neighborhoods, or minority neighborhoods.... There are always people that are afraid of police ... some of them come from cultures where police are the enemy. Here, the police department are our friends."

And the police know best, he added. "The public are not experts at policing," Bloomberg said. "Personally, I would rather have [Police Commissioner] Ray Kelly decide how to keep my family safe, rather than having somebody on the street who says, 'Oh, I don’t like this.'"

But the Center for Constitutional Rights suggested that the mayor should grow up and do what's right.

"The NYPD is finally being held to account for its longstanding illegal and discriminatory policing practices," the group said in a statement Monday. "The City must now stop denying the problem and partner with the community to create a police department that protects the safety and respects the rights of all New Yorkers."

New York, NY
United States

CA Medical Marijuana Dispensary Numbers Shrink in Two-Pronged War of Attrition [FEATURE]

California medical marijuana dispensaries -- and their patients -- are under a sustained, two-pronged attack, and that is having a dramatic impact on patient access across the state. Under pressure from the federal government on one hand and newly-emboldened local officials on the other, dispensary numbers are shrinking and ever larger swathes of the state that legalized medical marijuana nearly 17 years ago are without anywhere to get medical marijuana.

Anyone who is following the situation in the Golden State at all closely has seen a numbing litany of reports of dispensaries forced out of business, including from some of the most venerable, respected, and law-abiding operations in the state. What had been the occasional raid or prosecution by the DEA or federal prosecutors during the early years of the Obama administration has turned into a heightened onslaught since the issuance of the notorious Cole memo, written by Assistant Attorney General James Cole, two years ago next week and the announcement by California's four US Attorneys that fall that they were declaring open season on dispensaries.

And while recalcitrant city and county law enforcement and elected officials had managed to make access to medical marijuana a patchwork affair across the state through moratoria and bans, pressure from local officials has only escalated since the state Supreme Court's decision in City of Riverside v. Inland Empire Patients Health and Wellness Center early last month. In that case, the court ruled unanimously that localities could indeed use their zoning powers to ban dispensaries, not just regulate them. Since that ruling, localities that had hesitated to impose or enforce existing bans have responded with alacrity.

Reading the writing on the wall, Inland Empire closed its doors the day after the ruling. In other places, officials weren't waiting for dispensaries to shut down -- they were ordering them to. In May, Stockton took its first steps toward a dispensary ban, San Bernardino bragged that it had shut down 18 dispensaries and was working to close the remaining 15, Palm Springs was working to shut down five, a Thousand Palms dispensary closed its doors with the owner saying he didn't want Riverside County deputies to do it for him, Garden Grove ordered all 62 dispensaries there to shut down or face prosecution (and reported days later that they had), Los Angeles voted to shrink its number of dispensaries from 500 or more to 135, and Anaheim ordered its last 11 dispensaries (down from 143 in 2007) to close.

The big chill continued this month, with Bakersfield moving to ban dispensaries, Riverside County threatening to arrest the owner of one of its three remaining dispensaries (down from 77 in 2009) until he closed his doors, and Santa Ana reporting it had shut down 42 dispensaries (bringing the total closed there to 109) and was siccing the DEA on the remaining 17.

"We think the Inland Empire decision just maintains the status quo -- more than 200 local governments had banned distribution outright in their jurisdictions -- but now, you're seeing local government wielding a bigger stick to shut down dispensaries operating in defiance of existing bans," said Kris Hermes, communications director for Americans for Safe Access (ASA)."Anaheim, San Bernardino, Long Beach, Riverside, mostly in Southern California, where dispensaries were flouting those bans, they are now being forced to shut down."

"Cities that weren't moving forward are now," said Lanny Swerdlow, founder of Inland Empire and member of the Patient Advocacy Network. "A number of cities in Riverside have been closing collectives real fast, with San Bernardino being the most aggressive at the present time. Palm Springs is the only city in the Inland Empire that actually has zoning for collectives, and they have three operating there. The county is moving more slowly -- most collectives have not even been served notices yet -- but it's just a matter of time," he predicted.

Steve DeAngelo and his Harborside Health Center are still open for business, but under federal assault (ssdp.org)
Meanwhile, according to ASA, federal prosecutors have sent out more than 600 "threat letters" since their offensive began, including 103 sent to Los Angeles dispensaries earlier this month. The letters warn either dispensary operators or landlords or both with asset forfeiture and/or criminal prosecution, with the threat of lengthy federal prison sentences hanging over their heads. Not surprisingly, they have been quite effective.

"Before the 103 letters sent out this month, we estimated that about 500 letters had been sent out and about as many closures had occurred as a result of the US Attorneys' efforts to threaten dispensary operators and landlords, said Hermes. "With the combined momentum of the federal attacks and the state Supreme Court decision, I think we've seen more than 700 dispensaries shut down over the past couple of years."

Some of the iconic operations that helped define the dispensary movement are gone, such as the Marin Alliance for Medical Marijuana, scared out of business by federal threats, or Richard Lee's Coffee Shop Blue Sky, shuttered by DEA raiders. Others like San Francisco's Shambala are under attack, while it seems that only the biggest players, such as the Berkeley Patients Group and Harborside Health Care Centers in Oakland and San Jose, have the wherewithal to fight the feds in court. Those latter dispensaries are both contesting federal asset forfeiture actions right now.

Sometimes it's the federal government; sometimes it is recalcitrant local officials. Sometimes, the two work hand in hand.

"The city of Riverside sent letters to the Justice Department requesting they come in and close collectives down, and they've gone to a couple in San Bernardino and closed them down, too," said Swerdlow.

Many dispensaries remain open for business -- ASA's Hermes estimated their number at a thousand or more -- some because local authorities have embraced them instead of trying to run them out on a rail, others because the US Attorneys simply don't have the resources to devote all their time to shutting them down. But the unquestioned reduction in dispensaries numbers, perhaps a decline of as much as 40% over the past couple of years, means that patients are having a more difficult time getting access to their medicine.

"We've been hearing from patients about access problems," said Ellen Komp, deputy director for California NORML, who added that it's not just dispensaries. "More and more places are passing cultivation ordinances, people are having their gardens torn up or being visited by code enforcement. We're reeling from it," she said.

"Patients should not have to drive hundreds of miles to get their medicine, and the tragedy of it is that there are still dozens of localities that have regulatory ordinances that are functioning quite well," said Hermes. "Those facilities are not going away unless they are shut down by the federal government, which has usually stayed away from those places. There is a community of dispensaries across the state, but the access is haphazard."

And there are broad areas of the state with no effective access.

Sorry, Riverside patients. This menu is now null and void. (norml.org)
"It is unacceptable that dispensaries are located only where local governments are tolerant enough to allow them," said Hermes. "The entire county of San Diego has been rid of dispensaries because of intolerance at the local and federal level. The entire Central Valley is virtually devoid of dispensaries, so is almost all the San Francisco peninsula from San Mateo down. Sacramento County is devoid of dispensaries thanks to the federal crackdown."

"What's going on now is absolutely horrid," said Swerdlow. "The only people benefiting from this are the criminals and the police. Patients are having to drive hundreds of miles to cities with collectives, or get their medicine the old-fashioned way, on the black market."

To change the situation is going to require battling at the state, local, and federal level. One immediate response has been an explosion of medical marijuana delivery services, but one immediate reaction has been to move to ban them, too, as Riverside County is considering.

"We've been getting lots of inquiries about starting delivery services," said CANORML's Komp.

Another, ongoing, response is to attempt to pass statewide legislation to regulate dispensaries. That effort in Sacramento is dead for this year, but could be revived next year.

Another possible response is a statewide initiative that would regulate and emphatically legalize dispensaries, but no one is ready to go on the record about that yet.

Ultimately, it's about getting the federal government off California's back. While bills have been filed in Congress, no one is holding their breath on that score. And the Obama administration appears content to maintain its status quo war of attrition.

If the California dispensary industry wants to survive and thrive, it might want to look in the mirror -- part of the problem for California dispensaries, said Swerdlow, was the industry's failure to organize effectively.

"If the DEA sent out letters to gun stores saying they were going to shut them down, there would be a couple of thousand people demonstrating," he argued. "We've done a piss poor job of doing the things that need to be done to protect our rights. Money-grubbing collective owners never formed any useful or meaningful trade associations to protect their rights. Those jerks got what was coming to them," he said bitterly.

If dispensary operators were short-sighted, Swerdlow said, patients have not been much better, despite the efforts of groups like ASA and CANORML to organize them.

"Most patients don't do anything," he said. "They just want to get the marijuana."

Protecting patients and collectives requires effective political action at the local level, Swerdlow said. He has pioneered -- for the medical marijuana movement, at least -- the creation of groups within the Democratic Party to press the party at the local level, known as Brownie Mary Clubs.

"We were the first medical marijuana affinity group ever chartered here, and we've made progress here. We're working for political candidates, and I was a delegate to the state Democratic convention. That's the kind of thing that can make a difference," he said.

But medical marijuana advocates need to understand that this isn't everybody's issue, even if others are sympathetic.

"Everyone is sympathetic, most Democrats get it, at least all the ones I meet," he explained, "but this isn't their issue. They're about health care or the environment or schools. They will support us, but we have to be there to get that support."

There is work to be done to protect patient access to medical marijuana in California. There are various options. It is up to medical marijuana patients and dispensary operators, as well as those ancillary businesses profiting from them, to more effectively take up the cudgel.

But it is ultimately a fight for federal recognition of medical marijuana, or at least, of states' rights to experiment with marijuana policy. That's not just up to California patients and dispensary operators, but all of us.

[For extensive information about the medical marijuana debate, presented in a neutral format, visit MedicalMarijuana.ProCon.org.]

CA
United States

Juries Must Find Facts on Mandatory Minimum Sentences, Supreme Court Rules

The US Supreme Court Monday dealt a blow to mandatory minimum sentencing, ruling that any facts used to trigger a mandatory minimum sentence are "elements" of the crime and must be proven by a jury, not left to a judge. The 5-4 ruling came in Alleyne v. United States.

Until Monday's ruling, judges had been able to find certain facts that would trigger mandatory minimum sentences, such as quantities of drugs involved in an offense, based on a "preponderance of evidence" in post-conviction sentencing hearings. Now, those facts will have to established by juries in the course of the trial using the higher standard of proof "beyond a reasonable doubt."

The case is the latest in a line of cases that began with the groundbreaking 2000 Supreme Court decision in Apprendi v. New Jersey, which held that any fact that increases the range of punishments is an "element" of the crime and must be presented to a jury and proved beyond reasonable doubt.

Sentencing reform advocates were pleased by the ruling.

"Mandatory minimums for drug offenders will lessen, but it's difficult to say to what extent," said Marc Mauer, executive director of the Sentencing Project, which opposes mandatory minimum sentences. "It's also likely that this will have beneficial effects in reducing racial disparity, because so many mandatory minimums are imposed for drug offenses, and because African-Americans in particular are on the receiving end of those penalties."

"No defendant should have to face a mandatory minimum sentence because of facts that are not considered -- or worse, considered and rejected -- by a jury," said Mary Price, vice president and general counsel for Families Against Mandatory Minimums (FAMM), which submitted a friend of the court brief in the case. "As Justice Thomas noted in Monday's opinion, 'mandatory minimums heighten the loss of liberty.' Today, those who face mandatory minimums do so with the Constitution more firmly at their backs."

Drug offenders are those most likely to be hit with mandatory minimum sentences.

Washington, DC
United States

Iowa Federal Judge Criticizes Harsh Methamphetamine Sentences

A Sioux City-based US district court judge has criticized harsh tough methamphetamine sentencing guidelines, writing in a recent opinion that he considers them "fundamentally flawed," not based on empirical evidence, and too harsh for low-level offenders.

http://stopthedrugwar.org/files/judge-mark-bennett.jpg
Judge Mark Bennett (iand.uscourts.gov)
US District Judge Mark Bennett of the Northern District of Iowa cut the sentence of a convicted Sioux City methamphetamine dealer from nearly 16 years to just more than six years, saying in his 44-page ruling that he has a "fundamental policy disagreement" with the meth portion of the federal sentencing guidelines.

"The methamphetamine guidelines are fundamentally flawed because they fail to consider additional factors beyond quantity," Bennett wrote in his Friday ruling in US v. Willie Hayes. "The system is too severe in the indiscriminate way it treats offenders… Since the methamphetamine guidelines are fundamentally flawed, I find that they fail to promote the purposes of sentencing" outlined in federal law.

Bennett has been a long-time critic of federal mandatory minimum sentencing, and in his ruling, he argued that meth sentencing guidelines seemed more based on politics than science and lacked the depth of other portions of the guidelines. Meth dealers are getting much harsher sentences than people convicted of selling heroin or cocaine, he noted.

Iowa defense attorneys consulted by the Des Moines Register said Bennett's ruling was "a very big deal."

"It is a very big deal, and it's also something that's been coming for awhile," said Des Moines defense attorney Angela Campbell. "And he's right. The guidelines are so high, you can have a runner or a very low-level pseudoephedrine (purchaser) who gets life very easily… If you're buying pseudoephedrine for a large-scale drug operation, you don't get hit just on what you buy, you’re responsible for the same thing as the entire conspiracy."

"He's not a lone voice in the wilderness," said Iowa defense attorney F. Montgomery Brown, who added that defense lawyers need to cite Bennett's opinion in meth cases. "It's an argument that defense lawyers in both the Northern and Southern districts of Iowa need to make," Brown said. "It's malpractice not to."

At least two other federal judges, Joseph Bataillon in Nebraska and John Gleeson in New York have issued similar criticisms of meth guidelines. Bennett's ruling drew on their reasoning.

Bennett, for his part, said reducing meth guideline sentences by a third was "a good starting point and a reasonable way to express my policy disagreement." But, he added, he "will reserve the ability to adjust the figure upwards and downwards as I weigh" other "important factors the guidelines do not contemplate."

Prosecutors could appeal Bennett's ruling in the Yates case. If they do, that could open the door to a decision by the 8th US Circuit Court of Appeals in St. Louis, which in turn could open the door to a US Supreme Court review of sentencing procedure in the world of now-advisory guidelines, or even of the fairness of meth sentences.

Sioux City, IA
United States

Federal Appeals Court Panel Extends Crack Sentencing Retroactivity

In a Friday decision, a three-judge panel of the US 6th Circuit Court of Appeals in Cincinnati held that the provisions of the 2010 Fair Sentencing Act that reduced the sentencing disparity between crack and powder cocaine offenses should apply to people convicted even before the law was passed. If upheld, the ruling could reduce the sentences of thousands of inmates, mostly black, who were sentenced under the draconian old laws.

The case was US v. Cornelius and Jarreous Blewitt, in which the Blewitt cousins were convicted in 2005 of federal crack cocaine charges and sentenced to mandatory minimum prison sentences. The Blewitts appealed their sentences, citing the Fair Sentencing Act's impact on crack cocaine sentencing, and seeking retroactive sentencing in line with the act.

Even though the Fair Sentencing Act had reduced the 100:1 ratio between crack and powder cocaine for sentencing purposes to 18:1, "thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress," the court noted.

"In this case, we hold that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment," the court wrote, noting that the Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination.

The US Supreme Court had already approved sentencing retroactivity for crack offenders who were charged before the Fair Sentencing Act went into effect but sentenced after it in Dorsey v. US, but this decision from the 6th Circuit dramatically expands the impact of the Fair Sentencing Act's sentencing reductions by applying it to all federal crack cocaine offenders.

[Ed: Whether the ruling will survive the scrutiny of the 6th Circuit en banc or the US Supreme Court, if it gets that far, remains to be seen.]

Cincinnati, OH
United States

California Supreme Court Rules Localities Can Ban Medical Marijuana Dispensaries [FEATURE]

In a ruling that will leave California's patchwork approach to medical marijuana dispensary regulation in place, the state Supreme Court ruled Monday that local governments can ban dispensaries from operating within their jurisdictions. For patients, that means access to medical marijuana at dispensaries will depend on the political currents in their city or county.

The decision likely means that cities and counties that had been holding off on banning dispensaries will now take steps to do so. It will also increase pressure on the state legislature to come up with a means of statewide medical marijuana regulation, something it is working on right now.

The case was City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., in which Inland Empire sued the city after Riverside using its zoning power to declare that dispensaries were nuisances and ordered them shut down. Inland Empire went to court to block the city from forcing it to close.

The decision was eagerly -- and anxiously -- awaited by all sides. Cases on local bans had been percolating through the state court system for several years, with state appeals courts splitting on the issue. An appeals court had earlier sided with the city of Riverside, but a trial court last summer held that Riverside County could not ban dispensaries, and an appeals court in Southern California had struck down Los Angeles County's ban on dispensaries.

The move by the city of Riverside was part of a broader counter-offensive against the proliferation of dispensaries after the Obama administration signaled in 2009 that it would take a largely hands-off approach. According to the medical marijuana defense group Americans for Safe Access, more than 200 cities or counties in the state have since moved to ban dispensaries. That move toward local bans has since slowed, in part because of uncertainty over their legality and in part because the federal offensive since the Obama administration shifted gears in the fall of 2011 has driven hundreds of dispensaries out of business.

Patient and industry advocates had argued that allowing localities to ban dispensaries ran counter to the intent of the state's voter-approved medical marijuana law. The law called for making medical marijuana accessible to people with doctors' recommendations for its use. But the state's high court sided with the localities.

"The issue in this case is whether California's medical marijuana statutes preempt a local ban on facilities that distribute medical marijuana. We conclude they do not," wrote Justice Marvin Baxter for a unanimous court. "The CUA and the MMP [state medical marijuana laws] do not expressly or impliedly preempt Riverside's zoning provisions declaring a medical marijuana dispensary, as therein defined, to be a prohibited use, and a public nuisance, anywhere within the city limits."

"While the California Supreme Court ruling ignores the needs of thousands of patients across the state, it simply maintains the status quo," said Joe Elford, chief counsel with Americans for Safe Access, which filed an amicus 'friend of the court' brief in the case. "Notably, the high court deferred to the state legislature to establish a clearer regulatory system for the distribution of medical marijuana, which advocates and state officials are currently working on."

"There is nothing surprising about this; it affirms the status quo," said Dale Gieringer, longtime head of California NORML. "I've been following the court cases and reading the state constitution, and it seems pretty clear that local governments have broad authority under California law."

"Today's decision allowing localities to ban will likely lead to reduced patient access in California unless the state finally steps up to provide regulatory oversight and guidance," said Tamar Todd, senior staff attorney for the Drug Policy Alliance. "The good news though is that this problem is fixable. It is time for the state legislature to enact state-wide medical marijuana oversight and regulation that both protects patient access and eases the burden on localities to deal with this issue on their own. Localities will stop enacting bans once the state has stepped up and assumed its responsibility to regulate."

"We're hoping that we can fix this by having some sort of state regulation system where people have access wherever they live in the state, if not by local dispensaries, then at least by some sort of delivery service," Gieringer said. "I think they're trying very hard to do something this year. Remember, last year, the Assembly passed a regulation bill and the Senate came very close, and now we have the leader of the state Senate supporting the same concept, so I think the prospects are pretty good for action."

The statewide medical marijuana regulation bills this year are Assembly Bill 473, sponsored by Assemblyman Tom Ammiano (D-San Francisco), and Senate Bill 439, sponsored by Senate President Pro Tem Darrell Steinberg (D-Sacramento). Both bills have passed their first committee votes and are supported by a broad coalition of patients, dispensaries, and law enforcement groups.

But until and unless statewide regulation is passed in Sacramento, the battle over patient access to dispensaries is now going to be fought in city council chambers and county supervisor meeting rooms in cities and counties across the state. That is going to mean differential access to medical marijuana depending on the political complexion of the localities where patients reside.

San Francisco, CA
United States

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