Court Rulings

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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

Medical Marijuana Update

Lots of action in California this past week, including more raids and more threat letters, plus action in various state legislatures and elsewhere. Let's get to it:

California

Last Wednesday, local law enforcement raided three San Bernardino dispensaries. City Attorney's office officials, and police, fire, and code enforcement officers served search warrants and issued demands that they cease and desist from allegedly unlawful activities. The dispensaries hit were Trio Holistic Center, Berdo Medical Center, and THC First Time Patients. San Bernardino authorities banned dispensaries last year. In February, they raided three other dispensaries.

Last Tuesday, the Vallejo city council approved a 45-day moratorium on new dispensary applications. A number of dispensaries already operate in Vallejo without the city's permission, although voters last year approved a 10% tax on their sales. The city quit accepting business license tax applications for dispensaries in January. City officials said they need time to sort out the confusion. Now, the city must move forward to either regulate or ban dispensaries, although the moratorium could be extended another two years.

On Wednesday, Vallejo police returned marijuana to two dispensaries raided last year. Nearly 60 pounds of medical marijuana and hundreds of dead plants were returned to Better Health Group and the LES collective. Police gave the property back after a judge dismissed the criminal cases against the two dispensaries. Police last year raided numerous Vallejo dispensaries, but have lost every criminal case they have brought, and prosecutors have dropped the charges in others.

On Tuesday, a medical marijuana regulation bill passed the Senate Public Safety Committee. Senate Bill 439 is described by its sponsor, Sen. Steinberg, as a placeholder, "a vehicle to engage stakeholders" in the process of legislating statewide regulations. Steinberg said he is in close contact with Assemblyman Tom Ammiano, who has introduced companion legislation, Assembly Bill 473, and that it could take one to two years to complete the process.

Also on Tuesday, the Senate Public Safety Committee refused to pass a drugged driving bill that could impact medical marijuana patients. The bill, Senate Bill 289, would create a zero-tolerance drugged driving offense, but the committee was skeptical. It did, however, leave the door open for the bill to be amended.

Also on Tuesday, word emerged that federal prosecutors have sent out more dispensary threat letters. They were issued by the office of US Attorney for the Northern District of California Melinda Haag and target the landlords of dispensaries in San Jose, San Francisco, and Ukiah. The letters warn landlords that the facilities are operating too close to a school or park. In addition, the letters warn landlords that they are liable for forfeiture under USC Title 21, Section 881(a) 7. Unlike some previous letters, they do not threaten immediate prosecution or set a deadline for compliance.

Colorado

Last Thursday, the Colorado Court of Appeals ruled that employers can fire medical marijuana users who fail a drug test. The ruling came in the case of a quadriplegic telephone operator for the Dish Network, who was fired after failing a drug test. He argued that he shouldn't have been fired because his actions were legal under state law, but the court held that because marijuana remains illegal under federal law, the state law he cited did not apply.

Hawaii

On Wednesday, two medical marijuana bills were approved by the state legislature. House Bill 668 transfers control of the medical marijuana program from the Department of Public Safety to the Department of Public Health, while Senate Bill 642 increases the amount of medicine a patient can possess from three to four ounces and allows patients to have up to seven plants, but also amends the law so that only a patient's primary care physician can recommend marijuana.

Idaho

On Monday, Idaho medical marijuana activists fought back after authorities seized their children. The children were taken from a Boise couple and a Boise single mom who are leading Idaho activists after a child at the school their children attended fell ill and marijuana was blamed. Police and child protective services workers went to the home while the parents were on a retreat and took the kids, as well as some marijuana and paraphernalia. One set of kids has been returned, the other two remain in foster care.

Maryland

On Wednesday, a spokeswoman for Gov. Martin O'Malley confirmed he will sign a medical marijuana bill. The formal signing is set for Thursday. The bill allows academic medical research centers to establish programs to dispense marijuana to sick patients.

New Hampshire

 

On Tuesday, Gov. Maggie Hassan said she wants home cultivation stricken from a pending medical marijuana bill. Bill supporters said they were disappointed and that patients with terminal conditions couldn't wait the 18 months to two years it could take for dispensaries to get up and running. The governor "shares the concerns of law enforcement about the state's ability to effectively regulate a home-grow option," spokesman Marc Goldberg said in a statement. Hassan voted for a medical marijuana bill in 2009 that included a home-grow option. The proposal is now being rewritten in a Senate committee.

New Mexico

On Tuesday, the state Department of Health agreed that PTSD should remain a qualifying condition for medical marijuana. The move upheld a recommendation by the Medical Cannabis Program's Medical Advisory Board, which had faced an effort to withdraw PTSD as a qualifying condition.

 

Colorado Appeals Court Rules Employers Can Fire Marijuana Users

Colorado employers can legally fire marijuana users from their jobs, the state Court of Appeals ruled Thursday in a 2-1 decision. Although the case was brought by a medical marijuana user, the ruling will have any even broader impact given that the state has now legalized marijuana for all adults.

The case was Coats v. Dish Network LLC, in which Brandon Coats, a quadriplegic telephone operator for Dish Network and registered medical marijuana patient, was fired by Dish Network after testing positive for marijuana during a drug test. Paralyzed by a car crash as a teen, Coats had been a registered patient since 2009. Dish Network cited no other reason for firing Coats other than his positive drug test result.

Coats challenged his firing, citing Colorado's Lawful Activities statute, which prohibits employers from firing workers for "engaging in any legal activity off the premises of the employer during nonworking hours." But both the trial court and now the appeals court rejected his challenge, holding that because marijuana remains illegal under federal law, the Lawful Activities statute does not apply.

"For an activity to be lawful in Colorado, it must be permitted by, and not contrary to, both state and federal law," the appeals court said.

Judge John Webb dissented, saying he could not find a case addressing whether Colorado judges must consider federal law in determining the meaning of the Colorado statute.

Coats' attorney, Michael Evans, said in a statement that the ruling will have a broad impact in the state.

"This case not only impacts Mr. Coats, but also some 127,816 medical marijuana patient-employees in Colorado who could be summarily terminated even if they are in legal compliance with Colorado state law," Evans said.

And with adult marijuana legalization now in place in the state, it is not just medical marijuana users who stand to be affected.

The ruling is expected to be appealed.

Similar rulings allowing employers to fire medical marijuana users have been upheld by courts in other states, including California, Michigan, and Montana.

Denver, CO
United States

Supreme Court Rules No Automatic Deportation for Minor Marijuana Possession

A 26-year-old Jamaican who has resided in the US since he was three should not automatically be deported for being caught with a small amount of marijuana, the US Supreme Court ruled Tuesday. The case was Moncrieffe v. Holder.

In that case, Adrien Moncrieffe was caught with 1.3 grams of marijuana when police in Georgia pulled him over for a traffic stop. He pleaded guilty to possession with intent to distribute in a plea bargain in which the state of Georgia agreed to expunge the charges after he served five years' probation.

But a federal immigration judge ruled that the plea bargain made Moncrieffe deportable as an "aggravated felon." While federal law considers possession of small amounts of weed a misdemeanor, federal officials argued that his plea was to an offense analogous to a federal felony and thus calling for automatic deportation under federal immigration law. With the lesser offense, Moncrieffe might potentially face deportation, but the government would not have to seek it and Moncrieffe could make his case before a judge if it did.

The US 5th Circuit Court of Appeals in New Orleans upheld the immigration judge's ruling, but the Supreme Court accepted the case for review last year. On Tuesday, seven justices agreed that Moncrieffe's conviction did not rise to the level of a drug trafficking offense that triggered the aggravated felony classification for deportation under the Immigration and Nationality Act (INA).

"Moncrieffe's conviction could correspond to either the CSA [Controlled Substances Act] felony or the CSA misdemeanor," Justice Sonia Sotomayor wrote for the majority. "Ambiguity on this point means that the conviction did not 'necessarily' involve facts that correspond to an offense punishable as a felony under the CSA. Under the categorical approach, then, Moncrieffe was not convicted of an aggravated felony."

Although federal prosecutors had argued that any marijuana distribution conviction (even intending to distribute one gram) is "presumptively" a felony, Sotomayor and the other six justices weren't buying that.

"That is simply incorrect, and the government's argument collapses as a result," Sotomayor wrote. "Marijuana distribution is neither a felony nor a misdemeanor until we know whether the conditions in paragraph (4) attach."

That paragraph lists exceptions to the offense of marijuana distribution that allow defendants to be considered misdemeanor "simple drug possessors."

To follow prosecutors' logic, Sotomayor argued, "would render even an undisputed misdemeanor an aggravated felony. Recognizing that its approach leads to consequences Congress could not have intended, the government hedges its argument by proposing a remedy: Non-citizens should be given an opportunity during immigration proceedings to demonstrate that their predicate marijuana distribution convictions involved only a small amount of marijuana and no remuneration, just as a federal criminal defendant could do at sentencing," she wrote.

But that approach was "entirely inconsistent with both the INA's text and the categorical approach," Sotomayor stressed. "The government cites no statutory authority for such case-specific fact finding in immigration court, and none is apparent in the INA. Indeed, the government's main categorical argument would seem to preclude this inquiry: If the government were correct that 'the fact of a marijuana-distribution conviction alone constitutes a CSA felony,' then all marijuana distribution convictions would categorically be convictions of the drug trafficking aggravated felony, mandatory deportation would follow under the statute, and there would be no room for the government's follow-on fact finding procedure. The government cannot have it both ways."

And the government's approach would lead to a litany of "absurd consequences that would flow from" immigration investigations into such offenses. "That the only cure is worse than the disease suggests the government is simply wrong," she wrote.

Only Justices Clarence Thomas and Samuel Alito dissented, with Thomas arguing that since Georgia punished Moncrieffe's offense as a felony, he should be deportable under the CSA, and Alito warning that the majority had just given a free ride to "drug traffickers in about half the states."

"In those states," Alito wrote in his dissent, "even if an alien is convicted of possessing tons of marijuana with the intent to distribute, the alien is eligible to remain in this country. Large-scale marijuana distribution is a major source of income for some of the world's most dangerous drug cartels, but the court now holds that an alien convicted of participating in such activity may petition to remain in this country."

Of course, Moncrieffe was not convicted of "large-scale marijuana trafficking" and was not a member of one of "the world's most dangerous drug cartels;" he was a guy busted with a couple of joints worth of weed. And the government may still be able to deport people in Moncrieffe's situation, but now they will have to make the case for deportation before a judge.

Washington, DC
United States

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