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Medical Marijuana Update

The agonizingly slow pace of implementing medical marijuana laws is causing problems in several states, while in California, the never-ending battles continue. Let's get to it:

Arizona

Last Thursday, dispensary operators asked lawmakers to crack down on compassion clubs, unregulated businesses that seek a "fee" from patients who seek to obtain medical marijuana. There are no provisions for the clubs in the Arizona Medical Marijuana Act, but they have popped up statewide as patients waited for the opening of dispensaries, which were delayed because of prolonged legal battles between medical marijuana advocates and recalcitrant state and county officials. At a news conference outside the State Capitol, dispensary owners and medical marijuana patients joined with advocates to ask that police, prosecutors and legislators target the unregulated clubs so patients receive their medication in a controlled and secure environment.

Last Friday, Maricopa County appealed to the state Supreme Court to decide whether federal drug laws preempt the state's medical marijuana law. The move comes after a Maricopa County Superior Court judge ruled last month that federal drug laws don't stand in the way of public officials implementing Arizona's law.

On Tuesday, Tempe police raided two compassion clubs, arresting the owner. The cops hit Top Shelf Hydro College after purchasing "large amounts" of marijuana there. The name of the other club wasn't mentioned. The clubs are not permitted under state law, but have sprung up as advocates became frustrated waiting for dispensaries to open. Arizona voters approved medical marijuana in November 2010.

California

Last Thursday, US Attorney for Northern California Melinda Haag canceled a public appearance after hearing that she would be met by demonstrators. She canceled her appearance at Golden Gate University "at the last minute" after medical marijuana supporters announced plans to picket her talk. Three days later, at the California NORML conference, Rep. Tom Ammiano (D-San Francisco) took aim at the unpopular prosecutor, saying "I'm sorry to hear a house fell on her sister," a not-so-veiled reference to the Wicked Witch of the West in The Wizard of Oz.

On Monday, LA medical marijuana activists said they would support a city council dispensary initiative instead of moving forward with their own similar one. Representatives for Americans for Safe Access, the United Food and Commercial Workers Union and the Greater Los Angeles Collectives Alliance announced that they plan to campaign on behalf of the city’s proposal, which the city council is expected to vote this week to place on the ballot. That measure would only allow shops that opened before a 2007 moratorium to operate. Another initiative, also going to the voters, would allow most of the 500 or so currently existing dispensaries to stay open.

On Tuesday, Butte County released draft cultivation rules. The new draft ordinance includes a six mature plant limit on county parcels between .4 and 1.5 acres and an 18 mature plant limit on parcels between 1.5 and 3 acres, among other things. A public hearing is set for February 12.

Also on Tuesday, the San Diego city council voted not to drop pending dispensary cases as Mayor Bob Filner ordered earlier this month, but will instead maintain the status quo until he introduces a new ordinance to regulate them within 30 days. City officials said a zoning ordinance similar to one adopted by the council in 2011 would be brought up for discussion. But that measure triggered a successful petition drive to repeal it.

Massachusetts

Last Wednesday, the Malden city council approved an ordinance restricting the location of medical marijuana businesses. They cannot operate in commercial or residential areas, just industrial ones.

Also last Wednesday, the Peabody city council voted to ban dispensaries. The unanimous vote came after Mayor Ted Bettencourt worried aloud that the dispensaries would send the wrong message to Peabody youth. It becomes the eighth town in the state to ban dispensaries.

Michigan

On Wednesday, the state appeals court ruled that patients can give small amounts of marijuana to other patients without breaking the law. The appeals court agreed with a Barry County judge who had dismissed charges against Tony Green after he provided less than 2 ½ ounces of medical marijuana to Al Thornton in November 2011. Both were qualified patients. The appeals court ruled in 2011 that sales are illegal; that case is pending before the state Supreme Court.

New Jersey

Last Thursday, a Superior Court judge refused to appoint a monitor to supervise the state's stalled medical marijuana program, instead sending the case to the Appellate Division. Two patients had sued the state Department of Health last year, saying they were denied medication because the department took nearly three years to get the program under way. Their lawyers sought a monitor and court orders compelling corrective action. Now they will have to seek results from the appellate court.

Washington

Last Thursday, the Longview city council passed zoning restrictions on collective gardens. The measure passed by the council restricts them to the Mint Farm Industrial Park and an area along Industrial Way. The city has a moratorium on the gardens, but it expires in March, and without the zoning restrictions, people would have been able to plant gardens anywhere after the moratorium expired.

DC Appeals Court Denies Marijuana Rescheduling [FEATURE]

In a ruling Tuesday, the Court of Appeals for the DC Circuit denied a petition seeking to reschedule marijuana. The court held that while petitioners had presented some evidence of marijuana's medical efficacy, there was not enough to override the federal government's decision to place marijuana on Schedule I, the most restrictive classification.

E. Barrett Prettyman US Courthouse and William B. Bryant Annex
Schedule I drugs, which also include heroin, LSD, and ecstasy, are those that are considered to have no medical use and a high potential for abuse. Marijuana was placed in Schedule I when Congress passed the Controlled Substances Act in 1970, and the DEA and FDA have consistently refused efforts to reschedule it.

The ruling came in Americans for Safe Access v. Drug Enforcement Administration. It comes more than 10 years after the Coalition for Rescheduling Cannabis, led by Jon Gettman, originally filed its petition in October 2002 and 40 years after NORML first filed a petition seeking to reschedule the herb. The Coalition petition was denied in 2011, after ASA sued the Obama administration for delaying its response. The current appeal was the first time in two decades that a federal court has reviewed the issue of whether there exists adequate scientific evidence to reschedule marijuana.

The first challenge for petitioners was that of standing to sue. The presence of disabled Air Force veteran and Veterans for Medical Cannabis Access member Michael Krawitz among the petitioners provided that standing. Krawitz, who has tussled with the Department of Veterans Affairs over his use of medical marijuana, "has suffered injury-in-fact because he must shoulder a financial cost for services he would otherwise obtain for free of charge from the VA" and thus has standing to sue, the court held.

But that was just the threshold question. On the substantive issue of rescheduling marijuana, the court came down squarely on the side of the federal government.

"The question before the court is not whether marijuana could have some medical benefits," wrote Senior Circuit Court Judge Harry Edwards for the majority. "Rather, the limited question that we address is whether the DEA’s decision declining to initiate proceedings to reschedule marijuana under the CSA was arbitrary and capricious… On the record before us, we hold that the DEA’s denial of the rescheduling petition survives review under the deferential arbitrary and capricious standard. The petition asks the DEA to reclassify marijuana as a Schedule III, IV, or V drug, which, under the terms of the CSA, requires a 'currently accepted medical use.' The DEA's regulations… define 'currently accepted medical use' to require, inter alia, 'adequate and well-controlled studies proving efficacy.' … We defer to the agency’s interpretation of these regulations and find that substantial evidence supports its determination that such studies do not exist."

"The court says the DEA didn't act arbitrarily and capriciously, but if that wasn't arbitrary and capricious, I'm going back to the dictionary," said a frustrated Krawitz. "This is an issue with 70% supporting change, yet nothing happens. We have a handful of champions in Congress, but where is one person in the federal government who represents us? How can there be so little integrity at the National Institutes for Health and the FDA, where they are supposed to be there to protect our interests?"

"We're stuck in a Catch-22 -- the DEA is saying that marijuana needs FDA approval to be removed from Schedule I, but at the same time they are obstructing that very research," said Tamar Todd, senior staff attorney for the Drug Policy Alliance. "While there is a plethora of scientific evidence establishing marijuana's safety and efficacy, the specific clinical trials necessary to gain FDA approval have long been obstructed by the federal government itself."

"It's more of the same from the federal courts. I'm disappointed, but not surprised," said Dale Gieringer, longtime head of California NORML. "There has been a long line of court decisions affirming the federal government's dictatorial power to make arbitrary decisions about drugs. Ironically, this decision comes on the same day as the 40th anniversary of Roe v. Wade. Women in this country have the right to terminate the live of their fetuses, but not to smoke a joint."

"To deny that sufficient evidence is lacking on the medical efficacy of marijuana is to ignore a mountain of well-documented studies that conclude otherwise," said Joe Elford, Chief Counsel with Americans for Safe Access (ASA), which appealed the denial of the rescheduling petition in January of last year. "The Court has unfortunately agreed with the Obama Administration's unreasonably raised bar on what qualifies as an 'adequate and well-controlled' study, thereby continuing their game of 'Gotcha.'"

ASA said it will seek an en banc review of the decision by the full DC Circuit and will go to the Supreme Court if necessary. The group said it will argue that the Obama administration has acted "arbitrarily and capriciously" by shifting its definition of what constitutes "medical efficacy." The administration now argues that Stage II and III clinical trials are necessary to show efficacy, while ASA contends that the more than 200 peer-reviewed studies it cited in legal briefs in the case meet the standard.

"The Obama Administration's legal efforts will keep marijuana out of reach for millions of qualified patients who would benefit from its use," said Elford. "It's time for President Obama to change his harmful policy with regard to medical marijuana and treat this as a public health issue, something entirely within the capability and authority of the executive office."

While ASA pursues its appeals in the courts, it is also trying to turn up the heat on Congress and the administration. With rescheduling through the courts blocked -- at least pending a favorable ruling on appeal -- that is where the action will be.

"I'm not optimistic that the courts are going to change their position," said Gieringer. "That means we will have to put pressure on the administration or Congress to do it."

But it's important to see that rescheduling is not an end in itself, but a means, said Gieringer.

"Rescheduling in itself would accomplish very little in the real world," he pointed out. "It would not end the federal-state conflict on marijuana, and even if it were rescheduled, there is still no FDA-approved supply. All of the marijuana out there today would still be an illegal controlled substance without FDA approval."

Marijuana policy reform is not just about real world effects; it is also about perceptions, and rescheduling marijuana would have been something of a game changer, as Gieringer noted.

"Symbolically, of course, it would have been huge," he said. "It would open the way for prescriptions and help unblock research -- the controls on Schedule II drugs are not nearly as fearsome. Still, rescheduling would have been a baby step, but a lot of other stuff has to happen, and that requires an act of Congress, and I haven't seen any sign of that."

But the federal courts have so far made clear that they will defer to Congress and the executive branch on these issues. That means that's where the battle will have to be won.

Washington, DC
United States

Federal Magistrate Rules for Harborside Medical Marijuana Dispensary

A federal magistrate in Oakland Monday ruled that landlords for the Harborside Health Center cannot stop it from selling medical marijuana in their properties in the cities of Oakland and San Jose. Federal Magistrate Maria-Elena James issued an order blocking the landlords from forcing Harborside to close its doors.

Harborside is the world's largest medical marijuana dispensary, serving 108,000 registered patients at its two locations. It was targeted by federal prosecutors as part of their ongoing crackdown on medical marijuana providers in states where it is legal.

Federal prosecutors targeted Harborside by threatening its landlords with seizure of their properties. In a bid to fend off asset forfeiture actions, the two landlords went to federal court to try to stop Harborside from engaging in "any unlawful activity," which, under federal law, includes selling medical marijuana.

But Magistrate James ruled that the landlords had no right to pursue such an action under federal law and she challenged the landlords' claims that their property values would be harmed by the sale of medical marijuana. Harborside has operated at the Oakland property since 2006 and in San Jose since 2009.

"Any damage or threat of harm to the (properties) resulting from Harborside's operations would have occurred when Harborside began its operations at the Oakland and San Jose locations," she wrote. "There is nothing in the record indicating that Harborside's continued operation compromises the existence, value or title of either the Oakland or San Jose property. Any argument about the urgency of stopping Harborside's activities rings hollow."

Harborside was joined in court by the city of Oakland, which argued that the federal government has missed the statute of limitations in the case and that closing Harborside would create a public safety risk by creating a black market for formerly available medical marijuana. The court did not rule on the city's motion to immediately enjoin the federal government from shutting down Harborside, but set a date for more hearings on that issue.

"We are grateful that Judge James carefully considered the facts and arguments in the Harborside case, and decided to grant us our day in court," said Harborside executive director Steve DeAngelo. "We have always believed that a Bay Area jury will recognize the value that Harborside brings to the community, and refuse to allow the federal government to seize the properties where we are located. We look forward to proving our case in front of a jury, and continue to believe we will prevail. In the meantime, we ask the Department of Justice to immediately freeze enforcement actions against Harborside and any other cannabis providers acting in full compliance with state law. Our nation's law enforcement officers should concentrate on real crime."

Harborside isn't out of the legal woods yet, though. The federal effort to shut it down remains alive, even though the dispensary won this skirmish. It has stated repeatedly that it will fight the battle to the end, and on that score, at least, nothing has changed.

"We are gratified that Judge James listened to and analyzed the parties' arguments so thoroughly and has now rendered an opinion that will ensure Harborside has the right to present its case to a jury," said Harborside attorney Henry Wysocki. "Despite the government's efforts to shortcut the case, Harborside will now be able to fully defend itself at trial. That is all we had asked, and the court has now agreed. The stage is now set for a jury trial on the underlying issues of the litigation, which will probably take place in about one year."

Oakland, CA
United States

ACLU Fighting Decision in Cell Phone Tracking Case [FEATURE]

special to Drug War Chronicle by investigative journalist Clarence Walker, cwalkerinvestigate@gmail.com

The American Civil Liberties is challenging a federal appeals court ruling that it is legal for the DEA and other law enforcement agencies to track GPS-equipped cell phones without a warrant. The group has filed an amicus brief urging the full 6th US Circuit Court of Appeals to reconsider the ruling of a three-judge panel last month in US v. Skinner, with ACLU attorney Catherine Crump warning that "the Sixth Circuit ruling in August in Melvin Skinner's case undermined the privacy rights of everyone who carries a cell phone."

Melvin Skinner was suspected of being part of a massive marijuana trafficking organization. Without getting a warrant or showing probable cause, the DEA forced Skinner's cell phone company to provide them with his GPS coordinates continuously as they tracked him cross-country for three days. Using that data, they tracked him down in Texas, searched his mobile home, found 1,100 pounds of marijuana, and arrested him on drug charges. Skinner was convicted and then appealed, arguing that the GPS tracking of his cell phone without a warrant violated his Fourth Amendment rights.

"There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his 'pay-as-you-go' cell phone, the kind of phone called 'burners' that drug dealers often use for business and quickly dispose of," Judge John Rogers wrote in the majority opinion in Skinner. "If a tool is used to transport contraband and it gives off a signal that can be tracked, certainly the police can track the signal." 

A well-known tool of the trade for those in the drug underworld, 'burners' were also popularized by the HBO show The Wire, which hyped the notoriety of the prepaid phones in its series.

Legal experts say if the Sixth Circuit decision stands it would severely undercut the US Supreme Court decision this past January in the case of accused drug dealer Antoine Jones. In US v. Jones, the Supreme Court issued a historic decision prohibiting law enforcement from tracking vehicles with GPS device without first obtaining a search warrant -- a tactic the feds used against Jones case when the FBI and DEA installed a GPS device on his SUV for 28 days.

Jones' life sentence without parole was reversed and he was remanded for retrial scheduled in 2013. The chilling effect of the Supreme Court ruling in the Jones case forced the FBI to pull the plug on 3,000 GPS tracking systems that had been secretly installed on vehicles across the nation.

"While the Jones case imposes constitutional restrictions on law enforcement to track vehicles with warrantless GPS devices, the Sixth Circuit has now held that agents can engage in even more intrusive surveillance of cell phones without implicating the Fourth Amendment at all," the ACLU noted in its brief to the court.

In their efforts to overturn Skinner's lengthy prison sentence, his attorneys argued that the use of the GPS location information in the cell phone that led to his arrest violated the Fourth Amendment prohibition against warrantless searches and seizures. The primary question in the case was whether Skinner had a "reasonable expectation" of privacy in the data that his cell phone emitted.

The Sixth Circuit ruling comes exactly a month after a Congressional inquiry discovered how law enforcement made over 1.3 million requests for cell phone data last year, seeking subscriber information, text messages, location data and calling records. If upheld, it would be a major boost for government surveillance power as state and federal prosecutors shift their focus to warrantless cell-towers to ferret out cell phone data and track the GPS signals in cell phones without a warrant in a bid to get out from under the Supreme Court's ruling in that police cannot use warrantless GPS to track vehicles.

Lawyers and law enforcement officials agree there are too many conflicts over what information the police are entitled to legally get from wireless cell carriers.

"It's terribly confusing, and understandably so, when federal courts can't agree," cell phone industry attorney Michael Sussman told the New York Times earlier this year. The companies "push back" often when confronted with "urgent" requests for cell phone data, he said. "Not every emergency is an emergency."

US 6th Circuit Court of Appeals Judge John Rogers (wikimedia.org)
Without a doubt, cell phone data and GPS signals in cell phones are hot commodities in the surveillance business. Business is booming for wireless carriers who sell customers data and cell phone locations to police either by the hour or for one big fee.(See our May story on the practice and the legal challenges to it here.)

But law enforcement is especially well-placed to take advantage of the data. With a simple judge's order, it can easily obtain reams of data and the GPS location of a target's cell phone without a warrant.

As the Times noted, tracking GPS signals in cell phones has become such a tempting technique that the Iowa City Police Department had to issue a stern warning to officers: "Do not mention to the public or the media about the use of cell technology or equipment used to locate targeted subjects and its use should be kept out of police reports."

Similarly, a 2010 training manual written by California prosecutors informed investigators on "how to get the good stuff" using technology. Another police training manual describes cell phones as "the virtual biographer of our daily activities," providing a hunting ground for learning contacts and travels.

The easy availability of cell phone data could spell big trouble for accused drug dealer Antoine Jones as he prepares for retrial next year. This time around, the feds will not use GPS evidence from his vehicle because the Supreme Court prohibited that in his case last year, but it plans to use Jones' cell phone data and the GPS signal in his phone as evidence to connect him with numerous kilos of cocaine.

On September 4, the Obama administration, citing a 1976 Supreme Court precedent, told the federal judge in Jones case that such data, like banking records, and cell phone records, are "third-party records," which means customers have no right to keep it private.

Jones' attorney, Eduardo Balarezo, disagreed. "The government seeks to do with cell site data what it cannot do with the suppressed GPS data that's already been ruled illegal by the Supreme Court," he argued in his brief in the case.

Jones, who is still behind bars despite his victory at the Supreme Court because the government insists on retrying him, is steadfast.

"I am going to fight this all the way to the end," he told the Chronicle.

Aside from the Fourth Amendment implications of the Skinner decision, the case raises another question: Did the courts misinterpret the arcane federal laws governing electronic surveillance?

Jennifer Granick, director for civil liberties, the Stanford Law School Center for the Internet and Society
A Stanford University attorney who is an expert on the legalities now says even the trial court erroneously applied the wrong "trap and trace" statute in denying to suppress the evidence the DEA used to obtain a court order to track the GPS signal in Skinner's phone.

"It was basically the government's "hybrid theory" of what constituted a legal trace of the phone and the court intrepreted the wrong statute," Jennifer Granick told the Chronicle. "The tracking order the DEA used to track Mr. Skinner's phone was not applied correctly under the statute. Pinging a phone in real time is governed by the Pen Register/Trap and Trace statute. To get a trap and trace order, the government usually needs an order under [the relevant] section."

But as Granick has argued in federal criminal defense seminars, the Communications Assistance for Enforcement Act (CALEA) prohibits use of the pen register authorization to obtain subscriber location information."So, the feds should have gotten a warrant under [a different] rule for this information, but clearly did not," Granick concluded.

The confusion is around whether to apply the Pen Register statute or the Stored Communications Act (SCA). The SCA was used by the judge to authorize the trace on Skinner's phone. Under SCA, police cannot receive the contents of the electronic communication, but, police are allowed to find out "where whom said what."

The advantage for law enforcement, prosecutors and judges in such matters is the fact they often use this reasoning to obtain location data that can easily turn a cell phone into a tracking device without a warrant -- whereas legal experts say it should require a much higher threshold -- like a probable cause warrant.

Granick was surprised to learn the court relied on the SCA instead of the other relevant laws.

"You mean the court authorized real time tracking based on the Stored Communications Act, without even a reference to the Pen Register statute or CALEA?" she asked incredulously. "Well, it's not right, but that's what the court did."

Restrained by the Supreme Court from using warrantless GPS tracking by the Jones case, federal law enforcement and local police are making greater use of cell phone data to track suspects. Whether that is constitutional is still an open question. Federal courts are splitting on the issue of whether the collection of cell phone data and the warrantless tracking information of the GPS signal in a phone is legal. That means the issue is likely headed for the Supreme Court for final resolution.

Meanwhile, it looks like Skinner may have yet another issue to raise on appeal.

Redefining the English Language to Fight the Drug War

http://stopthedrugwar.org/files/scalesofjustice.jpg
The tendency of the courts to trash our privacy rights in a pathetic attempt to prevent marijuana smoking is so routine that I seldom bother even to point it out anymore, but something about this case bugged me just enough to slap it around for a second.

FAIRBANKS, Alaska -- The federal government can obtain suspected marijuana growers' utility records without a warrant.

The 9th Circuit Court of Appeals on Tuesday ruled in the case of a Fairbanks utility, Golden Valley Electric Association, which refused turning over records to the U.S. Drug Enforcement Administration.

GVEA argued the Fourth Amendment protects customers from search and seizure without a proper warrant.

But the appeals court ruled a customer lacks an expectation of privacy in an item, like a business record. [SacBee.com]

Doesn't that just sound silly? In fairness, I've studied enough law to know that the legal definition of a term like "expectation of privacy" is always slowly evolving and doesn't necessarily mean what a random person would think it to mean. But come the hell on. Once we reach point where they're telling us with a straight face that we have no "expectation of privacy" with regards to our business records, well, that's just too stupid for school.

Unfortunately, it's really rather consistent with how the courts treat our privacy rights, and the decision of how much privacy we can reasonably expect is not ours to make. Courts have consistently ruled, for example, that information you share with a third party carries no expectation of privacy because you're assuming the risk that someone will turn that information over to the government. I disagree.

Rather obviously, we wouldn't have to worry about the government obtaining our information from third parties if the government hadn't granted itself the authority to collect said information and then introduce it as evidence against us in court. I wouldn't have to worry about third parties carelessly disclosing my private information if such information were legally inadmissible as it ought to be.

When I hear the term "expectation of privacy" I think of the physical boundaries that separate public from private. I don't expect privacy with regards to my purchases at the grocery store, or the content of a conversation on a crowded street. It's well understood that any crime committed in "plain view" is fair game for police, even if they have to use binoculars to get a good view. I even sort of sympathize with allowing police to search your trash, since you left it outside where anyone could walk off with it.

But anyone can't just walk off with my utility bills. Stealing mail is a crime, after all. To say that I have no expectation of privacy with regards to that information is preposterous. Yes, the utility company could give my information to the police, but so could a neighbor who steals my mail. Either way, I'm getting screwed by somebody and it's not my fault for expecting privacy.

Medical Marijuana Update

The end of dispensaries in LA looms, more federal threat letters in Colorado, and a medical marijuana initiative in North Dakota!? That's just some of the news. Let's get to it:

National

Last Thursday, Rep. Barbara Lee (D-CA) and eight initial cosponsors introduced HR 6335, the States' Medical Marijuana Property Rights Protection Act, in an attempt to stop the seizure of property from landlords of state law-compliant medical marijuana businesses. The bill would prohibit the federal government from using the civil asset forfeiture statue to go after real property owners if their tenants are in compliance with state medical marijuana law. The bill is a response to the use of threat of asset forfeiture by US Attorneys in California in their campaign to shut down dispensaries, including the state's largest dispensary, Harborside, last month.

Arizona

On Monday, Arizona Attorney General Tom Horne said the state should not authorize dispensaries because they could violate federal law. His advice came in the form of an official opinion crafted by lawyers in Horne's office, following requests for the opinion by law enforcement officials. He also wrote that he expected the courts to settle the matter and that he would not seek to block Tuesday's lottery for dispensary applicants.

On Tuesday, state officials conducted the lottery, awarding applicants in 68 dispensary districts preliminary approval to move forward with the permitting process. More than 400 applications had come in for those districts. In another 29 districts, there was only one applicant. State officials say some dispensaries could open within weeks if they are already well along in their planning processes.

California

Last Wednesday, LA Mayor Antonio Villaraigosa signed the ordinance banning dispensaries. The measure, approved by the City Council a week earlier on a 14-0 vote, will take effect within 30 days. The so-called "gentle ban" will still allow patients and caregivers to grow their own, but is designed to eliminate the estimated 500 dispensaries in the city. Organizers from the UFCW Local 77 were already discussing plans for a referendum asking voters to allow some dispensaries.

Also last Wednesday, LAPD raided a Woodland Hills dispensary and an associated private residence, seizing 50 pounds of marijuana and arresting one person. The dispensary was West Valley Caregivers on Ventura Boulevard. Police said to report that they were working their way east on Ventura "so hopefully some of these will shut down without us having to do all this work."

Last Thursday, Lake County officials are using nuisance abatement procedures adopted a month ago under an interim urgency ordinance to shut down large grows in the county. As of last Thursday, 19 grows had been shut down, 2,000 plants removed, and seven people arrested. The enforcement actions come as a local judge issued a temporary restraining order stopping them from being inflicted on the four plaintiffs in the case, but only them.

Last Friday, a Riverside County judge ruled that the county cannot ban dispensaries in unincorporated areas. Judge Ronald L. Taylor said the county's outright ban on dispensaries leaves no room for dispensaries to operate legally under state law. A county attorney vowed to appeal.

Also last Friday, the Tax Court ruled a dispensary operator could not deduct business expenses. The ruling came after the IRS went after Martin Olive, owner of the Vapor Room Herbal Center in San Francisco, which was forced out of business at the end of July after its landlord received letters threatening asset forfeiture from US Attorney Melinda Haag. The federal tax code precludes a deduction of any amount for a trade or business where the "trade or business (or the activities which comprise such trade or business) consists of trafficking in controlled substances… which is prohibited by federal law." Olive argued unsuccessfully that the provision did not apply because his business was not the illegal trafficking of a controlled substance, but was operating legally under state law.

Colorado

Last Friday, US Attorney John Walsh sent threat letters to 10 more dispensaries. This is the third batch of letters containing threats of prosecution or asset forfeiture directed at dispensaries. The first two rounds led to the closing of 47 of them. The letter said all of the targeted dispensaries were within 1,000 feet of schools. They have 45 days to shut down or face asset forfeiture actions.

Also last Friday, the DEA claimed medical marijuana is being diverted into illegal trafficking. It cited some 70 cases of Colorado medical marijuana ending up in 23 different states. Medical marijuana defenders responded that 70 cases wasn't that many, that the state's industry is tightly-regulated, and that there was marijuana in those states before Colorado had a medical marijuana program.

New Jersey

Patients in the Garden State will be able to register for medical marijuana cards beginning Thursday of this week, according to NBC New York. "It's the first time the department will be interacting directly with potential patients and their caregivers," state Health Commissioner Mary O'Dowd told the Associated Press. Greenleaf Compassion Center in Montclair has begun to grow marijuana and will open its doors to patients in the fall.

North Dakota

On Monday, proponents of a statewide medical marijuana initiative handed in signatures. They need 13,500 valid signatures to make the November ballot. They handed in 20,000. State officials have about a month to validate signatures and see if the initiative made it.

Washington

On Tuesday, the state Health Department charged two naturopaths with unprofessional conduct for running "an assembly line" for medical marijuana approvals at last year's Hempfest. The pair, who were featured in a Seattle Times story last August, saw 216 potential patients and approved 214 of them after cursory exams. The charges are believed to be the first against any medical professional in the state over medical marijuana recommendations.

Medical Marijuana Update

California continues to have conniptions over medical marijuana, a scientific review finds marijuana's Schedule I status "untenable," and much, much more:

National

On Monday, the Open Neurology Journal published a review of several recent clinical trials assessing the safety of medical marijuana that found marijuana's current placement as a Schedule I controlled substance with no medical value in not scientifically justified. "Based on evidence currently available, the Schedule I classification is not tenable; it is not accurate that marijuana has no medical use, or that information on safety is lacking," the authors wrote. The lead author is Dr. Igor Grant, director of the Center for Medicinal Cannabis Research. The review and its conclusions directly contradict the stance of the DEA and FDA.

California

Last Wednesday, the state Supreme Court declined to review a lower court decision that okayed the city of Los Angeles shutting down a Culver City dispensary. The city had used nuisance abatement measures to shut down the Organica dispensary, and the store had appealed, arguing that it was protected by state law allowing collectives.  LA city attorneys lauded the decision as vindicating their stance "dispensing and selling marijuana…remains illegal." Medical marijuana advocates beg to differ, and all are waiting on the Supreme Court to settle the issue when it decides another dispensary case later this year.

Last Thursday, Fresno banned outdoor grows within the city limits. The city council voted unanimously for the ban, which was recommended by Police Chief Jerry Dyer, who said outgrows promote violence in the city. A temporary ban had been in place since January. Under the new rule, cultivating the drug in an enclosed and secure structure, and in compliance with state marijuana law, is permitted.

Also last Thursday, a Santa Fe Springs councilman pleaded guilty in federal court to soliciting a bribe from a would-be medical marijuana dispensary operator. Councilman Joseph Serrano copped to the offense, then resigned his seat later that same day.

Last Friday, Rancho Mirage ordered a dispensary to close after city officials became aware of it when "residents in the area complained of smelling marijuana." The city is already being sued by two other dispensaries that have been forced out of business by the city's moratorium on dispensaries.

Also last Friday, a Sacramento ballot initiative signature-gathering effort came up short. Sponsored by the Committee for Safe Patient Access to Regulated Cannabis (CSPARC), the initiative sought to provide safe, regulated access for patients in the county. They needed 42,300 signatures by Monday and only had 25,000. While the measure will now not qualify for the November ballot, it could still qualify for a later election if it gets the necessary signatures by July 23.

On Monday, a state appeals court ruled that LA County's ban on dispensaries is illegal. "[… T]he County's complete ban on all 'medical marijuana dispensaries,' including collectives and cooperatives authorized under Health and Safety Code section 11362.775, conflicts with, and is thus preempted by, California's medical marijuana laws," wrote Judge P.J. Mallano in the unanimous decision handed down by the California Court of Appeals (2nd District) . The case is County of Los Angeles v. Alternative Medicinal Cannabis Collective, et al. The ruling is being seen as a major blow to arguments made in defense of the legality of dispensary bans.

Also on Monday, medical marijuana growers sued Yuba County over its new nuisance ordinance for marijuana cultivation. The lawsuit charges that the ordinance adopted by supervisors in May is overly restrictive and runs afoul of state law. Next week, the growers will file a request for a temporary restraining order to stop the ordinance from being enforced. The county's ordinance placed limits on the number of plants, the amount of ground the plants could be grown on, and the types of parcels where they could be grown. But the complaint states the ordinance doesn't address collectives, where one person might grow several plants on behalf of others, beyond the six-mature-plant limit stipulated in the ordinance.

Also on Monday, San Leandro put its plan to ban dispensaries on hold in the wake of the state appeals court ruling County of Los Angeles vs. Alternative Medical Cannabis Collective earlier the same day. That ruling invalidated LA County's ban on dispensaries. San Leandro has a temporary moratorium in place and had planned to make it permanent. That moratorium expires September 30.

On Wednesday, activists reported that a raid was underway at a Sacramento dispensary. The action, apparently undertaken by the Sacramento County Sheriff's Office was aimed at the First Amendment dispensary inside the Farmer's Market.

Colorado

Last Friday, a jury found medical marijuana patient Bob Crouse not guilty of possession with intent to distribute. Crouse, a leukemia sufferer argued that he needed large numbers of plants to ensure a steady supply of "phoenix tears," a slushy oil derives from marijuana plants. It takes a pound of marijuana to make an ounce of the oil. While state law limits patients to cultivating three plants, it also allows patients to possess as much as medically necessary. Crouse mounted an affirmative defense, and the jury agreed with him.

Massachusetts

Last Friday, a poll showed strong support for medical marijuana. The Public Policy Polling survey found that 57% of those polled said they would be okay with allowing patients to have access to medicinal pot, whereas 33% of voters were against it. The poll had a margin of error of +/- 3.3%.

On Monday, backers of a medical marijuana initiative said they had submitted enough signatures to make the November ballot. The Committee for Compassionate Medicine said it had more than the 11,000 additional signatures needed by Tuesday's deadline. The initiative would legalize marijuana for the treatment of certain illnesses and set up a dispensary system.

Michigan

Last Wednesday, an appeals court ruled patients can be arrested for marijuana possession if they don't have their state-issued paperwork or registry card. An appeals panel had earlier ruled that James Nicholson of Ottawa County could be immune from prosecution by producing his medical marijuana paperwork in court, but the full court disagreed, holding that medical marijuana registry cards and applications must be "reasonably accessible at the location" of an arrest for an individual to be immune from arrest.

Montana

Last Wednesday, medical marijuana entrepreneur Jason Christ filed a lawsuit against the Missoula Police Department, Missoula County Attorney’s Office, Missoula County 911, and other parties in US District Court. He is seeking $50 million in punitive damages, among other demands, for the defendants' "willful and malicious actions" that have caused him "emotional distress." Christ claims he is so harassed that it has "affected his bodily functions" and forced him to camp "down a vast network of unimproved dirt roads." The controversial Christ gained notoriety in 2009 and 2010 by helping thousands of people obtain physician recommendations for medical marijuana with his traveling one-day clinics, a move other medical marijuana advocates have criticized as providing fodder to foes, who successfully gutted the state law last year.

Nevada

On Monday, a legislator said he will introduce a medical marijuana bill next year that would allow registered patients a legal way to obtain their marijuana. Assemblyman Tick Segerblom (D-Las Vegas) said Monday he requested the bill because the legislature has failed in its duty to create an appropriate way for legal users to acquire marijuana. Segerblom wants to establish certified marijuana dispensaries, licensed farms where marijuana may be grown and to allow patients to buy from California dispensaries. His bill also calls for this medical marijuana to be taxed, although a rate has not yet been established. Another medical marijuana bill is being introduced by the Assembly Judiciary Committee. Details were not available.

New Jersey


Last Wednesday, a would-be dispensary operator sued the city of Camden over its rejection of his dispensary and cultivation application. Ilan Zaken, the owner of two vacant clothing stores, filed the lawsuit against the city, its zoning officer and its Zoning Board of Adjustments, alleging that they illegally rejected his application to use the buildings for the production of medical marijuana. Since New Jersey's Compassionate Use Medical Marijuana Act went into effect more than two years ago and since Gov. Chris Christie (R) cleared the way earlier this year, only two of the six nonprofits approved by the state to sell marijuana have won the necessary local permits.

Supreme Court Grants Lesser Sentences in "Pipeline" Crack Cocaine Cases

The US Supreme Court ruled last Thursday that decreased crack cocaine sentences approved by Congress in 2010 also apply to people who were convicted but not yet sentenced when the law took effect. The decision could result in reduced sentences for thousands of so-called "pipeline" federal crack cocaine defendants.

Congress passed the Fair Sentencing Act and President Obama signed it into law after years of complaints about the sentencing disparities between crack and powder cocaine and the racial impact of those disparities. Under laws passed in the late 1980s, it took 100 times as much powder cocaine to generate mandatory minimum prison sentences as it did for crack cocaine. The act reduced the quantity disparity to 18:1.

The decision in two cases of men convicted on federal crack charges but sentenced after the act became law came on a narrow 5-4 vote. The two cases were consolidated in a single ruling in Dorsey v. United States.

In one case, Edward Dorsey was arrested in 2008 and pleaded guilty in July 2010 to possessing 5.5 grams of crack with the intent to distribute. He was sentenced to a mandatory minimum 10 years; under the new law, his sentence would likely have been around four years.

In the other case, Corey Hill was convicted in 2009 of selling 53 grams of crack in 2007 and sentenced to 10 years in prison; under the new law, his sentence would have been around five years.

Federal appeals court split on whether the new law should be applied retroactively, prodding the Supreme Court to take up the cases and bring clarity to the issue.

The court split in what has become almost standard for the Roberts court. All four liberal justices weighed in on the side of extending the sentencing reductions and were joined by swing justice Anthony Kennedy. The court's four staunch conservatives all dissented.

Sentencing reform advocates welcomed the ruling.

"We are thrilled with the court's decision," said Julie Stewart, executive director of Families Against Mandatory Minimums, which had filed a friend of the court brief in the case. "We considered it patently unjust to make these pipeline defendants serve longer sentences under a scheme that was completely repudiated by Congress. As the court found, doing so would have flouted the will of Congress, which called on the US Sentencing Commission to lower crack cocaine sentences 'as soon as practicable' after the Fair Sentencing Act was signed into law. Especially exciting is the fact that Justice Breyer's opinion for the majority recognized that people who were sentenced after August 3, 2010 to an old law sentence are eligible to seek relief in federal courts."

Washington, DC
United States

Medical Marijuana Update

The biggest medical marijuana news this week has to be the Oregon election that saw a pro-medical marijuana attorney general candidate win against a former interim US Attorney, but there was plenty of other news, as well. Let's get to it:

National

Last Wednesday, Mitt Romney got asked about medical marijuana and didn't much like the question or really answer it. "Aren't there issues of significance that you'd like to talk about?" Romney asks the interviewer. "The economy, the economy, the economy. The growth of jobs. The need to put people back to work. The challenges of Iran. We've got enormous issues that we face, but you want talk about -- go ahead -- you want to talk about marijuana? I think marijuana should not be legal in this country. I believe it is a gateway drug to other drug violations. The use of illegal drugs in this country is leading to terrible consequences in places like Mexico -- and actually in our country."

On Tuesday, a Mason Dixon poll found broad support for medical marijuana among Republicans. Some 67% of Republicans said federal officials should respect state medical marijuana laws. So did 75% of Democrats and 79% of independents.

Also on Tuesday, researchers reported that smoking marijuana can relieve MS symptoms. Researchers at the University of California at San Diego found that smoked marijuana relieved pain and muscle tightness spasticity. The research was published in the peer-reviewed Canadian Medical Association Journal.

Arizona

As of Monday, Arizona started accepting dispensary applications. Arizona has some of the strictest dispensary rules in the country, including requirements that a licensed physician be employed on premises, that letters be obtained showing dispensaries are complying with zoning laws, and that they have a business plan showing they are operating as nonprofits. Then there is the $5,000 application fee and the preference that will be shown to those who can prove they have $150,000 in the bank. Still, competition is expected to be fierce for the licenses, which will be capped at 125 statewide. Interested parties have until May 25 to apply.

California

Beginning Saturday, a medical marijuana "Unity" conference gets underway in Sacramento. It goes through Monday and is aimed in part at obtaining passage of Assembly Bill 2312 to regulate medical marijuana cultivation and distribution statewide. The conference is sponsored by the PAC Californians to Regulate Marijuana as well as  Americans for Safe Access (ASA), the United Food and Commercial Workers Union, California NORML, the Coalition for Cannabis Policy Reform, and the Emerald Growers Association. The conference will focus on skill-building and grass roots leadership, with a day of lobbying set for Monday.

Last Thursday, a Santa Barbara dispensary operator took a plea deal. Charles Restivo, operator of the Pacific Coast Collective between 2008 and 2010, was arrested after a four-dispensary raid by local law enforcement in February 2010. He was charged with possession of marijuana for sale and cultivation of marijuana for sale since authorities argued the dispensary was violating state laws regarding medical marijuana. Under the deal, Restivo pleaded guilty to one new count of possession of concentrated cannabis (hash) in return for the other charges being dropped. He will get three years probation.

Also last Thursday, the Clear Lake city council voted to oppose Measure D, the Lake County marijuana cultivation initiative set to go before voters June 5. The council's action follows similar votes taken by the Lake County Office of Education Board of Trustees Wednesday night, the Board of Supervisors on Tuesday and the Lakeport City Council last week. It is also opposed by the Sierra Club, the Lake County Deputy Sheriffs Association, Kelseyville Business Association, Lake County Chamber of Commerce, California Women for Agriculture, Lake County Farm Bureau, the Buckingham and Clear Lake Riviera homeowners associations, and the Lake County Association of Realtors' Board of Directors. Measure D would allow 12 female plants to be grown in residential areas on lots under a half acre, 24 plants on lots larger than a half acre and 84 plants on larger parcels.

On Tuesday, the DEA and local police raided a Fontana dispensary. The raiders hit Holistic Meds RX, detaining four people, and seizing large quantities of medical marijuana. It was a federal warrant, but town and San Bernadino County police aided the DEA. Dispensaries have opened in Fontana, but have been unable to get permits because the city considers the businesses illegal.

On Wednesday, the Los Angeles city council postponed adopting a "gentle" ban on dispensaries proposed by Councilman Jose Huizar. The move came after Councilman Paul Koretz instead proposing allowing some dispensaries to continue to operate if they agreed to city regulations. Koretz called Huizar's "gentle" ban, which would close all dispensaries, but allow personal and collective grows, in reality a "vicious, heartless" ban. The city is home to an uncertain number of dispensaries, somewhere in the hundreds.


Colorado

On Monday, 25 dispensaries targeted by federal officials had to be closed down. That was the second wave of dispensaries threatened by US Attorney John Walsh, who earlier forced 22 out of business. He says a third wave of threat letters is forthcoming. In the first wave, Walsh targeted dispensaries within 1,000 feet of schools; in the second wave, he targeted dispensaries within 1,000 feet of college campuses. No telling yet what his criteria will be next time.

On Tuesday, the Dacono city council moved forward with its ban on dispensaries, as well as grows and edibles manufacturing. The council voted 4-2 for the ban, but must do so one more time on June 11 before it takes effect. The town has had a temporary moratorium on new medical marijuana businesses since July 2010, but that edict expires on July 1. The town has three existing dispensaries, but they would be forced to close if the ban passes.

Michigan

Last Friday, the state appeals court confirmed the conviction of a man who had a medical marijuana card, but not a fence. Lewis Keller of Emmet County got busted with 15 plants on his property. Under state law, he could have 12, but it had to be fenced. Keller said he knew he was over the limit, but he didn't realize the plants had to be secured.

On Tuesday, the Jackson city council got an earful from advocates concerned about its proposed medical marijuana ordinance. Under the proposed ordinance, qualifying patients or primary caregivers who are registered by the Michigan Department of Community Health to grow marijuana could do so in their homes. Patients could consume the drug only in their homes or their primary caregivers' homes. Patients and primary caregivers also could grow medical marijuana at non-dwelling locations in certain commercial and industrial business districts.
The city has had a moratorium on medical marijuana operations during the drafting of the ordinance. The city council will revisit the issue next week.

New Hampshire

On Wednesday, the House passed a medical marijuana bill already passed by the Senate. It now goes back to the Senate for approval of changes. Gov. John Lynch (D) has vowed to veto the bill over concerns over distribution, just as he did in 2009, when a veto override failed by two votes in the Senate.

New York

On Wednesday, a Siena College poll found majority support for medical marijuana in the Empire State. The poll had 57% supporting it and only 33% opposed. A bill in the Assembly has been stalled since Gov. Andrew Cuomo (D) signaled that this was not the year for it.

Oregon

On Tuesday, Ellen Rosenblum defeated former interim US Attorney Dwight Holden in the fight for the Democratic Party nomination for state attorney general. Oregon medical marijuana activists and national drug reformers rallied against Holden and supported medical marijuana-friendly Rosenblum as she picked up 63% of the vote against the former front-runner. Activists said the vote shows opposing medical marijuana carries a political price tag.

Rhode Island

On Wednesday, the House passed compromise dispensary legislation. A similar measure has already passed the Senate, so after the formalities of concurrence votes, the measure will head to Gov. Lincoln Chafee (I), who is expected to sign it.

Washington

On Monday, the Pasco city council moved closer to banning grows. A workshop discussion that night leaves little doubt that the city will outlaw medical marijuana gardens in the city at its next meeting to avoid violating federal anti-drug laws. Pasco is among Washington cities that have been waiting for nearly a year for the legislature to act to clarify a law allowing cities to write their own rules for medical marijuana garden collectives. The council is expected to vote on the ordinance Monday.

(This article was published by StoptheDrugWar.org's lobbying arm, the Drug Reform Coordination Network, which also shares the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)

Judge Rejects Florida State Employee Drug Testing

A federal district court judge in Miami has thrown out Florida Gov. Rick Scott's (R) executive order requiring state employees to submit to suspicionless drug tests. The order violates the Fourth Amendment's proscription against unreasonable searches and seizures, the judge ruled.

Gov. Scott, a former health care executive, issued the order calling for random drug testing of all state employees in March 2011, but stayed it in the face of a legal challenge from the ACLU of Florida and the Association of Federal, State, County, and Municipal Employees (AFSCME), the union representing thousands of state workers.

Scott argued that requiring drug tests was akin to statutory requirements that some state workers make financial disclosures, but US District Court Judge Ursula Ungaro wasn't buying it.

In her ruling last Wednesday, Ungaro called Scott's reasoning "hardly transparent and frankly obscure" and said it did not justify violating the Fourth Amendment. "He offers no plausible rationale explaining why the fact that a state employee's work product and financial status are publicly accessible leads to the conclusions that the employee's expectation of privacy in his or her bodily functions and fluids are then diminished," Ungaro wrote.

"The governor can't order the state to search people's bodily fluids for no reason -- the Constitution prohibits that sort of government intrusion," said Howard Simon, executive director of the ACLU of Florida. "And the governor can't demand that people surrender their constitutional rights for the privilege of working for the state or receiving some other government benefit."

"Today's ruling is important because it reinforces the bright line which government may not cross," said ACLU cooperating attorney Peter Walsh. "If the state is going to require a drug test as a condition of keeping your job, it needs to have a reason, and simply being against drugs isn't enough."

In a statement last Thursday, Scott said he would appeal, but gave no acknowledgment of the constitutional issues involved.

"As I have repeatedly explained, I believe that drug testing state employees is a common sense means of ensuring a safe, efficient and productive workforce," he said."That is why so many private employers drug-test, and why the public and Florida's taxpayers overwhelmingly support this policy. I respectfully disagree with the court's ruling and will pursue the case on appeal."

Scott is not doing well with his drug testing campaign. A law he backed requiring drug tests for people seeking welfare has been temporarily blocked by a federal district court judge in Orlando, who has indicated she will likely find that measure also unconstitutional.

Miami, FL
United States

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