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US Reps, CA AG Chide Feds on Medical Marijuana

The unhappy reaction to the renewed federal offensive against medical marijuana growers and distributors continues to spread, with several members of Congress and California's attorney general among the latest to voice their displeasure.

Since the Sacramento press conference last month where California's four US Attorneys announced a crackdown on the medical marijuana using heavy-handed raids on businesses in exemplary compliance with state and local laws and a wave of letters to dispensary landlords threaten property seizure or even criminal prosecution if they don't throw out their medical marijuana tenants, reaction among medical marijuana supporters, including elected officials, has been growing.

On Friday, nine members of Congress, led by Reps. Sam Farr (D-CA) and Dana Rohrabacher (R-CA), sent a letter to President Obama expressing "concern with the recent activity by the Department of Justice against legitimate medical marijuana dispensaries in California that are operating legally under state law." The other congressional signers were Reps. Mike Thompson (D-CA), Jared Polis (D-CO), Pete Stark (D-CA), Steve Cohen (D-TN), Barbara Lee (D-CA), Lynn Woolsey (D-CA), and Bob Filner (D-CA).

Citing "aggressive SWAT-style federal raids in at least seven states," as well as threats directed at landlords and elected officials, the solons told the president such actions "directly interfere with California's 15-year-old medical cannabis law by eliminating safe access to medication for the state's thousands of medical marijuana patients."

The nine US representatives called on the president to reschedule marijuana as either a Schedule II or Schedule III drug with recognized medicinal uses, either by administrative action or by supporting legislation to achieve that end. A bill that would do just that, H.R. 1983, the States' Medical Marijuana Patient Protection Act, has already been filed, they helpfully pointed out.

A week before the congressional letter, California Attorney General Kamala Harris added her voice to the choir of the concerned. "Californians overwhelmingly support the compassionate use of medical marijuana for the ill," she noted in a statement.

"While there are definite ambiguities in state law that must be resolved either by the state legislature or the courts, an overly broad federal enforcement campaign will make it more difficult for legitimate patients to access physician-recommended medicine in California," the state's highest elected law enforcement officer said. "I urge the federal authorities in the state to adhere to the United States Department of Justice’s stated policy and focus their enforcement efforts on ‘significant traffickers of illegal drugs.'"

In mid-October, state Sen. Mark Leno (D-San Francisco) and Assemblyman Tom Ammiano (D-San Francisco), stalwart friends of marijuana law reform, were among the first to speak out against the federal crackdown, followed shortly by fellow San Franciscan state Sen. Leland Yee (D).

"Medical marijuana dispensaries are helping our economy, creating jobs, and most importantly, providing a necessary service for suffering patients," Lee said in a statement. "There are real issues and real problems that the US Attorney's Office should be focused on rather than using their limited resources to prosecute legitimate businesses or newspapers. Shutting down state-authorized dispensaries will cost California billions of dollars and unfairly harm thousands of lives."

In the face of widespread criticism, the US Attorneys have attempted to insulate their boss from the political heat, with a spokesperson making pains to tell the Huffington Post they had coordinated only with the Justice Department, not the Obama administration. But it is ultimately President Obama who is in charge, and who will pay whatever political price is to be paid.

Federal Judge Blocks Florida Welfare Drug Testing Law

A federal judge Monday halted Florida's law mandating drug testing for welfare applicants. District Court Judge Mary Scriven in Orlando granted a temporary injunction barring the state from enforcing the law until the case is resolved.

The new law, which went into effect in July, was challenged as an unconstitutional violation of the Fourth Amendment's proscription against unwarranted searches and seizures in a lawsuit filed by the ACLU of Florida and the Florida Justice Institute on behalf of a Central Florida man. Luis Lebron, 35, a Navy veteran turned college student was denied state benefits after he refused to submit to a drug test.

In her order granting the temporary injunction, Judge Scriven thoroughly demolished the state's arguments that drug testing didn't amount to a search, that welfare applicants were more likely to use drugs than the population as a whole, and that the state had a special interest in drug testing welfare applicants that would override constitutional proscriptions against it. She also found that the ACLU of Florida has a good chance of prevailing in its lawsuit.

Scriven noted that Florida legislators passed the law despite an earlier Florida demonstration project that failed to uncover evidence of rampant drug use among welfare applicants, that concluded that drug use did not adversely impact the goals of the welfare program, that found that drug testing did not save the state money, and "despite the express recommendation that the project not be continued or expanded."

Scriven then turned to the state's contention that drug testing is not a search. "Notwithstanding the overwhelming body of case law to the contrary, the State contends that the drug testing of welfare recipients is not a search," she wrote. "According to the State, the drug test is not forced or compelled, and, if there is no consent to the testing, there is no drug test and, thus, no search… The Court finds this argument unpersuasive," she noted tersely.

Nor was she persuaded by Florida's claims about the risk to public health and the levels of drug use among welfare applicants. "Though the State speaks in generalities about the 'public health risk, as well as the crime risk, associated with drugs' being 'beyond dispute,' it provides no concrete evidence that those risks are any more present in TANF applicants than in the greater population," she noted. "Rather, the evidence suggests that those risks are less prevalent among TANF applicants. The Court, therefore, rejects the suggestion that the inchoate public health or crime risks assertions incanted by the State justify the Fourth Amendment intrusions mandated by [the drug testing law]."

Florida should have listened to its own researchers, whose earlier demonstration project found no evidence of widespread drug use among welfare applicants, Scriven wrote. "Florida gathered evidence on the scope of this problem and the efficacy of the proposed solution. The results debunked the assumptions of the State, and likely many laypersons, regarding TANF applicants and drug use. The State nevertheless enacted [the drug testing law], without any concrete evidence of a special need to do so -- at least not that has been proffered on this record. As the State has failed to demonstrate a special need for its suspicionless drug testing statute, the Court finds no need to engage in the balancing analysis -- evaluating the State's interest in conducting the drug tests and the privacy interests of TANF applicants."

The law requires applicants to pay for the drug test out of their own pockets -- those whose test clean would later be reimbursed by the state -- and bars them from benefits for a year unless they undergo drug treatment. So far, only about 2% of applicants have tested positive for drugs.

"I'm delighted for our client and delighted to have confirmation that all of us remain protected from unreasonable, suspicionless government searches and seizures," said Maria Kayanan, associate legal director of the ACLU of Florida, who is lead counsel in the case.

"The governor and the legislature sent their lawyers into court to advance a very startling proposition. They argued that some Floridians, namely poor families with children who qualify for temporary public assistance, are not protected by the Constitution of the United States," said ACLU of Florida executive director Howard Simon. "This extreme position -- that if the state provides assistance to someone it can conduct a privacy-invading physical search -- is especially startling coming from a governor who campaigned to stop government from trampling on the rights of the people."

"This should send a message to all lawmakers that the 4th Amendment protects everyone," said Randall Berg of the Florida Justice Institute and co-counsel with the ACLU.

Given that a number of states are currently considering hopping on the welfare drug testing bandwagon, Berg's comments are especially apropos.

Orlando, FL
United States

Bay Area Pols Slam Feds' Medical Marijuana Crackdown

A pair of Northern California elected officials last week urged the federal government to back off on its "senseless assault" on medical marijuana dispensaries. At the same time, they said they want to meet with federal officials to see what's behind the crackdown.

Stalwart supporters of medical marijuana state Sen. Mark Leno (D-San Francisco) and Assemblyman Tom Ammiano (D-San Francisco) took to the microphones at a news conference at the State Building in San Francisco.

"I urge the federal government to stand down in its massive attack on medical marijuana dispensaries," Leno said in remarks reported by KTVU-TV. "California voters intended that patients should have safe and affordable access to medical marijuana," he said.

Leno and Ammiano said they are pondering new state legislation to regulate dispensaries, but added that such laws would be workable only if California legislators hear from the Justice Department that such regulations would have an impact on federal enforcement efforts. They said they hoped to speak with Justice Department officials in the next few days.

"To be successful legislatively, we would need some indication from the federal government that (the state legislation) would impact" the Justice Department offensive, Ammiano said. 

"Call the dogs off and let's sit down," Leno said.

The news conference came in response to the October 7 announcement by California's four US Attorneys that they are ramping up federal persecution of medical marijuana providers in the state. Even though California voters approved medical marijuana in 1996, the federal government refuses to recognize such laws.

While the Justice Department has said it is not targeting patients, it is clearly targeting dispensaries and medical marijuana grow operations, with DEA raids ongoing and threatening letters being sent to dispensary landlords in a bid to force them to evict their medical marijuana tenants.

At the press conference, Ammiano conceded that California has little recourse when it comes to federal interference in its medical marijuana program. "In the end, they'll probably do whatever they want," he said.

Now, the federal government needs to be convinced that raiding medical marijuana providers operating in compliance with state laws is not what it wants. President Obama had a chance to get that message when he visited California on a fundraising swing this week. He was met by organized protestors when he came to San Francisco Tuesday.

California Gov. Brown Signs Needle Access Bills

California Gov. Jerry Brown (D) has signed into law a pair of bills that will expand access to clean needles and help prevent the spread of HIV and Hepatitis C infections in the state. The move is winning him kudos from drug reformers and public health advocates.

Badly needed needle exchanges could be coming to more CA counties under a bill just signed by Gov Brown. (wikimedia.org)
The first bill, Senate Bill 41, sponsored by Sen. Leland Yee (D-San Francisco), makes legal the sale of syringes at pharmacies without a prescription. An earlier pilot program allowing such sales had been in effect in some counties and has proven effective at reducing needle-sharing, but most counties did not participate. Now, once the bill goes into effect on January 1, people will be able to buy syringes without a prescription at pharmacies statewide.

The second bill, AB 604, sponsored by Assemblywoman Nancy Skinner (D-Berkeley), allows the California Department of Public Health to authorize new needle exchange programs after consultation with local public health and law enforcement. Currently, needle exchange programs are only authorized after county officials declare a public health emergency, and the political will to do that has been lacking in some counties. This bill allows public health officials to take the initiative instead of waiting for elected officials. It, too, will go into effect on January 1.

"I am directing the department to administer AB 604 in a constrained way, working closely not only with local health officers and police chiefs, but with neighborhood associations as well," said Gov. Brown in his signing statement. "I believe that AB 604 can reduce the spread of communicable diseases and the suffering they cause and, at the same time, respect public safety and local preference."

"This is a huge victory for public health and common sense," said Laura Thomas, Deputy Director of California for the Drug Policy Alliance. "Now all Californians will have the same access to proven, effective HIV and hepatitis C prevention. This gives drug users the tools that they need to protect their health and that of their partners, children, and communities, as well as protecting the California taxpayer from the cost of HIV and hepatitis C infections."

Sacramento, CA
United States

Brown Vetoes California Hemp Bill, Criticizes Federal Ban

California Gov. Jerry Brown (D) has vetoed a bill that would have allowed farmers in select counties to grow hemp, saying it would subject them to federal prosecution, but in doing so, he lashed out at the federal ban on hemp farming in the US, calling it "absurd."

hemp field at sunrise (votehemp.com)
Sponsored by Sen. Mark Leno (D-San Francisco), the bill, Senate Bill 676, would have allowed farmers in four Central California counties to grow industrial hemp for the legal sale of hemp seed, oil, and fiber to manufacturers. The bill specified that hemp must contain less than 0.3% THC, the primary psychoactive ingredient in cannabis, and farmers would have to submit their crops to testing before they go to market.

The bill had mandated an eight-year pilot program that would end in 2020, but not before the California attorney general would issue a report on law enforcement impact and the Hemp Industries Association would issue a report on its economic impact.

But although, like three other hemp bills that have been vetoed in California in the past decade, the bill passed the legislature and had the broadest support of any hemp measure considered in the state, Gov. Brown killed it, citing the federal proscription on hemp farming.

"Federal law clearly establishes that all cannabis plants, including industrial hemp, are marijuana, which is a federally regulated controlled substance," Brown said in his veto message. "Failure to obtain a permit from the US Drug Enforcement Administration prior to growing such plants will subject a California farmer to prosecution," he noted.

"Although I am not signing this measure, I do support a change in federal law," Brown continued. "Products made from hemp -- clothes, food, and bath products -- are legally sold in California every day. It is absurd that hemp is being imported into the state, but our farmers cannot grow it."

Industry groups were not assuaged by Brown's language criticizing the federal hemp ban. In a press release Monday, Vote Hemp and the Hemp Industries Association blasted the veto.

"Vote Hemp and The Hemp Industries Association are extremely disappointed by Gov. Brown's veto. This is a big setback for not only the hemp industry -- but for farmers, businesses, consumers and the California economy as a whole. Hemp is a versatile cash and rotation crop with steadily rising sales as a natural, renewable food and body care ingredient. It's a shame that Gov. Brown agreed that the ban on hemp farming was absurd and yet chose to block a broadly supported effort to add California to the growing list of states that are demanding the return of US hemp farming. There truly was overwhelming bipartisan support for this bill," said Eric Steenstra, president of Vote Hemp and executive director of the HIA.

"After four vetoes in ten years in California, it is clear we lack a governor willing to lead on this important ecological, agricultural and economic issue. We will regroup, strategize and use this veto to our advantage at the federal level," added Vote Hemp Director and co-counsel Patrick Goggin.

The US hemp market is now estimated to be about $420 million in annual retail sales, but manufacturers must turn to foreign suppliers because the DEA, which refuses to differentiate between industrial hemp and recreational and medical marijuana, bars its cultivation here.

Sacramento, CA
United States

Montana Medical Marijuana Initiative Makes Ballot

An initiative that would let Montana voters undo legislative changes that gutted the state's medical marijuana law will be on the ballot in November 2012. According to the Montana Secretary of State, organizers for I-124 have collected enough signatures to make the ballot.

medical cannabis with vaporizer (wikimedia.org)
The initiative needed 24,337 valid voter signatures to make the ballot; it handed in 26,778 valid signatures. It needed to obtain the signatures of at least 5% of registered voters in at least 34 of the state's 100 legislative districts; it qualified in 49.

The initiative campaign is in response to the Republican-controlled state legislature, which first passed a bill to completely repeal the state's voter-approved medical marijuana law, and then, after it was vetoed by Gov. Brian Schweitzer (D), passed another bill, Senate Bill 423, essentially killing the state's medical marijuana distribution system. That bill was challenged in court, and parts of it were enjoined, but other onerous portions of it remain in effect.

That will be the case until and unless Montanans vote for the initiative next November. Organizers could have attempted to repeal the law outright through the initiative process, but that would have required three times the number of signatures needed to get this measure on the ballot, and that was beyond the reach of the ill-funded, nearly all-volunteer effort.

See our feature story last week for more on the Montana campaign to repeal SB 423.

Helena, MT
United States

Montana Medical Marijuana Initiative Poised for Ballot [FEATURE]

Even with the last voter signatures due to be turned in Friday afternoon, it now appears that an initiative referendum campaign to undo regressive changes in Montana's medical marijuana law will be on the November 2012 ballot. Organizers for IR-124 told the Chronicle Wednesday they had already turned in 40,000 signatures, well in excess of the 24,337 valid voter signatures needed to make the ballot and that they expected to turn in thousands more by Friday's 5:00 pm deadline.

Gov. Schweitzer vetoed one anti-medical marijuana bill, but gave in the second time.
As of Wednesday, the Montana Secretary of State's office reported that 19,973 valid signatures had been received, but that is a lagging indicator. In Montana, signatures are handed in first to county officials, who validate the signatures, and then send them on to Helena. As many as 10,000 gathered signatures are being examined by county officials now, with more still coming in the next couple of days.

"We probably have about 10,000 yet to be processed, and we'll give them another few thousand between now and then," said Rose Habib of Patients for Reform -- Not Repeal, which is spearheading the effort. "Signature gathering has gone really well, and we're confident we will make the ballot. We're just waiting for the counties to finish counting what we're giving them.

Montana law also requires initiatives to get signatures from 5% of the voters in at least 34 of the state's 100 legislative districts. So far, the initiative has done that in 31 districts, and the campaign is confident it will pass that hurdle as well.

The almost all-volunteer effort -- there were a handful of paid signature gatherers in the last two weeks -- was a success because people were strongly motivated, Habib said. "People feel very strongly they were not represented by their legislature, and what they do and how they earn a living and how they medicate themselves is something that is completely defensible and needs to be dealt with responsibly by the legislature," she said.

"Things look really good. It's pretty amazing what a volunteer effort has been able to do," said Matt Leow of M+R Strategic Services, a political consultancy firm brought in to help manage the campaign. "We've worked on many, many of these campaigns, and we've never seen anything like the volunteer effort here."

"By all accounts, this has been an impressive volunteer effort," said Kate Chowela of the Montana Cannabis Industry Association, which had begun working toward an initiative earlier this year. "No one wants to say much before all the numbers are in, but we are confident this will make the ballot."

The initiative campaign is in response to the Republican-controlled state legislature, which first passed a bill to completely repeal the state's voter-approved medical marijuana law, and then, after it was vetoed by Gov. Brian Schweitzer (D), passed another bill, Senate Bill 423, essentially gutting the state's medical marijuana distribution system. That bill was challenged in court, and parts of it were enjoined, but other onerous portions of it remain in effect.

That will be the case until and unless Montanans vote for the initiative next November. Organizers could have attempted to repeal the law outright through the initiative process, but that would have required three times the number of signatures needed to get this measure on the ballot, and that was beyond the reach of the ill-funded, nearly all-volunteer effort.

"This new program does not work. Seriously ill patients are having trouble getting access to their medicine in the wake of SB 423," said Sarah Baugh, a patient and spokesperson for Patients for Reform -- Not Repeal. "Montanans agree that patients with serious conditions should have access to medical marijuana and that government has no business interfering in medical decisions between those patients and their doctors. SB 423 goes too far and harms patients’ rights."

The legislative attack on medical marijuana this year came after the state's program mushroomed in the wake of the Obama administration's October 2009 Depart of Justice memo suggesting that the federal government would not interfere with people following state law in states where medical marijuana is legal.

Along with a rapid growth in the number of registered card holders, the state saw an explosion of storefront dispensaries, as well as some operators willing to push the envelope in ways that deeply affronted some conservative Montanans. Medical marijuana caravans crisscrossing the state, doctors' recommendations issued remotely online, and defiant public pot-smoking displays didn't play well in parts of the state.

That led to intense debates about how to deal with medical marijuana in Montana, and after a strong Republican showing in the November 2010 elections sent a large Tea Party contingent to Helena, the legislature acted more like a wrecking ball than a renovation service when it came to the medical marijuana program.

"When those folks got to the statehouse, they were all about their ideological and moral imperatives," said Habib. "They wanted to impose their world-view on everyone, and there was some real railroading going on. We don’t think that what they did was representative of what Montana voters believe, but the legislature still stands by its position."

The shenanigans of some Montana medical marijuana industry players may have helped swing the pendulum toward the forces of reaction in 2010 and so far this year, but the heavy-handedness and overreaching of the Republican legislature is succeeding in swinging it back in a more progressive direction. The impressive volunteer campaign to make the ballot is one indication of that, but the real proof that the climate has changed will have to wait for November 2012.

MT
United States

California Hemp Bill Awaits Governor's Signature

A bill that would allow farmers in four California counties to grow industrial hemp has passed the state legislature and now sits on the desk of Gov. Jerry Brown (D) awaiting his signature. The bill, Senate Bill 676, the California Industrial Hemp Farming Act, passed the Senate earlier this year, then passed the Assembly last week.

Hemp field at sunrise. Will California farmers be able to enjoy its fruits? (votehemp.org)
Sponsored by state Sen. Mark Leno (D-San Francisco), the bill would allow farmers in those counties to grow industrial hemp for the legal sale of hemp seed, oil, and fiber to manufacturers. The bill specifies that hemp must contain less than 0.3% THC, the primary psychoactive ingredient in cannabis, and farmers must submit their crops to testing before it goes to market.

The eight-year pilot program would end in 2020, but not before the California attorney general would issue a report on law enforcement impact and the Hemp Industries Association would issue a report on its economic impact.

"California is one step closer to building a successful hemp industry in the Central Valley," said Leno after the Assembly approved the bill on a vote of 49-22 on September 7. The Senate gave its final approval to Assembly amendments the following day.

While hemp bills have passed the state legislature previously, SB 676 is the furthest reaching yet and managed to pick up support from businesses, farming groups, local government, labor, even law enforcement. Supporters ranged from the California Grange and the California Certified Organic Growers to the United Food and Commercial Workers to the Kern County Board of Supervisors and the Kern and King county sheriffs, both of whom wrote letters of support in favor of the bill.

"Hemp is a versatile cash and rotation crop with steadily rising sales as an organic food and body care ingredient. Today, more than 30 industrialized nations grow industrial hemp and export it to the US. Hemp is the only crop that is illegal to grow yet legal for Americans to import," explained Eric Steenstra, president of Vote Hemp and executive director of the Hemp Industries Association.

The US hemp market is now estimated to be about $420 million in annual retail sales, but manufacturers must turn to foreign suppliers because the DEA, which refuses to differentiate between industrial hemp and recreational and medical marijuana, bars its cultivation here.

Sacramento, CA
United States

Massachusetts Joint Committee on the Judiciary Hearing

Visit http://www.malegislature.gov/Events/EventDetail?eventId=228&eventDataSource=Hearings or http://famm.org/StateSentencing/Massachusetts/MassachusettsUpdates/September20JudiciaryCommitteeHearing.aspx for further information on this hearing.

Visit http://www.capwiz.com/drcnet/issues/bills/?type=ST#Current_Sessions:_Sentencing_&_Incarceration for information on some of the sentencing bills being considered in Massachusetts and other states.

Date: 
Tue, 09/20/2011 - 1:00pm - 5:00pm
Location: 
24 Beacon St., Room B-2
Boston, MA 02108
United States

Veteran, ACLU Challenge Florida Welfare Drug Test Law [FEATURE]

Florida's new law requiring applicants for the Temporary Assistance to Needy Families (TANF) program to take and pass a drug test in order to receive benefits is being challenged by the American Civil Liberties Union of Florida (ACLUFL). The group filed a class-action lawsuit in federal district court in Orlando Tuesday arguing the new law was unconstitutional and seeking a temporary injunction to block its implementation.

Under the law, which passed Florida's House and Senate in April and May respectively, applicants can be denied public assistance for a year if they fail the drug test and denied for three years if they fail a second drug test. Persons who complete drug treatment can regain eligibility, and the children of people denied benefits can receive funds through a designated trustee.

http://stopthedrugwar.org/files/drugtest.jpg
drug testing kit
"It's our view that not only is this program unconstitutional and illegal, but it is a public policy that rests on ugly stereotypes," said ACLUFL executive director Howard Simon at a Wednesday morning press conference.

The lawsuit, Lebron v. Wilkins, names a Central Florida man, Luis Lebron, as the lead plaintiff. Lebron, a Navy veteran, single father, and University of Central Florida student who is looking for work, was denied TANF benefits after refusing to submit to a drug test. Lebron, who also cares for his disabled mother, did accounting and payroll work in the Navy and in the private sector before returning to college. He is expected to graduate with an accounting degree in December.

"Florida's new law assumes everyone who seeks public assistance has a drug problem," said Lebron. "They don't know that I'm in school right now so I can get a good job to provide for my son and mother, and it feels like they don't care. I have to prove to them that I'm not breaking the law. It makes me sick and angry that for no reason at all and no suspicion, I have to prove I'm not using drugs. The Fourth Amendment is part of the Bill of Rights, and it says no searches without probable cause."

The pivotal question, Lebron said, is whether the searches are reasonable. "Searches must be based on individualized suspicion," he noted. "In the Navy, I swore an oath to defend the Constitution. Now, I'm asking for the Constitution to defend me."

Florida Gov. Rick Scott (R) championed the new welfare drug testing law, arguing that welfare recipients used drugs at a higher rate than the population at large and that the law would save Florida taxpayers money. A number of similar bills have been filed in other states as well, and rumblings of Congressional hearings on the proposal have been heard inside the Beltway as well.

But so far the numbers have failed to borne out Scott's claims about welfare recipients or budget savings. A 1996 study of alcohol and illicit drug use by the National Institute on Alcohol Abuse and Alcoholism found that welfare recipients' use rates to be the same as the population at large. And according to Florida's Department of Children's Services, only about 2% of TANF applicants have tested positive for drugs in the new program so far. At that rate, the state will arguably save a few tens of thousands of dollars each year in a program that is budgeted at $168 million a year. But even those savings are debatable, given that it is difficult to factor in the costs of administering the program -- or defending it against legal challenges or individual claims of false positives.

The one clear winner in the welfare drug testing program is Florida's drug testing industry. Each TANF applicant must take a drug test at a cost of $30-35 and pay for it out of his own pocket. If the test comes back negative, the state reimburses the applicant. The net result is a transfer of funds from the TANF program to drug test providers.

http://stopthedrugwar.org/files/rickscott.jpg
Gov. Scott
But the ACLUFL lawsuit does not rely on a cost-benefit analysis. Instead, it relies on the argument, vetted in both federal appeals courts and the Florida courts, that suspicionless drug testing violates the Fourth Amendment's proscription against unreasonable searches.


"Our legal claim is straightforward and should come as no surprise to the state of Florida," said Maria Kayanan, the lead attorney in the case. "The only state in the country to try this in the past failed miserably. Throughout the session, legislative staff warned the legislature that this law raised legal challenges."

Kayanan was referring to Michigan, which enacted a law requiring suspicionless drug testing of welfare recipients in the 1990s. That law was overturned as unconstitutional by a federal district court judge in a decision upheld by the US 6th Circuit Court of Appeals.

"This is bad policy, it's a mess, and we hope the court recognizes that suspicionless drug testing absent a clear showing of risk to public safety violates the Fourth Amendment," she said.

Federal courts have held that government-imposed drug testing absent particularized suspicion is unconstitutional except in very limited circumstances. The courts have carved out exceptions allowing drug testing in occupations where the public safety is at risk, for law enforcement personnel involved in drug enforcement, and for high school students engaged in extracurricular activities, but that is as far as the federal judiciary has been willing to bend the Fourth Amendment to date.

"This is a slippery slope," said Randy Berg, executive director of the Florida Justice Institute, which is co-counsel in the case. "While implemented here to go after people in need of public assistance to protect their families, who is next? People who apply to get a fishing license? Contractors who contract with the state? It is very important that people see this as a slippery slope. That is why we have stepped forward to challenge this unconstitutional bill enacted by the legislature."

"After the Michigan law was struck down, a number of states have started rekindling this idea, but Florida was the first state to enact this," said Simon. "But this public policy that the legislature adopted at the urging of the governor is based only on ugly stereotypes and talking points. He keeps saying that taxpayers have a right to know their money is not being used to subsidize drug addiction. But this method is unconstitutional, and we are confident it will be found unconstitutional again."

In response to a question echoing a commonly heard plaint, Simon explained why workers in the private sector must sometimes submit to drug testing when welfare applicants do not.

"The government is bound by the Constitution and private employers are not," he pointed out. "Things that may be appropriate in the private sector are impermissible when done by the government. The governor is also a lawyer, but he must have slept through constitutional law."

"I served my country, I'm in school finishing my education and trying to take care of my son," Lebron said. "It's insulting and degrading that people think I'm using drugs just because I need a little help to take care of my family while I finish up my education."

Now, a federal court in Florida will decide if requiring Lebron to submit to a drug test, is not only insulting and degrading to him, but unconstitutional. With efforts to impose similar laws on welfare applicants and people seeking unemployment benefits underway in a number of other states and possibly Congress, this Florida case will have ramifications reaching far and wide.

Orlando, FL
United States

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