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Federal Appeals Court Blocks Florida Welfare Drug Test Law

The 11th Circuit Court of Appeals in Atlanta Tuesday upheld a preliminary injunction blocking Florida's 2011 law requiring welfare applicants to take and pass a drug test. The court held that mandatory, suspicionless drug testing violated the Fourth Amendment's proscription against warrantless searches and seizures.

The decision came in Lebron v. Secretary, Florida Department of Children and Families, in which Navy veteran, single father, and university student Luis LeBron applied for Temporary Assistance for Needy Families (TANF) funds, but refused to be drug tested. His challenge to the law led to a federal district court's preliminary injunction halting the implementation of the law. The 11th Circuit's ruling Tuesday upheld the preliminary injunction.

Federal courts have generally found random, suspicionless drug testing to be a violation of the Fourth Amendment, but have carved out two "special needs" exceptions: for public safety (allowing testing of pilots, truck  drivers, and police doing drug enforcement) and children (allowing testing of students involved in athletic or extracurricular activities). The 11th Circuit held that the Florida law did not fall within those exceptions.

The state of Florida "presented no empirical evidence to bolster its special needs argument that suspicionless drug testing of TANF applicants is in any way warranted," the court held. "There is nothing so special or immediate about the government’s interest in ensuring that TANF recipients are drug free so as to warrant suspension of the Fourth Amendment."

"Today, the 11th Circuit Court of Appeals, in affirming a preliminary injunction halting Florida's law mandating suspicionless drug testing of TANF applicants, set important precedent, which will hopefully curtail other states from following in Florida's stampede over individuals' Fourth Amendment rights, said Shawn Heller, a co-counsel on the case. "As Judge Jordan succinctly stated in his concurrence, 'constitutionally speaking, the state's position is simply a bridge too far.'" (Heller first joined the case while on staff at the Florida Justice Institute, which argued the case as co-counsel to the ACLU of Florida.)

"The 11th Circuit's decision deals a devastating blow to any state's attempt to impose suspicionless drug testing as a condition of receiving governmental benefits," said Daniel Abrahamson, director of legal affairs at the Drug Policy Alliance, which had filed an amicus brief in the case. "We hope that lawmakers will choose to honor the constitution rather than scapegoat poor people in efforts to address perceived drug problems."

In that amicus brief, the Drug Policy Alliance was joined by the American Academy of Addiction Psychiatry, Physicians and Lawyers for National Drug Policy, the Legal Action Center, Center for Juvenile and Criminal Justice, National Employment Law Project, Child Welfare Organizing Project, and National Advocates for Pregnant Women.

The brief argued that Florida’s drug testing scheme does not achieve any of its purported goals of protecting the well-being of children, promoting the employability of person on public assistance and assuring fiscal integrity, and does not pass the "special needs" test that is required to justify otherwise unconstitutional searches by government officials.

The ruling comes as public benefits drug testing measures continue to be introduced -- and sometimes advanced -- in states across the country. Some of those bills attempt to overcome the Fourth Amendment obstacles cited by the appeals court here by attempting to set up a "reasonable suspicion" assessment before mandating drug testing.

Atlanta , GA
United States

US Supreme Court Upholds Drug Dog Search of Truck

The US Supreme Court Tuesday upheld the use of police dog's sniff of a truck, finding that training and testing records were sufficient indicators of the dog's reliability and gave police probable cause for the search. The high court in 2005 upheld the legality of highway drug dog searches; in this case, the court focused on the reliability of drug dog searches.

In deciding the case, the high court reversed a decision from the Florida Supreme Court. The Florida court had held that a wide array of evidence was necessary to establish probable cause for the search, including field performance records that would indicate how many times the dog had falsely alerted. Without such records, the Florida court held, police could not establish probable cause.

Tuesday's ruling came in Florida v. Harris, in which Clayton Harris had been pulled over by a police officer in Liberty County in 2006. The drug dog, Aldo, alerted to the truck's door handle, the officer searched the truck, and methamphetamine precursor chemicals were found. Clayton was arrested on meth-related charges.

Harris was again pulled over by the same officer while out on bail, and Aldo again alerted on his vehicle. This time the vehicle search came up empty. Harris's attorneys challenged Aldo's reliability in part because of this second alert that turned up nothing. The Florida Supreme Court agreed with their argument that the dog's performance in the field needed to be assessed in order to determine probable cause for the search.

But not the US Supreme Court. It unanimously reversed the decision.

A drug dog's "satisfactory performance" in a certification or training program provided sufficient probable cause to trust its alert, Justice Elena Kagan wrote for the majority. "The question -- similar to every inquiry into probable cause -- is whether all the facts surrounding a dog's alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime," Kagan wrote. "A sniff is up to snuff when it meets that test."

The case is one of two Florida drug dog cases before the Supreme Court this session. In the other, the high court takes up the question of whether a drug dog can sniff the front doorstep of a home without a search warrant. The Supreme Court has upheld drug dog searches of vehicles on the highway and packages at delivery service warehouses, but in other cases has shown greater deference to Fourth Amendment requirements at residences.

Washington, DC
United States

Medical Marijuana Update

The California Supreme Court heard oral arguments in a key case on whether localities can ban dispensaries, and medical marijuana bills died in two Midwest states, and there's more news, too. Let's get to it:

California

Last Thursday, the Obama administration sought to dismiss a lawsuit by the city of Oakland defending its ability to issue permits for dispensaries. Oakland had sued the feds after US prosecutors moved against the Harborside Health Center, seeking to shut it down. The Justice Department argued that the city was using the wrong legal remedy, but Oakland argued that shutting down Harborside would send tens of thousands of patients into the streets seeking medicine, posing a threat to public safety in a city with crime problems. No ruling was made.

Also last Thursday, the LAPD raided a massive grow up that supplied dispensaries. LAPD officers and US Homeland Security gang agents found 1,500 pounds of marijuana and several firearms. Police said the warehouse grow did about $7.6 million in business every 60 days, and supplied numerous dispensaries in Southern California. Authorities also allege it was shipping marijuana to the Midwest and East Coast. Four people were arrested; their names have not been released.

On Monday, San Diego District Attorney Bonnie Dumanis dropped the charges against two medical marijuana patients. The move came in the cases of Clint Guidry and Cameron Mitchell, and represented a setback for the staunchly anti-medical marijuana Dumanis.

On Tuesday, LA City Attorney Carmen Trutanich said dispensaries should be allowed to operate in the city. Up for reelection, the formerly anti-dispensary Trutanich said he was endorsing a city council initiative that would allow the 100 to 180 retailers that existed before a fall 2007 city moratorium on dispensaries to essentially carry on so long as they follow certain rules. A second initiative also set for the ballot would allow virtually all of the city's hundreds--possibly up to a thousand--dispensaries to stay open.

Also on Tuesday, the state Supreme Court heard oral arguments in a key dispensary ban case. The issue is whether the city of Riverside's ban on dispensaries violates the state's medical marijuana laws. Questioning by the justices suggested that they were prepared to agree with the city that the state constitution gives cities wide policing power over land use and suggested that the state's medical marijuana laws have not undercut that authority.

On Wednesday, DEA agents and San Bernardino police raided a chain of dispensaries and a private residence. The raiders hit Kush Concepts at three locations, where they marched patients out of the dispensaries. City officials said there are 41 dispensaries in San Bernardino.

Also on Wednesday, an appeals court upheld Tehama County's cultivation ordinance. A group of medical marijuana patients sued over the ordinance in 2010, arguing it was unconstitutional and conflicted with the Compassionate Use Act. The county prevailed in Superior Court, and that decision was appealed. Now that appeal has been lost.

Colorado

Last Tuesday, the first applications for Fort Collins dispensary licenses were submitted. The city had had 21 dispensaries that were forced to close when voters chose to impose a ban in 2011. The ban was overturned by voters in November, and now the dispensaries are coming back.

Iowa

Last Thursday, legislators killed a medical marijuana bill. House Public Safety Committee Chair Clel Baudler (R-Greenfield) call it one of the "stupidest" bills he had ever seen. He was joined by the other Republican on the three-member panel in voting to kill it.

Massachusetts

On Sunday, state officials said they may not make the deadline to come up with medical marijuana regulations. They are required to have them in place by May 1, but health officials said the complexity of the issues was such that they were unlikely to be able to comply. Medical marijuana advocates responded that any delay is unjustified and would cause patients to suffer.

Michigan

On Tuesday, a report said the state had collected $10 million in revenues from medical marijuana program applicants. The report covered the period through the end of the state's budget year on September 30. It says the revenue intake was nearly double that needed to run the program.

Montana

Last Friday, Chris Williams was sentenced to a mandatory minimum five years in prison for his role in Montana Cannabis, the state's largest dispensary during its short-lived medical marijuana boom. He had been facing more than 90 years in federal prison after refusing plea agreements and then being convicted of marijuana cultivation and firearms offenses in federal court (they had a shotgun at their grow op), but in the face of a public outcry, prosecutors sought and got an unusual post-conviction plea bargain limiting his prison exposure.

South Dakota

On Tuesday, a medical marijuana bill was killed in the legislature. It went down on a 7-6 vote in the House Health and Human Services Committee. Medical marijuana bills have been repeatedly introduced since 2001, only to die. South Dakota voters have also twice rejected medical marijuana initiatives.

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

Medical Marijuana Update

An important federal court ruling, medical marijuana bills start popping up in the states, more providers get prosecuted, and LA continues to stumble toward a resolution of its dispensary issue. Let's get to it:

National

On Tuesday, the DC Circuit Court of Appeals rejected a petition to reschedule marijuana.The nearly 11-year-old petition had been rejected by the DEA, and the appeals court upheld that decision. While attorneys for petitioners say they will appeal -- to the Supreme Court if necessary -- advocates are now turning their attention to Congress and the administration.

California

Last Wednesday, the state Supreme Court denied review of a landmark medical marijuana case, People v. Jackson. In that case, the Fourth District Court of Appeals had overturned the conviction of San Diego dispensary operator Jovan Jackson and established a clear defense for Jackson and others like him who are prosecuted in state court. The Fourth District court had held that in mounting a defense at trial, "Jackson was only required to produce evidence which would create a reasonable doubt as to whether the defense provided by the [Medical Marijuana Program Act] had been established." The court further held that, "the collective or cooperative association required by the act need not include active participation by all members in the cultivation process but may be limited to financial support by way of marijuana purchases from the organization. Thus, contrary to the trial court's ruling, the large membership of Jackson's collective, very few of whom participated in the actual cultivation process, did not, as a matter of law, prevent Jackson from presenting an MMPA defense."

Last Friday, a Stockton dispensary operator pleaded guilty in federal court to marijuana manufacturing and distribution charges. Lynn Farrell Smith, 62, was a co-owner of a half dozen Stockton and Sacramento-area dispensaries and grew marijuana at a Stockton warehouse to supply the stores. Prosecutors said he made millions while hiding under the cover of the state's medical marijuana laws.

On Tuesday, the LA city council voted to put two medical marijuana initiatives on the May ballot. The two must come up for a second vote next week, when the council considers its own third initiative. One initiative would allow about 100 dispensaries to remain open; the other would allow most of the estimated 500 dispensaries currently operating in the city to remain open.

Also on Tuesday, the Antioch city council voted to ban dispensaries. The ban passed on a 3-2 vote after city staff told the council it had concerns about burglaries and robberies at dispensaries and over the sale of illegal drugs to youngsters.

Connecticut

Last Wednesday, state officials handed in draft regulations for in-state cultivation and sale of medical marijuana to Gov. Dan Malloy (D). The draft rules include nuts-and-bolts guidelines for growers, doctors, patients obtaining medical certificates and even the disposal of unused marijuana, which could be turned in to local police. If the regulation process proceeds smoothly, dispensaries could be operating by late this year or early next year.

Iowa

Last Wednesday, Rep. Bruce Hunter (D-Des Moines) introduced a medical marijuana bill. The bill, House File 22, would allow Iowans with debilitating medical conditions to obtain and use marijuana without fear of arrest. It would also create a dispensary system.

Montana

Last Thursday, a medical marijuana worker was sentenced to four years in federal prison for his involvement with Montana Cannabis, which was raided by the DEA as part of 2011's statewide sweep of dispensaries. Dan Nichols had done construction and worked as a night watchman at the dispensary. Several other Montana Cannabis operators have already been sentenced to federal prison, including 68-year-old Richard Flor, who died there.

Also last Thursday, a medical marijuana provider was convicted in federal court of "conspiracy to manufacture and distribute marijuana" and "possession with intent to distribute marijuana," but was acquitted of another felony, possession of a firearm in furtherance of a drug-related crime. Former Montana Grizzlies quarterback Jason Washington claimed to be in compliance with Montana's medical marijuana law but, as is typical with such federal cases, defendants like Washington are routinely denied a defense. He is facing a 5-year mandatory minimum sentence, up to 40 years in prison, and more than $10 million in fines and forfeitures.

Also last Thursday, a district court judge issued a second injunction blocking implementation of SB 423, the law passed by the state legislature that effectively gutted the state's voter-approved medical marijuana law. Judge James Reynolds had ordered a similar injunction last year, but was reversed by the state Supreme Court. After hearing new testimony, he issued a more thorough ruling last Thursday.

Oklahoma

On Monday, Sen. Constance Johnson (D-Oklahoma City) filed a medical marijuana bill. The bill, Senate Bill 902, directs the medical board to develop and adopt rules allowing patients to obtain permission from their doctors to use marijuana.

South Dakota

On Wednesday, two senators said they were introducing a medical marijuana defense bill.Sen. Craig Tieszen (R-Rapid City) and Rep. Dan Kaiser (R-Aberdeen) were hoping to introduce the bill Wednesday. It would allow persons caught with two ounces or less of marijuana to argue a medical necessity defense.

Texas

Last Friday, Rep. Elliot Naishtat (D-Austin) introduced a medical marijuana affirmative defense bill. The bill, House Bill 594, would enact protections for physicians who make written or oral statements to their patients that marijuana would likely provide benefits that outweigh any risks. Patients whose doctors make such statements would be able to present evidence of the statement in court if charged with possession of marijuana and have their charges dismissed.

Washington

Last Wednesday, the Bremerton city council voted to ban collective medical marijuana gardens. Such gardens are legal under a 2011 state law, but the council sided with city attorneys, who warned that regulating and permitting the gardens might put city workers at risk from the federal government, which considers all marijuana production illegal.

Can the DEA Hide a Surveillance Camera on Your Land? [FEATURE]

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

A case that began with reports of suspicious activity in northeast Wisconsin forest land last spring may be headed for the US Supreme Court. That's because a US district court judge ruled in the case last fall that it was okay for the DEA to enter the rural property without a warrant and install surveillance cameras that were used to help convict five members of a family on charges they were growing marijuana.

http://stopthedrugwar.org/files/dea-camera.jpg
surveillance camera (shutterstock.com)
The ruling last October came in a motion to suppress the evidence obtained by the warrantless video cameras. After that ruling, the defendants, five members of the Magana family, pleaded guilty to possession with intent to distribute marijuana and now face up to life in prison and up to $10 million in fines. But as part of the plea deal, they retained their right to appeal the ruling.

And their attorneys say they are prepared to take the case all the way to the US Supreme Court.

In their motion, they had asked the court to suppress evidence because of the property's locked gate and "No Trespassing" sign. Since the properties were heavily wooded and posted with signs, the owners were entitled to an expectation of privacy, the attorneys say.

"After sentencing, the first round of appeals will go to the Seventh Circuit and if there's no favorable ruling there, the cases will be filed into the US Supreme Court," Wisconsin attorney Stephen Richards told the Chronicle last week.

"That one's action could be recorded on their own property even if the property is not within the curtilage is contrary to society's concept of privacy," said Green Bay attorney Breet Reetz, who represents Marco Magana.

Curtilage is a term of legal art referring to the area of a property immediately surrounding a house or dwelling. Past Supreme Court jurisprudence, particularly US v. Oliver, had held under the "open fields" doctrine that areas outside the curtilage are not subject to the same Fourth Amendment protection as a home itself. "An individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home…," the court held in Oliver. (Perhaps not coincidentally, Oliver was another marijuana cultivation case, in which Kentucky deputies walked a mile onto the property before spotting a marijuana field. Their search was upheld.)

It all began in rural Marinette County last May, when a fishermen reported to local authorities that he had been run off the land by two men who told him "fishing is closed" and that he had observed trees cut down and power lines running across the property. Authorities investigated and found the property and two more adjacent properties were owned by members of the Magana family, which had purchased them months earlier.

Authorities left it at that until the following month, when a logger reported that when he had gone to check on a timber stand at one of the properties, he stumbled over a marijuana cultivation operation with more than 30 plants in a 50' x 50' clearing. The DEA then was called in and entered the Magana's properties without a warrant. Agents installed video cameras that eventually captured incriminating evidence of vehicles traveling in and out of the properties.

It wasn't until the DEA observed some of the men handling what believed to be marijuana did they go and request a warrant. A warrant was signed and the agents, accompanied by several local sheriff officers, executed the warrant and arrested the men at separate addresses near Green Bay.

The bust was big news in Marinette County.

"You've got thousands of plants, and as healthy as they look, this is a big operation," Sheriff Jerry Suave told local reporters at the time. The grow is probably "the largest I've seen," he added.

Before trial, set for the fall, counsel for the Maganas filed a motion to suppress the evidence, informing the court that videos from the surveillance camera showed dates that indicated that the camera had been running for 79 consecutive hours before DEA agent Steven Curran obtained a search warrant for the property.

"It is undisputed that the government trespassed without a warrant upon private property with visible 'No Trespassing' signs" posted," Reetz wrote in the motion, noting that the camera had operated from July 12 to July 15, but the warrant wasn't issued until July 17. Nor were there any "exigent circumstances" that would have allowed officers to enter the property without a warrant.

Federal prosecutors were ready with a response.

"Officers entering an 'open field' is not an area enumerated as protected under the Fourth Amendment," countered Assistant US Attorney for Eastern Wisconsin James Santelle. "'Open fields,' woods, and private lands are not 'persons, houses, papers, and effects' protected under the Constitution."

That was good enough for Eastern Wisconsin US District Court Chief Judge William Griesbach, who dismissed the defense motion and ruled that it was legal for the DEA to go onto private property without a warrant to install multiple covert digital cameras, and to use the evidence they obtain that way to obtains warrants and in court. Citing US v. Oliver, Griesbach held that the rural properties were curtilage and not protected by the Fourth Amendment.

But the Maganas' attorneys and other legal experts argue that even though "open fields" are not considered curtilage, if "No Trespassing" or "Private Property" signs are posted on the land, the property owner should still be entitled to an expectation of privacy under the law. And they are willing to take their argument to the highest court in the land.

"We have become a nation of men and not a nation of laws, which, is what our founding fathers didn't want us to become," Reetz said.

After formal sentencing, the case heads for the US 7th Circuit Court of Appeals. If Reetz and Richards don't prevail there, it is on to the Supreme Court. If the court were to take up the case, it would once again have the opportunity to try to untangle the dilemmas that result when the Fourth Amendment runs up against new technologies, for better or worse.

Green Bay, WI
United States

Medical Marijuana Update

Montana caregivers continue to get sentenced in federal court, an Arizona lawmaker wants a redo on medical marijuana, an Illinois bill is delayed, and the DEA gets busy in California. Let's get to it:

Arizona

Last Thursday, a state lawmaker filed a bill to put medical marijuana back before the voters. Rep. John Kavanaugh (R-Fountain Hills) pre-filed House Concurrent Resolution 2003, which would put the issue on the November 2014 ballot. Kavanaugh opposes the state's medical marijuana law and hopes voters will, too. The measure must be approved by the legislature, but does not need the governor's signature.

California

Last Thursday, a Santa Barbara man said he was being evicted from his apartment for smoking medical marijuana. James Cerda, 64, said the Santa Barbara Housing Authority recently imposed new no-smoking rules in his complex and that he had received an eviction notice because of his medical marijuana use. Cerda added that he had lived in the complex for 10 years and that housing officials had known for years that he was a medical marijuana patient.

Last Wednesday, the Los Angeles city clerk announced that an initiative that would reduce the number of dispensaries had gathered the required signatures to go before the voters. The "Medical Marijuana Collectives Initiative Ordinance" would allow about 100 dispensaries to remain open in the city. The initiative now goes to the city council, which can adopt it, call a special election, or place it on the May 21 general election ballot. Another group has submitted a separate initiative that would allow many more dispensaries to stay open. The city clerk is counting those signatures now to see if it, too, will qualify.

Last Friday, a group of dispensaries sued the city of Long Beach, charging it and its police department used illegal methods to run them out of business. The lead plaintiff, the Green Earth Center, claims police used "warrantless" raids and other illegal tactics. The lawsuit also names five Long Beach police officers and seeks an injunction and damages for alleged civil rights violations. More than a half dozen dispensaries were raided after a citywide ban on them took effect.

On Monday, former Upland dispensary operator Aaron Sandusky was sentenced to 10 years in federal prison. Sandusky had operated G3 Holistic in Upland, Colton, and Moreno Valley, and was convicted in October of two counts of violating federal marijuana law, one for conspiracy to manufacture marijuana plants, possession with intent to distribute marijuana plants, and to maintain a drug-involved premises, as well as a second count of distributing marijuana plants.

Also on Monday, a federal magistrate in Oakland allowed the Harborside dispensary to remain open while it fights federal government efforts to shut it down. Citing threat of seizure of their properties by the federal government, Harborside's Oakland and San Jose landlords had sought to force it stop selling medical marijuana. The federal magistrate ruled that it is up to the federal government, not the landlords, to shut down Harborside for violating the Controlled Substances Act.

Also on Monday, drug czar Gil Kerlikowske slammed medical marijuana during a gathering of law enforcement officials in San Francisco. "Medicinal marijuana has never been through the FDA process," he said. "We have the world’s most renowned process to decide what is medicine and what should go in peoples’ bodies. And marijuana has never been through that process."

On Tuesday, Mendocino County supervisors approved a change to their medical marijuana ordinance to clarify that " all information received by and/or generated by the operation of Chapter 9.31 has always been intended to be treated and held by the County of Mendocino as confidential information to the fullest extent authorized by California and Federal law from 2008 to the present as well as prospectively." The move comes in response to a broad federal subpoena seeking information on the county's medical marijuana program, which the county is contesting.

On Wednesday, the DEA raided three Los Angeles dispensaries, according to preliminary reports.

Illinois

Last Thursday, the state legislature adjourned without addressing a medical marijuana bill. But a new session starts this week, and the bill will be reintroduced. After the November elections, Democrats now hold super-majorities in both houses, which should help the process along.

Montana

On December 28, a Helena man was sentenced to a year in federal prison for growing medical marijuana. Paul Roy Schmidt, 57, had operators Sleeping Giant Caregivers, which was raided during the federal crackdown in the spring of 2011. He was in compliance with state medical marijuana laws. He had faced a mandatory minimum five-year prison sentence, but was granted a downward departure at sentencing. He was also fined $750,000.

Last Friday, medical marijuana provider Chris Lindsay was sentenced to five years federal probation for his role in Montana Cannabis dispensary, which had locations across the state. It, too, was busted during the 2011 federal crackdown. Lindsey said he would remain head of the Montana Cannabis Industry Association, but he must forfeit $288,000 in bank accounts held under the name of the Montana Caregivers Association. Lobbyist Tom Daubert, another partner in Montana Cannabis, previously was sentenced to probation. Partner Richard Flor of Miles City died in federal custody in August. Partner Chris Williams, the only Montana Cannabis member to go to trial, was convicted and faces a mandatory minimum five-year sentence when sentenced on February 1.

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

Florida Must Pay Attorney Fees in Employee Drug Test Lawsuit

A federal judge has ordered the state of Florida to pay more than $190,000 in attorneys' fees in a case challenging an executive order ordering suspicionless drug testing of state employees issued last year by Gov. Rick Scott (R). Those taxpayer funds have now been lost to Scott's chimeric crusade to impose drug testing on various fronts.

http://stopthedrugwar.org/files/rick-scott-200px.jpg
Gov. Scott's controversial lawmaking has already cost Florida a million in legal fees.
Last Friday, US District Court Judge Ursula Ungaro ordered the state to pay attorneys' fees to the American Federation of State, County, and Municipal Employees (AFSCME) Local 79, which filed suit to block the executive order in May 2011. The union is the plaintiff in the suit challenging Scott's ability to randomly test workers in state agencies.

A report by the Orlando Sentinel found that the state has now incurred over a million dollars in legal bills for controversial legislation pushed by the governor.

Judge Ungaro had ruled that Scott's executive order was unconstitutional back in April, saying the governor did not show a "compelling need" to impose drug testing. Scott has appealed to the 11th US Circuit Court of Appeals.

Scott's drug testing plan has never been implemented except among some employees of the Department of Corrections. He put it on hold because of the legal challenge.

Another of Scott's pet projects, the mandatory suspicionless drug testing of welfare applicants and recipients has also been so far stymied in the federal courts. In that case, a federal judge issued a temporary injunction blocking implementation amid strong hints she would eventually rule that the practice was unconstitutional.

Meanwhile, despite the legal roadblocks -- and financial costs to taxpayers of fighting them -- Scott and the legislature last year passed another bill, House Bill 1205, which would allow, but not require, state agencies to conduct random suspicionless drug testing of state workers. That law, too, is on hold as it faces challenges in the federal courts.

FL
United States

Harborside and the Feds' Failed Medical Marijuana Communications

Harborside is in the news again today. Two weeks ago we noted the premiere (and largest) dispensary had won a battle in state court. Facing threats by federal authorities over Harborside's marijuana distribution, their landlord attempted to evict them, only to be rebuffed by a judge because she had authorized Harborside to engage in exactly that business there in the lease.

Harborside video
Today a federal judge began hearing three related motions on the matter, according to NBC Los Angeles -- two from the landlord's lawyers asking to evict them, one from the City of Oakland opposing those motions, asking they be stayed until their own effort to stop the federal government's forfeiture proceeding on the property gets heard.

"We invited (U.S. Attorney) Melinda Haag to come to Harborside to tour to take a look at the way we do things," Harborside Executive Director Steve DeAngelo said Thursday outside court [according to NBC]. "Because I think the federal government should be studying Harborside not trying to close us down. We've developed a great model for responsible and legitimate distribution of cannabis."
 

According to the LA Times, the city's lawsuit "contends that federal prosecutors missed a five-year statute of limitations to seize Harborside's properties and misled Oakland officials with a 'pattern of false promises' that they would not go after dispensaries that were complying with state and local laws." The feds in turn say they've always reserved the right to go after any dispensary, and dismissed attorneys' arguments about the needs of patients who will be driven to the illicit market.

Those issues will in all likelihood be decided based on the technical legal merits, and we've known all along we faced tough prospects in the courts, especially since the Raich ruling. Still, the city's arguments, whether legally persuasive or not, are accurate. Obama administration officials did mislead the city -- the country -- about their intentions with regard to state medical marijuana laws. Whether they did so deliberately or through mere inconsistency is irrelevant. When Sen. Patrick Leahy (D-VT) asked the attorney general to make the administration's intentions toward marijuana legalization in Washington and Colorado known, the unspoken corollary is how inappropriately they've handled communications about medical marijuana. That's bad enough when a business or city gets harmed. But some of the victims are in prison or dead.

Haag must see that she is on the losing side of history by now. The question is how much carnage she and her cohorts will inflict by holding out. It would be better to have some reason from the feds sooner rather than later -- some reason and some decency.

P.S. Watch why Scott Morgan considers Harborside The Best Place in the World to Buy Marijuana:

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