News Brief

The California Supreme Court ruled Thursday that employers may fire workers who use medical marijuana in compliance with California's Compassionate Use Act -- even if they are off duty and even if their use does not affect their job performance. The ruling came in Ross v. Raging Wire Telecommunications.

In that case, Gary Ross, whose doctor recommended medical marijuana for chronic back pain resulting from an injury incurred while serving in the Air Force, was hired by Raging Wire as a systems engineer in 2001 and was required to take a drug test as a condition of employment. He provided the company with a copy of his doctor's recommendation, but the company fired him a week later because of a positive test result.

Ross sued, alleging that the company violated the California Fair Employment and Housing Act (FEHA) by not accommodating his disability. He also argued that the company fired him in violation of public policy because the Compassionate Use Act legalized medical marijuana in the state.

"All I am asking is to be a productive member of society," Ross said in a written statement. "I was not fired for poor work performance but for an antiquated policy on medical marijuana."

His case was watched with great interest by California medical marijuana users. Hundreds have complained of being fired, threatened with firing, or not being hired as a result of their medical marijuana use.

But in siding with employers, the state high court said the Compassionate Use Act protected users only from criminal prosecution. "Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and duties of employers and employees," wrote Justice Kathryn Mickle Werdeger for the majority. "Under California law, an employer may require pre-employment drug tests and take illegal drug use into consideration in making employment decisions."

Additionally, Werdeger noted, even though medical marijuana is legal under state law it remains illegal under federal law, and "the FEHA does not require employers to accommodate the use of illegal drugs."

Justice Joyce Kennard was scathing in her dissent. The decision was "conspicuously lacking in compassion," she wrote. "The majority's holding disrespects the will of California's voters." The voters "surely never intended that persons who availed themselves" of the medical marijuana act "would thereby disqualify themselves from employment," Kennard said.

Reaction was rapid and only beginning on Thursday evening. The Los Angeles Times reported that Assemblyman Mark Leno (D-San Francisco) announced the same day he would introduce legislation to prevent employers from discriminating against medical marijuana users. "The people of California did not intend that patients be unemployed in order to use medical marijuana," he said.

Bruce Mirken of the Marijuana Policy Project (MPP) told the Times the decision was a slap at patients. "The court is claiming tha California voters intended to permit medical use of marijuana, but only if you're willing to be unemployed and on welfare," Mirken said. "That is ridiculous on its face, as well as cruel."

The ability of medical marijuana users to function in society is not just an issue in California. Legislative efforts are afoot in Oregon to explicitly allow employers to fire medical marijuana users. In Montana, the Department of Corrections wants to ban probationers and parolees from using medical marijuana. In some other states, like Rhode Island, protections for users are written into the law. Look for a feature article on this issue next week in the Chronicle.

Chesapeake, Virginia, Police Detective Jarrod Shivers was killed by a bullet fired through a door as he attempted to break it down during a raid on a suspected marijuana grow operation on January 17. Shivers was a veteran narcotic detective and SWAT team member whose specialty was "breaching" doors during drug raids. The home's resident, Ryan Frederick, was arrested in the shooting.

As Drug War Chronicle noted in a recent review of drug war-related law enforcement deaths last year, making drug arrests is not an extraordinarily risky endeavor -- only one officer died doing a drug raid last year, and the total number killed doing any drug enforcement was five. But there are risks, especially when police rely on dynamic forced entries, as appears to have been the case in Chesapeake.

While police said they did a "knock and announce" before entering the home, one local press account said Shivers "died doing his specialty -- breaking down doors" -- when he was shot.

Police had obtained a search warrant based on information from a confidential informant that "the marijuana was growing in portable shelters with a hydroponic system," according to local press reports. This week, police announced they had indeed seized marijuana and growing equipment, though without explaining why they waited five days to say so.

Shivers was buried on Tuesday. The alleged shooter, Frederick, remains in jail. He is now charged with first degree murder.

All this over some pot plants.

The California Court of Appeals in San Francisco ruled last Friday that police cannot enter a home without a search warrant just because they see someone smoking marijuana inside. Police may enter a home to preserve evidence of a crime, the court held, but only if the crime is punishable by jail or prison. The ruling came in People v. Hua.

Under California law, possession of less than an ounce of marijuana has been decriminalized with a maximum $100 fine and no jail time. Because simple possession has been decriminalized, even if police see someone smoking a joint inside a house, they have not witnessed a jailable offense, hence the only way they may enter without a search warrant is if they seek and receive the permission of a resident.

The case came about in March 2005, when officers in Pacifica came to an apartment on a noise complaint, smelled marijuana as they approached, then looked through a window to see what appeared to be someone smoking pot in a group of people. Police then entered and searched the apartment over the objections of resident John Hua. They found two joints in the living room, 46 plants in a bedroom, and an illegal cane-sword on a bookshelf.

After a San Mateo County judge upheld the police search, Hua pleaded no contest to cultivating marijuana and possession of the sword and served a 60-day jail sentence. But he retained his right to appeal the search ruling.

On appeal, prosecutors offered a two-pronged argument: that they had reason to believe there was more than an ounce of marijuana in the apartment, and that Hua or others might be committing a felony by handing the joint back and forth. But the court wasn't buying; it said the first argument was "mere conjecture" and the second was a misinterpretation of the law, which prescribes the same fine for giving a joint to someone as it does for smoking it.

Prosecutors aren't happy. California Deputy Attorney General Ronald Niver said he would recommend appealing the ruling to the state Supreme Court. "It's difficult to accept the proposition that if you see marijuana in one room, you cannot draw the inference that there's marijuana in another room," he said. "It's like saying that if you see the streets are wet, you can't infer that it's raining."

Ironically, Niver's boss, California Attorney General Jerry Brown, was the governor who signed the decriminalization bill in 1978.

The Vermont legislature will this year take up a bill to decriminalize the personal possession, growing of two plants, and small-scale sales of marijuana. At the same time, the legislature will consider a proposal to lower the threshold for what constitutes "trafficking amounts" for hard drugs such as heroin and cocaine. Both proposals will be discussed at public hearing of the Senate Judiciary Committee on January 23.

The legislative moves come after months of discussion about the cost and efficacy of Vermont drug policy and sometimes heated debate over marijuana decriminalization. The decrim debate really heated up last fall when Republican Gov. James Douglas ordered that marijuana cases be taken away from the office of Windsor County prosecutor Robert Sand, who approved court diversion for a local attorney caught growing 30 pot plants. Douglas accused Sand of having a blanket diversion policy, but backed off the state control over prosecutions after Sand made it clear he had no such blanket policy, and after it was found that an Orange County prosecutor had done a similar deal for a man arrested with more than 100 plants.

Senate President Pro Tem Peter Shumlin (D-Windham) said last month that drug law reform, including marijuana decriminalization, was one of his top priorities for the current session. That moved Gov. Douglas to say that he was open to decrim discussions, although he has not endorsed the idea.

The marijuana decrim bill, S-238, was introduced last year and reintroduced this year by Sen. Jeannette White (D-Windham). Under the bill, possession of up to four ounces or two plants and sale of less than four ounces would be a civil violation with a maximum penalty of a $1,000 fine. Possession of more than four ounces or more than five plants would still be a crime punishable by up to five years in prison under the bill.

While White's decrim bill is a step in the right direction, the hard drug bill, S-250, to be offered by Sen. Richard Sears (D-Bennington), head of the Senate Judiciary Committee, is not. That bill would lower the threshold for criminal trafficking charges from 300 grams of cocaine to 150 and from seven grams of heroin to 3.5. People convicted of possessing drugs in such amounts would face up to 30 years in prison and a fine of up to one million dollars.

Sears has also signaled that he thinks the four ounce decrim limit is too high. "Four ounces of marijuana is a felony," he told the Barre-Montepelier Times Argus. "I don't think we want to go there."

But Sears is open to discussion, he said. "I thought it was important to let the public weigh in before we started taking a close look at the proposals," he said. "This is a change in state law regarding drugs, and the public probably has some thoughts about this."