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Medical Marijuana Update

Last issue, we reported that the DEA had taken the week off. Well, they're back, and so is the push-back. Let's get to it:

National

Last Thursday, the Women's CannaBusiness Network held a press conference in Washington, DC, to call on President Obama to cease enforcement actions against medical cannabis providers while the administration reviews its policies to determine whether they are in the public interest. The group is a project of the National Cannabis Industry Association.

On Monday, Americans for Safe Access called for Thursday demonstrations at Obama campaign headquarters across the country "in an effort to draw attention to the Obama Administration's aggressive efforts to shut down legal medical marijuana dispensaries and obstruct the passage of laws that would regulate such activity." Demos are set for Washington, DC, as well as in the states of Arizona, California, Colorado, Montana, Missouri, New Mexico, Oregon, and Washington.

California

Last Wednesday, the DEA raided Green Heart Collective facilities in Anderson and Redding. "They broke all the windows, vandalized the inside of the building and took all of the medicine," owner Gina Munday said. "We were so surprised." No arrests have been made so far.

Also last Wednesday, the Encinitas city council approved a dispensary initiative for the 2014 ballot. Initiative backers the Patient Care Association had signatures verified by the registrar of voters on August 8, two days before the state deadline for the 2012 ballot, but the council would have had to have called a special meeting to place it on the ballot. It failed to do so.

Last Thursday, Harborside Health Center asked a federal judge to stop its landlord from trying to shut it down. Harborside and its landlords have been hit with threat letters from federal prosecutors, and its San Jose landlord had moved to force it out. But Harborside is fighting everything to do with the federal threats.

Last Friday, Vallejo police raided Nature's Love Collective for the second time. They arrested the operator, just as they did four months ago, the last time they raided it. Vallejo police have raided  nine dispensaries this year despite the city voting to tax and regulate them.

On Monday, an initiative to overturn the LA dispensary ban qualified for the ballot.  City Clerk June Lagmay said activists needed 27,425 valid signatures for their measure to qualify and that a statistical sampling of the signatures showed they had turned in 110% of the amount needed. The city council can now repeal its "gentle ban" ordinance, call a special election, or put the measure on the March 5 city election ballot. In the meantime, the ban is on hold, although LAPD has said it intends to continue busting dispensaries.

Oregon

On Tuesday, the DEA raided the High Hopes Farm grow operation outside Jacksonville. James Bowman, a longtime activist, owns the farm and went public about his activities last spring with a spread in the Oregonian newspaper. Bowman could be the single largest medical marijuana producer in the state. He wasn't arrested, but agents plowed under his crop.

Vermont

As of Sunday, the Vermont Department of Safety has granted conditional approval to two dispensary applicants. One applicant, the Champlain Valley Dispensary, has been approved for Burlington and hopes to be open and serving patients within six months. A second applicant, Patients First Inc., has been approved for Waterbury. The department received five applications this year, but three of them did not meet minimum standards. Under a 2011 law, the state can have four dispensaries and will accept more applications next year if that number isn't reached this year.

Chronicle Film Review: Lynching Charlie Lynch

Lynching Charlie LynchA Film by Rick Ray (2012, Rick Rays Films, 1:40, $29.95 DVD)

Of all the various fronts of the war on drugs, the assault on medical marijuana patients and providers may not be the stupidest -- that distinction probably belongs to the ban on hemp farming -- but it is arguably the cruelest. No fair-minded observer can doubt that marijuana soothes many maladies, and there is an ever-increasing mountain of peer-reviewed scientific and medical research to back that up.

And no one can listen to the testimonials of patients suffering serious ailments about the relief they've found with marijuana without empathizing with their all-too-real suffering. My personal experience is only anecdotal, but I've been meeting bona fide patients for years now, people with multiple sclerosis, people undergoing chemotherapy, people debilitated by agonizing migraine headaches -- all of whom swear by the weed.

Sure, California's medical marijuana allows virtually anyone with $75 and the ability to say "chronic pain" to get a medical recommendation, and many people who arguably suffer no real infirmity take advantage of that, but the fact that some people are using medical marijuana recommendations as a "get out of jail free" card certainly does not negate the reality of marijuana's therapeutic value--it's just one more hypocritical artifact of prohibition.

But it's been nearly 16 years since voters in California passed Proposition 215, starting a social and political phenomenon that has now spread across the country, and the federal government remains intransigent. At times aided and abetted by recalcitrant local sheriffs, prosecutors, and other elected officials, the Justice Department right now is busily putting the screws to California's dispensaries. They've managed to run more than 400 of them out of business in the past year by the exercise of federal muscle: DEA raids, threats of federal criminal prosecution -- sometimes carried out -- and threats of asset forfeiture directed at dispensary landlords.

It seems so dry when you just type the words out on the page, but what we are talking about is the destroying of people's lives by their own government, a war waged against citizens by the people who are supposed to be serving them. Imagine what a DEA SWAT team raid is like, as a nonviolent dispensary operator who's targeted -- and that can be just the beginning. Then they take all your possessions, your computers, your bank accounts, leaving you penniless, probably car-less, possibly homeless -- if you're lucky. If you're not, you're then staring into the maw of the federal criminal prosecution machine, a particularly Kafkaesque prospect when it comes to federal medical marijuana prosecutions, where dispensary operators become "drug dealers" in trials where the words "medical marijuana" are not to be spoken.

Charlie Lynch's sad saga begins a few years earlier, back when George W. Bush was still president, but his tale is all too familiar by now. In his powerfully rendered Lynching Charlie Lynch, award-winning filmmaker, writer, and producer Rick Ray manages to illuminate the human reality (and the inhuman idiocy) of the war on medical marijuana distributors. As many Chronicle readers no doubt recall, Lynch operated the Central Coast Compassion Center in Morro Bay, California, until he was raided, arrested, and convicted on federal marijuana trafficking charges in federal court.

Through interviews with Lynch, his neighbors, his landlord, and local attorneys and politicians, interspersed with TV news accounts and surveillance videos, Ray portrays a socially awkward straight arrow of a man, whose most serious offense before his run-in with Uncle Sam was a speeding ticket (which his mother explains he got expunged by taking a defensive driving course). Lynch found his way to medical marijuana not out of any affinity for the weed or because he hung in stoner milieus (he didn't), but because he heard it might help with his excruciating migraine headaches (it did).

Lynch subsequently tired of driving miles to the nearest dispensary and decided he was interested in opening one in San Luis Obispo County, where he lived. The fastidious Lynch researched the laws, even asking the DEA what its policy on medical marijuana dispensaries was -- it was up to state and local law enforcement, they told him. He filled out his forms, got his business license, rented a property, and had a ribbon-cutting with the Chamber of Commerce in attendance. He had the support of the mayor and other town officials. He was operating within the mandates of state law. He thought he was doing everything right.

None of that mattered to Sheriff Pat Hedges, who like too many in law enforcement who cannot accept laws they don't believe in, and tried fruitlessly for a year to find some way to bring Lynch down. His deputies surveilled the premises, they followed workers and patients from the dispensary, they tried unsuccessfully to set up undercover buys, but they couldn't come up with enough evidence of any violation of state law to get a judge to sign a search warrant.

Then, in a betrayal of his community and out of a sense of frustration that he was unable to nail Lynch, Hedges sicced the feds on him. Hedges' deputies joined forces with DEA agents to raid the Compassion Center and Lynch's residence, where he was shoved to the floor naked with a rifle pointed to his head.

Lynching Charlie Lynch tells the story of his transformation from respected local businessman to convicted federal drug dealer, the sleazy legal machinations of the federal prosecutors turning his prosecution and trial into a sordid charade, a mockery of justice. But his story is bigger than one man. It is also a story about a healing plant and about a nation that can't seem to come to grips with it, a nation that somehow thinks it's justifiable or even sane to persecute people for growing plants for others.

Along the way, Rick Ray takes a few side-trips that only add to the documentary. He talks to University of California at San Francisco researcher Dr. Donald Abrams about how he recommends marijuana for a wide variety of ailments and he talks to Professor Lyle Craker, the Massachusetts plant scientist who has sought -- so far unsuccessfully -- permission from the DEA to grow marijuana for the purpose of conducting clinical trials of its medical efficacy. The stolid, white-haired researcher offers up a powerful indictment of a corrupted federal research process.

Ray also talks to some representatives of the other side, and I want to thank him for giving folks like California anti-drug activist Paul Chabot, anti-marijuana fanatic Dr. Eric Voth and the Partnership for a Drug-Free America's David Evans the opportunity to display their character with their own words. When confronted with Lynch's fate, the smarmy, sanctimonious Chabot, a self-described "Christian" who says there are no legitimate medical marijuana dispensaries, said that he would pray for him "and maybe he will come to terms with what he did and join our side some day."

Similarly, Evans does his best to appear to be a thoughtful, rational human being, but gives himself away when he goes on a rant about the dangers of growing pot."They endanger others by setting up these facilities when there is no proof there," the former prosecutor muttered darkly. "He could have harmed people, killed people, caused cancer, caused birth defects. If someone chooses to put other people at risk, they should be prepared to take the consequences."

Uh, we're talking about growing a plant here.

Charlie Lynch's story isn't over yet, although he's already lost most everything. One of the last scenes of the film shows him putting his remaining belongings into storage after his house went into foreclosure in the wake of his prosecution. And he is still waiting to find out if he will have to go to federal prison. He's already been sentenced, but is appealing.

Lynch may be appealing, but what happened to him at the hands of his own government is appalling. Rick Ray deserves major credit for bringing his compelling story to the screen with grace, tenderness, and just the right touch of righteous indignation.

Bolivia, Venezuela Reject US Drug Criticism

Last Thursday, the White House released its annual determination of major drug trafficking or producing countries, the "majors," singling out Bolivia, Burma, and Venezuela as countries that have failed to comply with US drug policy demands. That has sparked sharp and pointed reactions from Bolivia and Venezuela.

Evo Morales (wikimedia.org)
"I hereby designate Bolivia, Burma, and Venezuela as countries that have failed demonstrably during the previous 12 months to make substantial efforts to adhere to their obligations under international counter-narcotics agreements," President Obama said in the determination.

That marks the fourth year in a row the US has singled out Bolivia and Venezuela, which are left-leaning regional allies highly critical of US influence in Latin America. But while the US has once again put the two countries on its drug policy black list, it is not blocking foreign assistance to them because "support for programs to aid Bolivia and Venezuela are vital to the national interests of the United States."

Despite that caveat, Bolivia and Venezuela were having none of it.

"Venezuela deplores the United States government's insistence on undermining bilateral relations by publishing this kind of document, with no respect for the sovereignty and dignity of the Venezuelan people," the Venezuelan Foreign Ministry said in a communique last Friday.

Venezuela "rejects in the most decided manner the accusations of the government of the United States," the communique said, adding that the presidential determination is "plagued with false statements, political preconceptions and veiled threats," which only repeat its "permanent line of aggression against independent sovereign governments."

Venezuela also counter-punched, accusing the US of allowing "a fluid transit" of drugs across its borders" and "the laundering of capital from drug trafficking through the financial system."

"The government of the United States has become principally responsible for this plague that is the scourge of the entire world," it said.

The foreign ministry added that Venezuela's anti-drug efforts improved after it kicked out the DEA in 2005, that it has been free of illegal drug crops since 2006, and that it has actively pursued leading drug traffickers, including 19 it had extradited to the US since 2006.

Bolivian President Evo Morales, for his part, said the US, home of the world's largest drug consumer market, had no grounds on which to criticize other countries about its war on drugs.

"The United States has no morality, authority or ethics that would allow it to speak about the war on drugs. Do you know why? Because the biggest market for cocaine and other drugs is the United States," Morales said in a Saturday speech. "They should tell us by what percentage they have reduced the internal (drug) market. The internal market keeps growing and in some states of the United States they're even legalizing the sale of cocaine under medical control," the Bolivian president said.

It's unclear what Morales was trying to say with that latter remark. Although as a Schedule II drug, cocaine can be and occasionally is used medically in the United States, there are no current moves by any US state to take that further. Some 17 US states and the District of Columbia have, however, moved to legalize the distribution of marijuana under medical control.

"I'm convinced that the drug trade is no less than the United States' best business," Morales added, noting that since the first international drug control treaties were signed in 1961, drug trafficking has blossomed, not declined. He said he has suggested to South American leaders that they form a commission to report on how well Washington is doing in its war on drugs.

Morales also took the occasion to lambaste the US for opposing Bolivia's request before the United Nations to modify that 1961 treaty to acknowledge that chewing coca leaf is "an ancestral cultural practice" in the Andes.

Like Venezuela, Bolivia protested that it, too, has been fighting drug trafficking. The Bolivian government said that it had seized 182 tons of cocaine since Morales took power in 2006, compared to only 49 tons confiscated in the previous five years. Bolivia has seized 31 tons of cocaine so far this year, most of it from Peru, the government said.

The US presidential determination named the following countries as major illicit drug producing or trafficking countries: Afghanistan, the Bahamas, Belize, Bolivia, Burma, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, India, Jamaica, Laos, Mexico, Nicaragua, Pakistan, Panama, Peru, and Venezuela.

Drug Policy in the 2012 Elections II: The Parties and the Presidential Race [FEATURE]

As the 2012 election campaign enters its final weeks, all eyes are turning to the top of the ticket. While, according to the latest polls and electoral college projections, President Obama appears well-positioned to win reelection, the race is by no means a done deal, and there's a chance that marijuana policy could play a role -- especially in one key swing state, Colorado, where the Campaign to Regulate Marijuana Like Alcohol is running a popular and well-funded campaign to pass Amendment 64.

President Obama (wikimedia.org)
But other than that, marijuana policy in particular and drug policy in general do not appear likely to be big issues, at least between Obama and his Republican challenger Mitt Romney. That's because both candidates hold similar positions:

Both oppose marijuana legalization, which will also be on the ballot in Oregon, and Washington. Obama, while at least paying lip service to patient access to medical marijuana, which will be on the ballot in Arkansas, Massachusetts, and Montana, has presided over a Justice Department crackdown on medical marijuana distribution, while Romney appears irritated and uncomfortable even discussing the issue.

"With Obama, we've all been disappointed with the backtracking, although he also needs credit for the original Ogden memo and opening the gates to a wider proliferation of medical marijuana around the country," said Drug Policy Action head Ethan Nadelmann. "For the people most disappointed with that, the paradox is that Romney offers very little of promise."

That was illustrated by GOP vice-presidential nominee Paul Ryan's brief flirtation with medical marijuana. Last Friday, Ryan said medical marijuana was a states' rights issue. The comments came in Colorado, where the issue is hot.

"My personal positions on this issue have been let the states decide what to do with these things," he said in an interview with a local TV reporter. "This is something that is not a high priority of ours as to whether or not we go down the road on this issue. What I've always believed is the states should decideI personally don't agree with it, but this is something Coloradans have to decide for themselves."

But Ryan, who has a previous voting record opposing states rights to medical marijuana, did half a backtrack the next day, when one of his spokesmen explained that Ryan "agrees with Mitt Romney that marijuana should never be legalized."

Obama as president has supported increased drug war funding to Mexico and Central America, and Romney as candidate supports it as well. But his views are malleable. When running for the nomination in 2008, Romney suggested that spending on interdiction was a waste, and the money would be better spent on prevention here at home. Again, that is not so different from the Obama position which, rhetorically if not budgetarily, emphasizes treatment and prevention over interdiction and law enforcement.

The relative quiet around drug policy in the two campaigns is reflected in the Democratic platform and the Republican platform. There are only a handful of mentions of drugs or drug policy in the Democratic platform -- and the word "marijuana" doesn't appear at all -- all of them having to do with either combating international organized crime or touting the Obama administration's baby steps toward a slightly more progressive drug policy.

One of those progressive measures was overturning the federal ban on needle exchange funding, but the platform makes no mention or that or of the words "harm reduction." It does urge "supporting local prison-to-work programs and other initiatives to reduce recidivism, making citizens safer and saving the taxpayers money" and says the Democrats "will continue to fight inequalities in our criminal justice system," pointing to the passage of the Fair Sentencing Act as "reducing racial disparities in sentencing for drug crimes." The act actually addresses only crack cocaine sentencing.

While emphasizing their tough on crime positions, the Republican platform also takes some baby steps toward a more progressive drug policy. It calls for rehabilitation of prisoners and for drug courts, supporting state efforts to divert drug offenders to treatment, and it criticizes the federalization of criminal offenses. But the single most dramatic change in the Republican platform is that has eliminated what was in previous platforms an entire section on the war on drugs.

Just as with the candidates, the platforms give drug policy little time or space. In an election driven by the economy and the fires burning in the Middle East, the issue is going to get short shrift, especially when there is little daylight between the candidates on the platforms on the issue.

There are alternatives to the bipartisan drug policy consensus, but they remain on the margins. At least three third party candidates, Rocky Anderson of the Justice Party, Libertarian Party nominee Gary Johnson, and Green Party nominee Jill Stein, are calling for an end to the drug war and marijuana legalization, but they are all but shut out of presidential debates and media interest.

Mitt Romney (mittromney.com)
Since there is little substantive difference in the drug policy positions of the two front-runners and since their positions on marijuana legalization put them at odds with half the country -- 50% now support legalization, according to the most recent Gallup poll -- neither candidate has much incentive to open his mouth on the issue. And they may be able to get away with it.

"Can the campaigns get away with not talking about marijuana?" Drug Policy Action head Ethan Nadelmann asked rhetorically. "That depends. First, will the question get popped at one of the debates? I don't know how to influence that. The second possibility will be if the candidates are obliged to answer a question somewhere, but I don't know how much they're taking questions -- their handlers are trying to keep them on message. The third possibility is that they will say something at private events, but who knows what gets said there?" he mused.

"They are certainly going to try not to talk about it," said Morgan Fox, communications director for the Marijuana Policy Project. "Given Romney's anger at a reporter for bringing up the issue and Obama's reluctance to address questions about marijuana policy in public forums, one can expect them to continue this behavior until forced to answer questions by the media or the public."

That leaves voters for whom marijuana reform is an important issue hanging out to dry.

"Unless one of the candidates sees an opportunity for a large boost in support by changing his position on marijuana policy, voters will be forced to choose between either third party candidates or the major party option that they think will do the least amount of damage to reform efforts going forward," said Fox. "If we consider Obama's behavior so far and Romney's staunch anti-marijuana statements (as well as the fact that he has never used it) it becomes a really difficult choice for voters."

Nadelmann begged to differ on that point.

"Romney has been more hostile on this issue than McCain or Bush or any Democratic candidates since Bush the Elder," he said. "He is visibly uncomfortable and even hostile regarding even the most modest drug policy reforms. Romney said if you want to legalize marijuana, you should vote for the other guy. That's very telling, with over 50% of independents and even more than 30% of Republicans supporting marijuana legalization. Why would Romney say that? The Obama campaign would have a hard time running with this, but someone else could."

Still, the lack of space between the major party candidates on the issue may leave an opening for Anderson or Johnson or Stein, Fox said.

"These candidates are the only ones offering real solutions to the quagmire of marijuana prohibition, or even taking definitive stances on the issue. The more they continue to draw public attention to marijuana reform while the major players stay silent, the more we can expect voters to pay attention to them and take them seriously," he predicted. "We can also expect their vocal support for reform to draw the attention of the major candidates and possibly elicit some sort of positive response from one or both of them. Whether that response will be sincere or simply lip-service to prevent third-party candidates from siphoning votes in key elections remains to be seen. However, even the latter would be a sign that the message is getting out and that politicians are at least starting to realize where the public stands on marijuana."

The one place where marijuana policy discussion may be unavoidable and where marijuana policy positions could influence the statewide electoral outcome is Colorado. Marijuana is a big issue in the state, not only because Amendment 64 is on the ballot, but also because of the ongoing war of attrition waged against dispensaries there by the DEA and the US Attorney. (The Colorado Patient Voters Project tracks federal activity against medical marijuana in the state, as does our own Medical Marijuana Update series, accessible with other relevant reporting in our medical marijuana archive section.)

Gary Johnson (garyjohnson2012.com)
And it's a tight race where one third party candidate in particular, Gary Johnson, is making a strong run and exploiting his popular legalization position on marijuana. While the Real Clear Politics average of Colorado polls has Obama up 48.7% to Romney's 45.3%, the race tightens up when Johnson is included in the polls.

"I think Colorado is key," said Nadelmann. "It has the initiative and it's a swing state, and there is the possibility that Gary Johnson or the Green candidate could make a difference. The polling has been split, and the question with Gary Johnson is whether he draws more from Obama or Romney."

One recent poll may hold a clue. Among the polls included in the Real Clear Politics average is a new Public Policy Polling survey, which had Obama beating Romney 49% to 46%. But when the pollsters added Johnson to the mix, he got 5%, taking three points away from Obama, but only two from Romney, and leaving Obama with only a two-point lead, 46% to 44%.

This year's election results from Colorado could mark a historic point for the marijuana reform movement, and not just because of Amendment 64, said Fox.

"This is a state where we are really going to see the power of this issue as it relates to elections," he said. "This is possibly the first time that marijuana policy could affect the outcome of a presidential election. That just goes to show how far reformers have come in just a few short years. As public opinion in support of ending prohibition continues to grow, the paradigm is going to shift from politicians avoiding the issue at all cost or being knee-jerk reactionaries who want to appear 'tough on crime' to candidates addressing marijuana policy in a rational manner as a way to build support."

We'll see in a few weeks how this all shakes out, but before then, we'll be taking an in-depth look at pot politics in Colorado in the context of Amendment 64. Stay tuned.

Please read our last week's feature, overviewing the various state ballot initiatives: Drug Policy in the 2012 Elections I: The Initiatives.

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

ACLU Fighting Decision in Cell Phone Tracking Case [FEATURE]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Former DEA Heads Urge Holder to Oppose Marijuana Legalization Measures

Every former head of the DEA since it was created by Richard Nixon in 1973 has signed onto a letter to Attorney General Eric Holder urging him to speak out against the marijuana legalization initiatives on the ballot in three Western states. The former top narcs warned that silence would be seen as acquiescence.

http://stopthedrugwar.com/files/ericholder.jpg
Eric Holder
"We urge you to oppose publicly Amendment 64 in Colorado, Initiative 502 in Washington, and Measure 80 in Oregon," the former DEA chiefs wrote. "To continue to remain silent conveys to the American public and the global community a tacit acceptance of these dangerous initiatives."

Legalization at the state level would be a "direct violation of the Controlled Substance Act," they wrote. "Since these initiatives would 'tax and regulate' marijuana, there is a clear and direct conflict with federal law."

The former top narcs said they were "encouraged" by Holder's having spoken out against California's 2010 Proposition 19 and by President Obama's strong stance against legalization. They urged Holder to take a public position against the initiatives "as soon as possible."

Reuters reported that Holder's office had no comment on the letter, but former ONDCP official Kevin Sabet told the news agency he wouldn't be surprised if Holder again spoke out against legalization.

"Essentially, a state vote in favor of legalization is a moot point since federal laws would be, in (Holder's) own words (from 2010), 'vigorously enforced,'" Sabet said. "I can't imagine a scenario where the Feds would sit back and do nothing."

But marijuana legalization backers described themselves as unsurprised by the letter and were quick to strike back.

"Anyone who is objective at all knows that current marijuana policy in this country is a complete disaster, with massive arrests, wasted resources, and violence in the US and especially in Mexico," said Jill Harris, managing director of strategic initiatives for Drug Policy Action, the lobbying arm of the Drug Policy Alliance.

Similarly, Mason Tvert, co-director of the Colorado Campaign to Regulate Marijuana Like Alcohol, told The Huffington Post Monday that he expected no less from the former top narcs, but that Holder and the Obama administration would be wise to reject their call.

"It is not surprising that these men, who have made a living off of marijuana prohibition, want their successors to continue profiting from the existence of the underground marijuana market," Tvert wrote. "They just want to keep billions of taxpayer dollars flowing to their buddies. They know that marijuana prohibition isn't really improving public safety; just as our nation's streets weren't safer when Al Capone and his cohorts controlled the alcohol trade," he added.

"For Eric Holder to act as the mouthpiece for these old school warriors of the irrational war on marijuana that is rapidly losing public support would be sending a message to tens of thousands of passionate supporters of Amendment 64 that their opinions do not matter," Tvert warned the administration. "He will be telling them that Colorado must continue to live under a system of marijuana prohibition not because it makes sense, but because the federal government demands it. Most people accept the view that drug prohibition has been a colossal failure."

What will Holder do? Time will tell.

Montana's First Caregiver for Medical Marijuana Dies in Prison

The first person to register as a caregiver under Montana's now gutted medical marijuana program has died in federal prison. Richard Flor, 68, died at a Bureau of Prisons facility outside Las Vegas last Wednesday just a few months into a five-year federal prison sentence.

Flor, his wife, Sherry, and his son, Justin, operated a caregiver business from their home and at a Billings dispensary. Flor was also the co-owner of Montana Cannabis, one of the state's largest medical marijuana providers until it was raided by the DEA as part of the massive raids in March 2011.

Although there were no allegations of Flor or his family violating state laws, they could not escape the wrath of the federal government. All three were found guilty of drug-related charges and were sentenced to prison terms. Sherry Flor got two years for keeping the books and tending plants, while Justin Flor got five years for running the Billings dispensary.

US District Court Judge Charles Lovell sentenced Flor to years in federal prison despite testimony that he was suffering from a variety of illnesses, including dementia, diabetes, hepatitis C, and osteoporosis. Lovell did recommend that Flor "be designated for incarceration at a federal medical center" where his "numerous physical and mental diseases and conditions can be evaluated and treated."

That didn't happen, according to the Billings Gazette two days after Flor died. Although he had been taken into the custody of US Marshals in May, he spent all but the final days of his life at a private correctional facility in Shelby, Montana, while the federal Bureau of Prisons decided where to place him.The Las Vegas federal facility where he died was a transfer center, not his final destination at a BOP medical facilty, which he never knew or reached.

Flor died after a pair of massive heart attacks, according to his daughter.

Three other founding members of Montana Cannabis also face long prison sentences, including activist and political consultant Tom Daubert, who helped run the initiative campaign that brought medical marijuana to the state via the popular vote. At least a dozen other Montana medical marijuana providers have also been convicted on federal drug charges.

As the DEA was busily decimating the state's burgeoning medical marijuana industry in 2011, Republican lawmakers were also moving to destroy it, and largely succeeded, passing legislation that all but gutted it. But medical marijuana proponents are fighting back. They have qualified the Montana Medical Marijuana Initiative, I-124, for the November ballot. It would repeal the bill passed by the legislature last year.

Las Vegas, NV
United States

Medical Marijuana Update

The battle of Los Angeles continues, Arizona prosecutors don't like their medical marijuana law, and a bill is pre-filed in Kentucky. There's also lots more going on. Let's get to it:

Arizona

Last Thursday, state and county prosecutors challenged the medical marijuana program in court. Attorney General Tom Horne and Maricopa County Attorney Bill Montgomery asked a court hearing a dispensary application case to rule that the voter-approved law is illegal because it conflicts with federal drug laws. The Republican prosecutors are specifically targeting the dispensary provisions of the law, but argued in court that all aspects of the state law violate federal drug laws. In the case at hand, a would-be Maricopa County dispensary is suing the county because officials wouldn't provide zoning clearances required under the law. The officials had been advised by Montgomery that county employees could face prosecution for aiding and abetting drug crimes.

Arkansas

As predicted last week, Arkansas state officials announced that a medical marijuana initiative has qualified for the ballot. The Arkansas Medical Marijuana Act would allow patients suffering from specified diseases or medical conditions to use marijuana with a doctor's recommendation. It envisions a system of state-licensed nonprofit dispensaries, and would allow patients or their caregivers to grow their own only if they are not within five miles of a dispensary. In that case, patients could grow up to six flowering plants. Patients could possess up to 2 ½ ounces of marijuana.

California

Last Wednesday, Los Angeles asked the DEA to help it shut down dispensaries. The request came from Councilman Bernard Parks, who filed a successful motion with the council. Parks is a former LA police chief. The council recently voted to close down all dispensaries in the city, although that is likely not the end of the affair (see below).

Also last Wednesday, a judge in Riverside ruled that the city can't ban a dispensary. Riverside County Superior Court Judge John Vineyard dissolved an injunction to shut down a dispensary in the city, agreeing that current law makes local government closures of the clinics unconstitutional. The decision affects The Closet Patient Care dispensary on Elizabeth Street in Riverside, but could be a precedent for other cases in the city. The city immediately said it would appeal the ruling.

Also last Wednesday, a Costa Mesa collective filed suit against the city over its ban on dispensaries. The Green Health Association argues that the city cannot legally ban nonprofit collectives and says it is operating with the state attorney general's guidelines. 

Also last Wednesday, the city of Chowchilla banned public medical marijuana use. It passed an ordinance limiting smoking or any other type of medical marijuana consumption to inside a private residence and requiring all cultivation to take place in an enclosed, locked area.

Also last Wednesday, the California Supreme Court dismissed Pack vs. Long Beach, a case that could have decided whether cities can lawfully regulate medical marijuana. The court held the case was moot after the attorney for the petitioners abandoned his original argument that Long Beach's short-lived rules to allow and regulate medical marijuana violated federal law. The state Supreme Court is still considering several other cases that will determine the power of cities to ban collectives or dispensaries.

On Tuesday, word spread that the Berkeley Patients Group would reopen in a new location. The iconic dispensary had been forced to close in May after federal prosecutors threatened its landlord with seizure of his property. The new location is just four blocks from its original location on San Pablo Avenue. No opening date has been set at the new site and officials from Berkeley Patients Group refused to go on record about their plans.

Also on Tuesday, Butte County's effort to ban outdoor grows hit a bump in the road. Butte County District Attorney Mike Ramsey surprised supervisors by announcing the ordinance was unconstitutional as written. The ordinance envisioned charging violators with a misdemeanor, but the prosecutor said that was the domain of state law, not county ordinances. Now, it's back to the drawing board for the supervisors.

Also on Tuesday, the Wheatland city council banned dispensaries within the city limits. It passed two ordinances, one banning dispensaries and the other barring outdoor grows within the city limits and setting conditions on indoor ones.

On Wednesday, activists in Los Angeles turned in more than 50,000 signatures on petitions seeking a referendum to overturn the city council's recently-passed ban on dispensaries. The city now has 30 days to either rescind the ban or to call a special election to let the voters decide. That could come in March or May.

Kentucky


On Monday, state Sen. Perry Clark (D-Louisville) pre-filed a medical marijuana bill for the 2013 session. He said he wanted to get a head start on building support in the legislature.

Montana

On Tuesday, the co-founder of Montana Cannabis agreed to plead guilty to a federal drug charge related to 2011 raids on dispensaries across the state. Chris Lindsay faces up to 20 years in federal prison for conspiracy to operate a drug-involved premises. Lindsay said he copped to the plea agreement to avoid other pending charges and because earlier court rulings made it clear he would not be able to testify about his belief that Montana Cannabis was in compliance with the state’s law. Lindsay is also the public face of the Montana Cannabis Industry Association, which has filed a lawsuit to block portions of the law rewritten by the Republican legislature and which is backing a referendum asking voters to repeal the law. That referendum will be on the November ballot.

Oregon

On Sunday, activists said they would try to get PTSD added to the medical marijuana list of qualifying conditions. Two previous efforts have failed. This time, the push is being led by veteran's groups. Oregon is home to some 300,000 veterans.

Washington

Last Thursday, the DEA sent threat letters to 23 dispensaries operating near schools. In the letters to the dispensaries, DEA Special Agent-In-Charge Matthew Barnes contended the dispensaries could face the seizure and forfeiture of assets, as well as criminal prosecution. The letter informs dispensary operators and property owners to cease the sale and distribution of marijuana within 30 days.

Medical Marijuana Update

The feds strike again in California, this time in Orange County, and meanwhile, the battle over the LA dispensary ban heats up. There's plenty more news, too. Let's get to it:

California

Since mid-August, signature gatherers have been hitting the streets in Los Angeles in an effort to collect 27,400 voter signatures to put on the ballot a referendum to repeal the recent ban on dispensaries. They have about 10 more days to go, and if they succeed, the referendum would go before voters in March. The more immediate effect would be a temporary suspension of the ordinance. Dispensaries in the city have until September 6 until they are supposed to shut down.

Last Wednesday, San Francisco Mission District property owners asked the feds to shut down a dispensary that hasn't even opened yet. Those owners of "white linen" restaurants and family-oriented businesses have asked the Justice Department to close down the Morado Collective, even though the Planning Commission approved the dispensary's permit at a hearing the same day. The Mission Miracle Mile Business Improvement District had its president, local realtor James Nunemacher, write a letter to US Attorney Melinda Haag urging her to shut it down because it "is incompatible with the family shopping that predominates the immediate area in the daytime and the dining/entertainment venues that are active in the evening." The gentrifiers have spoken.

Last Thursday, patients and supporters filed a lawsuit seeking to overturn the LA ban. The Patient Care Association and 11 individual patients are seeking an injunction to block the city from implementing the ban. They argue that California law preempts the city's ban, that it violates dispensary owners' rights to due process, and that it violates their right to freely assemble and associate to cultivate medical marijuana.

Also last Thursday, Butte County staff released a draft of the proposed new medical marijuana cultivation ordinance. It would ban outdoor cultivation and set limits on the amounts that could be grown indoors based on the size of the parcel. On lots of an acre or less, the grow area could not exceed 50 square-feet. On lots one to five acres, the allowable grow area is 150 square-feet. There is no size limit on lots five acres or larger, but a maximum of 99 plants could be grown. The ordinance includes limits on how powerful indoor grow lights can be and requires a ventilation and filtering system that doesn't allow the smell of the pot outside the building. It also bans growing within 1,000 feet of schools, churches, parks, child care centers, and other youth-oriented facilities.

Last Friday, a Lake County judge granted a preliminary injunction barring enforcement of the county's recently adopted interim cultivation ordinance. The injunction is good until January 1. It allows all qualified people and collectives growing marijuana in conformity with state law at the time the county adopted its interim medical marijuana cultivation ordinance. Four people sued the county after the Board of Supervisors adopted the ordinance on July 9. It limited the number of marijuana plants allowed for outdoor cultivation and banned commercial growing as well as growing on vacant lands. On Tuesday, the Board of Supervisors voted to extend the interim ordinance for another 45 days anyway.

On Tuesday, federal prosecutors targeted more than 60 dispensaries in Orange County for closure by filing three asset forfeiture lawsuits and sending threat letters to the dispensaries. That brings the number of dispensaries targeted for closure in the Central District of California to more than 300. In all, 66 warning letters were sent to marijuana dispensaries in Anaheim and La Habra. Some have closed recently, but federal authorities said 38 remain open. As part of the offensive, DEA agents raided two Anaheim dispensaries.

Colorado

Last Friday, a state court held that federal law trumps the state's medical marijuana law. The ruling came in a case pitting a grower against a dispensary. The grower sought payment for marijuana that had already been delivered, but Arapahoe County District Judge Charles Pratt ruled for the dispensary. In his opinion, he held that since all marijuana sales are illegal under federal law, the contract between the grower and the dispensary was null and void. Later in the same ruling, Pratt wrote that "any state authorization to engage in the manufacture, distribution or possession of marijuana creates an obstacle to full execution of federal law. Therefore, Colorado's marijuana laws are preempted by federal marijuana law." Because the ruling is by a district court judge, it is not binding, but it has the medical marijuana community concerned.

On Monday, the Denver City Council approved a ban on all outdoor advertising for dispensaries. The vote came after a public hearing last week where medical marijuana advocates were split over the issue and council members voiced strong support for it. The council killed an alternate, more limited plan that would have blocked outdoor ads within 1,000 feet of schools, day care facilities, and parks. Dispensaries can still advertise on their buildings and can still place ads in newspapers, magazines, or online, and they can display their logos at charity events they sponsor. The city had been inundated with dispensary flyers and young men twirling large cardboard arrows advertising "Eighths for $25" and the like.

Maine

Last Monday, state officials held a public hearing on proposed new cultivation rules. The rules will impose restrictions on where and under what conditions patients or caregivers can grow their own medicine. Patients, dispensary operators, growers, and advocates objected to various portions of the proposed rules. The last day for public comment was Wednesday.

Michigan

Last Thursday, the agency overseeing the state's medical marijuana program said it could be up and running by this fall. The Michigan Department of Licensing and Regulatory Affairs said its review panel for adding new qualifying medical conditions is just about set, but patient advocates are skeptical, saying the agency is at least two years behind on making recommendations on requests to add new conditions.

Washington

Last Friday, the state Department of Revenue began doing audits of dispensaries, escalating a battle over whether they should be collecting tax revenues for the state. The department has told dispensaries since 2010 that they must remit sale taxes on their transactions, and 50 dispensaries have registered with the department to do so. But the department believes there are other dispensaries out there that haven't registered, and now it's going after them. Some dispensary operators and defense attorneys argue that by paying state taxes, dispensaries are incriminating themselves in the federal crime of marijuana sales.

Over the weekend, medical marijuana advocates may have skirted state election laws at Hempfest by handing out fliers against the I-502 legalization initiative. Dozens of medical marijuana businesses used Hempfest to lobby against I-502, but one of them may have violated election laws by handing out anti-I-502 posters that failed to say who had paid for them.

On Tuesday, the owners of two dispensaries pleaded guilty to federal marijuana trafficking charges. Brionne Keith Corbray, owner and operator of three GAME Collectives in White Center, Northeast Seattle, and West Seattle, copped to conspiracy to distribute marijuana. Craig Dieffenbach and Jing Jing Mu, owners of the Seattle Cannabis Cooperative, copped to conspiracy to distribute and money-laundering charges. All admitted in their plea agreements to selling marijuana to people who were not patients. Conspiracy to distribute marijuana is punishable by up to 40 years in prison and a $250,000 fine. Conspiracy to launder money is punishable by up to 20 years in prison.

Now They're Trying to Ban... Kratom? [FEATURE]

The prohibitionist impulse is strong. When confronted with a newly encountered psychoactive substance, there are always special pleaders to sound the alarm and politicians willing to reflexively resort to the power of the ban. Whether it is something with serious potential dangers, like the "bath salts" drugs, or something much more innocuous, like khat, the mild stimulant from the Horn of Africa, doesn't seem to matter; the prohibitionist impulse is strong.

mitragyna speciosa (kratom) tree (photo by Gringobonk, courtesy Erowid.org)
Kratom is a substance that falls on the more innocuous side of the psychoactive spectrum. It is the leaves of the kratom tree, mitragyna speciosa, which is native to Thailand and Indonesia, where the leaves have been chewed or brewed into a tea and used for therapeutic and social purposes for years. According to the online repository of psychoactive knowledge, the Vaults of Erowid, kratom acts as both a mild stimulant and a mild sedative, creates feelings of empathy and euphoria, is useful for labor, and is relatively short-acting.

Of course, any psychoactive substance has its good and its bad sides, but kratom's downside doesn't seem very severe. Erowid lists its negatives as including a bitter taste, dizziness and nausea at higher doses, mild depression coming down, feeling hot and sweaty, and hangovers similar to alcohol. There is no mention of potential for addiction, and while fatal overdoses are theoretically possible, especially with its methanol and alkaloid extracts, in the real world, ODing on kratom doesn't appear to be an issue. No fatal overdoses are known to have actually occurred.

On the other hand, some of kratom's alkaloids bind to opioid receptors in the brain, making it an opioid agonist, and it is now being sold in the West and used to treat pain, depression, anxiety, and opiate withdrawal. Sold in smoke shops, herbal supplement emporia, and on the Internet, it is now apparently being lumped in with synthetic cannabinoids and the "bath salts" drugs by treatment professionals, law enforcement, and others who make a habit of searching for scary new drugs.

Kratom is not listed as a banned substance in the 1961 Single Convention on Narcotic Drugs or its successor treaty, and has been banned in only a handful of countries, most ironically in Thailand itself. It was banned there in 1943, when then Thai government was taxing the opium trade and opium users were switching to kratom to aid in withdrawals and as a substitute.

Arrests for kratom possession have jumped in recent years, from more than 1,200 in 2005 to more than 7,000 in 2009, even though the Thai Office of the Narcotics Control Board recommended to the Justice Department in 2010 that it be decriminalized because of the lack of any perceivable social harms.

In the US, the DEA added kratom to its list of drugs of concern in 2010, although that doesn't mean that a federal ban is necessarily imminent. Salvia divinorum, for example, has been a drug of concern for more than a decade now, with no action taken. But while the feds haven't acted, there were efforts to ban kratom in several states in the US this year, although only Indiana actually succeeding in outlawing it. In Louisiana, age restrictions were placed on its purchase.

The experience of Iowa, where legislation to ban kratom is still pending, is illustrative of how bans are created. The Iowa effort happened after state Rep. Clel Baudler (R) heard about kratom on a radio program. Within two hours, he was moving to ban it.

"Kratom is a hallucinogen, addictive, and can be life threatening," he said at the time, in complete contradiction of all that is actually known about kratom.

It's not just states that are considering bans on kratom. Pinellas County, Florida, was about to enact one this week, but the prohibitionist bandwagon hit a bump in the road in the form of perennial drug war gadfly Randy Heine, owner of Rockin' Cards and Gifts in Pinellas Park, who told the Chronicle he had been selling kratom in his store since 1981.

Seeing what was coming down the pike, Heine alerted the Kratom Association, a group of users, producers, and vendors dedicated to keeping kratom legal, who flooded county commissioners with emails. He also addressed the commission itself.

http://stopthedrugwar.org/files/randy-heine-201px.jpg
Randy Heine
"I have been selling kratom for over 30 years out of my store on Park Blvd. I challenge anyone to find any problem originating from my store selling kratom," he wrote in a letter made available to the Chronicle. "Do not lump in synthetic chemicals with an organic plant material. This is like comparing apples to oranges. I would like to see kratom be sold only to persons over the age of 18, similar to the proposal being made in our sister state of Louisiana."

In the conservative county, Heine also appealed to the ghost of Ronald Reagan in his letter to commissioners. What riles up the Reagan in him, Heine wrote, is "growing the bureaucracy by creating another board to regulate what I and others do in privacy of our own homes."

"I got letters back from two of the commissioners," said Heine. "They read my Ronald Reagan letter out loud, and one of the GOP commissioners thanked me for sharing my thoughts. The commission has now deferred this item so we can take a closer look at the issues involved."

Many of his kratom customers are using it as an opiate substitute, he said.

"We have a drug rehab place here, and my feeling is that a lot of their clients are purchasing kratom instead of methadone. It's competition; I'm taking away money," he said. "Some of my customers say methadone is worse than heroin and keeps you addicted. Kratom weans them off heroin. A lot of them say they just do less and less kratom until the craving stops. I have a couple of senior women who say they're tired of taking prescription pills, that they make them nutty, and kratom works for them."

Chronicle readers may recall that Pinellas County is where a drug reform-minded upstart Democratic candidate for sheriff is taking on either the scandal-plagued Republican incumbent sheriff or his challenger and predecessor, former Sheriff Everett Rice (the GOP primary is next week), whose supporters on the council were pushing the kratom ban. That Democrat, Scott Swope, is so good on drug policy that his candidacy persuaded Heine to drop his own bid for the sheriff's office.

"This looks like another unconstitutional intrusion into the lives of Pinellas citizens who aren't harming anyone," Swope said. "I've researched kratom and although there doesn't seem to be as much research available as cannabis, it appears to me to be a plant product that should not be banned. I think the purchase or possession of any of these things (cannabis, kratom, bath salts) by minors should not be allowed. Adults, however, should be free to do what they want as long as they aren't harming anyone else."

While Heine is currently bedeviled by the effort to ban kratom, as well as an associated effort to force smoke shops to put large signs on their doors saying they sell drug paraphernalia, the Swope candidacy has him hoping for better times ahead. 

"Swope can win," he exulted. "We finally have a candidate who is talking about marijuana. Even the Republican candidates are now saying they wouldn't bust people for marijuana. When I was still a candidate, I went to many forums to talk about pot, and the media started asking these guys about it. Scott won't arrest people for personal use."

Whether it's relatively unknown substances like kratom or now familiar substances like marijuana, the battle lines are drawn in what is ultimately a culture war. On one hand, the forces of fear and authoritarianism; on the other, the forces of free inquiry and personal liberty. It's been a long war, and it isn't going to end anytime soon, but perhaps now there are hints that the correlation of forces is changing.

Stopping unnecessary prohibitions before they get started is part of the struggle; undoing entrenched prohibitions with powerful interests behind them is another part of the struggle, but even though the substances are different, it's the same struggle.

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

Pinellas County
FL
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