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Federal Appeals Court Restricts Detroit Vehicle Seizures, NC Tribe Votes Yes on Weed, More... (9/8/23)

New York City settles with a Black woman whose child was seized because of her marijuana use, the 6th US Circuit Court of Appeals reins in vehicle seizures in Detroit, and more.

The Vancouver safe injection site. Pressure is growing for one in Glasgow, Scotland. (vch.ca)
Marijuana Policy

North Carolina Tribe Approves Marijuana Legalization Measure. Members of the Eastern Band of Cherokee Indians voted overwhelmingly Thursday to approve a referendum permitting the use and sale of marijuana on tribal land. According to preliminary results, the measure was passing with 70 percent of the vote.

The tribe had already approved regulations for the cultivation of marijuana for medicinal purposes but has not yet begun engaging in sales of medical marijuana products.

The state does not permit marijuana to be used or sold for either medical or recreational purposes, and US Rep. Chuck Edwards (R-NC) urged members to reject the referendum: "To allow our citizens to travel only a few miles to buy and use this common gateway drug … would be irresponsible, and I intend to stop it." To that end, he filed a federal bill last week to without certain federal funds from states and tribes that permit adult use marijuana.

New York City Settles with Mother Whose Child Was Seized Over Marijuana Use. The city's child welfare agency agreed to pay $75,000 plus attorney's fees to a Black woman after child welfare workers forcibly removed a woman’s newborn baby based solely on a positive test for marijuana that she did not consent to. The woman, Chanetto Rivers, alleged racial discrimination.

"I didn’t just bring this lawsuit for myself, but for every Black family that ACS [the Administration for Children's Services] has ripped apart," Rivers said in a statement. "They know what they did was wrong." 

An ACS spokesperson said that marijuana use by itself will not be a basis for charging child abuse or neglect. "A case should not be indicated solely because a parent is using marijuana, but instead CPS should assess the impact, if any, on the safety and well-being of the child," the spokesperson said. 

That is in line with stated ACS policy: "Positive marijuana toxicology of an infant or the mother at the time of birth is not sufficient, in and of itself, to support a determination that the child is maltreated, nor is such evidence alone sufficient for ACS to take protective custody of (remove) a child or file a case in Family Court."

But Rivers' lawsuit alleges that child welfare workers continued to interfere in her parenting even after two judges ordered the agency to reunite her and her child. She was subjected to "needless court proceedings" for months, the suit alleged.

"We are glad that Ms. Rivers was able to call attention to ACS’s deplorable history of racial discrimination against marginalized families," her attorney said. "ACS continued to rely on outdated racist stereotypes and tropes about Black parents."

Asset Forfeiture

Federal Court Severely Curtails Detroit Civil Asset Forfeiture Program. Wayne County, which includes Detroit, has long been notorious for seizing cars from people it claims were involved with drugs or prostitution, but now a federal appeals court has severely curtailed that program.

The 6th US Circuit Court of Appeals ruled last week that the program's severe restrictions on property owners' ability to appeal seizures violated the due process clause of the 14th Amendment. The ruling only applies to the Wayne County program, but with a similar case on the US Supreme Court docket, a broader precedent may soon be set.

Under the Wayne County program, police would seize vehicles of people driving or parking in areas where illegal drug use and/or prostitution was suspected and offer them a deal: Pay a $1,000 fine and get their vehicle back right away or appeal the seizure—a process that takes months and could result in the loss of the vehicle anyway.

The appeals court ruled that the months-long delay before people could challenge a seizure was too long and that hearings needed to happen within two weeks.

International

British Royal Pharmaceutical Society Backs House of Commons Call for Safe Injection Sites. At the end of August, the House of Commons Home Affairs Committee recommended legalization of safe injection sites for drug users, and now the Royal Pharmaceutical Society has backed that call.

The Home Affairs Committee called for a pilot safe injection site in Glasgow. The Home Office rejected a similar proposal in 2020. But both the committee and the society pointed to successful safe injection sites elsewhere.

 

"We believe we can apply that learning here and provide clean, safe spaces for those injecting drugs," said Claire Anderson, president of the Royal Pharmaceutical Society. "This will bring illegal drug users closer to mainstream health and addiction support services, and provide an opportunity for health professionals to engage in treatment and prevention. This in turn will help to save lives, reduce harm and reduce drug deaths," she added.

Washington State to Pay Out Millions to People Busted for Drug Possession [FEATURE]

The Washington Supreme Court's 2021 ruling in Washington v. Blake continues to reverberate. In Blake, the court threw out the state's drug possession law as unconstitutional because it did not require that defendants knew they were in possession of a controlled substance, overturning hundreds of thousands of drug convictions going back to the 1970s.

If you were busted for drug possession in Washington state and paid fines and/or fees, the state has some money for you. (CC)
That left the state without a felony drug possession law until the legislature acted to replace it, which it did temporarily in 2021 and permanently this year, although it required a special session of the legislature to get it done. Lawmakers could have done nothing, effectively decriminalizing drug possession, or they could have fixed the flaws in the original statute and reinstated the felony drug possession charge. Instead, they found middle ground, making drug possession a gross misdemeanor and creating a new offense of public drug use. Both offenses carry maximum jail time of 180 days and a maximum fine of $1,000.

But while the politicians and the press were embroiled in the drug possession law dilemma, another aspect of the Blake decision is just beginning to be felt, and it's going to cost state taxpayers just about $100 million. All those people convicted under the drug possession law are eligible to have their sentences vacated -- tens of thousands have already done so -- and once those convictions are vacated, so are the fines and fees associated with them, meaning the state is going to owe those people money.

To reimburse convicted drug possession offenders of the Legal Financial Obligations (LFOs) they paid, the Administrative Office of the Courts is launching what will be known as the Blake Refund Bureau. The legislature has allocated $50 million to make the refunds and another $47 million to administer the program.

"This is setting a precedent," said Robin Zimmermann, the Administrative Office of the Courts' Senior Communications Officer. "There aren't any other related cases of a state issuing hundreds, or thousands, of vacations [of convictions] and refunds at one time."

Roughly 200,000 felony drug possession convictions and tens of thousands of marijuana possession convictions could be eligible for compensation, although exact numbers are hard to come by because some people may have had more than one conviction and others may have died in the interim.

Municipal, district, and superior courts have already ordered the payment of roughly $8 million, and the Administrative Office of the Courts believes that millions more will be paid out in coming years, necessitating the creation of a specialized bureau to administer the payouts.

"The intent is to have a process that is easy to navigate and will provide for a timely response for individuals to receive their refunds," said Sharon Swanson, the Blake Implementation Manager for the Administrative Office of the Courts.

The Blake Refund Bureau, which is set to be up and running by next month, will create an online portal accessible to the public via a link on www.courts.wa.gov. The refund bureau will provide individuals who have had their Blake convictions vacated a self-navigable database to determine if they have refunds related to their convictions. Refund requests will be submitted through an online application. Once the application has been received and an amount of refund is confirmed by the court, a refund will be issued.

"The Administrative Office of the Courts is dedicated to working with our justice partners to help inform the vast and diverse Blake-impact population across Washington State about the potentially life-changing relief opportunities now available to them -- collectively working to foster fresh starts and make people whole again," said Dawn Marie Rubio, Washington State Court Administrator.

The Office of Public Defense is doing its part with a web site, State v. Blake (wa.gov), with resources and information about how to get drug possession convictions off your record, the first step in the process of getting compensation for LFOs you paid.

The state of Washington is breaking new ground in righting old wrongs. If that means taxpayers have to pay for the sins of their fathers, so be it.

MN Becomes 23rd Legal Marijuana State, OH Court Rules on Drug-Using Pregnant Women, More... (5/30/23)

A bid to condemn Canada's safe supply drug policy in British Columbia fails in Parliament, Vermont's governor signs an overdose prevention omnibus bill into law, and more.

An Ohio appeals court has ruled that pregnant women who use drugs cannot be prosecuted under a state law. (CC)
Marijuana Policy

Minnesota Becomes 23rd Legal Marijuana State. With the signature Tuesday of Gov. Tim Walz (DFL) on a reconciled bill, the state became the 23rd to legalize marijuana and the second this year. Delaware legalized it earlier this year. Passage of the bill after years of effort came after the Democratic Farm Labor Party won majorities in both houses of the legislature. Marijuana use and possession will be legalized as of August 1, but it is likely to take a year or longer to get the state's legal marijuana commerce system up and running

Harm Reduction

Vermont Governor Signs Omnibus Overdose Prevention Bill into Law. Gov. Phil Scott (R) last Thursday signed into law an omnibus overdose prevention bill, House Bill 222. The move comes as the state sees its third year in a row of record drug overdose fatalities. The bill contains measures aimed directly at reducing overdoses, such as funding to launch drug-checking services around the state and providing for liability protection. It also contains provisions aimed at breaking down barriers to receiving drug treatment, such as reducing wait times for preauthorization for medication-assisted treatment and expanding the availability of recovery and sober living homes. The measures are being funded with $8 million the state received from settlements with opioid manufacturers and distributors.

Pregnancy

Ohio Appeals Court Rules Law that Criminalizes Providing Drugs to Pregnant Women Does Not Apply to the Pregnant Woman Herself. Last week, Ohio's 5th District Court of Appeals ruled that it is not a crime for a pregnant women to administer illicit drugs to herself. The ruling came in the case of Muskingum County woman who was found guilty of violating a law that makes it a crime to "administer a controlled substance to a pregnant woman" after she confessed to injecting fentanyl in the hospital parking lot before entering the hospital to deliver her baby. In overturning the verdict, the appeals court held that the administration of drugs must be done by another person—not the pregnant woman herself. As a result, similar cases against four other women have been suspended and the woman in the original case has been released from prison. Prosecutors say they will appeal.

International

Canadian Conservatives' Motion to Condemn Liberals' Safe Supply Drug Policies Fails. A motion from Conservative Party Leader Pierre Poilievre to condemn the Liberal federal government's drug policies, and especially its decision to fund the supply of pharmaceutical alternatives as alternatives to illicit street drugs in the province of British Colombia, failed to pass in the House of Commons last Friday. BC's safe supply approach comes as some 35,000 Canadians have died of drug overdoses since 2016. Poilievre argued that the "tax-funded drug supply" fueled addiction rather than recovery and suggesting diverting money from that program into drug treatment. His motion called on the House to "immediately reverse its deadly policies and redirect all funds from taxpayer-funded, hard drug programs to addiction, treatment and recovery programs." But the House didn't buy it. 

Chronicle Book Review: "Shielded: How the Police Became Untouchable"

Shielded: How the Police Became Unaccountable by Joanna Schwartz (2023: Viking Press, 308 pp., $30 HB)

As Donald Trump laid out his fascistoid law and order platform last month, he vowed to bring back stop-and-frisk, railed against "radical Marxist prosecutors," warned of civil rights investigations of "radical leftist prosecutors" for alleged race-based policing, and promised the death penalty for drug dealers, among other fearsome fulminations. But the first bullet point of his manifesto regarded cops: Not only would he fund record hiring levels; he would also "increase vital liability protection for America's law enforcement."

With that pledge, the not-yet-indicted former president played to longstanding but unproven concerns that citizens' ability to seek civil redress for police mistreatment under civil rights laws would force police officers into bankruptcy if they were found liable for heat-of-the-moment lapses. Equally to be feared -- and equally unproven -- is the notion that being able to hold police liable will inhibit them from fully exercising their crime-fighting powers and protecting public safety.

Not to worry, officer! As UCLA law professor Joanna Schwarz makes clear in Shielded, her new book on (the lack of) police accountability, cops get away with murder. And rape. And torture. And beatings. And various other forms of street-tough thuggery. Schwartz has spent years researching how our legal system protects police at all costs through the accretion over decades of Supreme Court decisions interpreted by a non-representative federal bench with cases tried by juries filled with people who have never had a bad encounter with police. (In federal civil cases, felons cannot be jurors, and the voir dire process eliminates potential jurors with negative perceptions of law enforcement.)

Over the course of decades, the Supreme Court first opened the door to civil rights litigation to address police violation of constitutional rights, then, in case after case, effectively pushed it back until it is now barely open a crack. It is no accident that this has occurred under a Supreme Court that has been sliding to the right for the last 50 years and is now the most reactionary court in a century. One technique is to require plaintiffs to show sufficient evidence of patterns of police misconduct before they are allowed to undertake discovery, the process by which both sides in a case are allowed to see and seek relevant evidence. In the case of rogue police departments, this would be records of officer infractions, incident reports, and the like. But under current Supreme Court precedent, federal judges summarily dismiss cases before discovery because plaintiffs have not produced the evidence they have not yet been allowed to seek. That's a hell of a Catch-22.

Another huge hurdle in front of people seeking redress for police misconduct is qualified immunity, a notion constructed out of thin air by the Supreme Court in 1967 and turned into another Catch-22 by the Supreme Court in 1982. Qualified immunity is a defense to civil rights claims that is granted if the law the cop violated is not "clearly established," and if qualified immunity applies, plaintiffs cannot collect monetary damages. Under the 1982 decision, the federal courts find that qualified immunity applies unless the plaintiff can show a previous case with the exact same facts has been decided in federal court.

But Schwartz shows that the Supreme Court is only one of the "shields" protecting police. At the institutional level, police Internal Affairs bureaus generally do not punish nor track misbehavior. At the municipal level, budgets anticipate having to pay out damages for police behavior, with the taxpayers—not the miscreant officers—paying up. At the state level, legislators pass laws that further protect police. And there are more obstacles that Schwartz elucidates, from the makeup of the federal judiciary and federal juries to financial disincentives for attorneys to spend their careers litigating civil rights cases where they could spend thousands of hours preparing cases only to have them settled and end up being paid a pittance for their efforts.

This is not a book about the war on drugs, but the war on drugs is implicated throughout.  Many, many of the encounters between police and citizens that result in civil rights violation complaints arise from the prosecution of the drug war, and many, many of the victims are drug users or suspected drug users.

Schwartz lucidly and cogently explores the mountain of obstacles people seeking justice for police mistreatment face, as well as the obstacles facing people who want to remake the system into something nearer to common notions of justice. Given the current makeup of the Supreme Court and the stalemated state of play in Congress, relief is unlikely to come from the federal government. The problem seems intractable.

But Schwartz sees opportunities for positive change at the state and local levels, and she cites Colorado's 2020 passage of a bill ending qualified immunity, requiring officers found to have operated in bad faith to pay something out of their own pockets (as opposed to being indemnified by the city or state, which pays the judgement), and allows plaintiff attorneys to recover their fees when they prevail.

This is an important, eye-opening work. If you are concerned about who will guard us from the guardians (and how), it is indispensable.

Asset Forfeiture Shenigans Down in Houston [FEATURE]

Law enforcement officers and prosecutors systematically violate the constitutional rights of innocent property owners and interstate drivers, seizing cash and other valuable items without legitimate probable cause, which deprives individuals of much-needed funds in their possession. Police agencies seize additional property like vehicles, houses, businesses, and other tangible items, then auction these items off by executing a well-planned civil forfeiture lawsuit even if a person who owned the property or properties hadn't been convicted of a crime. State and local governments then split the proceeds with the law enforcement agency that made the seizure.

"In the United States, the basic tenet of the criminal justice system is that one is presumed innocent until proven guilty," wrote Rebecca Vallas and her team at the Center for American Progress. "However, over the past several decades, many thousands of people have had their property seized by the government without being charged with a crime."

That is civil -- as opposed to criminal -- asset forfeiture. Civil forfeiture law only requires prosecutors to prove a mere preponderance of the evidence, a lesser threshold than the beyond a reasonable doubt standard required in criminal cases. In practice, property targeted under civil forfeiture is usually seized unless the property owner hires an attorney to contest the proceeding, but people whose monies or properties have been seized often lack the means to challenge such actions.

Kevin Lawrence, executive director of the Texas Municipal Police Association, said the lower standard allows police to hit criminals in their pocketbooks even if they can't place them behind bars. "Civil asset forfeiture is intended to try and take a bite out of organized criminal syndicates by getting at their profit margin," he told KERA TV. "If we do away with civil asset forfeiture, who benefits the most? It's organized crime."

Documentation of thousands of asset forfeiture cases by the Institute for Justice (IFJ), a Washington, DC-based public interest law firm, challenges Lawrence's line because it found police confiscated small amounts of money from individuals instead of big hitters who are involved with organized crime which means not everyone who has their money taken is into high-level crimes. Many aren't guilty of anything except for having a substantial amount of cash when police erroneously profile them as criminals.

Forfeited assets including cash proceeds are lucrative for government and law enforcement agencies. In 2018 alone, reports IFJ, 42 states, the District of Columbia, and the federal government seized over $3 billion; $500 million was forfeited under state law and the government seized $2.5 billion within the Department of Justice and the Treasury forfeiture program.

IFJ is fighting tooth and nail against alleged abusive practices in Texas by filing a class-action lawsuit last year against the Harris County District Attorney's Office headed by elected Democrat Kim Ogg and Ed Gonzalez the elected Harris County sheriff.

"Texas has some of the worst civil forfeiture laws in the country, and what's driving this is the fact that police and prosecutors get to keep the property they seize. They can use it to buy better equipment, to buy better automobiles, and pay salaries, IFJ attorney Scott Bullock said more than a decade ago. Little has changed since then.

Ovid Ned can attest to Harris County's questionable seizure tactics. On January 31, 2016, Houston Police patrolmen stopped Ned while he was driving a new Jeep Compass in the 10700 Block of Bentley Street in far North Houston. Since Ned didn't have a state driver's license he was arrested on the spot. While conducting an inventory of the vehicle for towing purposes the officers discovered 26.98 grams of hydrocodone inside a pill bottle in the vehicle's glove box. Police confiscated $948.00 tucked in Ned's pants pocket. A charge of possession with intent to deliver hydrocodone was filed against Mr. Ned. As a bonus, the officers seized Ned's cash claiming the funds were the result of illegal narcotic sales.

But while he potentially faced a stiff prison sentence, Ned's luck was as hot as a pair of winning craps dice because a Harris County prosecutor dismissed the drug charge on June 15, 2016. To the prosecutor's surprise, Ned had a valid prescription for the hydrocodone, but in a second go-round, Ned crapped out. Harris County asset forfeiture prosecutors filed a case against his money and managed to grab every red cent without convicting the alleged member of the 5th Ward Circle Street gang of anything.

Houston Police stated in the seizure report they believe the cash was drug money because Ned was a documented gang member with a lengthy criminal history involving narcotics, and they further allege finding three boxes of plastic sandwich bags in the trunk of the vehicle.

Prosecutor Angela Beaver argued that Ned "was selling the pills." Beaver explained how opioid dealers often obtain several prescriptions from pain clinics.

"All they have to do to make the criminal case go away is to produce one of these prescriptions so that the possession is not illegal," Beavers said. "It does not mean the money seized is not contraband."

What Beavers failed to mention is all her office had to do was contact Ned's doctor to verify the authenticity of the prescription. Nor did Beavers show proof that Ned engaged in scouting for doctors to write bogus prescriptions to account for the drugs he possessed at the time he was arrested.

"Taking property without a criminal conviction is a violation of the owners' civil liberties," said IFJ attorney Arif Panju. "There is a principle of being innocent until proven guilty, and forfeiture just takes that and flips it on its head. That raises all sorts of constitutional problems."

The IFJ scored a victory at the US Supreme Court that limits forfeitures in state cases where the value of what is seized outweighs the seriousness of the connected crime.

US Supreme Court Justices Weigh In

US Supreme Court justices realize how civil forfeitures can become excessively punitive and that in such cases the constitutional protections must attach to balance the law. Forfeitures of property without proof of the owner's wrongdoing, merely because it was 'used' in or was an instrumentality of crime has been permitted in England and this country, both before, and, after the adoption of the Fifth and Fourteenth Amendments.

In the case of Leonard vs. Texas, Justice Clarence Thomas questioned: "whether the Court's treatment of the broad modern forfeiture practice can be justified by the narrow historical one."

Leonard vs. Texas entails a story of two men, vehicle driver James Leonard and passenger Nicosa Kane. Police stopped the men in Texas as they headed down an interstate known for heavy drug trafficking. When the officer saw a locked safe in the trunk he questioned the men about the contents of the safe. According to the officer, both men gave conflicting stories about the safe. James told the officer the safe belonged to his mother and that he was to buy a house in Pennsylvania. Once the safe was opened the officers discovered the mother lode, a cool $201,000. A bill of sale for a house was also found in the safe.

The state immediately seized the funds. Leonard's mother, Lisa Olivia Leonard, filed a lawsuit listing herself as the innocent owner of the cash-filled safe. At the trial court hearing, the presiding judge issued a forfeiture order meaning Ms. Leonard lost the cash. She appealed the verdict. Rejecting Leonard's innocent-owner defense the court of appeals, citing the suspicious circumstances of the stop and the contradictory stories between James Leonard and Nicosa Cane, court concluded that the government proved by a preponderance of the evidence that the money in the safe was either the proceeds of a drug sale or intended for such activity.

The US Supreme Court denied Leonard's petition for certiorari on March 6, 2017. No news reports are showing whether Leonard won her money back.

Meanwhile, states like Arkansas and Michigan have passed legislation to require that a person must first be convicted of a crime before forfeiture proceedings can start. Texas state Republicans and Democrats have proposed similar legislation.

Difference Between Criminal Law and Civil Forfeiture Asset Law

The key feature of Texas civil forfeiture law is how it shifts the burden of proof onto the person who had their property seized to prove their property wasn't connected to a crime. Unlike a criminal trial where the evidence is brought against an individual, in civil forfeitures, the government proceeds against the property (or seized cash) as if the property itself assisted in the commission of a crime.

For instance, when it comes to civil law forfeitures the government only needs to meet a lower preponderance of the evidence to snatch away someone's property which means a person can have their property taken without being convicted of a crime.

"Who could afford to have their life savings taken away for more than two years with no hearing and no opportunity to go before a judge?" asked IFJ Senior Attorney Wesley Hottot.

The Harris County District Attorney's Office has declined to comment publicly about the IFJ lawsuit.

Harris County DA Office Dismisses Dope Cases by Corrupt Houston Police Narcotic Officers And Keeps the Seized Tainted Cash

Harris County prosecutors in Houston dismissed numerous drug cases and recommended the reversal of the cases of other defendants arrested by terribly corrupt Houston police narcotic officers Gerald Goines and Stephen Bryant, the narco officers responsible for one of Houston's most scandalous acts of sheer violence when Goines lied to obtain the January 2019 search warrant that led to the shooting deaths of two innocent people, 59-year-old Dennis Tuttle and Tuttle's wife, 58-year-old Rhogena Ann Nicholas. They were gunned down by police after Goines fabricated a search warrant and executed the same warrant at the couple's home.

Goines claimed his informant purchased heroin from the couple when no informant had entered the home and made a drug buy. Five additional officers were shot during the raid as well as what became the sensational, deadly raid on Harding Street in the East End of town. There have been at least three dozen instances in recent years when Goines' Narcotics Squad #15 seized lots of cash, jewelry, and vehicles based on misleading statements and even outright lies to justify narcotic search warrants.

Despite the criminal cases being dropped or dismissed, the Harris County Civil Asset Forfeiture Division still seized the "crime-tainted" cash and property. For example, on July 24, 2018, Andrew Hebert, of 4524 Alvin Street in Houston was strolling over to his 2017 Buick Lacrosse parked in the driveway when police swarmed him like flies. Narcotic officers Goines and Bryant said they saw Hebert make a hand-to-hand dope delivery to an individual. A search of Hebert's residence yielded assorted narcotics and $10, 965.00. Police seized the funds and Hebert had a second seizure of $1,765.00. When news broke about the scandal involving Goines and Bryant's involvement in the death of the East End couple the District Attorney's Office dropped the dope case against Hebert but still, the prosecutors kept his money.

The same thing happened to Christopher White's $2,465 and Andre Thomas's $2,700. Criminal charges were dropped due to Goines's involvement in their narcotics cases, but they never saw the money again. Goines and Bryant are facing a laundry list of federal civil rights criminal charges ranging from obstruction of justice, making false statements, falsifying records, and depriving the deceased victims of their constitutional right to be secure against unreasonable searches. State charges against Goines include first-degree murder. That trial remains pending.

Transporting Cash to Buy a Truck Isn't a Crime

Included in the Institute for Justice class action lawsuit is the case of Ameal Woods and Jordan Davis from Natchez Mississippi, who lost $42, 300 to Harris County Civil Asset Forfeiture Enforcement. Ameal Woods was traveling from Natchez to a suburb outside Houston called Katy, Texas, -- when he happened to encounter a Harris County Sheriff Patrol Sergeant on May 19, 2019. The sergeant pulled Woods over in the 2300 block of I-10 driving a new Nissan Sentra for allegedly "following a tractor-trailer too closely."

The Sergeant allowed Woods to sit in his patrol car while he checked Woods' license and prepared a warning citation. As these transactions took place, the sergeant wrote the following in his offense report: "Mr. Woods was having facial tremors, labored breath, shifting around in his seat, licking his lips and belching, all signs of stress," the officer wrote in his report.

Whether the officer first asked Woods if he was transporting dope or money or if anything out of the ordinary triggered the officer's suspicion remains unclear. In the officer's report, he said that Woods claimed to be carrying $30,000 in his rented vehicle and that his girlfriend Jordan Davis rented the car. Woods said the money was to buy a used tractor-trailer to expand his trucking business back home in Mississippi.

The deputy recovered the money wrapped in separate packages. When asked where he got the funds Woods said his wife gave him part of it, and that a niece loaned him some as well. The deputy also claimed Woods had explained to him that his girlfriend Jordan Davis had given him part of the money from her tax returns.

To verify Woods's story, the deputy sergeant said he called Jordan Davis from his cell phone while sitting on the road with Ameal Woods and that Davis said she hadn't gotten her tax return yet. Ameal Woods denied his girlfriend had talked with the sergeant about her tax return. Once the money was taken, the sergeant gave Woods an incident report number detailing the seizure and Woods was cut loose at the scene.

Ameal Woods recalled seeing no drug dog at the scene. But in a final seizure report submitted to the county by a different deputy, the deputy stated a drug dog made a hit on the money Woods was carrying, which means the dog detected an odor of illegal drugs on the seized money.

National Geographic and several more prominent news media outlets reported in 2009, that a definitive study showed "Nearly nine out of ten bills circulating in the United States are tainted with cocaine." In 1994, the US 9th Circuit Court of Appeals determined that in Los Angeles, out of every four banknotes, on average more than three are tainted by cocaine or another illicit drug.

Questions swirled among the IFJ attorneys as to why it took slightly over two years before the Harris County District Attorney's Office in Houston served Ameal and Jordan with legal notification of the forfeiture.

IFJ attorneys said there is a scheme by Texas lawmen and the District Attorney's Office to take cash from travelers without legit probable cause, particularly if the individuals are African Americans and Mexicans.

Forfeiture Complaints Raise Suspicion

What infuriates the IFJ attorneys was the suspicious composition of the forfeiture complaint by a Harris County Deputy Sheriff identified as Greg Nason, who, according to the lawsuit "was not at the scene when the money was seized from Ameal Woods."

The Attorney's investigation uncovered more peculiar activities. Unsurprisingly, IFJ attorneys identified 113 seizure affidavits rife with errors and misspelled words "written by an officer who was not at the time and place of seizure." At least 80 of those affidavits were written by the same Officer Greg Nason. Just as the discovery of some of the poorly worded sentences wasn't enough, the attorneys noticed 'cut and paste' testimony with different fonts, and erroneous dates and the deputy even referred to tangible cash when the seized property was a vehicle.

Dog Makes Alert on Proceeds Later; Not At The Scene

IFJ attorneys also discovered 92 cases (including the Ameal Woods case) where a drug dog reportedly alerted "after police seized property." The key word is "after" the incident took place, not at the scene. Ameal assured his attorneys that no dog sniffed his money at the scene.

"The government cannot copy-and-paste its way to probable cause," said IFJ. Managing Attorney Arif Panju. "Probable cause means more than simply having a large sum in cash and an after-the-fact dog alert."

Retired Harris County Sheriff Department Narcotic Detective Joe Harris told Drug War Chronicle, "Unless there was an ongoing investigation that hasn't been revealed, what we used to do is if we target a person for carrying lots of money, money suspected to be from selling drugs we would have a dog come to the scene to see if the dog hit on the money. If the dog hits on the money we seize it right then", not later on unless a person is arrested with drugs and carrying money at the same time," Harris said.

Harris went on to explain that when a dog makes a hit on a vehicle this is when to get a warrant to search for narcotics.

Between 2018 and 2020, the Harris County District Attorney Forfeiture Division collected $15.9 million in forfeiture revenue. Over $7.5 million was spent on police salaries and overtime.

Texas Gunslingers Battle for Reform

Harris County prosecutors in Houston unified with their compatriots in law enforcement against proposed laws to restrict civil asset forfeiture over the last few years. Several bills have been filed in the state's legislature by Democrats and Republicans to prevent Texas prosecutors from seizing citizens' money and other assets unless they'd been convicted of a crime.

During one 2019 legislative hearing at the state capitol in Austin, Harris County Civil Forfeiture prosecutor Angela Beaver said criminal charges were filed in all but 5% of Harris County seizure cases in 2018. State Rep. Harold Dutton (D-Houston), who has filed legislation to require convictions for forfeiture. Scoffed at Beavers' numbers.

"I'm going to tell you as a practicing lawyer in Harris County, I don't think you're being honest with this committee," he said.

"Well, we have the stats," she shot back.

But a study of Harris County statistics by the Texas Tribune suggested the prosecutor's numbers were wrong. The Tribune found that during the first six months of 2016, 15 percent of asset seizures did not include criminal charges connected to the stated reason for the seizure -- such as a drug crime -- and nearly 40 percent of seizures did not result in a related conviction or guilty plea.

Proposed Changes to Modify the Way Property is Seized in Texas

To add an extra boost to eliminate civil asset forfeitures against a person's property, although the person hasn't been criminally convicted in a court of law, State Rep. Senfronia Thompson (D-Houston) and then-Republican Senator Konni Burton filed identical bills requiring law enforcement and prosecutors to secure a criminal conviction before property can be legally seized, instead claiming the seized property was more likely than not connected to a crime.

Texas Civil asset forfeiture law needs much reform to equal the playing field for defendants to have a better shot at proving their money or property wasn't intended for criminal activities. The biggest stake in the foray is how prosecutors and law enforcement abuse civil forfeitures to tilt the scales in their favor and undermine the constitutional rights of American citizens.

Democratic State Reps. Harold Dutton and Senfronia Thompson will attempt to re-introduce House Bill 251 in the legislative session beginning in January 2023, to reform Texas civil asset forfeiture Law. Their goal is to make it so that state prosecutors must first convict a person in criminal court to legally seize the individual's property that may or may not be connected to the crime with which they were charged.

Drug War Chronicle contributor and news reporter Clarence Walker can be reached at [email protected]

Colombia Senate Approves Weed Legalization, DOJ Seeks Delay in Philly Safe Injection Site Case, More... (12/6/22)

An Ohio marijuana legalization bill gets a hearing, a Filipino father wins a small measure of justice for his young son killed in Rodrigo Duterte's drug war, and more.

Legal marijuana is one vote away in the Colombian legislature.
Marijuana Policy

Ohio Marijuana Legalization Bill Gets House Hearing. A pair of legislators, Reps. Casey Weinstein (D-Hudson) and Terrence Upchurch (D-Cleveland) have sponsored a marijuana legalization bill,  House Bill 382, which got a hearing in the House Finance Committee Monday, but no vote. The bill would legalize the possession of up to 5 ounces by people 21 and over, as well a authorizing a marijuana regulatory agency within the Commerce Department to oversee licensing and regulation of marijuana production and sales. There are only a few weeks left in the legislative session, so the bill's prospects are clouded, but the p.air are also supporting a ballot initiative from the Coalition to Regulate Marijuana Like Alcohol. That initiative is currently before the legislature. If lawmakers fail to pass it, it would then go to the voters provided campaigners gather a second set of signatures.

Harm Reduction

Justice Department Asks Court for More Time in "Complex" Safe Injection Site Case. In a case where the Trump Justice Department sought (so far, successfully) block a Philadelphia safe injection site from operating, the Biden Justice Department is now asking a federal court for more time to respond in a lawsuit aimed at settling the legality of such sites in the United States. The group behind the safe injection site, Safehouse, had agreed to earlier delay requests but said it "did not consent" to this one and planned to file an opposition motion Tuesday. Justice said Monday that it "believes an additional two months are necessary to permit careful consideration of the government’s harm reduction and public safety goals.The discussions to date, which have involved coordination among multiple constituencies addressing a novel and complex subject matter, have been and continue to be productive,"it said, noting that DOJ had a status conference with Safehouse attorneys last month and "provided an update"to the court. Safehouse argued that Justice has had enough time and that people are dying of overdoses every day while the department dithers. While the Philadelphia site remains blocked for now, authorities in New York City opened the first officially sanctioned safe injection sites in the country last year. The Biden Justice Department did not seek to shut it down.

International

Colombian Senate Approves Marijuana Legalization Bill. The Senate on Tuesday approved a marijuana legalization bill on a 56-3 vote. The measure has already won initial approval in the Chamber of Representatives, but more votes are still required before it becomes law. Under the bill, authorities would have six months to set rules for the legal marijuana market. The bill would amend the constitution to support "the right of the free development of the personality, allowing citizens to decide on the consumption of cannabis in a regulated legal framework"and would mitigate "arbitrary discriminatory or unequal treatment in front of the population that consumes." The bill has won seven legislative votes, but because it is a constitutional amendment, it must be debated and voted on eight times over two calendar years. The next calendar year starts in less than a month.

Philippine Family Allowed to Correct Death Certificate Killed in Duterte's Drug War. An appeals court has granted Rodrigo Baylon's petition to modify the death certificate for his nine-year-old son, Lenin, who was killed by stray bullets in an operation where police in Caloocan City killed two women drug suspects. Lenin's official death certificate falsely claimed that he died from bronchopneumonia. The Reuters news agency has identified at least 14 other cases of drug war victims deaths' being falsely attributed to natural causes. Baylon's effort to correct his son's death certificate was rejected by a lower court in 2019, but the Court of Appeals agreed with him and ordered the cause of death changed to "gunshot wound," a ruling Baylon called "a small victory." Tens of thousands of people were killed in the bloody drug unleashed by then-President Rodrigo Duterte after he took office in 2016. 

MO Judge Okays Legal Pot Initiative, Taliban War on Opium a Dud So Far, More... (9/12/22)

Fentanyl has largely replaced heroin in the nation's capital and that's being reflected in overdose statistics, India creates a national drug trafficker registry, and more.

In Afghan fields, the poppies grow. Despite the Taliban's announced ban. (UNODC)
Marijuana Policy

Missouri Judge Rejects Challenge to Marijuana Legalization Initiative. Show Me State voters will have the chance in November to show the country whether they support marijuana legalization or not after a Cole County judge dismissed a lawsuit from anti-marijuana groups seeking to keep Amendment 3 off the ballot. Opponents sued, arguing that some signatures were invalid because they were verified by the state instead of county election officials, but the judge dismissed the lawsuit, ruling that the Colorado-based plaintiff did not provide evidence that she was a Missouri resident. But the judge also said he would have ruled against the lawsuit regardless of residency because the initiative met state signature-gathering requirements.

Opiates and Opioids

Fentanyl Replaces Heroin as Leading Cause of Overdose Deaths in DC. Fentanyl has now almost completely replaced heroin in Washington, DC, with heroin being detected in only 15 of the city's 166 opioid overdose deaths in the first five months of 2022. Heroin is now killing fewer Washingtonians than fentanyl, cocaine, alcohol, or prescription drugs. Public health experts say public health strategies must be adapted to adjust to the city's changing drug use profile. Most of the city's drug overdoses in the last year were among people between 40 and 70, and 84 percent of them were Black.

International

Taliban Make Little Progress in Countering Drugs. The Taliban banned opium in April, shortly after the last harvest, but as the next poppy growing season approaches, less than 250 acres of poppy have been eradicated and only 4,270 kilograms of opium have been seized, far behind the performance of previous Afghan governments. In 2020, for example, the government seized 80,000 kilos of opium, nearly 20 times as much as this year. And that has some experts questioning the Taliban's commitment to the ban. "There is serious doubt on the intentions of the current rulers whether they really want to eradicate poppy," said Javid Qaem, a former deputy minister for counternarcotics in Afghanistan and now a researcher at Arizona State University. "At the time of the Republic, security was a big challenge. Police could not go to the areas where poppy was cultivated. Taliban claim that they have all the areas under their control. They should be able to do it easily," he told said.

India's "Narco Files" Hold Over 500,000 Names. India's first registry of drug traffickers, launched only a month ago, now has more than 500,000 names on it. The National Integrated Database on Arrested Narco-offenders (NIDAAN) - a database of arrested narcotics offenders from states and union territories, developed by Narcotics Control Bureau (NCB) - aims to profile each narco-offender by integrating with Inter Operable Justice System (ICJS) and Crime and Criminal Tracking Network and System (CCTNS), officials said. It holds the names of all people convicted of drug trafficking offenses in the past 10 years.

CA Bill to Protect Workers' Off-Duty Marijuana Use Passes, OK Supreme Court to Decide If Legal Pot Initative Makes Ballot, More... (8/31/22)

Workers' rights to use marijuana off duty are in the news, a Missouri marijuana legalization campaign draws organized opposition from within the cannabis community, and more.

Marijuana Policy

California Bill to Protect Workers from Firing for Off-Duty Marijuana Use Heads to Governor's Desk. A bill that would provide broad employment protections for workers who use marijuana off the job, Assembly Bill 2811, has been approved by the legislature, easily winning a final concurrence vote in the Assembly late last week. The bill would "make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person" solely because of off-duty marijuana use. The bill would also bar employees from demanding that workers or potential hires undergo marijuana testing, with exceptions for federal employees and some safety-sensitive positions. The bill now heads to the desk of Gov. Gavin Newsom (D).

Missouri Marijuana Legalization Initiative Draws Organized Opposition—from Within the Cannabis Community. The marijuana legalization initiative from Legal Missouri 2022 has drawn its first organized opposition, and those foes are coming from within the Kansas City cannabis community and allied lawmakers. The critics say the initiative does not offer social equity provisions and that by legalizing marijuana through a constitutional amendment, it removes legislators from the process and prevents legislative oversight. Members of the Impactful Canna Reform Coalition include state Rep. Ashley Bland Manlove (D-Kansas City), a pair of Kansas City medical marijuana businesses, a cooking and catering business, a holistic wellness company, an herbal remedy company, and Kansas City-based community organizers. "The capitalism monster loves to exploit you, and that is what’s happening with this petition," Bland Manlove said in a statement. "Myself and like-minded community partners realized people from politicians to Bob on the street didn’t know the details. We want to make it known."

Nevada Supreme Court Rules That Recreational Use of Marijuana Is Not Protected Off-Duty Conduct. The state's highest court has ruled that a casino employee who was fired after he was injured on the job and then tested positive for marijuana does not any legal recourse. Under state law, workers cannot be punished for the "lawful use" of products while not on duty, but the Supreme Court held that because marijuana remains illegal under federal law, its use is not "lawful," and the employee is therefore not protected. The case is Ceballos v. NP Palace LLC.

Oklahoma Supreme Court Agrees to Consider Whether Marijuana Legalization Initiative Should Be on November Ballot. Organizers behind the State Question 820 marijuana legalization initiative handed in sufficient signatures to meet state requirements, but the initiative still might be kept off the ballot because, for the first time, the state used a private contractor to count signatures and that contractor slow-walked the signature counting process so long that the statutory deadline to put the question on the ballot passed last week. The count, which normally takes two or three weeks, took seven weeks this time, and now, proponents have asked the state Supreme Court to intervene. On Tuesday, the Supreme Court agreed to take up the issue. If it rules against the initiative campaign, the measure would then go before voters either in a later special election called by the governor or on the November 2024 ballot.

Fed Judge Rules for Opioid Distributors in WV Lawsuit, CA Kills Marijuana Cultivator Tax, More... (7/5/22)

A Washington state county commissioner demonstrates her cluelessness about harm reduction, Senate drug warriors file the END FENTANYL Act, and more.

pain pills (Creative Commons)
Marijuana Policy

California Governor Signs Bill Ending Cultivation Tax on Marijuana Growers. Gov. Gavin Newsom (D) has signed into law Assembly Bill 195, a wide-ranging bill to restructure the state's legal marijuana system whose most striking feature is the removal of the wholesale tax on marijuana growers. The aim of the bill is to provide relief to the struggling industry and further erode the marijuana black market. The bill also shifts collection of the state's 15 percent excise tax from the distributor level to the retail level, and it freezes the excise tax for at least the next three years. Aiming at unlicensed operators, the bill allows for fines of up to $10,000 per day for property managers who knowingly rent or lease space to unlicensed marijuana businesses. It also includes $40 million in tax credits, half for equity operators and half for microbusinesses. Social equity operators will also be eligible for a $10,000 tax credit and will be able to keep 20 percent of excise tax revenues for reinvesting in their businesses.

Opiates and Opioids

Bipartisan Group of Senate Drug Warriors File END FENTANYL Bill. Sens. Rick Scott (R-FL), Mike Braun (R-IN), Diane Feinstein (D-CA), and Maggie Hassan (D-NH) have filed the cutely-acronymed Eradicating Narcotic Drugs and Formulating New Tools to Address National Yearly Losses of Life (END FENTANYL) Act (Senate Bill 4440). The bill would require the Commissioner of US Customs and Border Protection (CBP) to update its policies at least once every three years to ensure drug interdiction guidance is up to date. The legislation was prompted by a 2019 GAO report, Land Ports of Entry: CBP Should Update Policies and Enhance Analysis of Inspections, which found drug interdiction guidance has not been updated in 20 years. Scott used a press release about the bill to slam President Biden for his "failed open border policies" even though DEA figures show that 80 percent of fentanyl comes through ports of entry, not in the backpacks of refugees, asylum seekers, and undocumented border crossers.

Federal Judge Rules for Opioid Distributors in West Virginia Lawsuit. A federal judge ruled against West Virginia plaintiffs in a lawsuit seeking damages from three major drug distributors who they accused of causing a public health crisis by distributing 81 million pills in eight years in one county hard hit by opioid addiction. Cabell County and the city of Huntington had sued AmerisourceBergen Drug Company, Cardinal Health, and McKesson Corp.

Plaintiffs argued that the companies sent a "tsunami" of prescription pain pills into the county and that their conduct was unreasonable, reckless, and disregarded the public health. "The opioid crisis has taken a considerable toll on the citizens of Cabell County and the City of Huntington. And while there is a natural tendency to assign blame in such cases, they must be decided not based on sympathy, but on the facts and the law," US District Judge David Faber wrote in the 184-page ruling. "In view of the court's findings and conclusions, the court finds that judgment should be entered in defendants' favor. Plaintiffs failed to show that the volume of prescription opioids distributed in Cabell/Huntington was because of unreasonable conduct on the part of defendants," Faber wrote, noting that the plaintiffs supplied no evidence that the companies distributed opioids to any entity that was not properly registered with the DEA or the state Board of Pharmacy. The city and the county had sought more than $2.5 billion that would have gone toward opioid efforts. The goal of the 15-year abatement plan would have been to reduce overdoses,

Harm Reduction

WA County Commissioner Fears "Normalization" of Naloxone. Amanda McKinney, a Republican Yakima County Commissioner, is concerned that the use of the opioid overdose reversal drug naloxone will be "normalized." She was responding to a presentation by the Board of Health about the increase in drug overdose deaths and the district's overdose awareness campaign, but zeroed in on one sentence: Among the goals of the campaign was "Increase awareness and education about the benefits of naloxone to normalize its use."

That set off McKinney: I'm really concerned about that last slide where it says normalize use. I would really like for us to expand on what that means," McKinney said. "I'm just wondering if there is a better term than normalize, 'cuz normalize to me means we're accepting this and promoting this as part of our daily lives and I think that that word is inappropriate."

Apparently unfamiliar with the notion of harm reduction, she also questioned the effectiveness of needle exchanges and fentanyl test strips. "I'd really like to know what the effectiveness is of fentanyl testing strips and syringe exchange services for actually successfully getting people off and away from being someone who is a habitual drug user," McKinney said. "I question those methods as being methods that are successful in getting people actually off the drugs." Following McKinney's comments, Health District Director Andre Fresco explained that harm reduction's primary goal is not to end drug use, but to save lives, and added that the district is involved in efforts to get people off drugs.

Another Push for the SAFE Banking Act, NJ Magic Mushroom Legalization Bill Filed, More... (7/1/22)

The Ohio Supreme Court rejects a police backpack search for marijuana, the Massachusetts Senate has approved an asset forfeiture reform bill, and more.

Psilocybin mushrooms. It could be legal to grow, possess, and share them under a New Jersey bill. (Creative Commons)
Marijuana Policy

Bipartisan Lawmakers File Marijuana Banking Amendment to Must-Pass Defense Bill in Latest Reform Push. Led by Rep. Ed Perlmutter (D-OR), sponsor of the House-passed version of the Secure and Fair Enforcement (SAFE) Banking Act (HR 1996), a bipartisan group of lawmakers are pushing an amendment to the FY 2023 National Defense Authorization Act to attach that legislation to the must-pass bill. This is the second year Perlmutter has tried to get the SAFE Banking Act language into the defense spending bill. Passage of the bill in the Senate has been stymied by Majority Leader Charles Schumer (D-NY), who has been blocking the incremental bill as he continues to push for a full-scale marijuana legalization bill. Perlmutter's amendment will be taken up in the House Rules Committee, and if approved as part of the spending bill in the House, would be subject to conference committee approval with Senate leaders.

Ohio Supreme Court Finds Marijuana Backpack Search Unconstitutional. In a unanimous decision, the state Supreme Court has thrown out the conviction of a woman for marijuana possession, ruling that a warrantless search of her backpack in her home violated the Fourth Amendment's protection against warrantless searches. Police came to the woman's home with an unrelated arrest warrant and searched her backpack while she was already handcuffed and sitting in a patrol car. They found 391 grams of mostly marijuana edibles and charged her with felony marijuana possession. Police and prosecutors argued that they had the right to search the backpack for weapons, but the justices held there was no rationale for a weapons search once the woman was detained. Police and prosecutors also argued that a bit of plastic baggie protruding from the backpack justified the search, but the justices rejected that as well. "When police search a bookbag in a home under circumstances that do not give rise to any exigency, they must follow the command of the Fourth Amendment: get a warrant," wrote Justice Patrick DeWine. The case goes back to lower courts for reconsideration.

Psychedelics

New Jersey Senate President Files Bill to Legalize Magic Mushrooms for Personal Use. Senate President Nicholas Scutari (D) has filed a bill, Senate Bill 2934, that would allow people 21 and over to "possess, store, use, ingest, inhale, process, transport, deliver without consideration, or distribute without consideration, four grams or less of psilocybin," the psychedelic compound in magic mushrooms. People could legally grow, cultivate, or process the mushrooms capable of producing psilocybin on private property. The bill would also expunge past criminal offenses for magic mushrooms. "This bill is a recognition of evolving science related to psilocybin and its medical uses related to mental health, and if science can provide relief in any fashion with this natural substance under a controlled environment then we should encourage this science," Scutari said. In 2021, Gov. Phil Murphy signed a bill downgrading psilocybin possession from a third-degree crime to disorderly persons offense with a maximum $1,000 fine and up to six months in jail.

Asset Forfeiture

Massachusetts Senate Passes Bill to Reform Civil Asset Forfeiture. The state Senate on Thursday approved a bill that would raise the evidentiary standard for prosecutors to be able to pursue civil asset forfeiture. The bill, Senate Bill 2671, would raise the standard from the lowest legal standard -- probable cause -- to the "preponderance of evidence." The bill also bars asset forfeiture prosecutions for less than $250 and provides the right to counsel for indigent people in asset forfeiture cases. "We view ourselves as a socially progressive state with strong protection for civil liberties. But our current laws on civil asset forfeiture are anything but, and reforming in this area is long overdue," said Senate Majority Leader Cynthia Creem (D-Newton), lead sponsor of the bill.

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