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Marijuana: "Substantial" Settlement in Lawsuit in Case of DC Quadriplegic Who Died in Jail While Serving 10-Day Sentence for a Joint

The mother of a quadriplegic inmate who died after suffering breathing problems in the District of Columbia Jail has reached a settlement with the DC government and care providers. While Jonathan Magbie's mother declined to reveal a dollar figure, the ACLU National Prison Project, which helped litigate the case, called the sum "substantial."

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Jonathan Magbie
Magbie, 27, a resident of nearby Maryland, was paralyzed from the neck down and used a mouth-operated wheelchair to get around. He was arrested in April 2003 when DC police found a gun and a small amount of marijuana in his pocket after they pulled over a vehicle driven by his cousin. In September 2004, DC Superior Court Judge Judith Retchin sentenced him to 10 days in jail after he pleaded guilty to marijuana possession. Although it was Magbie's first offense, Retchin later told a judicial review committee she sentenced him to jail because he said he would continue to smoke marijuana to relieve his pain.

Magbie died before making it halfway through his sentence. He needed a ventilator to breathe at night, but the DC jail infirmary didn't have one. Investigations after his death determined that he was taken to a hospital for "respiratory distress," but later returned to the infirmary. Jail doctors did not perform a follow-up exam, nor did they regularly conduct rounds to check on patients, including Magbie.

"DC's jail system had a duty to care for Jonathan Magbie's serious medical needs," said Elizabeth Alexander, director of the ACLU National Prison Project. "The jail and the Greater Southeast Community Hospital failed to live up to that obligation and it resulted in an agonizing and unnecessary death."

As part of the settlement, correctional officials have agreed to modify a number of policies in order to protect prisoners with severe medical problems and physical disabilities, including modifying the medical screening forms for incoming prisoners and spelling out medical conditions too severe to be treated at the jail's infirmary. Also, prisoners with medical needs that can't be met by correctional staff must be transferred to a facility that can provide an appropriate level of medical care.

"The family's concern was to make certain that, to the extent anyone can prevent it, that this terrible type of event never happens again," said Alexander. "A series of people dealt with this young man, and every single place where something could go wrong, it did go wrong."

Marijuana: Chicago Heights Decriminalizes

The far south Chicago suburb of Chicago Heights, Illinois, has hopped on the marijuana decriminalization bandwagon. The town of just over 30,000 people acted Monday night to craft a local ordinance that it will use instead of prosecuting people under state law.

Under the ordinance approved under the city's home rule authority, people caught with less than 30 grams of marijuana will not face criminal charges, but will instead be ticketed and go through an administrative hearing in city court.

Making simple marijuana possession an ordinance violation rather than a crime will help "unclog" the criminal justice system, said City Attorney TJ Somer. It will also provide extra revenue to the city because the city does not have to share revenue from fines with the Cook County Circuit Court system, as it would have to do if it handled them under state law.

Medical Marijuana: US Supreme Court Declines to Hear Challenge to Appeals Court Ruling Protecting State Medical Marijuana Laws

The US Supreme Court Monday declined to review a lower court decision that ordered Garden Grove, California, police to return marijuana seized from a medical marijuana patient. In November 2007, the California Fourth District Court of Appeal had ordered the marijuana returned, finding that "it is not the job of local police to enforce federal drug laws."

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US Supreme Court
The case was that of Felix Kha, who was pulled over by Garden Grove police in 2005 and cited for marijuana possession despite showing officers his medical marijuana documentation. The possession case against Kha was subsequently dismissed, and the Orange County Superior Court ordered the police to return Kha's wrongfully seized quarter-ounce of marijuana. Police and the city of Garden Grove refused to return the pot, and appealed the ruling, but lost in the state appeals court last year.

The California Supreme Court refused to review the case in March. Now, the US Supreme Court has followed suit. The refusals to hear the appeal means the two high courts have accepted the state appeals court's reasoning that California's medical marijuana law is not preempted by federal law, said medical marijuana advocates.

"It's now settled that state law enforcement officers cannot arrest medical marijuana patients or seize their medicine simply because they prefer the contrary federal law," said Joe Elford, chief counsel with Americans for Safe Access (ASA), the medical marijuana advocacy organization that represented Kha. "Perhaps, in the future local government will think twice about expending significant time and resources to defy a law that is overwhelmingly supported by the people of our state."

But Lois Bobak, a private attorney whose firm represents the city on a contract basis, said the issue in the case was a narrow one. "The US Supreme Court didn't issue any kind of ruling, it just failed to review a lower-court decision," Bobak told NBC Los Angeles. "You can't read too much into that fact. The city felt it was important to pursue the legal principle that police shouldn't be put in a position of returning a substance that is contraband under federal law."

It's federal law that needs to change, said ASA spokesman Kris Hermes. "The source of local law enforcement's resistance to upholding state law is an outdated, harmful federal policy with regard to medical marijuana," he said. "This should send a message to the federal government that it's time to establish a compassionate policy more consistent with the 13 states that have adopted medical marijuana laws."

Feature: South Dakota Medical Marijuana Backers Take Aim at the Statehouse

In 2006, South Dakota gained the dubious distinction of being the only state to defeat an initiative that would have legalized the medicinal use of marijuana. That effort failed narrowly, garnering 48% of the popular vote. But now, South Dakota marijuana reform activists are back, and they are hoping to move a bill through the state legislature in the session beginning next month.

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South Dakota badlands
According to Bob Newland, spokesman for South Dakotans for Safe Access, a proposed bill that would allow qualifying patients to cultivate, possess, and use medical marijuana has been drafted, and the hunt is on for sponsors. The legislative session begins next month, and any bill to be considered must be introduced by early February.

Newland said the group is also considering other legislation, including a bill to reschedule marijuana from Schedule I to Schedule IV and a bill that would allow an affirmative defense for medical marijuana patients.

"Everything is moving much faster than we thought it would," said Newland. "We've lined up a couple of stellar medical witnesses and may get a couple more, and I think we have a good doctor lined up, too. There has been lots of email and phone support in the couple of weeks since we announced we were moving ahead, and lots of donations, too. Now, we need to find sponsors."

Newland said he was working on that this week, holding meetings in the state capital, Pierre, on Thursday and talking to Democratic Party members in Sioux Falls, the state's largest city, today.

A change in the state's approach to medical marijuana couldn't come early enough for patients. Not only does South Dakota not recognize medical marijuana, it is a state where people actually go to jail for simple possession -- and to prison for growing even a pair of plants.

"We absolutely need a medical marijuana law, and not just for AIDS patients, but for cancer, glaucoma, you name it," said Western South Dakota rancher Tom Faltynowicz, an AIDS sufferer. "It would make a huge difference not having to worry about being busted for something that's keeping me alive. The law needs to change."

Faltynowicz speaks from personal experience. While he has being using medical marijuana with his doctor's knowledge and approval for nearly 20 years, that didn't stop him from being arrested and prosecuted for growing his own medicine. Earlier this year, Faltynowicz pleaded guilty to possession of more than two ounces but less than a pound of marijuana, a felony under South Dakota law.

Fortunately for him, and thanks to letter-writing efforts to his sentencing judge, Faltynowicz was sentenced only to probation, including drug testing, and was specifically allowed to use Marinol during his probation. (Since drug tests only detect the presence of THC, they cannot distinguish between Marinol and marijuana.)

"We need it as much as ever, not only for the people suffering within the state, but to show the rest of America that a red state like South Dakota can accept this," said medical marijuana patient Valerie Hannah, who served as a spokesperson for the 2006 initiative. "If someplace like South Dakota can pass medical marijuana legislation, that should be a huge wakeup call for the federal government to stop prosecuting patients as criminals," she said.

But it won't be easy. Republicans dominate both houses of the state legislature, where earlier bills went nowhere. The Republican attorney general, Larry Long, spearheaded law enforcement opposition to the 2006 initiative and appears ready to reprise that role in the coming months.

"Long had some complaints about the wording of the 2006 initiative," said Newland. "I am telling Long that South Dakotans for Safe Access is willing to work with the attorney general's office in drafting a law all of us can live with."

According to his spokesperson, Sara Rabern, Long remains opposed to medical marijuana. "His stance is still the same," she said Thursday. Long was traveling, and Rabern did not know whether he would be amenable to working with the bill's sponsors to address law enforcement concerns.

"It will be an uphill battle in the legislature," Hannah predicted. "We need someone with clout to carry our message in Pierre, and we need to get some real grassroots support going," Hannah said. "I fear they will throw it out again, but if we can get out of committee and make it to a floor vote, that would be real progress."

Another key constituency in medical marijuana battles is the medical profession. In several states that have had successful medical marijuana campaigns, state nursing and/or medical associations have publicly supported the therapeutic use of marijuana. That's not the case in South Dakota.

"We haven't looked at this issue for awhile," said Brittany Novotny, head of the South Dakota Nurses Association. "We do not take a formal stance for or against. If this comes up in the next session, our government relations committee will have to decide whether this is a fight we want to be part of or not."

The South Dakota State Medical Association did not return calls seeking comment.

One factor that may be working in favor of the legislation is the closeness of the 2006 vote, which demonstrated significant, if not quite majority support for medical marijuana, and the threat of another effort to go direct to the voters in 2010. "Maybe the fear of leaving this to the people will prod them into action," said Hannah. "One of the big concerns here is how this will affect illegal drug use in South Dakota, but if crafted correctly, the bill could be a boon to law enforcement. If they are willing to sit down and work with us, we could come up with a bill that could address their concerns."

Newland said he is hard at work on endorsements from medical professionals, as well as working with some churches to garner support. While the effort faces long odds, Newland remains optimistic. "The last time we went to the legislature, we didn't have 48% of the people voting for medical marijuana two years earlier. We had always bargained from a position of weakness, but now we have a club to carry into the hearing rooms."

Medical Marijuana: ASA Files Lawsuit Against California DMV Over Patient Drivers' License Revocation

The medical marijuana advocacy group Americans for Safe Access (ASA) filed a lawsuit Wednesday against the California Department of Motor Vehicles after it revoked the license of a medical marijuana patient solely for being a medical marijuana patient.

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The plaintiff is Rose Johnson, 53, of Atwater. Johnson, a registered medical marijuana patient, had a clean driving record and no accidents in 37 years behind the wheel. But the DMV refused to renew her license on July 26 after obtaining her medical records and finding out she used marijuana medicinally.

According to the DMV, Johnson's license was revoked "because of... [an] addiction to, or habitual use of, [a] drug," thereby rendering her unable to safely operate a motor vehicle, even though no evidence existed to substantiate this claim.

"The DMV cannot simply disregard California's medical marijuana law," said ASA Chief Counsel Joe Elford, who is representing Ms. Johnson in her claim against the DMV. "When the voters of California enacted the Compassionate Use Act, they never intended to authorize the DMV to strip medical marijuana patients of their drivers' licenses," continued Elford. "The DMV should not be in the business of revoking the licenses of drivers like Ms. Johnson simply because she is a medical marijuana patient."

ASA said Johnson is not alone in losing her license. Suspension or revocation of drivers' licenses for qualified medical marijuana patients has occurred in at least eight California counties, including Alameda, Butte, Contra Costa, Glenn, Merced, Placer, Sacramento, and Sonoma.

The DMV justifies its license revocations of medical marijuana patients by calling them "drug abusers" despite no evidence to back that claim. The DMV has not taken similar blanket action against people prescribed opiates, barbiturates, sedatives, tranquilizers, or stimulants.

State and local police in California have been instructed by Attorney General Jerry Brown to respect the state's medical marijuana laws and not arrest medical marijuana patients or take their medicine. "The DMV is not under a different set of requirements than local police in California," said Elford. "The failure to uphold California's medical marijuana law is entirely inappropriate for any local or state agency."

The lawsuit was filed in Merced Superior Court. It is expected to be heard sometime in the next few months.

Paraphernalia: No More Felony Charges For Dirty Pipes or Syringes in Cleveland

Cleveland Mayor Frank Jackson announced Monday that people in Cleveland caught with pipes or syringes containing drug residues will no longer be charged with felonies. Under current practice in Cleveland, people caught with dirty paraphernalia are charged with felony drug possession.

More than 6,000 people were arrested on felony drug charges every year in the city. The mayor said he expected the change to reduce that number by from 1,200 to 1,500.

Under Jackson's proposal, it would take three dirty needle arrests to earn a felony drug possession charge. A first drug paraphernalia arrest would be charged as a second-degree misdemeanor and a second as a first-degree misdemeanor. People charged with either of those offenses could be diverted to Cleveland's drug court. A third offense would be sent to Cuyahoga County Common Pleas Court and treated as a drug possession felony.

Jackson portrayed the measure as aimed at getting drug users into treatment without saddling them with a felony record as well as helping to improve the quality of life in the city. "If people have a couple chances, they better take advantage of it," the mayor said. "This is about helping people and stopping the behavior that is destroying our neighborhoods," he added.

Cleveland is the only large city in Ohio that routinely charges paraphernalia cases as felonies. Community activists there have argued for years that since similar cases in the suburbs are treated as misdemeanors, Cleveland residents have been treated unfairly.

But although tensions about racial disparity in Cleveland's drug war are simmering -- the Plain Dealer did a recent series on disparities in felony drug prosecutions -- Mayor Jackson attempted to tamp them down. Drug users come from all communities, he said, and suburban users would be treated just like inner city ones. "It's not a race issue," he said. "Everybody will be treated the same."

Well, that's progress, we suppose.

Press Release -- Advocates Denounce Gov. Paterson's Cuts to Drug Treatment: Jail is More Expensive and Less Effective

For Immediate Release: November 7, 2008 For more info: Gabriel Sayegh at (646) 335-2264 or Tony Newman at (646) 335-5384 Gov. Paterson Announces $8.6 Million in Cuts to Drug Treatment in Response to Budget Crisis Advocates: Gov. Paterson Should be Doing the Opposite and Expanding Cost-Effective Treatment With Democrats in Control of Senate and Assembly, Gov. Paterson Should Keep His Pledge and Reform Draconian Rockefeller Drug Laws with Treatment to Save Lives and Money Health advocates and treatment providers were shocked to learn that New York Governor Paterson is cutting $8.6 million from its substance abuse programs in response to the state's current budget crisis. "This is penny wise and pound foolish and exactly the opposite of what the governor should be doing," said Howard Josepher, President of the Exponents treatment programs. "Treatment is less expensive and more effective than the lock-them-up strategy that costs taxpayers $29,000 per person to incarcerate someone with an addiction. Treatment also offers a better opportunity to prevent recidivism" The Rockefeller Drug Laws have been a miserable failure. These draconian laws have not delivered on their promise to rid our streets of drugs or keep people from using them, but they have drained New York of hundreds of millions of dollars and destroyed tens of thousands of lives. Treatment providers, family members, policy experts and newspaper editorials have been calling for change for years but have been stifled due to Republican control of the State Senate and the lack of leadership from Governors Pataki and Spitzer. When Gov. Paterson took over there was an expectation that there might be reform of these laws as the governor has been a long-time voice for change of the laws. "The time is right to move from away from inhumane, costly and ineffective mass incarceration to a health approach to our drug problems," said Gabriel Sayegh of the Drug Policy Alliance. "The Democrats have a majority of the Senate, Assembly and the Governorship. Helping people with drug problems get community based treatment instead of jail does not cost money, it saves money. The governor is in the difficult position of needing to cut programs and costs. Reforming the drug laws is a rare win-win: you can save hundreds of millions of dollars and help keep families together."
Location: 
NY
United States

Medical Marijuana: New Washington State Quantity Limits Now in Effect

New rules governing the amount of medical marijuana Washington state patients can possess and grow went into effect Sunday. After holding public hearings and consulting with law enforcement, health workers, and medical marijuana advocates, the Washington State Department of Health has set those quantities as 24 ounces of usable marijuana and up to 15 plants.

Under Washington's medical marijuana law, patients are entitled to a 60-day supply, but just what constituted a 60-day supply had not been defined until now. While the new rules should provide some guidance and protection for patients, not everyone is happy.

One medical marijuana grower told KOMO-TV News the new rules could lead to a crackdown on growers who are growing for more than one patient. The Washington law does not allow for growing co-ops. "That's a totally ridiculous way to come up with a 60-day supply," he said, noting that he has 37 plants growing in his basement.

"Our goal in the rule making was to have a final rule that provided clarity for law enforcement, for patients and physicians and meets the needs that what we believe will be the majority of medical marijuana patients in Washington," said Karen Ann Jensen, assistant secretary for health systems and quality assurance, who made the recommendation and will oversee the rules change.

South Pacific: DEA Mass Body Search of Plane Passengers Spurs Angry Reaction in Marianas

Lawmakers and travel industry spokesmen on the island of Saipan in the Northern Mariana Islands, are furious with the DEA over an October 4 incident where the agency conducted a mass body search of passengers arriving on a charter jet from China. Tourism officials have apologized to China over the incident, the local congress has passed a resolution condemning the searches, and in the latest reverberation, the Marianas government has pulled its police from the local DEA task force.

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Northern Mariana Islands (map from 4uth.gov.ua)
The Marianas, formally known as the Commonwealth of the Northern Marianas Islands (CNMI), is a US territory situated roughly three-quarters of the way to Australia from Hawaii. The islands have a population of about 80,000 and rely heavily on tourism.

The October 4 incident occurred in the pre-dawn hours when a Shanghai Airlines charter flight arrived at Saipan International Airport. Acting on what it said was a tip about drugs on the flight, the DEA subjected 147 of 187 arriving passengers -- all Chinese nationals -- to intensive body searches. The agents forced passengers into a small room, then forced them to remove their clothing to be searched. No drugs were found, although the DEA reported it had seized some contraband plant and animal items.

Many of the passengers were outraged by their treatment and reported it to their government. They also vowed never to return to the CNMI again. That had local officials scrambling to undo the harm.

"I want to let you know that my administration is extremely displeased with the manner in which this activity was conducted," said Gov. Benigno Fitial in an October 10 letter to the tour company and hotel involved in the deal that brought the Chinese tourists to Saipan. "We did not approve of this and do not support such treatment of visitors to our islands."

That same day, Marianas Visitors Authority managing director Perry Tenorio sent a similar letter to the Chinese consulate in Los Angeles. "We hope that this regrettable and isolated incident does not alter your affection for the CNMI and its people," Tenorio said.

Late last week, still fuming over the DEA's actions and unresponsiveness, the CNMI House of Representatives passed a strongly worded resolution demanding that the US Department of Justice investigate the mass search. The resolution also called for the department to inform China that the DEA -- not local customs or immigration officials -- was responsible for the searches.

"The House of Representatives of the Commonwealth of the Northern Mariana Islands hereby calls for a full and complete investigation into the activities and the causes of those activities that led to an episode at the Francisco C. Ada Saipan International Airport that embarrassed and degraded honored guests of the Northern Mariana Islands and may have violated their civil rights," stated the resolution.

"These searches, and the abhorrent treatment of the passengers subjected to it, caused extreme embarrassment, discomfort, fear, and a feeling of perverse violation to the affected tourists and other guests of the Commonwealth," the resolution said. It also called the searches "harsh and irrational" and said they had caused irreparable harm "to the reputation of the Commonwealth and to the psyches of the victims of this demeaning episode."

And that's the watered down version. After Federal Relations Committee Chair Diego Benavente expressed concern over harsh language, the House voted to remove a provision of the resolution containing the phrase "multiple fondling of the passengers' private parts."

The fall-out continued this week. The CNMI Department of Public Safety announced Monday that it was pulling four Saipan police officers from the DEA Northern Marianas task force. That comes just days after the CNMI withdrew six other police officers and one customs officer from the task force. That withdrawal will be in effect until the DEA provides a complete explanation of the October 4 incident, government officials said.

At this point, the government of the CNMI doesn't seem to care much what impact the withdrawal will have on the DEA's work. When asked if the pull-out would hamper DEA operations, a police spokesman replied only, "That remains to be seen."

Search and Seizure: Long Island Woman's Strip Search Suit Can Move Forward

A federal appeals court ruled October 8 that a Long Island, New York, woman's rights were violated when police strip searched her in a room with a video camera after finding a marijuana stem in the vehicle she was driving. The ruling by a three-judge panel of the US 2nd Circuit Court of Appeals reinstated the $1 million lawsuit filed three years ago by Stacey Hartline against the Village of Southampton and four of its police officers.

Hartline was driving a work vehicle owned by her construction company in 2001 when she was pulled over for lack of a rear license plate. After the arresting officer spotted a pot stem on the floorboard, he cuffed Hartline, then searched the vehicle, finding a roach and other small amounts of pot debris. Hartline was placed under arrest for marijuana possession, taken to the police station, and subjected to a strip search by a female officer in a room with a video camera while male officers allegedly watched on monitors.

Hartline was "crying hysterically" while she was forced to remove her lower garments and allow the officer to inspect her orifices, then lift up her bra and allow the officer to inspect her breasts, according to her account.

Hartline sued, alleging two violations of her Fourth Amendment right to be free from unreasonable searches and seizures. First, she argued, police had no probable cause to think she was hiding contraband, and second, the search was unconstitutional because the Village of Southampton had a policy of strip searching all female arrestees while it did not have such a policy for male arrestees.

Her civil suit was thrown out in 2006 by US District Judge Denis Hurley in Central Islip. Hurley held that police did have reason to believe she was hiding contraband and that no higher courts had dealt with such circumstances.

But in last week's opinion from the 2nd Circuit, the appeals court judges sharply disagreed with Hurley. It was irrelevant that no other court had ruled on the circumstances, the judges said, and whether police had "a reasonable suspicion that she was secreting contraband on her person" was a question to settled by a trial court, not Judge Hurley.

"Ultimately, if the facts of this case amount to reasonable suspicion, then strip-searches will become commonplace," the judges further wrote in a 15-page opinion. "Given the unique, intrusive nature of strip-searches, as well as the multitude of less invasive techniques available to officers confronted by misdemeanor offenders, that result would be unacceptable in any society that takes privacy and bodily integrity seriously."

Now, Hartline's case will go to trial. No trial date has yet been set.

Hartline told the Associated Press after the decision that she was relieved. "It's very hard to sit back and challenge a municipality," she said. "It's frightening. I've lived in this town my whole life. I love Southampton. The relief I feel is tremendous. I'm so pleased this won't happen to anyone else."

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