Tuesday, July 22, 2014
"Light, Smoke, and Fire: How State Law Can Provide Medical Marijuana Users Protection from Workplace Discrimination"
The title of this post is the title of this notable new student Note by Elizabeth Rodd now available via SSRN. Here is the abstract:
Currently, twenty-one states and the District of Columbia have enacted legislation providing an affirmative defense to prosecution under state law for medical marijuana use by qualified patients. Despite growing public and legislative support for the legalization of medical marijuana, medical marijuana use — either recreational or medicinal — remains illegal under the Federal Controlled Substances Act. Given the inconsistency between state and federal law concerning the legality of medicinal marijuana, there is significant uncertainty regarding the rights of employees to engage in state-sanctioned, off-duty use of medical marijuana.
To date, courts have refused to grant protections to employees’ who have suffered adverse employment action for their off-duty, state-sanctioned medical marijuana use. Although the existing case law appears employer-friendly, employee-friendly dissenting opinions and states that have adopted explicit statutory discrimination protections for medical marijuana users signify that this current trend could easily change. This Note argues that courts should allow employees’ claims for disability discrimination to proceed under state law, and state legislatures should amend their current medical marijuana statutes to afford employment discrimination protection to qualified patients. In doing so, states will be able to protect disabled employees from discrimination due to their use of a state sanctioned therapeutic remedy.
A study like this could provide political momentum and support for a planned 2015 legalization bill. Though, of course, its actual impact will depend in large part on what the study finds. At the very least, however, it indicates that a critical mass of elected officials in Vermont have more than just a passing interest in legalization.
Also of note, Vermont's Governor, Peter Shumlin has been praised by NORML in the past for his support of reforming marijuana laws. Shumlin is up for reelection this year. Assuming he retains office, his presence would go a long way toward making legalization via legislation a real possibility. (Some may recall that New Hampshire's legislative legalization efforts hit a road block earlier this year after opposition from their Governor.)
And, whatever the political outcome, I'm sure RAND's report will be interesting reading for all who follow this issue, especially since the news story indicates Beau Kilmer--whose work in this area is consistently must-read--will be meeting with Vermont officials next week to get the study going.
Here's some highlights from the story about the upcoming study:
Rand Corp. representatives will be in Vermont next week to begin work on a study of the effects that marijuana legalization might have on the state's economy, individual health and public safety.
The international, nonprofit research organization was chosen to conduct the study, which was mandated in a bill passed by the Legislature last session.
The state will pay $20,000 toward the study, which will be augmented by as much as $100,000 in private donations, officials said Friday.
Rand Corp. declined to comment on the research until the organization's senior policy analyst Beau Kilmer meets with Vermont officials next week. More details on the study would be released then, Rand spokesperson Warren Robak said.
"We were looking for someone who wasn't going to make a case that we legalize or not legalize," Spaulding said, adding that Rand is "very well-respected."
The report generated by Rand should give Vermont legislators the facts they need to have a well-informed debate next winter, one lawmaker says.
"I think the study will help with legislators and the public who inherently think it's a good idea but want evidence they can hold up to show people," said state Sen. David Zuckerman, P/D-Chittenden. Zuckerman said he will propose a marijuana regulation and legalization bill in the 2015 legislative session.
"It can work in other states," Zuckerman said. "We just have to make some changes."
Saturday, July 19, 2014
The question in the title of this post was my first reaction to this notable new article, headlined "Next Gold Rush: Legal Marijuana Feeds Entrepreneurs’ Dreams, which appears on the front page of today's New York Times. Here are excerpts from the article:
Like the glint of gold or rumors of oil in ages past, the advent of legal, recreational marijuana is beginning to reshape economies in Colorado and Washington State.
Marijuana is beckoning thousands of entrepreneurs and workers, investors and hucksters from across the country, each looking to cash in on a rapidly changing industry that offers hefty portions of both promise and peril.
At convention centers and in hotel meeting rooms, start-up companies are floating sales pitches for marijuana delivery services or apps to name-tagged investors who sip red wine and munch on hempseed snacks. This year, hundreds of people seeking jobs lined up for blocks in downtown Denver, résumés in hand, for an industry-sponsored marijuana job fair....
Tourists have flocked to those stores, making up 44 percent of the customers at one Denver shop during a sample week this spring, according to the state’s first study of demand for marijuana. Tour companies and marijuana-friendly bed-and-breakfasts have sprung up to serve tourists, too.
In Washington State, where recreational sales kicked off last week, the retail industry is much smaller, with as few as eight stores open so far. But the ambitions are boundless, with more than 300 licenses under state review and an outdoor growing season — perfect for apples, wheat and grapes — that could make Washington a national powerhouse of production if legalization spreads.
Hundreds of other people have found work on the edges of the industry. They sell water systems, soil nutrients, lighting and accounting services, like the 19th-century merchants who profited by selling picks and shovels to gold miners. There are now dozens of marijuana-related mobile apps, marijuana-centric law firms and real estate agents, cannabis security experts (it is a risky, virtually all-cash trade) and marijuana-themed event promoters offering everything from luxury getaways to bus tours. Washington has a rule requiring bar-code tracking of every marijuana plant to ensure that only licensed, Washington-grown marijuana is sold in its stores. It has also created a niche for tech start-ups like Viridian Sciences, a software company aiming to help retailers prove the provenance of their product should a state inspector or customer ask....
[M]any are ready to gamble on marijuana’s success. After a decade in the military and a career working in security, Sy Alli, 53, moved to Colorado to become the director of corporate security for Dixie Brands, a company that makes marijuana-infused drinks and snacks. Zach Marburger, 28, visited in January to ski and check out the early days of legal use of recreational marijuana, and decided to relocate to Denver to develop software to connect customers and retailers.
And a few months ago, a 22-year-old mobile app developer named Isaac Dietrich and a friend were smoking marijuana in a Norfolk, Va., apartment when they realized: There could be money in this. They moved to Colorado, where they are working on an app called MassRoots, which lets marijuana enthusiasts privately post photos on an online platform out of sight of their parents or co-workers. They want it to be the Instagram for marijuana users. “We thought about relocating to Silicon Valley, but they haven’t backed a single marijuana company,” Mr. Dietrich said. “This is where everything’s happening. We didn’t want to be left out.”
Thursday, July 17, 2014
As reported in this AP piece, which is somewhat inaccurately headlined "House Votes to Allow Marijuana-Related Banking," last night brought another notable vote from the GOP-lead House of representatives concerning federal regulatory rules surrounding federal pot prohibition. Here are the (somewhat complicated) details of the latest notable vote:
The House voted Wednesday in support of making it easier for banks to do business with legal pot shops and providers of medical marijuana. The 236-186 vote rejected a move by Rep. John Fleming, R-La., to block the Treasury Department from implementing guidance it issued in February telling banks how to report on their dealings with marijuana-related businesses without running afoul of federal money-laundering laws.
Marijuana dealing is still against federal law, so banks who do business with marijuana dispensaries could be accused of helping them launder their money. Federal money laundering convictions can mean decades in prison.
The Treasury guidance was intended to give banks confidence that they can deal with marijuana businesses in states where they're legal. Many banks are still reluctant to do so. That has forced many marijuana operations to stockpile cash, a situation that shop owners say is dangerous.
"They are operating just in cash, which creates its own potential for crime, robbery, assault and battery," said Rep. Ed Perlmutter, D-Colo., whose state has legalized recreational pot use. "You cannot track the money. There is skimming and tax evasion. So the guidance by the Justice Department and the guidance by the Treasury Department is to bring this out into the open."
The vote is largely symbolic since Treasury already had gone ahead with the guidance, but it demonstrates a loosening of anti-marijuana sentiment on Capitol Hill. "Whereas the federal government once stood in the way of marijuana reform at every opportunity, the changing politics of this issue are such that more politicians are now working to accommodate popular state laws so that they can be implemented effectively," said marijuana advocate Tom Angell.
A coalition of 46 mostly GOP moderates and libertarian-tilting Republicans joined with all but seven Democrats to beat back Fleming's attempt to block the Treasury guidance.
This Salon interview with Evan Nison of the New York Cannabis Alliance about the process of finally passing a law permitting the use of medical marijuana in New York state reminded me of that old saying about laws and sausage
Here's an excerpt to support that conclusion :
In terms of the negotiation and lobbying process, who in Albany did you work with, primarily — was it the Senate or the governor’s office or both?
Almost the entire time — the five-plus years I was working on the bill — was focused on the Senate. That’s because, for the majority of the time, it was run by the Republicans and then eventually the “independent” Democrats. The assembly was great throughout the whole process and passed the bill multiple times just this past year. The governor’s office was fairly silent on it, maybe even more of a hazard than anything throughout most of the process until the very tail end. Something else that was interesting to note was that we had the votes in the Senate for maybe a year and a half or two years before the vote was brought to the floor. And we had the votes in the Senate to pass the broader version before Cuomo amended it. It was really just a matter of the Senate leadership not bringing the vote to the floor, but the support was there in the legislature to pass this years ago.
When asked if New York could be characterized as a national leader, Nison stated that " New York is following rather than leading, at this point in time" but prefers a comparison to Prohibition rather than sausagemaking:
New York was a leader in repealing alcohol prohibition and I think, hopefully, we can do that again. But … we’re the 23rd state [to do this] and although we’re a landmark state, we’ve certainly haven’t been a leader on this issue yet.
NYers-cross your fingers...
[Note-To comply with the US Supreme Court's fair use ruling in Harper & Row v Nation Enterprises, I am omitting the juicy discussion of Governor Cuomo's role in enacting the New York law].
Wednesday, July 16, 2014
As this press release details, the "latest research from YouGov shows that most Americans (51%) support legalizing marijuana, while 37% oppose it." And, as the title of this post highlights, I find especially interesting the demographics of which groups of persons are most in favor of legalization as reflected in these detailed breakdowns:
Male: 54% to 36%
Age 30-44: 60% to 28%
Democrat: 62% to 27%
White: 52% to 37%
Income $100+: 57% to 32%
Midwest: 55% to 31%
Tuesday, July 15, 2014
The question in the title of this post is prompted by this notable new AP article headlined "Next up for legal pot? Marijuana at your doorstep." Here are excerpts:
William “Jackrabbit” Large pulls his SUV onto the side of a downtown Seattle street, parking behind an Amazon Fresh delivery truck and carrying a product the online retailer doesn’t offer: marijuana.
The thin, bespectacled Large is a delivery man for Winterlife, a Seattle company that is among a group of new businesses pushing the limits of Washington state’s recreational pot industry by offering to bring marijuana to almost any doorstep. “It’s an opportunity that should not be missed,” Large says with the kind of fast-talking voice meant for radio.
While delivery services have existed for years to supply medical marijuana patients, the rise of similar businesses geared toward serving recreational users in Washington and Colorado highlights how the industry is outpacing the states’ pot laws.
Winterlife’s business model is a felony under Washington state law, which allows only the sale of pot grown by licensed producers at licensed retail shops. Lawmakers should consider changing that, said Alison Holcomb, the author of the 2012 voter initiative that legalized the recreational use of pot, because providing more ways to access marijuana will help push people to the legal pot market.
In Colorado, where marijuana regulations require sales to be done in licensed dispensaries, there’s a flourishing market online for marijuana deliveries made in exchange for donations. The law allows adults over 21 to give one another up to an ounce of marijuana, provided it is done “without remuneration.”
The only known case of criminal charges brought against a Colorado delivery service came last year, when the owner of a pot-for-donations service in the Colorado Springs area faced felony distribution charges. He committed suicide before trial.
In Washington, where the legal pot industry kicked off last week, companies like Winterlife jumped into fill demand from consumers for marijuana while the state spent the past 19 months building the regulations and licensing growers and retailers. Winterlife co-founder Evan Cox, a vegan and bicyclist enthusiast, began by advertising on Craigslist and made deliveries.
Now he has around 50 full and part-time employees, including 25 to 30 delivery personnel in cars and bicycles. Operators field between 400 and 600 calls a day. “We found a way to really fill the need that the Washington voter said that there is,” he says from his company’s headquarters, where workers busily sort, cut and package their different marijuana products into branded clear bags.
The Winterlife model is simple. They have a website that features their products – marijuana flowers, edibles and pipes. After making a call, the consumer’s phone is relayed to a driver, who then asks them where they want to meet.
Cox is fully aware of the shaky legal ground where he stands. All of the drivers operate under animal-inspired pseudonyms. There’s a jackrabbit, a wombat, a possum, among others. Cox is also mostly staying within Seattle, where police have tolerated the company’s presence and voters in the city made marijuana crimes a low priority for law enforcement years ago....
Sgt. Sean Whitcomb, a spokesman for the Seattle Police Department, said Winterlife is undermining the spirit of the legal marijuana law. So far, he said, the police department has bigger priorities. But he said the department could change its stance if it receives information about underage sales or other complaints. The department recently seized more than 2,200 plants from a medical marijuana grow that was bothering neighbors.
The title of this post is the headline of this new Huffington Post piece. Here is how it starts:
The Obama administration believes marijuana policy is a states' rights issue, the White House said Monday in opposing Republican-led legislation that would prevent Washington, D.C., from using federal funds to decriminalize marijuana possession.
The GOP-sponsored House amendment would prevent D.C. "from using its own local funds to carry out locally-passed marijuana policies, which again undermines the principles of States' rights and of District home rule," the White House said in a statement. The White House said the bill "poses legal challenges to the Metropolitan Police Department's enforcement of all marijuana laws currently in force in the District."
Del. Eleanor Holmes Norton (D-D.C.) called Rep. Andy Harris (R-Md.) a "tyrant" for meddling in the District's governing process with the amendment, pointing out that Maryland just voted to decriminalize marijuana possession. The amendment is aimed at blocking a recent D.C. law that lowers the penalty for possessing small amounts of marijuana to a fine.
July 15, 2014 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, State court rulings | Permalink | Comments (0)
My good friend Kris Lotlikar has started a new podcast called "Marijuana Today," releasing the first episode yesterday. I just listened to it and can't recommend it enough. Anyone interested in marijuana law and policy who wants something to help pass the time while working out or commuting will definitely enjoy it.
Kris has a long history in drug policy, having served as the first executive director of Students for Sensible Drug Policy. He's now in business, as co-founder and president of an alternative energy company, Renewable Choice Energy. Kris has also continued his involvement in drug policy and he is affiliated with the Arcview Group.
Unlike other marijuana-related podcasts, which seem to be targeted at users, Marijuana Today takes a serious look at marijuana policy and features experts in business, law, politics, and more.
The first episode includes (among other things) an insightful discussion on the differences between Colorado and Washington's legalization laws, a discussion about the flaws and features of New York's new medical marijuana law, and some interesting news about the status of medical marijuana licenses in Massachusetts. Joining Kris Lotlikar on the episode are: Kris Krane, Managing Partner of the marijuana dispensary consulting firm 4Front Advisors; community organizer Dan Goldman; and Oregon political mover Adam Smith.
I've been in touch with Kris about appearing on a future episode myself and hope to do so as soon as scheduling permits.
You can listen to it at the link above or via iTunes (just search for "Marijuana Today" in Podcasts).
Monday, July 14, 2014
Seattle's only marijuana store out of product, the DEA losing ground on legalization, Cuomo's medical marijuana problem, and more
This weekend saw a number of noteworthy posts and articles on marijuana law issues. Among them:
- The Los Angeles Times reports that the "DEA may be losing the war on marijuana politics." As the story explains, "the Drug Enforcement Administration has found itself under attack in Congress as it holds its ground against marijuana legalization while the resolve of longtime political allies — and the White House and Justice Department to which it reports — rapidly fades."
- Seattle's only recreational marijuana shop is already out of product and it doesn't expect to reopen until July 21.
- At Balloon Juice, mistermix argues that New York Governor Andrew Cuomo should not be considered a progressive, citing his involvement in watering down the state's new medical marijuana law: "Cuomo is the governor of one of the most liberal states in the nation. His deal with the progressive Working Families Party makes him a lock for re-election. Medical marijuana is fairly popular (here’s a recent poll showing 78% approval). Yet after considering all that, he still didn’t have the guts to let an already hobbled law pass without further restrictions.
- Marijuana Business Daily reports on a recent Nevada Gaming Control Board ruling that "shows that the casinos are taking a hard line against any connections to cannabis."
- The Cannabist (via Denver Post) reports on yet another tax issue facing marijuana businesses. The IRS requires a 10 % penalty when employee withholding taxes are not paid through the Electronic Federal Tax Payment System. But "pot shops in Colorado often have little choice but to pay employee withholding taxes in cash since banks won’t take their business." Colorado Senator Michael Bennet and Rep. Ed Perlmutter have written a letter to the IRS asking the agency to waive the penalty.
Sixth Circuit dissenter highlights state marijuana reforms in case of marijuana defendant sentenced to 20-years
Last week, the Sixth Circuit issued a notable opinion (PDF) on whether the U.S. Supreme Court's 2013 decision in Alleyne v. US means the government must now prove drug defendants knew the type and quantity of drugs involved to trigger an applicable mandatory minimum sentence.
I'll return to the legal issue in a moment, but of particular interest to the topic of this blog is the conclusion of Judge Merritt's dissenting opinion, in which he questions the wisdom of a 20 year marijuana sentence in light of legalization laws:
In addition, I note in passing that the defendant was sentenced to an absurdly long mandatory sentence of 20 years imprisonment for growing marijuana plants. In a legal system that has historically strongly disfavored criminal strict liability and has favored requiring mens rea or knowledge of the crime, we should not hesitate to insist that the prosecutor prove a defendant's knowledge of the scope of the conspiracy. We should take into account that a number of states have now legalized growing marijuana plants for both medicinal and recreational use. This change in attitude toward the crime should lead us to try to avoid such excessive sentences that have now filled the jails of the country with drug offenders, particularly the federal prisons. If the criminal division of the Department of Justice cannot desist from asking for such long sentences, and continues its policy of insisting on excessive drug sentences, the courts should at least follow a consistent policy of requiring knowledge of the elements of the crime.
Though Merritt's discussion of marijuana reforms is noteworthy, those who follow federal sentencing will almost certainlty be more interested in the Alleyne issue in the case.
For the uninitiated, the issue is a tricky one to summarize, but it centers around the fact that federal mandatory minimum drug sentences are based primarily on the type and quantity of drugs involved in the offense. For some time, courts have held that the government only needs to prove a defendant knowingly possessed drugs to get a conviction and to trigger a mandatory minimum sentence. Whether the defendant knew the type or quantity of drugs is immaterial.
To get a sense of how this works, imagine a drug courier who agrees to transport a car across the border. The courtier is told the car has marijuana in an amount that would trigger a 5-year minimum sentence. But the car actually has methamphetamine in an amount that would trigger a 10-year minimum. If the courier is convicted, she'll receive the 10-year mandatory minimum based on the type and quantity of drugs in the car. The fact that she thought she was transporting X amount of marijuana is irrelevant. So long as the government can prove she knew she had a controlled substance of some kind, she'll be sentenced based on what she actually had (Y amount of methamphetamine.)
As summarized by SCOTUS Blog, Alleyne held that "[b]ecause mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an 'element' of the crime that must be submitted to the jury."
Does this holding also mean that the government must now prove drug defendants knew the type and quantity of drugs involved to trigger a relevant minimum sentence? The Sixth Circuit held that it does not. Judge Merritt, in dissent, says it should.
I'll avoid trying to summarize the competiting points and, instead, recommend that anyone who is interested in the Alleyne issue take a look at the opinion and dissent which are both well worth reading.
Friday, July 11, 2014
Elizabeth Rodd has posted a Note to SSRN on workplace discrimination and medical marijuana titled: "Light, Smoke, and Fire: How State Law Can Provide Medical Marijuana Users Protection from Workplace Discrimination".
Here is the abstract:
Currently, twenty-one states and the District of Columbia have enacted legislation providing an affirmative defense to prosecution under state law for medical marijuana use by qualified patients. Despite growing public and legislative support for the legalization of medical marijuana, medical marijuana use—either recreational or medicinal—remains illegal under the Federal Controlled Substances Act. Given the inconsistency between state and federal law concerning the legality of medicinal marijuana, there is significant uncertainty regarding the rights of employees to engage in state-sanctioned, off-duty use of medical marijuana. To date, courts have refused to grant protections to employees’ who have suffered adverse employment action for their off-duty, state sanctioned medical marijuana use. Although the existing case law appears employer-friendly, employee-friendly dissenting opinions and states that have adopted explicit statutory discrimination protections for medical marijuana users signify that this current trend could easily change. This Note argues that courts should allow employees’ claims for disability discrimination to proceed under state law, and state legislatures should amend their current medical marijuana statutes to afford employment discrimination protection to qualified patients. In doing so, states will be able to protect disabled employees from discrimination due to their use of a state sanctioned therapeutic remedy.
As everyone might have expected, proponents and opponents of marijuana reform have quite diverse perspectives on the success or failure of the legalization experiment in Colorado over the first six months of regular recreation pot sales. Examples of the divergent views are well demonstrated by these two recent commentaries:
From Jacob Sullum, reform proponent, here in Forbes, "How Is Marijuana Legalization Going? The Price of Pot Peace Looks Like a Bargain."
From Kevin Sabet, reform opponent, here at CNN, "Colorado's troubles with pot."
The enduring problem posed by these divergent perspectives is that it become so much very harder for marijuana reform "agnostics" to know whether the sky is really falling or if in fact all is swell in the wake of recent reforms. Perhaps usefully, though, the divergent views may help ensure that we go a number of years with the on-going experiment before anyone should feel extra confident asserting great success or great failure in recent reforms.
Mixed results for defendant in WA medical marijuana appeal involving recommendations on "non tamper resistant" paper
Though recreational marijuana stores opened in Washington this week, its medical marijuana laws are likely to be kicking around the courts for at least a little while longer. And a recent Washington appeals court decision (PDF) indicates that defendants who did not very carefully abide by the relevant legal requirements may be out of luck.
The case involves a college student providing medical marijuana to a series of patients by having each one temporarily designate him as their medical marijuana provider. Consistent with an earlier ruling, the appeals court held that this practice was permitted by the law. As a result, it overturned two of the defendant's convictions. It upheld three other convictions, however, where the defendant sold marijuana to an informant with a fake recommendation that was not on tamper resistent paper.
From the court's opinion:
The delivery charges relate to the sales to the confidential informant. Markwart does not dispute that the authorization the informant showed was not on tamper resistant paper. To establish the affirmative defense, a person must meet the criteria for status as a designated provider and present his "valid documentation" to any law enforcement official who questions him. Former RCW 69.51A.040 (LAWS OF 2007, ch. 371, § 5). Valid documentation required a statement signed by a health care professional "on tamper-resistant paper." Former RCW 69.51A.OI0(7)(a).
Tyler Markwart argues the trial court should have permitted him the opportunity to argue to the jury that providers may reasonably rely on documentation presented by a patient. We find no case that implies the medical marijuana provider 'may rely on the patient to present the obligatory documentation. We find no case that waives the requirement that a medical marijuana provider insure that the authorization be on special paper. Further, Markwart's argument conflicts with the statute. MUMA expresses an intent that the provider ascertain the qualifications of the patient. The citizens of Washington, when adopting MUMA, and the state legislature, when enacting amendments, necessarily considered tamper resistant paper critical in the delivery of medical marijuana. The citizens and legislators understood the ease by which authorizations could otherwise be forged. If Tyler Markwart did not know what constituted tamper resistant paper or was unable to detect the special form of paper, he should not have been in the business of selling medical marijuana. He should have educated himself, before making any sales.
Thursday, July 10, 2014
As reported in this Boston Globe article, the Massachusetts "Supreme Judicial Court Wednesday said that because voters decriminalized small amounts of marijuana in 2008, police officers in Massachusetts can no longer rely on the odor of unburnt marijuana to justify searching a person’s car." Here is more:
In two unanimous rulings, the state’s highest court said they had already decided in 2011 that the odor of smoked marijuana by itself did not provide police with probable cause to stop people on the street or search the vehicles people are riding in.
The court said in its 2011 ruling that it would be legally inconsistent to allow police to make warrantless searches after they smell burning marijuana when citizens had decided through a statewide referendum question that law enforcement should “focus their attention elsewhere."
The court said Wednesday it was now extending the same reasoning to cases where the owner has not yet started smoking it. Marijuana, the court acknowledged, generates a pungent aroma, but an odor by itself does not allow police to determine whether a person has more than an ounce with them. Possession of an ounce or less of marijuana is not a crime.
“The 2008 initiative decriminalized possession of one ounce or less of marijuana under State law, and accordingly removed police authority to arrest individuals for civil violations," Justice Barbara Lenk wrote for the unanimous court.
“We have held that the odor of burnt marijuana alone cannot support probable cause to search a vehicle without a warrant ... [now] we hold that such odor [of unburnt marijuana], standing alone, does not provide probable cause to search an automobile."...
The court also rejected the argument from law enforcement that local police can use the odor of marijuana to stop someone because possession of marijuana is still an offense under federal law. “The fact that such conduct is technically subject to a Federal prohibition does not provide an independent justification for a warrantless search," Lenk wrote.
Wednesday, July 9, 2014
Seattle's City Attorney Pete Holmes was a prominent, and early, backer of Washington's legalization. Among other things, Holmes authored a 2012 op-ed in the Seattle Times making the case for legalization. And yesterday, Holmes may have become the most prominent politician to buy now-legal--well, except under federal law--marijuana. Holmes purchased two 2-gram bags of marijuana, saying he would keep one "for posterity" and use the other "for personal enjoyment at some point when it’s appropriate.”
Though his "personal enjoyment" quote has received the most media coverage so far, Holmes also took the opportunity to reiterate his reasons for supporting marijuana legalization:
“This can happen responsibly,” said Holmes. “Driving this market this industry this amazingly demanded product into the shadows does not advance public safety. The best way you can support law enforcement is to make this legal and regulate it and tax it and that’s the message here.”
Tuesday, July 8, 2014
As reported in this AP article, headlined "Line forms early, trucks deliver goods as Washington’s legal pot sales start," today officially kicks off legal recreational marijuana sales in a second US state. Here are the basics:
Marijuana growers loaded trucks with boxes of packaged pot on Tuesday as lines of customers grew outside a handful of stores poised to be the first to sell recreational cannabis legally in Washington state.
“I voted for it, and I’m just so excited to see it come to be in my lifetime,” said Deb Greene, a 65-year-old retiree who waited all night outside Cannabis City, the only licensed shop in Seattle. “I’m not a heavy user; I’m just proud of our state for giving this a try.”
Tuesday’s start of legal pot sales in Washington marks a major step that’s been 20 months in the making. Washington and Colorado stunned much of the world by voting in November 2012 to legalize marijuana for adults over 21, and to create state-licensed systems for growing, selling and taxing the pot. Sales began in Colorado on Jan. 1.
The final days before sales have been frenetic for growers and retailers alike throughout Washington. Cannabis City owner James Lathrop and his team hired an events company to provide crowd control, arranged for a food truck and free water for those who might spend hours waiting outside, and rented portable toilets to keep his customers from burdening nearby businesses with requests to use the restrooms.
Store openings are expected to be accompanied by high prices, shortages and celebration. As soon as the stores were notified Monday, they began working to place their orders with some of the state’s first licensed growers. Once the orders were received through state-approved software for tracking the bar-coded pot, the growers placed their products in a required 24-hour “quarantine” before shipping it Tuesday morning.
Sea of Green Farms co-owner Bob Leeds got an early start Tuesday as he loaded about seven pounds of marijuana into boxes for a drive to Bellingham and delivery to the Top Shelf Cannabis store in time for its 8 a.m. opening. The pot was packaged in 1 gram plastic bags. An AP survey of licensees awarded by Washington state to store owners showed that only about six planned to open Tuesday, including two stores in Bellingham, one in Seattle, one in Spokane, one in Prosser and one in Kelso. Some were set to open later this week or next, while others said it could be a month or more before they could acquire marijuana to sell.
Officials eventually expect to have more than 300 recreational pot shops across the state. Pot prices were expected to reach $25 a gram or higher on the first day of sales — twice what people pay in the state’s unregulated medical marijuana dispensaries. That was largely due to the short supply of legally produced pot in the state. Although more than 2,600 people applied to become licensed growers, fewer than 100 have been approved — and only about a dozen were ready to harvest by early this month.
Nevertheless, John Evich, an investor in Bellingham’s Top Shelf Cannabis, said his shop wanted to thank the state’s residents for voting for the law by offering $10 grams of one cannabis strain to the first 50 or 100 customers. The other strains would be priced between $12 and $25, he said.
Yesterday, Americans for Safe Access released this detailed new report (PDF) on state medical marijuana laws. Among its many helpful features is a chart with a comprehensive state-by-state comparison of the conditions for which a patient can obtain medical marijuana (on page 6.) It is sure to be helpful for legal researchers and medical marijuana patients alike.
From the report's introduction:
Until recently, counting medical cannabis states boiled down to a ”yes or no” analysis – either a state had some kind of medical cannabis law, or it did not. That simple analysis is no longer enough to understand the evolving landscape for medical cannabis in the United States. The laws are simply too different, and not all function as intended. At Americans for Safe Access (ASA), the nation’s leading medical cannabis patients’ advoca- cy organization, we have more than a dozen years of experience in state policy devel- opment and implementation. Our experience shows that not all medical cannabis laws are working equally for the patients they were designed to serve. We need a new way to talk about and evaluate state medical cannabis laws.
The report also gives each state a "grade," calculated by looking at a wide range of factors--from the extent to which the law protects patients from arrest to whether the state ensures consumer safety by requiring testing and labeling of medical marijuana. From the report:
After hosting scores of community forums across the U.S. to obtain input from patients on what issues are most important to them, ASA created a matrix to deconstruct med- ical cannabis laws in order to evaluate and grade each component based on patient needs.
So, which state has the best medical marijuana law (in ASA's estimation)? Maine comes out on top with a "B" (and a point score of 339). The only other state to get a "B" grade was Rhode Island, though California and Washington each get a "B-".
Disclosure: I currently serve on ASA's Board of Directors, though I was not involved in the writing of ASA's new report.
Sunday, July 6, 2014
Our rules of Professional Conduct state that "a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal." So, how does this apply to advising clients who seek to operate or are operating cannabusinesses legal under state but criminal conduct under federal law? [Here's a recent ABA journal article on this topic.]
No attorney has ever been disciplined for this type of activity [correct me if I'm wrong] but that doesn't mean it couldn't happen. Doug and Alex have written about efforts by Colorado and Nevada to ease the legitimate fears of lawyers and to clarify how their version of this rule applies to attorneys representing clients in their states. As the East Coast correspondent, I am pleased to say that Connecticut judges at their annual meeting tweaked their ethics rules as they put it "ever so slightly" to add a sentence after the sentence quoted above which states
a lawyer may now "counsel or assist a client regarding conduct expressly permitted by Connecticut law, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the clients' proposed course of conduct."
Here's a link to the article from the Connecticut Law Tribune discussing this change which is similar to what they did in Colorado.
Hey, I'm no ethics expert but since the Connecticut MMJ industry is still in its infancy, let's give them proactivity points for straightening this out sooner rather than later. NY lawyers [Cuomo should be signing the NY law next week]-take note
Thursday, July 3, 2014
US News & World Report has this notable new article about a notable new player in the marijuana industry. The piece is headlined "Former GOP Governor Looks to Build the 'Microsoft of Marijuana': Gary Johnson is now CEO of a firm that puts 'clean-your-house marijuana' in lozenges," and here are excerpts:
He founded a successful business, served two terms as a Republican governor of New Mexico and climbed Mount Everest. Now, Gary Johnson has set his sights on marijuana.
Nevada-based startup Cannabis Sativa Inc. announced Johnson as its new president and CEO on Tuesday, and he sees the potential for explosive nationwide growth. “I don't know if I’m the Bill Gates of marijuana, but we might be the Microsoft of marijuana,” he says. "The whole country is going to legalize marijuana in 10 years, and then so goes the world."
The company’s first product is a marijuana-infused lozenge, which Johnson says he’s tried several times. “It’s very, very pleasant,” Johnson says. “Rather than a go-to-sleep marijuana, it’s a clean-your-house marijuana.”
The company has sold some of the lozenges – for which it developed special marijuana strains – in California, where medical marijuana is legal. It is preparing a marketing campaign and working to develop local partners to produce the candy across the country....
Residents in Alaska, Oregon and the District of Columbia – with the possible addition of Oklahoma – appear poised to vote on legalization in November. And Florida voters are considering a relatively lax medical marijuana initiative.
Johnson sees the tide of change and hopes to position Cannabis Sativa as an industry leader. Before serving as governor of New Mexico from 1995 to 2003, Johnson was an entrepreneur. He worked construction jobs in his teens before founding Big J Enterprises, which he built into a 1,000-employee construction company. He sold the firm in 1999. He’s proud of that business experience, and hopes to recreate his earlier success.
Johnson has long been a supporter of liberalizing drug laws. In 1999, the Clinton administration’s drug czar, Barry McCaffrey, flew to New Mexico to chastise the governor, calling his positions an "embarrassment" and "uninformed” at a press conference, the Santa Fe New Mexican reported. "He ought to be ashamed of himself telling a bunch of college students that marijuana was wonderful,” McCaffrey said. “He's getting some of these sound bites out of Rolling Stone magazine.”
Johnson held a competing press conference in which he defended his opposition to the war on drugs and insisted on a taxed, regulated market.