Tuesday, September 19, 2017
Massachusetts top court addresses challenging issues surrounding marijuana and proof of impaired driving
The Massachusetts Supreme Judicial Court this morning issued a unanimous opinion in Commonwealth v. Gerhardt, No. SJC-11967 (Mass. Sept. 19, 2017) (available here), which addresses matters of proof of marijuana-impaired driving. This Boston Herald account of the ruling provides a punny summary in its headline: "SJC spliffs the difference in marijuana OUI case." Here is how the actual opinion gets started:
In this case we are asked to consider the admissibility of field sobriety tests (FSTs) where a police officer suspects that a driver has been operating under the influence of marijuana. Police typically administer three FSTs -- the "horizontal gaze nystagmus test," the "walk and turn test" and the "one leg stand test" -- during a motor vehicle stop in order to assess motorists suspected of operating under the influence of alcohol or other drugs. These tests were developed specifically to measure alcohol consumption, and there is wide-spread scientific agreement on the existence of a strong correlation between unsatisfactory performance and a blood alcohol level of at least .08%.
By contrast, in considering whether a driver is operating under the influence of marijuana, there is as yet no scientific agreement on whether, and, if so, to what extent, these types of tests are indicative of marijuana intoxication. The research on the efficacy of FSTs to measure marijuana impairment has produced highly disparate results. Some studies have shown no correlation between inadequate performance on FSTs and the consumption of marijuana; other studies have shown some correlation with certain FSTs, but not with others; and yet other studies have shown a correlation with all of the most frequently used FSTs. In addition, other research indicates that less frequently used FSTs in the context of alcohol consumption may be better measures of marijuana intoxication.
The lack of scientific consensus regarding the use of standard FSTs in attempting to evaluate marijuana intoxication does not mean, however, that FSTs have no probative value beyond alcohol intoxication. We conclude that, to the extent that they are relevant to establish a driver's balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle, FSTs are admissible at trial as observations of the police officer conducting the assessment. The introduction in evidence of the officer's observations of what will be described as "roadside assessments" shall be without any statement as to whether the driver's performance would have been deemed a "pass" or a "fail," or whether the performance indicated impairment. Because the effects of marijuana may vary greatly from one individual to another, and those effects are as yet not commonly known, neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana.
Wednesday, August 9, 2017
Cross-posted at Marijuana Law, Policy, and Authority
I just returned from the NCSL annual meeting in Boston, where I participated on a Marijuana Federalism panel with Representative Roger Goodman (WA state house) and John Hudak (Brookings). A short recap of the panel can be found here . Consistent with recent reports, all the panelists agreed the Trump Administration is unlikely to crack down on state-licensed marijuana suppliers anytime soon. (John and I have both previously written about the Trump Administration’s approach to marijuana policy, e.g., here and here.)
Nonetheless, given Jeff Sessions’ stated opposition to legalizing marijuana, I think it’s worthwhile to consider what (if anything) the states could do to blunt a federal crackdown, if the Trump Administration did decide to attempt one. Let me offer two possibilities state lawmakers might consider:
1. Create an indemnification fund to help pay the legal expenses of any state-licensed marijuana supplier who faces federal legal sanctions. This would include a supplier who faces a federal criminal prosecution, a civil forfeiture action, or even a civil RICO lawsuit brought by another private citizen.
Why would states ever do this? Individual defendants sometimes lack the ability and / or incentive to optimally (from the state’s perspective) defend themselves against federal claims. For one thing, defendants don't always have the money needed to pursue every viable defense vigorously, especially if their assets have been frozen by the government. In addition, individual defendants capture only a small part of the benefit (to the state) of successfully asserting certain types of defenses. After all, those defenses -- once established -- can be invoked by other, similarly situated defendants.
To illustrate the problem, suppose a Massachusetts-licensed medical marijuana supplier is being prosecuted by the DOJ for distributing marijuana. Her attorneys tell her she could spend $25,000 trying to convince a federal court that her prosecution is barred by the Rohrabacher-Farr amendment (discussed on pages 353-358 of my book), but there’s no guarantee she’ll win – say, because the First Circuit might not follow United States v. McIntoshand the Ninth Circuit’s interpretation of Rohrabacher-Farr. In this case, the supplier might not pursue the defense vigorously (even if she could afford to); she might instead prefer to cut her losses and cut a plea deal, say, by agreeing to shut down her shop if the DOJ drops all of its charges against her. But that may not be the best outcome for the state – it might prefer that the defendant spend $25,000 for even the chance that all state law-abiding medical marijuana suppliers would be declared immune from federal prosecution. Thus, to ensure that defendants vigorously pursue legal defenses that benefit others in the state, the state might help cover individual defendants’ legal expenses (say, using a portion of marijuana tax revenues).
I develop this first proposal in more detail in a symposium article for the Montana Law Review here. It’s loosely modeled on personal liberty laws adopted by northern states in response to the federal Fugitive Slave Act.
2. Adopt poison pill legislation that would make it costly for Congress to preempt certain state marijuana reforms. Some state laws are vulnerable to preemption challenge because they (arguably) undermine one of Congress's goals, like deterring drug use. Citing such reasoning, for example, a few state courts have held that state laws purporting to protect medical marijuana patients from employment discrimination are preempted by the federal CSA (the issue is discussed on pages 672-681 of the book). To defuse the threat that a court would find such measures preempted, a state could pass a second law – one that Congress clearly favors – and then tie the two laws (favored and disfavored) together – i.e., make them inseverable.
To illustrate, suppose Massachusetts was interested in preserving its recently recognized employment protections (discussed here) from a preemption challenge. To do so, the state could pass a law limiting the quantity of marijuana that non-residents are allowed to buy at state licensed shops, similar to the way Colorado once limited non-residents to buying one-quarter ounce of marijuana at its shops (discussed at pages 283-287 of the book). It could then make the new quantity restriction inseverable from the employment protections. While Congress (in theory) might not want states to protect marijuana users from employment sanctions, it might tolerate those protections if the states limit non-resident access to marijuana.
I develop this second proposal in more detail in a new article for the George Washington Law Review here. It’s very loosely modeled on the poison pill tactic in corporate law.
Part of the appeal of both options is that their success does not depend on the DOJ’s willingness to heed past enforcement guidelines or Congress’s willingness to restrict the agency’s spending.
August 9, 2017 in Court Rulings, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Tuesday, July 18, 2017
Massachusetts top court issues major ruling allowing medical marijuana user to pursue lawsuit against employer after her termination
As reported in this Boston Globe piece, headlined "Ruling means Mass. companies can’t fire workers for medical marijuana," the top court in Massachusetts issued a significant employment law ruling yesterday on behalf of a medical marijuana patient. Here are the basics from the press report:
Massachusetts companies cannot fire employees who have a prescription for medical marijuana simply because they use the drug, the state’s highest court ruled Monday, rejecting employers’ arguments that they could summarily enforce strict no-drug policies against such patients.
Supreme Judicial Court Chief Justice Ralph D. Gants said a California sales and marketing firm discriminated against an employee of its Massachusetts operation who uses marijuana to treat Crohn’s disease when it fired her for flunking a drug test.
In Massachusetts, Gants wrote, “the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.” Therefore, he said, employers can’t use blanket anti-marijuana policies to dismiss workers whose doctors have prescribed the drug to treat their illnesses.
Instead, antidiscrimination laws require companies to attempt to negotiate a mutually acceptable arrangement with each medical marijuana patient they employ, such as exploring alternative medications or allowing use of the drug only outside of work hours. The ruling overturned a lower court’s dismissal of a lawsuit against brought in 2015 by Cristina Barbuto of Brewster, who was fired by Advantage Sales and Marketing after just one day on the job because she tested positive for marijuana.
Barbuto said she told the company during interviews that she uses cannabis several nights a week — not before or during work hours — to treat her Crohn’s disease, a chronic inflammatory disorder that affects the digestive tract and can inhibit appetites. She said the local hiring manager told her it would not be a problem, and that she was blindsided by her dismissal....
Advocates called the ruling long overdue, and said they expected that other medical marijuana patients who had been fired over their use of the drug would soon contest their dismissals. “We are thrilled that the Supreme Judicial Court of Massachusetts has ruled in favor of compassion for people that use medical marijuana for a range of debilitating conditions,” the Massachusetts Patient Advocacy Alliance, which sponsored the state’s successful 2012 medical marijuana ballot initiative, said in a prepared statement.
A business group that interceded in the case, however, said the ruling would especially hurt small companies that don’t have the resources or expertise to negotiate accommodations for marijuana patients. “This is opening small business owners up to a ton of litigation,” said Karen Harned, the executive director of the National Federation of Independent Business Small Business Legal Center, which filed a brief in support of Advantage. “It’s making their lives harder because they can no longer have a clear drug-free-workplace policy.”
The decision doesn’t mean employers can never fire a patient for using marijuana medically; firms that contract with the federal government, for example, or where workers operate heavy machinery, could argue that accommodating their employees’ use of the drug constitutes an “undue hardship.” But the ruling puts the burden on employers to prove they cannot accommodate medical marijuana patients because their cannabis use impairs their ability to do required work, endangers public safety, or otherwise demonstrably endangers the business, Gants wrote.
“Employers can still prevail,” said Chris Feudo, an attorney at Foley Hoag who represents companies in employment disputes. “Employees aren’t entitled to the accommodation they want; they’re entitled to a reasonable accommodation — and sometimes, there isn’t one.” Still, Feudo said, the ruling will have “really wide implications.”
The full ruling in Barbuto v. Advantage Sales and Marketing, LLC, No. SJC 12226 (Mass. July 17, 2017), is available at this link. And it gets started this way:
In 2012, Massachusetts voters approved the initiative petition entitled, "An Act for the humanitarian medical use of marijuana," St. 2012, c. 369 (medical marijuana act or act), whose stated purpose is "that there should be no punishment under state law for qualifying patients . . . for the medical use of marijuana." Id. at § 1. The issue on appeal is whether a qualifying patient who has been terminated from her employment because she tested positive for marijuana as a result of her lawful medical use of marijuana has a civil remedy against her employer. We conclude that the plaintiff may seek a remedy through claims of handicap discrimination in violation of G. L. c. 151B, and therefore reverse the dismissal of the plaintiff's discrimination claims. We also conclude that there is no implied statutory private cause of action under the medical marijuana act and that the plaintiff has failed to state a claim for wrongful termination in violation of public policy, and therefore affirm the dismissal of those claims.
Wednesday, June 7, 2017
Tenth Circuit panel issues big, intricate and important ruling in RICO suits brought against state-legal recreational marijuana businesses
The Tenth Circuit this morning released a ninety-page panel opinion in Safe Streets Alliance v. Hickenlooper, No. 16-1048 (10th Cir. June 7, 2017) (available here), a significant and complicated federal case that could directly or indirectly have a big impact on recreational marijuana reforms in Colorado and other states. I will need to read and reflect on the whole Safe Streets opinion before I can readily opine on its merits and impact, but I can start this blog coverage of the ruling by quoting the opinions lengthy introduction (with footnotes omitted, emphasis in original):
These three appeals arise from two cases that concern the passage, implementation, and alleged effects of Amendment 64 to the Colorado Constitution, Colo. Const. art. XVIII, § 16. Amendment 64 repealed many of the State’s criminal and civil proscriptions on “recreational marijuana,” and created a regulatory regime designed to ensure that marijuana is unadulterated and taxed, and that those operating marijuana-related enterprises are, from the State’s perspective, licensed and qualified to do so. Of course, what Amendment 64 did not and could not do was amend the United States Constitution or the Controlled Substances Act (CSA), 21 U.S.C. §§ 801–904, under which manufacturing, distributing, selling, and possessing with intent to distribute marijuana remains illegal in Colorado. See U.S. Const. art. VI, cl. 2. The three appeals at issue and two related motions to intervene raise four principal disputes stemming from the alleged conflict between the CSA and Colorado’s new regime.
Two of the appeals were brought in Safe Streets Alliance v. Alternative Holistic Healing, LLC. First, in No. 16-1266, two Colorado landowners challenge the district court’s dismissal of their claims brought under the citizen-suit provision of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1964(c), against certain affiliates of a State- and county-licensed marijuana manufactory that allegedly has injured the landowners’ adjacent property. We conclude that the landowners have plausibly alleged at least one § 1964(c) claim against each of those defendants. We therefore reverse, in part, the dismissal of those claims and remand for further proceedings.
Second, in No. 16-1048, those landowners and an interest group to which they belong appeal the district court’s dismissal of their purported causes of action “in equity” against Colorado and one of its counties for ostensibly also having injured the landowners’ property by licensing that manufactory. The landowners and the interest group allege that Amendment 64’s regime is preempted by the CSA, pursuant to the Supremacy Clause, U.S. Const. art. VI, cl. 2, and the CSA’s preemption provision, 21 U.S.C. § 903. We conclude that neither the landowners nor the interest group purport to have any federal substantive rights that have been injured by Colorado or the county’s actions. And because they have no substantive rights in the CSA to vindicate, it follows inexorably that they cannot enforce § 903 “in equity” to remedy their claimed injuries. We therefore affirm the dismissal of their preemption claims.
The third appeal, No. 16-1095, was filed in Smith v. Hickenlooper. In that case, a group of Colorado, Kansas, and Nebraska sheriffs and county attorneys sued Colorado on similar theories that Amendment 64’s regime is preempted by the CSA. The district court dismissed their claims, and we consolidated the appeal with No. 16-1048. Because those plaintiffs also do not claim injuries to their federal substantive rights, we likewise affirm.
Finally, the States of Nebraska and Oklahoma moved to intervene in Safe Streets Alliance and Smith while they were pending on appeal. T hose States claim that Amendment 64 injures their sovereign interests and those of their citizens, and that its enforcement is preempted by the CSA. We granted their motion in No. 16-1048 and heard their arguments, which confirmed that their controversy is with Colorado. Given that fact, we must confront 28 U.S.C. § 1251(a), which forbids us from exercising jurisdiction over controversies between the States. We therefore cannot permit Nebraska and Oklahoma to intervene, or even confirm that they have a justiciable controversy that may be sufficient for intervention. Consequently, we vacate the order granting intervention in Safe Streets Alliance and deny the States’ motions in both cases.
Sunday, January 8, 2017
This local article, headlined "Judge: Insurance company must pay for medical marijuana for injured N.J. worker," reports on what would seem to be a significant ruling from an administrative law judge in New Jersey. Here are the details from the press report:
In what could be a precedent-setting decision, a New Jersey administrative law judge has ordered an insurance company to pay for medical marijuana for an injured worker who suffers from lingering neuropathic pain in his left hand after an accident while using a power saw at an 84 Lumber outlet in 2008.
Judge Ingrid L. French took testimony from the worker, a 39-year-old Egg Harbor Township man, and a Cherry Hill psychiatrist/neurologist who said the marijuana treatment was appropriate because it would allow the patient to reduce his prescription opiate use and lower the risk of serious side effects.
Andrew Watson was seeking reimbursement for marijuana he had purchased at a dispensary in his Atlantic County township over three months in 2014 after enrolling in the state's program. He also sought a ruling that would allow him to be covered for the treatment in the future.
French issued her opinion last month, saying "the evidence presented in these proceedings show that the petitioner's 'trial' use of medicinal marijuana has been successful. While the court is sensitive to the controversy surrounding the medicinal use of marijuana, whether or not it should be prescribed for a patient in a state where it is legal to prescribe it is a medical decision that is within the boundaries of the laws in the state."
The opinion did not state the reimbursement owed Watson, although his attorney said the marijuana itself cost less than $1,000 because it was only three ounces.
John Gearney, a Mount Laurel lawyer who writes a weekly blog on workers' compensation cases, says the written ruling may be the first in New Jersey to address whether an insurer should pay for marijuana. "It's not binding, but it's really an important decision. There are about 50 workers' compensation judges in the state, and they will read it and see what the judge thought when a case like it comes before them," he said.
Gearney, of the Capehart Scatchard firm, said the only other court ruling he had heard of involving medical marijuana and workers' compensation came when a New Mexico appeals court decided a few years ago that an injured worker was entitled to marijuana treatment. In that case, the court ruled that marijuana was "reasonable and necessary" for an injured worker who had reported that traditional treatments had not alleviated his pain.
John Carvelli, a Mount Laurel lawyer who represented Gallagher Bassett Services, a third-party administrator for 84 Lumber's insurance company, said in an email Thursday: "With respect to the recent decision, we respect the court's decision. . . . At this juncture there is no plan to appeal."...
Philip Faccenda, a Cherry Hill lawyer who represented Watson, said the decision might benefit insurance companies, too. "We believe this will offer very powerful cost savings with respect to the entire workers' compensation industry in New Jersey. . . . More costly pharmaceuticals can be reduced and medical marijuana would be a less expensive treatment modality," he said.
Faccenda said that his client stopped using marijuana in 2014 because he could not afford to continue paying for it. The insurance carrier continued to pay for his use of opiates to treat his pain. The decision means Watson can resume using marijuana, he said.
French wrote in her eight-page decision that Watson's testimony was credible. "He testified that the effects of the marijuana, in many ways, is not as debilitating as the effects of the Percocet (which is how he refers to his prescriptions for Endocet or Oxycodone). . . . Ultimately, the petitioner was able to reduce his use of oral narcotic medication. . . . The court found the petitioner's approach to his pain management needs has been cautious, mature, and overall, he is exceptionally conscientious in managing his pain."
French also wrote that Watson's expert witness, Cherry Hill psychiatrist Edward H. Tobe, described the benefits Watson can obtain by using marijuana and also described the risks of taking opiates. "Opiates can shut down breathing (whereas) marijuana cannabinoids won't . . . Marijuana does not affect the mid-brain. The mid-brain is critical in controlling respiration, heart rate, many of the life-preserving elements," he said, according to an excerpt of his testimony that was included in the judge's opinion.
Tobe said using marijuana, combined with less opiate use, would likely benefit Watson and help him "achieve better function." French said the evidence convinced her that Watson was entitled to participate in the marijuana program and that doing so was "reasonable and necessary" to relieve his continuing pain.
I cannot find the ruling discussed here on line, but more about the ruling can be gleaned from this posting at the NJ Workers' Comp Blog.
Monday, August 22, 2016
A darker view of a recent medical marijuana court victory: "10 things to hate about the McIntosh decision"
In this post over at my other blog, I flagged last week's Ninth Circuit panel ruling in US v. McIntosh, No. No. 15-10117 (9th Cir. Aug. 16, 2016) (available here), on a series of appeals concerning "whether criminal defendants may avoid prosecution for various federal marijuana offenses on the basis of a congressional appropriations rider that prohibits the United States Department of Justice from spending funds to prevent states’ implementation of their own medical marijuana laws." That ruling was hailed by many marijuana reform advocates as a victory because the court concluded that "at a minimum, § 542 prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws."
But astute followers of the law and policies surrounding marijuana reform know that there is rarely simple story around any aspect of federal marijuana laws and policy, and John Hudak has this recent posting at a Brookings blog explaining reasons why "medical marijuana advocates should [still] worry" after the McIntosh decision. Here are excerpts from the start and the headings of his commentary:
[M]arijuana reform advocates applauded a federal appeals court decision limiting the power of the Department of Justice to prosecute certain marijuana growers. In United States v. McIntosh, the three judge panel (two Republican and one Democratic appointee) dealt explicitly with the Rohrabacher amendment — a rider to a congressional spending bill that barred the DOJ from spending funds on enforcing the Controlled Substances Act in states with medical marijuana reform laws.
Despite the rider being signed into law—by President Obama—the Obama administration continued to bust growers in medical marijuana states. The defendants in the 10 cases grouped together in this appeal hail from California and Washington and were indicted on a variety of federal charges. They fought the charges in lower courts on the basis of the rider without success, and brought their case to the 9th Circuit Court of Appeals.
After the usual judicial hoops of establishing jurisdiction and the appropriateness of the court stepping in at this time to intervene in an ongoing prosecution, the court ruled on the merits of the case. The 9th circuit decision explains that even though “the rider is not a model or clarity” (24) it “prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws” (27).
If you’re a marijuana reform advocate, a grower, a cannabis enterprise executive, a patient, or otherwise related to the medical marijuana industry, this is great news, right?
Well, yes and no. The cork popping over the ruling in McIntosh may have been a bit premature. While the central holding of the case is a tremendous victory for the movement and offers a real barrier against executive enforcement power in the context of marijuana, the details of the decision are a bit more mixed. Namely, for the medical marijuana community, there are 10 things to hate about the McIntosh decision.
- The ruling has limited scope...
- McIntosh is about medical marijuana only...
- The Cole Memos are not the Great Savior many believe...
- State-level marijuana reforms do not legalize marijuana...
- State-level marijuana reforms do not legalize marijuana...
- This ruling may not always help current defendants or marijuana law violators...
- This ruling may not always help future defendants...
- This ruling may not always help future defendants...
- This ruling may not always help future defendants...
- This ruling may not always help future defendants
August 22, 2016 in Business laws and regulatory issues, Court Rulings, Federal court rulings, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)
Friday, July 22, 2016
Illinois judge orders reconsideration of making migraines an eligible condition for medical marijuana in the state
As reported in this Chicago Tribune article, in Illinois "a judge has ordered state officials to reconsider adding migraine headaches to the list of conditions that qualify a patient to buy" marijuana. Here is more about this significant ruling:
Cook County Circuit Court Associate Judge Rita Novak overturned Illinois Department of Public Health Director Dr. Nirav Shah's denial of a petition to add migraines to that list. The judge ordered Shah to reconsider evidence presented to the Medical Cannabis Advisory Board before its members voted to recommend approval of marijuana to treat migraines.
The court ruling came in response to a suit filed by a man whose name was kept secret because he already has been using marijuana to treat his headaches, his attorneys said. Since adolescence, the middle-age man has suffered migraines up to three times a week, lasting from several hours up to three days, attorney Robert Bauerschmidt said.
The man has tried triptans, the most common treatment for migraines, but they didn't work well. He tried narcotic painkillers but had a bad reaction that keeps him from using them, the attorney said. "He's been through everything," Bauerschmidt said. "Marijuana doesn't cure it, but he finds the pain less severe and believes the headaches are less frequent when he's using it."
Though federal law still prohibits marijuana possession, state law allows it for patients who have any of about 40 specific medical conditions, including cancer, AIDS or multiple sclerosis. Patients may buy the pot only from state-approved dispensaries.
The latest ruling comes after another judge last month ordered the state to add post-traumatic stress disorder as a qualifying condition for medical pot. That ruling has been rendered somewhat moot, since Gov. Bruce Rauner recently signed a law adding PTSD and terminal illness as qualifying conditions. But taken together, the separate rulings by different judges suggest that judicial review may further expand the program.
Attorney Mike Goldberg, whose firm handled the two prior cases, has pending lawsuits asking to add six other conditions: irritable bowel syndrome, chronic postoperative pain, osteoarthritis, intractable pain, autism and polycystic kidney disease. "It's a potential game-changer for the industry," Goldberg said.
But Annie Thompson, a spokeswoman for the Illinois attorney general's office, which represents the state in court, emphasized that the ruling does not require adding migraines to the list. It instead orders the director to reconsider within the parameters of the law and the judge's findings.
Joe Wright, the former director of the state's medical cannabis program, agreed that the case is not a done deal. "I'm not sure that means you'd necessarily have to add it," he said. "That means they have to look at it again in light of what the advisory board considered." If migraines and other conditions are added, Wright said, "That would open up the patient population fairly sizably."...
If the director adds migraines as a qualifying condition, that could greatly enlarge the number of patients. Migraines are a widespread condition, occurring in about 16 percent of Americans, according to two surveys cited by the American Headache Society. Because there is no widely accepted blood test or brain scan to verify migraines, they typically are diagnosed by medical history, symptoms and a physical and neurological examination, according to the Mayo Clinic. Typically Migraines occur repeatedly to the same patient, involving moderate to severe head pain that last for hours or days, nausea or vomiting and sensitivity to noise and light.
Friday, March 18, 2016
"One Toke Too Far: The Demise of the Dormant Commerce Clause's Extraterritoriality Doctrine Threatens the Marijuana-Legalization Experiment"
The title of this post is the title of this notable new and timely piece of legal scholarship authored by Chad DeVeaux now available via SSRN. Here is the abstract:
This Article argues that the pending feuds between neighboring states over marijuana decriminalization demonstrate the need for a strict doctrine limiting a state’s regulatory authority to its own borders. Precedent recognizes that the dormant Commerce Clause (DCC) “precludes the application of a state statute to commerce that takes place wholly outside the State’s borders, whether or not the commerce has effects within the state.” This prohibition protects “the autonomy of the individual States within their respective spheres” by dictating that “[n]o state has the authority to tell other polities what laws they must enact or how affairs must be conducted.” But this principle was called into doubt last summer by the Tenth Circuit, which concluded that this “most dormant doctrine in [DCC] jurisprudence” had withered and died from nonuse.
The Tenth Circuit’s conclusion, which approved Colorado’s purported direct regulation of coal-fired power generation in Nebraska, ironically coincided Nebraska’s (and Oklahoma’s) attempt to enjoin Colorado’s pot-friendly laws. Nebraska contends that Colorado’s commercial pot market allows marijuana to “flow . . . into [Nebraska], undermining [its] own marijuana ban, draining [its] treasur[y], and placing stress on [its] criminal justice system.” While Colorado celebrated its new-found power to impose its legislative judgments on Nebraskans, the festivities might be short lived. Colorado failed to recognize the impact the extraterritorial doctrine’s apparent demise will have on its own marijuana-legalization experiment. If Colorado is empowered to regulate coal burning in Nebraska because of its effects in Colorado, what prevents Nebraska from projecting its own laws across the border to regulate Colorado marijuana transactions that affect a substantial number of Nebraskans?
Thursday, November 5, 2015
As reported in this New York Times article, headlined "Mexico’s Supreme Court Opens Door to Legalizing Marijuana Use," a major legal ruling in a notable country could provide yet another jolt to the legal and policy status of marijuana in the Americas. Here are the basics:
The Mexican Supreme Court opened the door to legalizing marijuana on Wednesday, delivering a pointed challenge to the nation’s strict substance abuse laws and adding its weight to the growing debate in Latin America over the costs and consequences of the war against drugs.
The vote by the court’s criminal chamber declared that individuals should have the right to grow and distribute marijuana for their personal use. The ruling is a first step — applying only to a single cannabis club that brought the suit — and does not strike down Mexico’s current drug laws. But it lays the groundwork for a wave of legal actions that could ultimately legalize marijuana.
The decision reflects a changing dynamic in Mexico, where for decades the American-backed war on drugs has produced much upheaval but few lasting victories. Today, the flow of drugs to the United States continues, along with the political corruption it fuels in Mexico. The country, dispirited by the ceaseless fight with traffickers, remains engulfed in violence....
The ruling on Wednesday was the culmination of an effort to change the law by four members of a prominent Mexican anticrime group, Mexico United Against Crime. Mr. Torres Landa and Mr. Santacruz formed a cannabis club with two other people, called the Mexican Society for Responsible and Tolerant Consumption — the Spanish acronym is Smart.
The group applied for a license from Mexico’s drug regulatory agency, but, as expected, was turned down. Their appeal of that decision eventually reached the Supreme Court. “We have been trying to struggle against illegality, and the results were almost negligible,” said Mr. Torres Landa, who says he has never tried marijuana and does not intend to. “Five or six years ago, we asked why? The answer, as the Americans say, was in the money.”
But the ruling on Wednesday applies only to their petition. For legal marijuana to become the law of the land, the justices in the court’s criminal chamber will have to rule the same way five times, or eight of the 11 members of the full court will have to vote in favor.
If the court decisions continue in that direction, they will be flying in the face of public opinion. Mexicans are so opposed to legalizing marijuana that a leading pollster told the Smart group not to bother with a survey, Mr. Santacruz recalled, or to limit it to young people. The Mexican government, legislators and security and health officials all came out against legalization, as did the Roman Catholic Church. Indeed, the authorities have not permitted even the use of medical marijuana.
Wednesday, September 23, 2015
As reported in this Boston Globe article, headlined "SJC bans police stops solely for suspected marijuana: Court ruling cites 2008 decriminalization law," a top state court yesterday ruled that state marijuana reforms necessarily changed policy powers related to suspicion on drug offenses. Here are the details:
In a decision hailed by civil rights advocates and supporters of marijuana legalization, the state’s highest court ruled Tuesday that police cannot stop motorists solely because they suspect the vehicle’s occupants are in possession of the drug.
The Supreme Judicial Court based its 5-2 ruling largely on a measure that voters approved in 2008 that reduced possession of an ounce or less of marijuana from a criminal offense to a civil violation punishable by a fine.
“Permitting police to stop a vehicle based on reasonable suspicion that an occupant possesses marijuana does not serve [the] objectives” of the law change, Justice Margot Botsford wrote for the majority. Botsford wrote that allowing such stops “does not refocus police efforts on pursuing more serious crime,” another goal of changing the law.
The ruling does not prevent police from issuing citations for marijuana possession if they stop a driver for a traffic infraction, such as speeding, and later notice marijuana in plain view inside the vehicle.
otsford’s opinion was welcomed by the Campaign to Regulate Marijuana Like Alcohol in Massachusetts, a group pushing for a 2016 ballot question that would legalize marijuana for adult recreational use. Jim Borghesani, a spokesman for the campaign, said in a statement that the ruling “provides further clarification for how police officers should handle vehicle stops in the era of decriminalization, and it advances the clear message sent by voters in 2008 to refocus police activity on more serious crimes.”
Matthew Segal, legal director of the ACLU of Massachusetts, echoed that view, saying that with the vote to decriminalize marijuana in 2008, residents of the Commonwealth were making a statement “about how the police ought to spend their time and the taxpayers’ money.” Pulling over a car on suspicion of marijuana possession, he said, is “not consistent with the Massachusetts constitution, nor is it consistent with the will of the voters who passed decriminalization.”
David Procopio, a State Police spokesman, said in a statement that troopers are not primarily concerned about a vehicle occupant who possesses an ounce or less of marijuana. He said troopers usually make observations of marijuana use after stopping a car for other reasons, such as traffic infractions.
“What does concern us about marijuana, even amounts less than an ounce . . . is whether the operator has used it and is thus driving while impaired,” Procopio said. “The voters decriminalized possession of less than an ounce. That does not mean that using less than an ounce means you are OK to drive . . . and this ruling will have no impact on the observations we use to establish probable cause for drugged driving or our determination that a driver should be charged as such.”
Botsford’s opinion followed SJC rulings in 2011 and last year finding that the odor of burned marijuana alone does not provide grounds for police to order occupants to exit a car, and that the smell of burned or unburned marijuana does not justify searching a vehicle without a warrant.
Bristol prosecutors who argued the Rodriguez case before the SJC asserted that police can stop vehicles for a civil marijuana offense, just as they can for a civil traffic offense. The court rejected that argument, finding that traffic laws promote road safety, but there “is no obvious and direct link” between issuing civil citations for marijuana possession and maintaining highway safety.
Justice Robert Cordy, in a dissenting opinion, expressed a different view, writing that even if not all civil marijuana violations affect highway safety, infractions “occurring in motor vehicles do implicate concerns regarding traffic and automobile safety.” He argued that “there is no constitutionally based reason to distinguish” motor vehicle stops for civil marijuana violations from stops for traffic infractions.
The full opinion in Commonwealth v. Rodriguez, No. SJC 11814 (Mass. Sept. 22, 2015), is available at this link.
Sunday, June 14, 2015
Supreme Court of Canada issues big medical marijuana ruling (and highlights import of judiciary in marijuana reform)
As reported in this local Canadian article, headlined "Medical marijuana includes cookies, brownies, Supreme Court rules," the top court in Canada issues a significant medical marijuana ruling last week. Here are the details:
A former cannabis club head baker at the centre of a Supreme Court of Canada ruling is both thrilled and relieved after the high court struck down limits on what constitutes legally acceptable medical marijuana products. The court ruled unanimously on Thursday that medical marijuana can be legally consumed in a range of ways, from cannabis-infused cookies and brownies to cooking oils and teas. “I think across the country there will be a lot more smiles and a lot less pain,” said Owen Smith with the Victoria Cannabis Buyers Club, whose 2009 arrest was the focus of the decision.
Smith was charged after police found hundreds of pot cookies and cannabis-infused olive and grapeseed oils in his Victoria apartment. He was acquitted at trial and won an appeal.
The outpouring of gratitude since the ruling was handed down has been overwhelming, Smith said. He received a phone call from a mother who used cannabis-infused oil to treat her daughter’s epilepsy. “She was just overjoyed and in tears about the decision,” he said. “It’s been emotional, that’s for sure.”
Not only was it a unanimous 7-0 ruling, but the court made a point of attributing the written decision to the entire court — something the justices do when they want to underline a finding.
It was yet another rebuke of the Harper government’s tough-on-crime agenda. Until now, federal regulations stipulated that authorized users of physician-prescribed cannabis could only consume dried marijuana.
But limiting medical consumption to dried pot infringes on liberty protections under the Charter of Rights and Freedoms, the court said. “The prohibition of non-dried forms of medical marijuana limits liberty and security of the person in a manner that is arbitrary and hence is not in accord with the principles of fundamental justice,” said the written judgment.
Cheryl Rose, whose daughter Hayley takes cannabis for a severe form of epilepsy, said the 22-year-old’s seizures have dropped dramatically. Under the previous law, Hayley had to take 15 capsules of dried cannabis daily. Now, she will only have to take one concentrated capsule made with oil. “Without having extracts available for her, I don’t think we’d be able to keep it up. It’s way too much for a person to consume,” she said. “She’s finally going to fully have her life back.”
Alex Repetski, of Thornhill, Ont., could have been charged with possession and trafficking for converting dried bud into oil for his 3-year-old daughter, Gwenevere, whose debilitating epilepsy has left her developmentally delayed. Since starting on the low-THC marijuana, Gwenevere has seen an incredible recovery, Repetski said. He no longer fears prosecution.
Limiting medical marijuana use to dried pot “limits life, liberty and security of the person” in two ways, the court said. First, the prohibition on possession of cannabis in forms other than dried pot places a person at risk of imprisonment when they wouldn’t face the same threat if they possessed dried marijuana buds. It also exposes people with a legitimate need for marijuana to other potential medical ailments, it stated. “It subjects the person to the risk of cancer and bronchial infections associated with smoking dry marijuana and precludes the possibility of choosing a more effective treatment.”...
Health Minister Rona Ambrose said she was “outraged” by the marijuana decision. “The big issue here is the message about normalization,” she said. “The message that judges, not medical experts, judges have decided something is a medicine.” Ambrose noted that marijuana has never faced a regulatory approval process through Heath Canada.
The full 24-page ruling in R. v. Smith, 2015 SCC 34 (Canada June 11, 2015) is available at this link.
As the last line of my post headline emphasizes, I think this ruling highlights the importance and impact of how a judiciary responds to a jurisdiction's marijuana reform efforts. For any jurisdiction that reforms blanket marijuana prohibition in any ways, the dynamics of just how courts interpret and apply reform statutes and regulations will necessarily have an impact on the actions of other government officials and individuals seeking to comply with reformed laws and practices.
Wednesday, April 8, 2015
As reported in this local article, the "Arizona Supreme Court on Tuesday issued two rulings barring courts and prosecutors from denying marijuana use as a term of probation if the convicted felons have valid medical-marijuana cards." Here is more on these notable rulings:
In one case, a man convicted of possessing marijuana for sale in Cochise County was forbidden from using marijuana by a probation officer after he was released from prison.
In the second, a woman pleading guilty to DUI in Yavapai County refused to accept abstention from marijuana as a term of probation, prompting the prosecution to withdraw the plea agreement. Both had valid medical-marijuana cards.
The Supreme Court ruled that both had the right to use marijuana for their medical conditions and that prosecutors and courts could not block that right as a term of probation.
"The Supreme Court is recognizing what the people decided when they passed the initiative: You can use your medicine," said David Euchner, an assistant Pima County public defender. Euchner argued as a friend of the court in both cases in his role as a member of the executive committee for Arizona Attorneys for Criminal Justice....
"[I]f the state extends a plea offer that includes probation, it cannot condition the plea on acceptance of a probationary term that would prohibit a qualified patient from using medical marijuana ..." [one of the Arizona court's] ruling said.
Prosecutors are not pleased with the ruling. "It's another example of the problems with initiative drafting and unintended consequences," Maricopa County Attorney Bill Montgomery said in an e-mail to The Arizona Republic. "There was no discussion at the time of the election regarding the impact to case resolutions and the ability for parties to negotiate plea agreements."
Montgomery is a staunch opponent of marijuana use. On March 23, he raised eyebrows during a debate in Tempe over the use of recreational marijuana when he called a veteran who admitted to using the drug an "enemy."
But the defense attorney he faced off against, Marc Victor, said Tuesday's court ruling was just, "because the initiative specifically said your right to use medical marijuana can't be taken away."...
The second case Tuesday covered a slightly different probation angle. Jennifer Lee Ferrell was arrested in 2012 and charged with DUI.
Pursuant to Yavapai County Attorney's Office policy, Ferrell's plea agreement required her to avoid marijuana as a condition of probation. The high court said no.
Yavapai County Attorney Sheila Polk is also firmly against marijuana use. "I implemented the 'no marijuana condition' after the probation department noted a significant increase in the number of probationers obtaining a medical marijuana card to use marijuana while on felony probation," Polk said in an e-mail to The Republic. "My goal — and the goal of the system — is to set convicted felons up to succeed, to find employment and to turn their lives around. Marijuana is not part of that equation."
Polk said she is considering appealing to the U.S. Supreme Court.
Here are links to the opinions references in this article:
Rebecca White Berch, Author; Scott Bales, Concur; John Pelander, Concur; Robert M. Brutinel, Concur; Ann A. Scott Timmer, Concur
Ann A. Scott Timmer, Author; Scott Bales, Concur; John Pelander, Concur; Rebecca White Berch, Concur; Robert M. Brutinel, Concur
Saturday, March 28, 2015
Colorado files SCOTUS brief responding to neighbors' lawsuit (and other states provide amicus support)
As reported in this Denver Post piece, headlined "Colorado officials defend marijuana legalization at U.S. Supreme Court," Colorado state lawyers have now officially responded, four months after the initial complaint, to the lawsuit filed by Oklahoma and Nebraska about marijuana reform in the Mile High State. Here are the basics:
Arguing that two neighboring states are dangerously meddling with Colorado's marijuana laws, state Attorney General Cynthia Coffman on Friday urged the U.S. Supreme Court to reject a landmark lawsuit filed by Nebraska and Oklahoma over marijuana legalization. In a brief submitted in response to the lawsuit, Coffman wrote that Nebraska and Oklahoma "filed this case in an attempt to reach across their borders and selectively invalidate state laws with which they disagree."
The two states' lawsuit seeks to strike down Colorado's licensing of recreational marijuana stores. Nebraska and Oklahoma officials argue that the stores have caused a flood of marijuana into their states, stretching their law enforcement agencies thin and threatening their sovereignty.
But Coffman argued the lawsuit, if successful, would only worsen problems involving black-market marijuana in all three states. Colorado's regulations for marijuana stores "are designed to channel demand away from this black market and into a licensed and closely monitored retail system," she wrote. If the stores are closed, Colorado would be left with laws that legalize marijuana use but do not regulate its supply. "This is a recipe for more cross-border trafficking, not less," Coffman wrote.
Friday's brief is the first time Colorado officials have had to make a full-throated argument in favor of the state's marijuana legalization laws. In doing so, the brief spends several pages noting states' lengthy history of trying to regulate marijuana, "a product whose use is staggeringly widespread." Nearly half of all states now have laws legalizing recreational or medical use of marijuana, the brief states....
Nebraska and Oklahoma filed their lawsuit directly with the Supreme Court because it involves a dispute between states. Before the lawsuit gets a hearing, the nation's highest court must first decide whether to take up the case. There is no timeline for the decision.
The lawsuit does not challenge Colorado's laws for medical marijuana use or sales, nor does it seek to strike down laws legalizing recreational marijuana use and possession. Instead, Nebraska and Oklahoma argue in the lawsuit that Colorado's licensing of marijuana stores "has created a dangerous gap in the federal drug control system."...
In a statement Friday, Coffman — a Republican who opposed marijuana legalization — said she shares Nebraska and Oklahoma's concerns about illegal marijuana trafficking. Coffman's brief, though, pins the blame for that trafficking not on Colorado's marijuana stores but on "third parties who illegally divert marijuana across state lines." The brief points to the recent indictments of 32 people accused in a massive marijuana-smuggling ring as evidence that Colorado authorities are continuing to bust traffickers.
Colorado's laws received support Friday from Coffman's counterparts in Washington state and Oregon — where recreational marijuana is also legal. In a friend-of-the-court brief filed Friday in support of Colorado's laws, Washington and Oregon attorneys general argue that Colorado's laws don't hurt Nebraska and Oklahoma's abilities to enforce their own laws.
"Nebraska and Oklahoma retain the constitutional powers of every other sovereign State in the nation," the brief argues. "They can investigate and prosecute persons who violate their laws; neither is powerless to address marijuana within their borders."
The full 35-page brief filed by Colorado is available at this link.
I tentatively predict that the Supreme Court will refuse to hear this case, but I confidently predict that most everything about modern marijuana law and policy is pretty darn unpredictable.
Some prior related posts:
- Nebraska and Oklahoma sue Colorado in US Supreme Court over marijuana legalization
- Could (and should) Colorado (or others) respond to attack on marijuana legalization by counter-attacking federal prohibition?
- Lots of commentary on states SCOTUS suit against Colorado marijuana reform
- Oklahoma legislators urging state's AG to drop SCOTUS suit again Colorado marijuana reforms
March 28, 2015 in Court Rulings, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Monday, March 16, 2015
Connecticut Supreme Court clarifies erasure of past pot conviction comes with state decriminalization
This AP article, headlined "Ruling Clears Way for Marijuana Convictions to Be Erased," highlights a notable (state law) ruling from that echoes issues being confronted in a number of states as marijuana reforms become more common. Here are the basics:
Thousands of people busted in Connecticut for marijuana possession now have the right to get their convictions erased after the state Supreme Court ruled Monday that the violation had been downgraded to the same legal level as a parking ticket.
The 7-0 ruling came in the case of former Manchester and Bolton resident Nicholas Menditto, who had asked for his convictions to be overturned after the Legislature decriminalized possession of small amounts of pot in 2011. "It's a topic multiple states will have to be facing," said Aaron Romano, Menditto's attorney. "Because marijuana is being decriminalized across the United States, this issue needs to be addressed."
Colorado, Washington state, Washington, D.C., and Alaska have legalized the recreational use of pot. Oregon's law legalizing it takes effect in July. Connecticut and 22 other states allow marijuana for medicinal purposes, and 18 states have decriminalized possession of varying amounts.
Last year, Colorado's second-highest court ruled that some people convicted of possessing small amounts of marijuana can ask for those convictions to be thrown out under the state law that legalized recreational marijuana. Officials in the other states are grappling with the issue.
In 2011, Connecticut Gov. Dannel P. Malloy and legislators changed possession of less than a half ounce of marijuana from a misdemeanor with potential jail time to a violation with a $150 fine for a first offense and fines of $200 to $500 for subsequent offenses. Menditto, 31, wanted the state to erase his two convictions for marijuana possession in 2009 and a pending possession case. The Supreme Court ruled he could apply to have the two convictions erased, but declined to address the pending case.... The appeal involved the 2011 decriminalization and another state law that allows erasure of convictions of offenses that have been decriminalized....
"The legislature has determined that such violations are to be handled in the same manner as civil infractions, such as parking violations," Justice Carmen Espinosa wrote in the ruling. "The state has failed to suggest any plausible reason why erasure should be denied in such cases."
Thursday, March 12, 2015
The Washington Post's Wonkblog has this lengthy new piece detailed the array of distinct lawsuits brought recently by opponents of Colorado's marijuana reforms. The article, headlined "After losing at the ballot box, marijuana opponents make a hail mary pass to the courts," is worthy a full read, and here are excerpts from the start and end of the piece:
After losing at the ballot box and in the court of public opinion, marijuana opponents are turning to the federal judiciary in an attempt to halt the momentum of marijuana legalization efforts happening at the state level. But legal experts say that plaintiffs in a series of lawsuits brought against the state of Colorado for its marijuana regulation regime face slim chances of succeeding -- if the courts agree to hear them at all....
Most of the cases above are being financed by hardline anti-drug organizations that in recent years have found themselves well outside of the mainstream criminal justice debate.
The sheriffs' lawsuit, for instance, is bankrolled by the Drug Free America Foundation. Among other things, this group advocates for broadening mandatory drug tests for public school students. The Foundation arose from the ashes of "Straight, Incorporated," a coercive "drug rehabilitation" program for teens that faced numerous allegations of abuse and settled out of court to the tune of hundreds of thousands of dollars before closing its doors in 1993.
And the RICO cases are funded by the Safe Streets Alliance, a tough-on-crime organization that aims to increase prison sentences in an era of deep skepticism over the merits of lengthy prison terms. "This is the last hurrah for a lot of individuals in the anti-marijuana community," according to the Brookings Institution's John Hudak. "It's pretty clear that they’ve lost the battle for public opinion."
Wednesday, January 7, 2015
"Oklahoma Republicans Want To Snuff Out Their State's Lawsuit Over Colorado Marijuana" is the headline of this fascinating report from The Huffington Post (which Rebecca Pressman helpfully flagged in the comments to this post). Here are excerpts from the HuffPo piece:
Several Oklahoma lawmakers are calling for state Attorney General Scott Pruitt to drop his lawsuit against Colorado over its legalization of recreational marijuana, arguing that it's the "wrong way to deal with the issue."
In a letter sent to Pruitt's office last week, seven Republican state lawmakers, led by state Rep. Mike Ritze, expressed their concern that the case could significantly undermine states' rights, including Oklahoma's....
The Oklahoma lawmakers fear that a decision by the U.S. Supreme Court against Colorado -- lawsuits between states go directly to the high court -- could sweep far more broadly than cannabis laws. "If the federal government can force Colorado to criminalize marijuana," the letter reads, "using the exact same arguments, it could also force Oklahoma to criminalize a wide range of goods and activities that would be an anathema to the citizens of Oklahoma that we are sworn to serve."
The lawmakers argue that the best move would be for Pruitt's office to "quietly drop the action against Colorado, and if necessary, defend [Colorado's] right to set its own policies as we would hope other states would defend our right to govern ourselves."
Were the Supreme Court to rule against Colorado, Oklahoma lawmakers said they also have "deep concern" over the potential implications for the "national sovereignty of [the] entire country." They note that the lawsuit points to United Nations drug conventions that ban marijuana to strengthen its case -- an argument that the Oklahoma lawmakers said equates U.N. treaties with federal laws. "If the argument in the lawsuit were successful, the federal government could, in theory, adopt any UN treaty, then force the states, including Oklahoma, to help impose it," the letter reads.
The state lawmakers said that many of their constituents have already asked them to file a brief in defense of Colorado if the court hears the case -- not because these Oklahomans want legal access to recreational marijuana, but because they fear their state's rights would be "put in jeopardy."...
“This is not about marijuana at its core -- it is about the U.S. Constitution, the Tenth Amendment, and the right of states to govern themselves as they see fit,” said Rep. Ritze in a statement about the letter. "Our Founding Fathers intended the states to be laboratories of self-government, free to tinker and experiment with different ideas. The founders, from Jefferson to Madison, were also strong proponents of states nullifying unconstitutional federal actions. If the people of Colorado want to end prohibition of marijuana, while I may personally disagree with the decision, constitutionally speaking, they are entitled to do so."
Joining Ritze in signing the letter were Oklahoma state Reps. Lewis Moore, John Bennett, Mike Christian, Dan Fisher and state Sens. Ralph Shortey and Nathan Dahm, all Republicans.
The full letter is available at this link, and it makes for quite an interesting read.
Prior related posts:
- Nebraska and Oklahoma sue Colorado in US Supreme Court over marijuana legalization
- Could (and should) Colorado (or others) respond to attack on marijuana legalization by counter-attacking federal prohibition?
- Lots of commentary on states SCOTUS suit against Colorado marijuana reform
Monday, October 20, 2014
A few years ago, an assistant principle at a Georgia middle school strip searched a twelve-year old boy in front of a few of his classmates, hoping to find marijuana. The school official did not find any marijuana and, I'm guessing, he is regretting having performed this sort of disturbing search.
The student now has a partial victory in a civil lawsuit, winning a summary judgment motion on one claim against the assistant principle (but losing on a failure to train claim against the school district.)
In an opinion dated September 30th (but just now appearing on my LEXIS alert), Judge Amy Totenberg (herself, coincidentally, a former school board lawyer) describes the facts in some detail. Unfortunately, the opinion does not appear to be available online yet.
D.H. was in his Language Arts class when Ratcliff came to the classroom and told him to bring his book bag and come with her.
Deputy Redding, McDowell, D.V., T.D., and R.C. were present in Deputy Redding's office when D.H. arrived with Ratcliff. (D.H. Dep. at 88-89.) Deputy Redding informed D.H. that drugs had been found at the school and he and McDowell wanted to know whether he had any drugs on him. (D.H. Dep. at 90.) D.H. denied having any drugs on him. (Id.) Redding asked him "are you sure because you are going to get searched," and D.H. responded that "yes," he was sure that he was not in possession of any drugs. (Id.)
McDowell informed D.H. that "because of the severity of the situation" he was going to have to search him "just to make sure" he did not have any drugs on him. (Id. at 114-115, 119.) McDowell then told D.H. to empty his book bag. (D.H. Dep. at 91.) McDowell looked through the pencil boxes, zippers, and pouches of D.H.'s book bag. (Id. at 92.)
Dowell then proceeded to search D.H.'s person. (D.H. Dep. at 92.) McDowell first told D.H. to take off his shoes. (Id. at 93; see also McDowell Dep. at 119 (stating that he asked D.H. to remove his shoes and socks).) Then he asked D.H. to empty his pockets. (D.H. Dep. at 94;see also McDowell Dep. at 119.) After D.H. emptied out his pockets, McDowell told him to take off his pants. (D.H. Dep. at 94; see also McDowell Dep. at 119 (stating that he asked D.H. to pull his pants down).) D.H. dropped his pants to the floor, stepped his legs out of them, and pushed them aside with his foot. (Id. at 95.) Underneath his pants, D.H. was wearing red and navy blue Tommy Hilfiger boxers — the kind with an elastic waist but that are loose around the thigh. (Id. at 94-95, 113.)
At some point, McDowell asked D.H. to remove his uniform polo-style shirt, which according to D.H. was the only shirt he was wearing that day. (D.H. Dep. at 99.) D.H. testified that he was not wearing an undershirt. (Id.) McDowell next told D.H. to flip his socks at the top to see if he was hiding anything under the band of the sock. (D.H. Dep. at 100.) McDowell then told D.H. to take off his socks. (D.H. Dep. at 100-101.) Finally, McDowell pointed at D.H.'s boxers and said "take those off." (D.H. Dep. at 102; see also McDowell Dep. at 120 (stating that he asked D.H. to "pull his underwear away from his body and in a down motion just in case if [sic] he had anything in his — on his person, it would fall to — fall to the ground").) D.H. asked McDowell "do I have to do this here," to which McDowell responded yes. (D.H. Dep. at 102.) D.H. complied by turning to the left (with his back to his classmates) and pulling his underwear down to his ankles. (D.H. Dep. at 103, 105, 107.) McDowell paused, bent over and observed D.H.'s genitalia. (D.H. Dep. at 108; McDowell Dep. at 120-121.) After  finding nothing hidden in D.H.'s underwear, McDowell asked him to put his clothes back on. (D.H. Dep. at 108; McDowell Dep. 120.) No marijuana or other illegal contraband was found on D.H. or in his belongings. (McDowell Dep. 124; Def.'s Resp. to PSMF ¶ 10.) Prior to requiring D.H. to strip down to his underwear to search him for marijuana, McDowell did not conduct a search of his locker, gym locker, desk, wastebasket, or classroom. (McDowell Dep. at 126-129.)
As Doug blogged about previously here, last month a Colorado bankrupcty judge dsimissed a Denver marijuana business owner's bankrupcty petition. The court reasonined that allowing the petition to go forward would put the bankrupcty trustee in the untenable position of administering assets that are being used to commit federal crimes.
As the story last month noted, the debtor was appealing the decision. And, late last week, the bankruptcy judge granted the debtor's request to stay enforcement of the court's judgment pending appeal. The decision does not seem to be available yet on the Colorado bankrupcty court's site (or, at least, it is not coming up in response to my searches.) But, it is on Lexis at 2014 Bankr. LEXIS 4409.
This development will essentially put everything on hold in the case until the appeals court has weighed in.
Here are a few excerpts from the court's opinion:
The Debtors' appeal raises important questions. As illustrated by this case, the intersection between the federal marijuana prohibition and state level liberalization of marijuana laws significantly complicates bankruptcy proceedings where those issues arise. For a trustee, taking custody of and administering assets that are used in the commission of a federal crime can involve a trustee in conduct that violates the federal criminal law. Because of those complications in this case, the Court found that bankruptcy relief was impossible to grant to these Debtors.
The policy of The United States Department of Justice, with respect to state citizens who are acting in compliance with liberalized state marijuana laws, is to initiate enforcement actions under the CSA primarily where overriding federal concerns are implicated. The same Department of Justice, through the United States Trustee (the "UST"), moved to dismiss these Debtors' bankruptcy case on account of conduct which does not appear to implicate the type of federal concerns that would typically lead a United States Attorney to initiate a criminal prosecution or other enforcement action under the CSA.
The Court finds that the balance of the harms favors granting the stay. In the Court's Dismissal Order, after hearing evidence at the trial of the UST's motion to dismiss, the Court recognized that the denial of bankruptcy relief would be "devastating" to the Debtors. (Dismissal Order at p. 9). Also, in its response to the Debtors' Motion, the UST has not alleged that the creditors would suffer any harm if the Court's Dismissal Order is stayed and the UST asserted that it does not oppose the stay. Given that the UST is statutorily tasked with supervising "the administration of cases and trustees in cases under chapter 7 . . . ," 28 U.S.C. 586, and is the party that sought dismissal of the Debtors' case in the first instance, his lack of opposition to the Debtors' Motion is significant to the Court. Thus, the balance of the harms strongly favors granting a stay pending appeal.
The Court also believes that the Debtors' appeal presents novel and substantial questions of law that will benefit from appellate review. As a consequence of these factors, the Debtors have raised at least some uncertainty as to the merits of their appeal.
Even though the Court cannot assess the Debtors' likelihood of success as being great, because the balance of the harms supports granting the stay, the UST does not oppose granting such relief, and the Debtors' appeal raises important legal issues, a stay of the Court's Dismissal Order pending appeal is appropriate in this case.
This appeal will certainly be worth watching closely.
Thursday, October 9, 2014
Yesterday, the Second Circuit upheld a Board of Immigration decision finding a woman subject to removal from the US based on a since-vacated 1997 conviction for attempted possession of marijuana for sale. Though the decision does not break new legal ground, it is a reminder of the serious collateral consequences marijuana convictions can carry (and of the fact that under our immigration laws longtime residents can be forced back to countries they may now barely know based on relatively minor convictions.)
The court itself lamented the outcome, writing in its conclusion:
The sad truth of this case is that petitioner’s removability only came to light after she applied for citizenship. For almost seventeen years, she has owned and operated a business and by all accounts was a productive member of our society. Now, she will be returned to Jamaica and her community here will be the poorer for it. The Attorney General may, of course, review this matter in the exercise of his discretion in immigration matters. The petition for review is DISMISSED and any outstanding motions are DENIED as moot.
Tuesday, September 30, 2014
Courtesy of Rachel K. Gillette, Esq, here's the link to this morning's oral argument before the Colorado Supreme Court in Coats v. Dish Network. [Note-there's a 19 minute delay]. Here are the issues before the Court:
Whether the Lawful Activities Statute, C.R.S. section 24-34-402.5, protects employees from discretionary discharge for lawful use of medical marijuana outside the job where the use does not affect job performance.
Whether the Medical Marijuana Amendment makes the use of medical marijuana 'lawful' and confers a right to use medical marijuana to persons lawfully registered with the state
The Supreme Court is reviewing a 2-1 decision of the Colorado Court of Appeals ruling that the Lawful Activities statute requires the activity to be lawful under state and federal law.
Courtesy of Doug, here's a post explaining the facts and significance of the case.