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.
Thursday, September 25, 2014
This new Denver Post article, headlined "Judge denies bankruptcy protection to Denver marijuana business," highlights another notable business problem created by the conflict between state and federal marijuana laws. Here are the basics:
A U.S. bankruptcy judge has dismissed the case of a Denver marijuana business owner, saying that although his activities are legal under Colorado law, he is violating the federal Controlled Substances Act. In dismissing the case, filed in U.S. Bankruptcy Court in Denver by Frank Anthony Arenas, Judge Howard Tallman said he realizes the "result is devastating for the debtor."
The Arenas case is at least the second such one involving a marijuana business tossed out of bankruptcy court in Colorado. At least two others have been dismissed in California. Tallman made a similar decision in a 2012 case involving Rent-Rite Super Kegs West Ltd, a company that operated a warehouse partially rented to a tenant cultivating marijuana.
"Violations of federal law create significant impediments to the debtors' ability to seek relief from their debts under federal bankruptcy laws in a federal bankruptcy court," Tallman wrote in the Arenas decision last month.
Arenas, who couldn't be reached for comment, has appealed the decision to the U.S. 10th Circuit Court of Appeals in Denver. According to his bankruptcy petition, Arenas owes more than $556,000 to unsecured creditors. He has assets of $595,925, personal property worth $47,191 and monthly income of $4,315.16. He has testified that he owns about 25 marijuana plants valued at $250 each, according to Tallman's decision.
Arenas, a wholesale producer and distributer of weed, filed for Chapter 7 protection, in which a debtor turns over assets to a trustee to liquidate and give the proceeds to creditors.
In the decision, Tallman alludes to the contradictions that dueling marijuana laws pose to liquidating assets and distributing the proceeds among creditors. The trustee can't take control of assets or liquidate the inventory without running afoul of federal law, he said. Nor can the debtors convert the case to Chapter 13, which would allow them to pay off debts over time because the plan would be funded "from profits of an ongoing criminal activity under federal law" and involve the trustee in distribution of funds derived from violation of the law.
Those who own and operate marijuana businesses are caught in a legal limbo with federal law restricting access to banking services and creating obstacles that other legitimate — at least by state law — businesses don't, said Sam Kamin, a professor at University of Denver's Sturm College of Law. "As long as it is illegal under federal law, we are going to have weird anomalies like that," Kamin said.
Tuesday, September 9, 2014
The Gray Lady continues to do important reporting and advocacy concerning marijuana reform as evidenced by this recent article headlined "Legal Use of Marijuana Clashes With Job Rules." Here are excerpts from this piece:
Brandon Coats knew he was going to fail his drug test. Paralyzed in a car crash when he was 16, he had been using medical marijuana since 2009 to relieve the painful spasms that jolted his body. But he smoked mostly at night, and said marijuana had never hurt his performance answering customer calls for a Colorado satellite-television provider.... “There are a lot of people out there who need jobs, can do a good job, but in order for them to live their lives, they have to have this,” said Mr. Coats, who is 35. “A person can drink all night long, be totally hung over the next day and go to work and there’s no problem with it.”
But when it comes to marijuana, Mr. Coats and other users are discovering that marijuana’s recent strides toward the legal and cultural mainstream are running aground at the office. Even as 23 states allow medical or recreational marijuana, employment experts say that most businesses are keeping their drug-free policies. The result is a clash between a culture that increasingly accepts marijuana and companies that will fire employees who use it....
Employers and business groups say the screenings identify drug-abusing workers, create a safer workplace, lower their insurance costs and, in some cases, are required by law. But marijuana advocates say the prohibitions amount to discrimination, either against people using marijuana to treat a medical condition or against people who smoke it because they simply have the legal right to do so, off the clock and away from the office. “It wasn’t like I was getting high on the job,” Mr. Coats said. “I would smoke right before I go to bed, and that little bit would help me get through my days.”
On Sept. 30, he will take that argument before the Colorado Supreme Court in a lawsuit challenging his 2010 firing. For years, courts in Colorado and across the country have ruled against marijuana users, saying that companies have the right to create their own drug policies. But legal experts say that if Mr. Coats prevails — he lost 2-1 in an appellate ruling — his case could transform how businesses must treat marijuana users.
Relatedly, the NYTimes had this editorial headlined "Obsolete Zero Tolerance on Pot."
Wednesday, August 27, 2014
Although California passed the first modern medical marijuana law in 1996 and saw the first wave of medical marijuana dispensaries, the legal status of dispensaries in the state is still somewhat unsettled. While government officials in places like Oakland have backed large scale retail outlets, in other parts of the state a handful of District Attorney's offices have argued that retail marijuana stores are illegal under state law. San Diego, where I live, has arguably been ground zero for this view--with one Deputy District Attorney going so far as to write a lengthy law review article (PDF) on why medical marijuana sales are actually illegal under California law.
For the most part, appellate courts have held that retail medical marijuana outlets are permitted under California law (though the state Supreme Court has yet to weigh in.) Last week saw another decision reaffirming the legality of retail medical marijuana sales in CA v. Baniana (PDF).
Here are a few relevant excerpts:
[California's Medical Marijuana Program Act (MMPA)] permits qualified patients and their designated primary caregivers to join together “in order collectively or cooperatively to cultivate marijuana for medical purposes” without being subject to “state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.” (§ 11362.775.)
In 2010, the Legislature added section 11362.768 to the MMPA. (Stats. 2010, ch. 603, § 1.) This section implicitly recognizes the lawfulness of a “marijuana cooperative, collective, dispensary, operator, establishment or provider who possesses, cultivates, or distributes medical marijuana pursuant to” the MMPA, but prohibits such entities from operating “within a 600-foot radius of a school.” (§ 11362.768, subd. (b).) “This section shall apply only to a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider that is authorized by law to possess, cultivate, or distribute medical marijuana and that has a storefront or mobile retail outlet which ordinarily requires a local business license.” (§ 11362.768, subd. (e).)
The prosecutor argued defendant was not entitled to the defense because the MMPA did not legalize the sale of medical marijuana. He asserted that while it may be lawful for a qualified patient unable to take part in the actual tending to the plants, or to devote time and effort on behalf of Herbal Run, to support the organization strictly through monetary contributions, the prosecutor argued any monetary contribution could not be contemporaneous with an exchange of marijuana. According to the prosecutor, such an individual would have to make his or her monetary contribution prior to the planting of the marijuana the patient would eventually be given.
The MMPA does not impose this limitation on qualified patients. First, the purpose of the MMPA is to ensure the promise of the CUA is fulfilled and qualified patients have safe access to affordable medical marijuana. We do not think the Legislature intended a seriously ill individual whose physician has recommended use of medical marijuana, and who is physically or otherwise unable to participate in the acts involved in cultivating medical marijuana, cannot simply pay money to his or her collective in exchange for the recommended medicine. It would be cruel for those whose need for medical marijuana is the most dire to require that they devote their limited strength and efforts to the actual cultivation of the marijuana, and then wait months for it to grow so they can use it, or to require that they make their monetary contribution and then wait months for the marijuana to be planted, grown, and harvested before they may lawfully be provided medical marijuana. Moreover, for some the cultivation and processing would not be completed until it was too late to provide any relief. The MMPA does not anticipate a patient who has received a physician’s recommendation must thereafter wait months to lawfully acquire medical marijuana.
Of course, the MMPA did not make lawful all sales of marijuana. The defense it provides is limited to those qualified patients and primary caregivers who associate together in a collective or cooperative. (§ 11362.775.) Additionally, sales for profit remain illegal. However, given the MMPA’s purpose, one provision in the MMPA implicitly recognizes the legality of store front dispensaries, collectives or cooperatives (§ 11362.768), and another provision specifically provides a defense to violation of sections 11360 (sale or transportation of marijuana) and 11359 (possession of marijuana for sale), we conclude a member of a collective or cooperative may purchase medical marijuana from the collective or cooperative so long as the sale is not for profit. The district attorney’s limited interpretation of section 11362.775 defeats the stated purpose of the MMPA to make access to medical marijuana easier for patients, and is contrary to a fair reading of the section. Section 11362.775 was written to provide a defense to a charge of selling marijuana in appropriate circumstances. Were this not the Legislature’s intent, there would have been no need to list section 11360 or section 11366 [opening or maintaining a place for the purpose of selling or giving away marijuana] as statutes to which the defense applies.
It is getting harder and harder for recalcitrant prosecutors to argue that California law does not permit retail medical marijuana dispensaries. But, as this opinion suggests, there are still other ways that California's horribly vague law can be a trap for the unwary in the hands of a drug war-style prosecutor. The particulars of the non-profit operation requirement remain almost entirely unclear, for example. A Los Angeles-area appellate decision from the spring highlights some of the problems. (Frankly, I think the "collective and cooperative" statute would almost certainly be found unconstitutionally vague if it were not for the fact that a vagueness holding would presumably mean striking down the defense entirely, which would obviously be of no help to defendants. I'm fairly certain this is why the issue is never raised in these cases.)
This recent holding is good news for medical marijuana advocates in California. But unless and until the legislature gets their act together and passes comprehensive statewide regulations, a steady stream of appeals attempting to make sense of the mess in place now will almost surely continue.
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.
Thursday, July 3, 2014
The federal government has been taking a hands-off approach in Colorado (at least, so far). If that ever changes, however, Colorado operators are sure to be facing lengthy sentences. A recent case from the Eighth Circuit serves as a good reminder of this fact.
In the case, an Iowa man named Robert Meeks participated in a marijuana growing operation that netted between 300 and 500 marijuana plants annually. He was convicted of conspiracy to manufacture 1,000 or more marijuana plants. To make matters worse for Meeks, in 1987 he was convicted of aiding and abetting the distribution of cocaine. As a result, Meeks was subject to a 20 year mandatory minimum sentence.
On appeal, Meeks argued (among other things) that the sentence amounted to cruel and unusual punishment. Not surprisingly for those familiar with the caselaw in this area, the appeals court rejected that argument:
The district court sentenced Meeks to the mandatory minimum sentence of 240 months’ imprisonment. This sentence was based on the jury’s special finding that the conspiracy involved 1,000 or more marijuana plants and on the fact that Meeks had previously been convicted of a felony drug offense. See 21 U.S.C. §§ 841(b)(1)(A), 851. We repeatedly have held that applying a mandatory minimum penalty for drug offenses does not violate the Eighth Amendment. United States v. Garcia, 521 F.3d 898, 901 (8th Cir. 2008) (collecting cases). Meeks argues, however, that the 20-year mandatory minimum sentence is grossly disproportionate to the underlying crime because (1) the conspiracy involved the manufacture and sale of marijuana rather than “harder-core” substances, such as cocaine; (2) the prior drug conviction which qualified Meeks for the mandatory minimum occurred twenty-six years ago; (3) the sentence results in a near-life sentence given Meeks’s age; and (4) the profit from the growing and sales operation was negligible. None of these arguments demonstrates that Meeks’s case is the extreme case that violates the Eighth Amendment. See United States v. Burton, 894 F.2d 188, 190, 192 (6th Cir. 1990) (holding that marijuana’s Schedule I classification is not irrational, and thus the resulting penalties do not violate the Eighth Amendment); United States v. Fogarty, 692 F.2d 542, 547-48 (8th Cir. 1982) (holding that marijuana’s Schedule I classification is not irrational); United States v. Gallegos, 553 F. App’x 527, 532-33 (6th Cir. 2014) (holding that 20-year mandatory minimum sentence for conspiring to distribute at least 1,000 kilograms of marijuana did not violate the Eighth Amendment); United States v. Hoffman, 710 F.3d 1228, 1232-33 (11th Cir. 2013) (rejecting argument that life sentence based on convictions that occurred approximately twenty-five years earlier when defendant was a juvenile constituted cruel and unusual punishment); United States v. Mathison, 157 F.3d 541, 551 (8th Cir. 1998) (holding that a sentence “although in excess of a defendant’s life expectancy, does not violate the Eighth Amendment”); Ewing, 538 U.S. at 28-30 (holding that the defendant’s sentence of 25 years’ to life imprisonment was not unconstitutionally disproportionate where the defendant stole three golf clubs worth about $1,200 and was a recidivist). Accordingly, we conclude that a term of 240 months’ imprisonment, imposed for Meeks’s offense of felony drug conspiracy under 21 U.S.C. §§ 841(b)(1)(A), is not “grossly disproportionate,” Ewing, 538 U.S. at 30, and we affirm his sentence.
Wednesday, June 11, 2014
Simple possession of marijuana is a federal crime. Only a very very very small fraction of marijuana possession cases end up in federal court (for example, in 2010, there were about 1,000 federal marijuana possession cases disposed of in federal court (PDF) and 750,000 simple marijuana arrests nationwide.) Compared to the number of people who use and smoke marijuana every year, the number of federal marijuana possession prosecutions is ridiculously small. About 25 million Americans use the drug every year. But only an unlucky 1,000 or so end up in federal court for possessing it.
Of course, even most of the marijuana simple possession defendants who end up in federal court are not facing very serious penalties--a first offense is a misdemeanor and carries no mandatory prison time.
But the cliffs and bright lines of the federal sentencing guidelines--even in their advisory state--can sometimes change the equation and result in real federal time for possession of small amounts of marijuana. Yesterday, in an unpublished decision (PDF), the Eleventh Circuit upheld a federal gun sentence that included an additional 20 months for possession of less than 2 grams of marijuana.
Here are the relevant details:
Jabriel Fitzgerald Lakes appeals his 58-month sentence, imposed after pleading guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At the sentencing hearing, the district court enhanced Lakes’ base offense level by four points pursuant to U.S.S.G. § 2K2.1(b)(6)(B) because Lakes “used or possessed a firearm . . . in connection with another felony offense.” The district court found that, due to his prior drug convictions, Lakes’s possession of 1.8 grams of marijuana at the same time as his possession of a firearm constituted “another felony offense” under the language of 21 U.S.C. § 844(a). The court then imposed a 58-month sentence, which fell within the applicable guideline range of 57 to 71 months’ imprisonment.
Lakes appeals the application of the four-point enhancement to his base offense level as substantively unreasonable, arguing that the resulting sentence is unduly harsh given the circumstances of this case. Lakes argues that application of the enhancement “resulted in a grossly disproportional sentence in light of the actual amount of marijuana” in his possession at the time of arrest. While Lakes concedes in his brief that his prior drug convictions would render him ineligible to receive misdemeanor treatment on the marijuana charge under 21 U.S.C. §§ 841(b)(4) and 844, he argues that an additional 20 months of imprisonment for possession of less than 2 grams of marijuana is patently unreasonable.
At his sentencing hearing, Lakes pointed out that his applicable guideline range which would have been 37 to 46 months without the enhancement, jumped to 57 to 71 months “for such a small amount of drugs.” As stated by his lawyer at sentencing: “As a practical matter I don’t know that you could cover up my thumbnail with 1.8 grams of marijuana . . . I am certainly not excusing any of this stuff, but it’s just a small amount that—and such a large enhancement, really, for such a small amount of drugs.” Lakes stated that he was holding the marijuana for a friend, and not for himself. Accordingly, he argued, the application of the enhancement does not serve the factors enumerated in § 3553(a).
After three prior drug convictions, Lakes was caught with a loaded firearm while in possession of three separate bags of marijuana, subjecting him to the four- level enhancement under the advisory guidelines. The record demonstrates that the district court considered the parties’ arguments, the presentence investigation report, the Guidelines and the § 3553(a) factors when it pronounced its sentence. The sentence is within, and at the low end of the applicable guideline range. It is also below the statutory maximum, further lending itself to a finding of reasonableness. Thus, Lakes has not met his burden of showing that the district court abused its discretion in applying the enhancement. We affirm the district court’s sentence as reasonable.
Wednesday, May 21, 2014
On Monday, a New Mexico appeals court upheld an order requiring an employer (and its insurance company) to pay for an employee's medical marijuana. The decision involves a worker who was seriously injured on the job. The employer did not dispute the employee's eligiblity for worker's compensation generally, but objected to coverage of medical marijuana. In what, to my knowledge, is a first, the court held that medical marijuana is covered under the New Mexico Workers' Compensation Act.
Here's an overview of the case, from the opinion's introduction (PDF):
We consider in this appeal whether, under the Workers' Compensation Act (theAct), NMSA 1978, §§ 52-1-1 to -70 (1929, as amended through 2013), an employer and insurer must reimburse an injured worker for medical marijuana used pursuant to the Lynn and Erin Compassionate Use Act (Compassionate Use Act), NMSA 1978, §§ 26-2B-1 to -7 (2007). The workers' compensation judge (WCJ) found that Worker Gregory Vialpando was qualified to participate in the State of New Mexico Department of Health Medical Cannabis Program authorized by the Compassionate Use Act and that such treatment would be reasonable and necessary medical care. The WCJ ordered Worker to pay for medical marijuana through the program and Employer and Insurer Ben's Automotive Services and Redwood Fire & Casualty (collectively, Employer) to reimburse Worker. Employer appeals, arguing that (1) the WCJ erred because his order is illegal and unenforceable under federal law and also thereby contrary to public policy, and (2) the Act and regulations promulgated pursuant thereto do not recognize reimbursement for medical marijuana. Because we agree with the WCJ that the Act authorizes reimbursement for medical marijuana, we affirm.
The outcome is a bit of a surprise since it seems the employer is being ordered to commit a federal crime. The court's discussion on that point is perhaps the most interesting part of the opinion (though the whole thing is worth a read for those who follow marijuana law.) It seems that sloppy lawyering on the part of the employer/insurer may have played a role in the outcome. Though the employer raised the preemption issue generally, it apparently failed to cite to a specific federal statute it would be violating by paying for its employee's marijuana.
Employer does not attempt to challenge the legality of the Compassionate Use Act. Instead, Employer asserts that, because marijuana remains a controlled substance under federal law, the order to reimburse Worker for money spent purchasing a course of medical marijuana “essentially requires” Employer to commit a federal crime. However, Employer does not cite to any federal statute it would be forced to violate, and we will not search for such a statute. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review unclear arguments, or guess at what [a party’s] arguments might be.”).
Also of note, the court's discussion of whether requiring an employer to pay for medical marijuana is at-odds with federal public policy:
Employer also argues that the order should be reversed because it is contrary to federal public policy as reflected in the CSA and Gonzales. Worker contends that federal public policy supports medical marijuana because the Department of Justice has announced a somewhat deferential enforcement policy. Although not dispositive, we note that the Department of Justice has recently offered what we view as equivocal statements about state laws allowing marijuana use for medical and even recreational purposes. On one hand, the Department of Justice affirmed that marijuana remains illegal under the CSA and that federal prosecutors will continue to aggressively enforce the statute. But, on the other hand, and in the same documents, the Department of Justice identified eight areas of enforcement priority and indicated that outside of those priorities it would generally defer to state and local authorities. In addition, the Department of Justice stated that it informed the Governors of Washington and Colorado, two states that voted to legalize possession of marijuana and regulate its production and distribution, that it would defer its right to challenge those laws. We also observe that New Mexico public policy is clear. Our State Legislature passed the Lynn and Erin Compassionate Use Act “to allow the beneficial use of medical cannabis in a regulated system for alleviating symptoms caused by debilitating medical conditions and their medical treatments.” Section 26-2B-2. We decline to reverse the order on the basis of federal law or public policy.
I'm not sure how much precedential value the opinion has. If the employer's attorneys were more thorough, I don't think they would have had much trouble pointing to a federal statute that they would be forced to violate by paying for marijuana (21 USC 844, as an accomplice, comes to mind.) But, because the employer didn't highlight a specific statute, the Court of Appeal was able to side-step the issue. I suspect attorneys for employers/insurers in future cases will be careful not to make this same mistake.