Tuesday, March 25, 2014
Add New Jersey to the list of states which have introduced legalization/recreational marijuana bills this year.
Yesterday State Senator Nicholas Scutari introduced S 1896 which would legalize possession of less than one ounce of marijuana for anyone 21 or older. The bill also allows individuals to grow up to 6 plants. People who are interested in operating a "marijuana establishment" will apply for a license from the newly renamed Division of Alcoholic Beverage and Marijuana Control. A 7% sales tax, which would not apply to medical marijuana, would be used for worthwhile purposes including repairing NJ's transportation infrastructure.
Chris Christie's probable reaction from statements at a town hall-"I will not decriminalize marijuana," Christie said. "I will not permit recreational use, and I will not legalize marijuana, because I think that is the wrong message to send to the children in this state and to young adults."
Monday, March 24, 2014
The title of this post is the headline of this article today in AdAge. In it, the head of Partnership at Drugfree.org (formerly the Partnership for a Drug-Free America) talks about why his group has declined to run ads criticizing the legalization laws in Colorado and Washington.
Ever since Colorado and Washington state voters legalized recreational marijuana use, Partnership at Drugfree.org has been lobbied to run ads criticizing the decision. But that's the last thing the group wants to do. "A public-service ad that says: 'By the way, voters of Colorado, you don't know what you are doing.' Come on," said Steve Pasierb, the partnership's CEO. Pot legalization is "happening in America," he added.
As I've said before, I don't think we've quite reached the place where we can say with certainty that nationwide legalization is inevitable (more likely than not, yes, but I believe there is still the possibility of a backlash). But, when the head of the group behind the "this is your brain" ads acknowledges legalization is "happening in America," it is certainly a sign that the point of no return may be near.
As reported in this new Denver Post article, headlined "Colorado Supreme Court OKs lawyers to work with marijuana businesses," an notable amendment was made today to the Colorado Rules of Professional Conduct. Here are the basics (with my emphasis added):
Colorado's lawyers now have the state's permission to work with marijuana businesses, after the Colorado Supreme Court approved a rule change Monday that eliminates the threat of ethics sanctions.
The new rule gives lawyers the go-ahead to work with marijuana businesses — even though those businesses are breaking federal law — so long as the lawyers don't help businesses also break state law. The updated rule, signed by Chief Justice Nancy Rice, states that a lawyer "may assist a client in conduct that the lawyer reasonably believes is permitted by these constitutional provisions and the statutes, regulations, orders, and other state and local provisions implementing them." The rule requires lawyers also to advise their clients about federal marijuana laws and policies.
The notice of the new rule states that justices Nathan Coats and Allison Eid dissented, though no explanation was given.
Colorado's constitutional amendments legalizing both medical and recreational marijuana left Colorado lawyers in a professional pickle. Because ethics rules prevent lawyers from helping clients do illegal things, the Colorado Bar Association last year declared that lawyers could be in trouble for doing more than giving basic advice to marijuana businesses. Arranging a lease, negotiating a contract or soliciting financial help would all violate ethics rules, according to the bar association's analysis.
Though no attorney had ever been disciplined for working with a marijuana business, the opinion alarmed the growing number of lawyers in Colorado who specialize in cannabis law. They argued that lawyers are crucial in helping marijuana businesses negotiate Colorado's complicated regulations.
Because I am not an expert on legal ethics and state bar rules, I am not sure it is unprecedented or unusual for a state rule to expressly require a state lawyer to advise certain clients about federal law. My instinct is that it is unusual for a state legal ehtics rule to include such a mandate, which in turn reinforces my view that the laws and regulations surround state-legal marijuana industries will be quirky and complicated as long as federal prohibition remains firmly in place. (In addition, I suspect unexplained dissents from the amendment of state ethics rules is also unusual.)
Friday, March 21, 2014
Federal court to hold evidentiary hearing on the constitutionality of marijuana as a Schedule I substance
An Eastern District of California Court will be holding an evidentiary hearing this summer (June 2nd) on the constitutionality of the federal government's treatment of marijuana.
The development comes in the context of a criminal prosecution. The defense requested the hearing to present their claims that marijuana's classification under the Controlled Substances Act is irrational and that the DOJ's current enforcement policies raise equal protection problems. The court granted the request over the government's opposition.
I'm not sure whether the defense will be able to get any sort of discovery leading up to the hearing. But, if so, we may have a chance to learn a bit more about the process that went into the DOJ's advisory memos or what was behind the DEA's nearly decade long delay before it took action and issued its most recent denial of a petition to reschedule marijuana. (I'll admit that my knowledge of federal trial procedure is shaky at best. If anyone has a sense of the likelihood of discovery for this type of hearing, I'd be very interested to know.)
At the very least, I imagine the hearing will generate some media interesting coverage. And even though the government has a pretty strong legal case, I'm not sure how well its position will play out in the court of public opinion. After the President has said marijuana is no more dangerous than alcohol or tobacco, I think defending marijuana's Schedule I status will become an increasingly tricky thing to explain to reporters (of course, alcohol and tobacco are exempt from CSA regulation and scheduling status is not as important as many believe, but that doesn't change the fact that the tension between the President's words and federal law's treatment of marijuana is a tough thing to get around in the media.)
The Eastern District of California Blog has the story (here's the first paragraph):
In United States v. Schweder, et. al., No. 2:11-CR-0449-KJM, the EDCA Court yesterday apparently became the first court in the country to set an evidentiary hearing on defendants' constitutional claims that the continued inclusion of marijuana as a Schedule I controlled substance violates the Equal Protection Clause of the Fifth Amendment and the DOJ's enforcement policies violate the constitutional requirements of federalism and equal sovereignty. The evidentiary hearing is currently set for June 2, 2014, at 9:00 a.m. before Judge Mueller. The government is said to be bringing in attorneys from Main Justice in D.C. to handle the hearing. Here are the briefs: Defendants' Motion to Dismiss And Memorandum Of Law, Government's Opposition, andDefendants' Reply Brief.
Thanks to MMP's Dan Riffle for sending this along.
Not really. But both houses of the state legislature did just pass a limited measure (called Carly’s Law) that is expected to be signed by the governor. The measure would ostensibly legalize a marijuana extract known as Cannabidiol (CBD) to treat epilepsy. CBD, like other forms of marijuana, is banned by federal law, though it contains none of the psychoactive content (THC) normally found in marijuana. For the story, see this Reuters report. Supporters of the law have a Facebook page as well.
The only reason this development is even worth noting is that it’s occurring in Alabama, the heart of the deep South, where the marijuana reform movement has yet to make any headway. But even in that context, the measure is a rather small victory for reformers. Vanishingly small. Indeed, I’m confident saying this would be the narrowest medical marijuana law any state has troubled to pass, and it might not even meet its quite limited ambitions.
The text of the house and senate versions of the bill can be found here. In a nutshell (it’s a big nut), the law creates an affirmative defense against prosecution for simple possession of CBD by someone who has been diagnosed by a University of Alabama,Birmingham employed physician, as suffering from a debilitating epileptic condition; and for whom a UAB employed physician has also prescribed CBD. Lastly, the UAB shall be the sole supplier of CBD for such persons (the law provides legal protections for UAB employees). Oh, and the law has a sunset provision—it expires in 5 years.
To explain how limited (and potentially ineffective) the measure is, consider that: (1) patients can still be charged with possession of CBD and they (rather than the prosecution) bear the burden of persuading a jury that their possession of the drug was in compliance with the law; (2) CBD isn’t for everybody, especially those who believe marijuana’s medical benefits stem from THC; (3) the provision only protects those suffering from serious epilepsy, and not the myriad other conditions for which other states have allowed treatment (wasting syndrome, PTSD, glaucoma, etc.); (4) patients must be under the care of a UAB employed physician, not just any state-licensed physician; (5) the law requires a physician prescription, which, as I explained in a earlier comment regarding NY’s proposed medical marijuana law, might be impossible to get; that’s because the DEA can take away a physician’s authority to prescribe any legal drug if the physician prescribes a Schedule I controlled substance like CBD; (6) patients must obtain their CBD from the UAB, but the UAB probably can’t supply CBD; as I’ve pointed out repeatedly, direct state supply of marijuana is preempted by federal law, and regardless of whether the DOJ would sue to stop UAB, many other people could probably do so, meaning that perhaps no one – not even sufferers of serious epileptic conditions being treated by UAB physicians who don’t mind putting their medical practices at risk – will get the drug.
When it comes to marijuana-related violence, most of the focus today is on "the drug cartels"--specifically, it seems, Mexican drug trafficking organizations. Though the attention is well deserved, I sometimes feel like black market violence right here at home is often overlooked. I think this may be because of a belief that most illegal marijuana dealers are just peace loving stoners. There's probably some truth to that.
But it is important to remember that, even so, violence is still a part of the domestic marijuana market. The facts from this Texas appeals court decision from earlier this week provides a sad reminder of the sort of black market violence that legalization could help to reduce:
In 1993, Fortino Delangel was working at a used car dealership from which appellant had purchased two vehicles. After the second purchase, appellant asked Delangel if he knew anyone who sold marijuana. Delangel contacted his brother-in-law, Jose Guerrero, and asked if he knew anyone who sold marijuana. In turn, Guerrero contacted Salvador Vargas. With Delangel and Guerrero acting as middlemen, appellant and Vargas agreed that appellant would purchase approximately thirty pounds of marijuana from Vargas. Delangel understood that appellant would compensate him for his participation, although the precise amount of that compensation was not clear.
Delangel, Guerrero, appellant, and an unidentified companion of appellant, drove in two cars to Room 28 at the Lafronda Motel in South Houston to meet with Vargas. Delangel and appellant rode in separate cars. Delangel testified that he had never met Vargas before that evening.
Vargas initially stated that only one individual could come into the room; he relented when appellant insisted that all four men be allowed to enter. Appellant's unidentified companion stood near the door inside the room and Delangel stood off to the side of the room with Guerrero while Vargas and appellant conducted the drug transaction.
Appellant asked Vargas about the marijuana, and Vargas replied, "[W]here is the money[?]" Appellant "opened his jacket" and said "[h]ere's the money." Delangel did not see what was in appellant's jacket, but assumed it was payment for the marijuana.
Vargas removed a "suitcase" from under the bed and handed appellant a package of marijuana from the bag.
Appellant tore each package open with his teeth, smelled the marijuana, and told Vargas, "[T]his is the money." However, rather than give Vargas the money, appellant pulled out a gun and shot him in the chest. Vargas fell forward onto the floor of the room and died shortly thereafter.
Sadly, cases like this one aren't all that unusual. But I think they are worth trying to call more attention to.
Of course, if someone is intent on committing a robbery changing the marijuana laws won't stop them. But forcing the marijuana trade underground is a recipe for (and certainly increases) this type of violence. Illegal dealers are sitting targets for robberies like this because they have a valuable product and sell it behind closed doors, without video cameras to record customers. As a result, there is a steady stream of robbery/murder cases that center around marijuana deals gone bad. This is one of the more compelling reasons to support legalization, in my view, though it is often overshadowed today by the more pressing black market concern of the drug cartels.
Thursday, March 20, 2014
ACLU of Washington State reports drop in low-level marijuana offense court filings after legalization initiative
As detailed in this press release, the ACLU of Washington State has some new data on one criminal justice reality dramtically impacted by marijuana reform. Here are the details:
Passed by Washington voters on November 6, 2012, Initiative 502 legalized marijuana possession for adults age 21 and over when it went into effect 30 days later. New data show the law is having a dramatic effect on prosecutions for misdemeanor marijuana possession offenses in Washington courts. The ACLU of Washington’s analysis of court data, provided by the Administrative Office of the Courts, reveals that filings for low-level marijuana offenses have precipitously decreased from 2009 to 2013:• 2009 – 7964• 2010 – 6743• 2011 – 6879• 2012 – 5531• 2013 – 120
“The data strongly suggest that I-502 has achieved one of its primary goals – to free up limited police and prosecutorial resources. These resources can now be used for other important public safety concerns,” says Mark Cooke, Criminal Justice Policy Counsel for the ACLU of Washington....
Although the overall number of low-level marijuana offenses for people age 21 and over has decreased significantly, it appears that racial bias still exists in the system. An African American adult is still about three times more likely to have a low-level marijuana offense filed against him or her than a white adult.
Initiative 502 legalized possession of up to one ounce of marijuana for adults 21 and over. However, possession of more than an ounce, but no more than 40 grams, remains a misdemeanor. Exceeding the one-ounce threshold is a likely explanation for the presence of 120 misdemeanor filings against adults in 2013.
Cross posted (with some added commentary) at Sentencing Law & Policy
Pat Oglesby of newrevenue.org has just posted his analysis of two competing proposals to legalize marijuana in Oregon, focusing on the very different revenue generating models espoused by each proposal.
One proposal proceeds along the lines of what Colorado and Washington have done. It would tax marijuana sold by private vendors, though the Oregon tax would be based (loosely) on the THC content of the marijuana (or more precisely, a heuristic approximating THC content).
The second proposal would be quite novel for marijuana, though states have tried something similar regarding sales of alcoholic beverages. Namely, it would give a state commission a monopoly over the sale of marijuana. Since the state would set the price of (legal) marijuana and would cut out the middle-man (i.e., private dealers), this proposal could generate more revenue for
the state than the more common tax model (especially one with a low tax rate). However, as I’ve explained before (p. 25 and 34) – and as Pat notes – a law creating state owned and operated marijuana stores would probably be preempted by the federal Controlled Substances Act, so this novel proposal might be a non-starter for Oregon. Pat’s analysis is short, insightful, and accessible – well worth the read.
Wednesday, March 19, 2014
Yesterday, the National Journal published an article asking how Maryland Governor Martin O'Malley's marijuana prohibitionist outlook might impact his possible 2016 bid for the Democratic presidential nomination. The piece ran with this subheadling: "Would Democrats support an antimarijuana candidate for president? O'Malley may be about to find out."
The story is another sign of how quickly the conventional political wisdom is changing when it comes to marijuana. And it raises an interesting question. Is it possible that marijuana reform could become a litmus test for Democratic candidates in the coming years?
Though marijuana reform and marriage equality are often compared (perhaps too often), I can't help but think back to the reaction when Gavin Newsom began marrying same sex couples. I think a lot of people have forgotten that, at the time, Democrats couldn't run away from him fast enough. Even more striking: just a year earlier, in the 2004 Presidential race, many people argued Howard Dean was unelectable because he had signed a civil union bill in Vermont (as it turned out, yelling into a bad sound system is what made him unelectable).
Fast forward ten years. Today, opposition to marriage equality would be a deal breaker in a statewide Democratic primary in many (perhaps most) parts of the country. Some might remember a period of media focus last year on the Democratic Senators who still opposed same sex marriage to the point where it became sort of a count down.
I'm not sure we can say whether marijuana will ever reach that same tipping point. There are reasons to think it may not. Unlike same sex marriage, which directly relates to equality under the law (a core Democratic value), marijuana reform's relationship to civil rights principles is arguably much less direct.
Either way, the prospect of marijuana as a Democratic litmus test is certainly interesting to consider. The National Journal article notes, for example, that O'Malley will soon have to take action on a marijuana decriminalization bill and asks: "Can O'Malley possibly veto this sort of bill and go on to be taken seriously as a national Democratic contender for president?"
This will be something to watch very closely in 2016. If the Democratic presidential candidates (assuming there is more than one) feel the need to voice support for marijuana reform (even limited support like for decriminalization), it could have a huge ripple effect.
(Hat tip to Eric Sterling for sending the article my way.)
Tuesday, March 18, 2014
Stephen Colbert had this amusing little segment about marijuana taxes recently:
Though Colbert is hilarious as always, those wanting serious coverage of pot taxes should be sure to follow Pat Oglesby's always fantastic work at http://newrevenue.org.
Professional ethics rules has been a bit of a sleeper issue in the area of marijuana law reform. To be sure, it hasn't been overlloked entirely. A handful of states have issued opinions on the topic and Sam Kamin and Eli Wald wrote an excellent law review article considering the question. But in most states that have enacted reforms, there has been no official analysis of how the ethics rules might apply to medical marijuana lawyers.
Nevada appears to be taking a more proactive approach:
Facing a conflict between state and federal law, attorneys in Nevada are asking the state Supreme Court to set rules to protect lawyers who advise clients on medical marijuana issues.
Nevada Bar Association President Alan Lefebvre said Thursday the request submitted seeking expedited state high court action comes with private and public attorneys unsure whether they can advise clients how to handle a medical marijuana law that takes effect April 1.
The state bar governing board submitted its petition Tuesday to the Nevada Supreme Court seeking an amendment to rules of professional conduct so lawyers can safely provide legal advice about medical marijuana.
The state high court is expected to hold a public hearing before making a decision.
Via Nicole Flatow at ThinkProgress, researchers are one step closer to studying the use of medical marijuana to treat PTSD.
On Friday, the federal government took a potentially momentous step back from this position, granting researchers who have for years borne the brunt of this policy access to a legal supply of marijuana. The decision means a psychiatry professor at the University of Arizona who specializes in treating veterans may for the first time be able to perform a triple-blind study on marijuana and post-traumatic stress disorder.
The Multidisciplinary Association for Psychedelic Studies (MAPS) was granted permission to purchase marijuana fro the National Institute on Drug Abuse. The DEA still needs to sign off but it seems likely that it will given this development.
As I discuss in more detail in this law review article, I find the Controlled Substances Act's research restrictions for Schedule I substances especially hard to defend (or, really, to make any sense of at all).
The CSA places substances into Schedule I if they have no currently accepted medical use. Importantly, this category includes both (1) substances we are fairly certain have no medical value and (2) substances that we think may have promise as medicines even if we aren't yet sure either way. (Marijuana is, of course, the most high profile of the latter sort of substance.)
It seems to me that the two categories should be treated very differently as far as research goes. If we know a substance has no medicinal value, then we arguably lose very little by making it hard to study the substance. But if preliminary studies indicate the substance has medicinal value--as, for example, with marijuana--then I'd think we'd want to encourage further study, not make it more difficult.
The CSA, however, puts up the same roadblocks for studying all Schedule I substances, including those that we think hold medical promise. The only conceivable reasons for doing this are leakage concerns (ie, that substances approved for research will leak into the black market) or that the substance is so very dangerous that we need to be extra cautious when studying its medical value.
Certainly neither of these are legitimate concerns when it comes to marijuana. The only people in the United States who have any trouble getting their hands on marijuana are researchers. And the health risks of marijuana are certainly no worse than many FDA approved drugs.
All this is to say this while the news that the federal government may be easing up when it comes to studying marijuana is worth cheering, the core of the problem remains: a regulatory scheme that makes the study of Schedule I substances difficult, even for substances that have shown promise as medicines.
In some parts of the country people are proudly announcing plans to get rich selling marijuana legally. But in Missouri, a man who ran a sophisticated illegal marijuana business was just sentenced to 30 years.
Not long ago, these sorts of stories were reported as big drug war wins. But the Riverfront Times ends its report on the case with this observation:
Incarcerating Henderson will cost taxpayers more than $800,000 at an average of about $27,000 per year.
Meanwhile, in Colorado, the state collected about $3.5 million in taxes from recreational marijuana sales in the month of January alone.
Seeing this story also brought to mind an article from April Short at Salon last Friday, which is well worth a read: "Legal Weed's Race Problem: White Men Get Rich, Black Men Stay in Prison."
Monday, March 17, 2014
Financial news outlets are increasingly paying attention to marijuana businesses. As a result, they've also taken an interest in marijuana laws. This weekend, for eample, the Motley Fool ran a story under the headline "Your State Could Legalize Marijuana Sooner Than You Think."
There has been no end to the wild speculation over the amount of money legalized marijuana sales would bring in. And with no data to report, speculation is pretty much all anyone could do. But now with Colorado's recent announcement that it took in $2 million in tax revenues on $14 million in sales, the great debate over the economic merits of legalization is about to heat up to another level. With numerous U.S. states still saddled with crippling budget deficits, this could be a huge opportunity for them to generate some extra cash to turn things around.
For example, Pennsylvania's Senate Bill 528, which would legalize and regulate recreational use of marijuana, is currently in committee, and I'd be willing to bet that Colorado's revenue has come up in recent discussions. The state is currently facing a budget deficit of more than $1 billion due to other tax changes, and could really use any help it can get to bridge the gap.
I wonder to what extent this sort of outlook helped to drive the explosion in marijuana stock prices at the beginning of the new year (which has since been dialed back considerably over the past few weeks).
As a marijuana legalization supporter, I'd be glad to see state legislatures embrace reform more quickly than anticipated. And I can see how investors might look at polls showing more than half of voters favoring legalization (in combination with tax revenue numbers) and conclude that this is what will happen.
But let's not forget: even though support for medical marijuana has hovered around the 75% range for 15 years or so, less than half the states have medical marijuana laws.
There are certainly reasons that the pace might be faster for legalization than it has been for medical marijuana. The political tide has now turned decidedly against the drug war, so politicians who shied away from marijuana reforms in the past may begin to realize there is political value in supporting them. And the fact that investors are taking interest could itself help to move the chains by expanding the world of people actively seeking reform beyond advocates driven exclusively by public policy concerns.
Still, the fact that California Governor Jerry Brown still hasn't caught on makes me very skeptical that the Pennsylvania legislature will be backing legalization this session or the next. So although I think we'll see legalization take hold more quickly than medical marijuana has (assuming current political trends continue), it's important to take account of the unique politics of drug policy in general and marijuana in particular before reading too much into the impact that current polling and Colorado tax revenue numbers will have on elected officials.
Saturday, March 15, 2014
The retroactive application of Amendment 64 wasn't the only marijuana law issue before the Colorado appellate courts this week. In a decision that affects a much narrower group of defendants than the Amendment 64 issue, an appeals court (PDF) held that a doctor's post-arrest assessment will not help medical marijuana patients who want to grow more than 6 plants:
Section 14(4)(b) (the 14(4)(b) defense) of the Medical Marijuana Amendment (Amendment), article XVIII of the Colorado Constitution, creates an affirmative defense to the offense of cultivating marijuana, where the plants are needed for medical use. Whether this defense can be asserted based on a physician’s assessment obtained after the offense has been committed presents a novel question. We conclude that the 14(4)(b) defense cannot be raised based on such an after-the-fact assessment. Therefore, we affirm the judgment of conviction of defendant, Stephen S. Fioco, entered on a jury verdict finding him guilty of cultivating more than six but fewer than thirty marijuana plants.
Friday, March 14, 2014
In this recent post, I requested (and still seek) information about the intersection of state marijuana reform and traditional family law. For example, I am still wondering if there is any history in states with reformed marijuana of efforts to use (or any formal rejection of) arguments in custody disputes concerning one parent's legal use of marijuana.
Notably, CNN's on-going coverage of marijuana reform has brought these questions to the mainstream media via this new article headlined "Does medical marijuana equal bad parenting?". Here is an excerpt from the lengthy and effective article, which prompts the question in the title of this post:
For agencies enlisted to protect children, marijuana in the home has for decades been an invitation for serious speculation about a parent's fitness. But as the narrative of medical marijuana legalization unfolds across the country, so does a complicated parallel story of patients whose children are being removed to protective custody -- or worse, permanently removed -- ostensibly because of their legal marijuana use. Most medical marijuana legislation does not seem to account for this possibility.
"The judges, the police, CPS (child protective services) have been fighting this war on drugs for so long," said Maria Green, a medical marijuana patient in Lansing, Michigan, whose infant daughter Bree was placed in foster care last year. "They just can't get it out of their minds that this is an 'evil' drug they have to fight against."
To be sure, each case has unique circumstances, and child welfare officials at both the state and local level do not comment about specific cases while they are in process, or even once they are closed. Further complicating the picture: While medical marijuana use is legal in 20 states and the District of Columbia, the federal Drug Enforcement Administration classifies the drug as a Schedule I substance with "no currently accepted medical use in the United States" and high potential for abuse.
In cases involving removal of children, medical marijuana found in the home would seem to be barely distinguishable from other Schedule I substances -- such as heroin or ecstasy. "CPS handles (cases) the same way regardless of what the drug ... is," said Michael Weston, deputy director of public affairs and outreach programs at the California Department of Social Services. "Everything is weighed in reference to, 'Is this a danger to the child? Is there a potential harm to the child? Is this showing signs of abuse or neglect?'"
There have been no substantive studies yet to determine how medical marijuana impacts parenting. There is early data, according to a researcher, suggesting a small increase in child poisonings among medical marijuana patients in states where it is legal. And early epidemiological data draws a link between medical cannabis use and increased corporal punishment and physical abuse -- but not neglect.
"We really don't know what's going on," said Bridget Freisthler, an associate professor in the department of social welfare at UCLA, who studies medical marijuana use among parents. "We don't know whether (medical marijuana) affects parenting or whether caseworkers need to be concerned when they find out this is happening in the home."
Parents fighting to maintain custody of their children say the mere presence of medical marijuana is an almost reflexive trigger for removal. They cite scores of anecdotes concentrated in states where medical cannabis is legal -- children removed from homes where cannabis is used or grown; babies testing positive for marijuana at birth and subsequently removed; children removed because mothers breastfed at the same time that they used medical marijuana.
"Marijuana use does not make someone a bad parent," said Sara Arnold, co-founder of the Family Law and Cannabis Alliance. "It should not be the primary or sole basis for any Child Protective Services investigation."
But simply having a medical marijuana card does not mean that that patient is acting responsibly with the medication; nor does the mere presence of marijuana imply lack of safety, according to experts. "Medical marijuana as a risk factor by itself doesn't mean the child isn't safe," said Michael Piraino, chief executive officer of National CASA for Children, an advocacy group for abused and neglected children. "Most kids have had risk factors but remain safe. "But how do you put together all these pieces of information, of evidence, that a child is or isn't safe?"
Thursday, March 13, 2014
The interwebs are abuzz with news today that some pre-Amendment 64 marijuana offenders may be able to get their possession convictions wiped away. The appellant, Brandi Jessica Russell, was convicted of possessing less than one ounce of marijuana in August 2011 based on conduct that "occurred twenty months beforeAmendment 64's effective date."
In Colorado, courts presume a change in the law has prospective application only, absent an express intent to the contrary. This presumption can be overcome, however, in some circumstances. Specifically: "Section 18-1-410(1)(f)(I), C.R.S. 2013, permits a defendant to receive postconviction relief if 'there has been significant change in the law, applied to the applicant’s conviction or sentence, allowing in the interests of justice retroactive application of the changed legal standard.'"
The Court held that "Amendment 64, by decriminalizing the personal use or possession of one ounce or less of marijuana, meets the statutory requirement for 'a significant change in the law' and eliminates and thus mitigates the penalties for persons convicted of engaging in such conduct." In reaching this decision, the Court relied on a 1970s-era precedent that reduced some marijuana offenses from serious felonies to misdemeanors. The earlier case seems to be directly on point. Though I do not know anything about this area of the law, the Court's discussion leaves the impression that its decision is on pretty firm ground and unlikely to be overturned in the event the government appeals.
The decision does not appear to open the door for everyone who has a Colorado marijuana possession. The opinion notes that the 1970s case applies to defendants "on direct appeal" and the holding on this issue concludes: "Because defendant’s convictions were pending appeal when Amendment 64 became effective on December 10, 2012, her convictions for possession of marijuana concentrate and less than one ounce of marijuana must be reversed and vacated."
Similarly, because the decision is based on Colorado state law, I suspect it is unlikely to have any significant impact in other states (e.g., Washington), unless those states have similar retroactivity statutes.
Though the decision is limited (both inside Colorado and in its likely impact outside the state), it will give Coloradans with marijuana possession convictions on direct appeal the opportunity to get their record (at least for that charge) cleared. The case also raises the question of whether state legislatures may want to consider going further and permitting those with older convictions to seek expungement.
You can read the decision here (PDF).
Federal law makes it a crime for anyone who is an "unlawful user of or addicted to any controlled substance" to possess a gun or ammunition. It is also illegal to sell a gun to someone you know or have "reasonable cause to believe" is an unlawful user or addicted to a controlled substance.
With the rise of medical marijuana laws and the Supreme Court's determination that the Second Amendment grants an individual right to possess a firearm, is there any problem applying these gun laws to state-recognized medical marijuana patients?
Earlier this week, a Nevada District Court considered and rejected a challenge to these laws by a medical marijuana patient:
In September 2011, because of the growing number of states that permit the medicinal use of marijuana, the ATF issued an "Open Letter." Bureau of Alcohol, Tobacco, Firearms and Explosives, Open Letter, Open Letter to All Federal Firearms Licensees-The use ofmarijuana for medical purpose and its applicability to Federal firearms laws.
Notably, this letter informed all individuals licensed to sell firearms ("Federal Firearms Licensees" or "FFLs") that "if [the seller is] aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have 'reasonable cause to believe' that the person is an unlawful user of a controlled substance." Id. Thus, the letter advised FFLs and provided them notice that the agency which issues their license (the BATFE) interpreted § 922 as not only criminalizing the possession of a firearm by a registry card holder, but also the sale of a firearm to a registry card holder.
In the fall of 2010, due to her struggle with severe dysmenorrhea, Plaintiff applied for and obtained a state marijuana registry card. Plaintiff subsequently applied to purchase a firearm at a gun store in Mound House, Nevada. However, the store's proprietor prevented her from completing her application he knew she carried a state marijuana registry card.
As a result, Plaintiff filed this lawsuit in October 2011. In her suit, Plaintiff challenges the constitutionality of the two provisions of the Gun Control Act that effectively criminalize the sale and possession of a firearm by the holder of a registry card: 18 U.S.C. §§ 922(d)(3) and (g)(3). Plaintiff also challenges the constitutionality of one of the accompanying regulations, 27 C.F.R. § 478.11, that defines the term "unlawful user of or addicted to any controlled substance" as used in §§ 922(d)(3) and (g)(3). Finally, Plaintiff challenges the ATF policy that federal firearms licensees may not sell a firearm to persons they know are "in possession of a card authorizing the possession and use of marijuana under State law . . .." ATF Open Letter. Plaintiff claims that these provisions, along with the ATF policy, violate her Second Amendment right to "keep and bear Arms"; her First Amendment right to free speech; as well as her rights to substantive due process, procedural due process and equal protection as secured by the Fifth Amendment.
In response to Plaintiff's initiating this action, Defendant filed a Motion to Dismiss . . . which, for the reasons discussed below, the Court grants.
A brief search did not turn up a publicly available version of the decision. But it is up on lexis at Wilson v. Holder, 2014 U.S. Dist. LEXIS 31905.
A California appellate court issued a decision earlier this week considering "whether the odor of burnt marijuana emanating from a vehicle and the observation of burnt marijuana in a pipe inside the vehicle create probable cause to search that vehicle pursuant to the automobile exception to the warrant requirement."
The defendant was a medical marijuana patient and among the issues in the case was whether California's medical marijuana laws impact this question. As I posted yesterday, the Seventh Circuit recently issued some defense-friendly dicta on this question. The California court, however, held squarely for the government.
That appellant possessed a valid 215 card does not vitiate Deputy Griffin's probable cause to search the truck pursuant to the automobile exception.
That California has decriminalized medicinal marijuana in some situations and has reduced the punishment associated with possession of up to an ounce of marijuana does not bar a law enforcement officer from conducting a search pursuant to the automobile exception. Here, Deputy Griffin was entitled to investigate to determine whether appellant possessed marijuanafor personal medical needs and to determine whether he adhered to the CUA's limits on possession. “Otherwise, every qualified patient would be free to violate the intent of the medicalmarijuana program expressed in section 11365.5, and deal marijuana from his car with complete freedom from any reasonable search.” (Strasburg, supra, 148 Cal.App.4th at p. 1060.) Deputy Griffin testified at the preliminary hearing that people often possess more marijuana than allowed under the CUA and “hide” additional quantities of marijuana in their vehicles. It is well settled that even if a defendant makes only personal use of marijuana found in the passenger compartment of a car, a police officer may reasonably suspect additional quantities ofmarijuana might be found in the car. (Dey, supra, 84 Cal.App.4th at p. 1322; Hunter, supra, 133 Cal.App.4th at p. 382 [“discovery of marijuana in the passenger area of defendant's car” did not foreclose possibility of additional “drugs being found in the trunk” and noting “marijuana is a drug that can be concealed in a variety of containers”].)
The full opinion is here (PDF).
Wednesday, March 12, 2014
Marijuana reforms present some interesting Fourth Amendment questions. In particular, does the scent of marijuana give the police probable cause to search in a state where some of the residents (i.e., medical marijuana patients) can legally possess the drug? The issue has been litigated here and there but it's still very much an open question and the answer may depend on the particulars of state law (for example, does the state create an affirmative defense for medical marijuana patients at trial or does it give patients protection from arrest.)
Those who follow (or even have the occasion to litigate) the issue may be interested in some defense-friendly dicta from this recent Seventh Circuit decision on exigent circumstances and the smell of burnt marijuana:
The possession of a small amount of marijuana is far from that rare case. In all of the states in this circuit, mere possession is only a misdemeanor. In fact, in Illinois, possession will soon no longer be per se illegal under state law, as Illinois has begun implementing regulations to permit the use of medical marijuana for qualifying individuals. See Medical Cannabis Pilot Program, ILLINOIS.GOV, http://www2.illinois.gov/gov/mcpp/Pages/default.aspx (visited March 5, 2014). Thus, once this regulatory scheme is in place, the smell of burning marijuana will not necessarily be indicative of any wrongdoing under Illinois law.