Two Major Victories For Student Rights In Federal Courts

Dan Viets speaking at a NORML conference

Dan Viets speaking at a NORML conference

Federal courts have recently rejected the actions of university and college administrators who sought to inflict suspicionless drug tests on students at a public college and to restrict the First Amendment rights of marijuana law reformers at a public university.  Both decisions have important national implications.

Linn Tech Student Drug Testing Case

In 2011, Linn State Technical College administrators declared that they intended to drug test every student who applied for admission to the small, state-funded college located in Osage County, Missouri, a short distance east of Jefferson City.  No other public college or university in America had pursued such a program.  It seemed clear to those who follow such matters that college and university students have the same rights as other adults to be free from unreasonable searches and seizures.  While private institutions are not bound by the restraints of the Fourth Amendment, public tax-supported institutions are.  Nonetheless, Linn Tech seemed determined to pursue inflicting random, suspicionless drug testing on their students.

Tony Rothert, the Legal Director of the ACLU of Missouri, filed suit against Linn Tech.  I filed a “friend of the court” brief on behalf of Students for Sensible Drug Policy, working with Alex Kreit, a law professor from San Diego.

U.S. District Court Judge Nanette Laughrey, sitting in Jefferson City, subsequently issued a decision prohibiting such testing, with a few narrowly-drawn exceptions for those participating in training programs involving heavy machinery or high-voltage electricity.

Linn Tech appealed that decision to the Eighth U.S. Circuit Court of Appeals in St. Louis.  Legal scholars were shocked when a three-judge panel of that Court later sided with Linn Tech.  In a decision which many believed ignored legal precedent and logic, two of three judges on the panel which initially heard the case sided with Linn Tech.

Mr. Rothert then filed for a rehearing of the case by the full 11-judge Court.  Such hearings are rarely granted, but in this case, the Motion was granted.  Following that rehearing, all but two of the judges on the full Court sided with the students and the ACLU, overturning the decision of the three-judge panel.

Still not satisfied, Linn Tech squandered more public tax money pursuing a Petition for Certiorari with the United States Supreme Court.  Civil libertarians were concerned that the current high Court might indeed overturn the Eighth Circuit if it had accepted that Petition for review.  However, on June 5, 2017, the U.S. Supreme Court denied further review in this matter.  Therefore, the decision of the Eighth U.S. Circuit Court is now the final decision in this matter.  Linn Tech administrators have reluctantly acknowledged that they must now follow the Constitution and abandon their effort to impose suspicionless drug testing on their students.

Iowa State University NORML Censorship Case

In another important case closely watched by many across the nation, members of the NORML Chapter at Iowa State University in 2012 applied for approval to print t-shirts which contained the name of the university-recognized organization and included an image of the school’s mascot, “Cy, the Cyclone”.  University administrators first approved those t-shirts, but when the ISU NORML Chapter asked to reprint them, the university caved in to pressure from legislative staff people who had complained that it appeared the university was supporting marijuana legalization.

The Foundation for Individual Rights in Education (FIRE) filed suit on behalf of the officers of the Iowa State University NORML Chapter, alleging content and viewpoint discrimination.  The lawsuit sought to prevent university administrators from treating the NORML Chapter differently from other university-recognized student organizations.  The federal district court in Iowa sided with the students and against the university.  The university appealed to the Eighth U.S. Circuit Court of Appeals in St. Louis, which issued a decision in February of this year upholding the federal district judge’s ruling.

Iowa State University administrators then asked the Eighth U.S. Circuit Court to reconsider its decision.  The Court did so, which caused many to fear that they might change their minds.

However, on June 13, 2017, the Eighth U.S. Circuit Court reaffirmed its earlier decision and went even further, holding that university administrators who prevented the ISU NORML Chapter from using the university’s trademarked images were individually liable for their actions and could, therefore, be ordered to pay damages from their own pockets!

Administrators at the University of Missouri in Columbia have taken similar actions in regard to the MU NORML Chapter.  It is hoped that the decision of the Eighth U.S. Circuit will encourage MU administrators to reconsider their position.

The federal appellate court sent a loud and clear message to university administrators that they are required to respect the Constitutional rights of students, including those who advocate for reform of the marijuana laws.

While Iowa State could do as Linn Tech administrators did and continue to squander more public tax money pursuing an ill-considered position, it is not at all likely the U.S. Supreme Court would grant further review in this matter.

Administrators at the University of Missouri in Columbia have taken similar actions in regard to the MU NORML Chapter.  It is hoped that the decision of the Eighth U.S. Circuit will encourage MU administrators to reconsider their position.

These two decisions have reaffirmed the rights of college and university students to be free from random, suspicionless drug testing and to speak out for drug law reform without censorship by administrators..

 

Safe Streets Alliance et al. v. John Hickenlooper, et al. – Good News, Bad News

C1_8734_r_xA ruling issued on June 7th by the US Court of Appeals for the Tenth Circuit, in response to a series of legal challenges to Colorado’s adult cannabis use regulations, includes both good news and bad news.

The Good News

Most importantly for the legalization movement nationwide, the appeals court rejected the argument raised by the states of Nebraska and Oklahoma that Amendment 64 in Colorado, the voter initiative that legalized and regulated the adult use of marijuana, was preempted by the federal Controlled Substances Act. That argument, made by these neighboring states, if accepted by the court, would have voided Amendment 64.

It should be noted that this was not a definitive ruling on the federal preemption argument. Rather, it was a procedural ruling, finding that only the US Supreme Court has jurisdiction to hear disputes between the states. (The Supreme Court declined to consider a similar challenge in 2016.)

In fact, it was only after the Supreme Court had rejected their motion that the two states elected to raise these same issues with the 10th Circuit, by filing a motion to intervene in the Safe Streets case.

Also a big win, the Circuit Court rejected a similar attempt by a group of sheriffs and prosecutors from Colorado, Kansas, and Nebraska to use the US Controlled Substances Act and the Supremacy Clause of the US Constitution to enjoin the enforcement of Amendment 64. The court found that the Supremacy Clause “does not give rise to a private right of action.”

Hopefully this will give pause to other anti-marijuana zealots out there who might wish to use the federal preemption argument to undermine the various state legalization laws.

The Bad News

The bad news is that the 10th Circuit did reinstate a civil RICO complaint filed by private landowners in Colorado against a state-licensed indoor cultivation center, alleging it had caused a noxious odor that damaged their property value. The appellate court remanded the case back to the US District Court for further proceedings to allow the plaintiffs to attempt to prove their RICO claims.

While this is necessarily concerning to those in the state-legal cultivation industry, since the problems presented by the odors emanating from large grow operations is a theme which has been raised in several Colorado communities, it likely does not open the floodgates for every neighbor to bring a RICO suit against any cultivation center. Rather it likely will accelerate the adoption of the most effective technology by cultivation centers to minimize the odor of marijuana.

In the court’s own words, “We are not suggesting that every private citizen purportedly aggrieved by another person, a group, or an enterprise that is manufacturing, distributing, selling, or using marijuana may pursue a claim under RICO. Nor are we implying that every person tangentially injured in his business or property by such activities has a viable RICO claim. Rather, we hold only that the Reillys alleged sufficient facts to plausibly establish the requisite elements of their claims against the Marijuana Growers here.”

Arizona: Appellate Court Strikes Down Law Banning Medical Marijuana On Campus

Marijuana and the LawAn Arizona appellate court has ruled that a 2012 state law prohibiting the use of medical cannabis on college campuses is unconstitutional. Lifetime NORML Legal Committee member Tom Dean represented the patient-defendant in the case pro bono.

Arizona voters in 2010 narrowly approved a statewide initiative, the Arizona Medical Marijuana Act (AMMA), permitting qualified patients to possess and use medicinal cannabis. The Court determined that the legislature’s decision to later amend the law in order to restrict medical marijuana use on college campuses does not “further the purpose” of the 2010 law and therefore must be struck down.

“By enacting A.R.S. § 15-108(A), the Legislature modified the AMMA to re-criminalize cardholders’ marijuana possession on college and university campuses,” the Court opined. “The statute does not further the purposes of the AMMA; to the contrary, it eliminates some of its protections.”

The Court argued that campuses and university possess the authority to enact their own individual policies restricting medical cannabis use, but that lawmakers can not do so.

The decision overturned a medical-marijuana card holder’s 2015 felony conviction for the possession of a small quantity of cannabis while attending Arizona State University.

The Arizona Attorney General’s Office has not yet publicly stated whether they intend to appeal the ruling to the state Supreme Court.

Houston Has Decriminalized Marijuana, Reveals Conflicting Attitudes and Budget Priorities of Law Enforcement

Cannabis PenaltiesOn March 1, Harris County District Attorney Kim Ogg decriminalized marijuana by instituting the new Misdemeanor Marijuana Diversion Program. This decision in Harris County, which includes the city of Houston, affects more than 4.5 million Texans. As a result, possession of less than 4 ounces of marijuana is now punishable by up to $150, required attendance of a “decision making” class, and no criminal record.

With so many Sheriffs Associations and prosecutors traditionally advocate for maintaining marijuana prohibition, even lobbying our legislators with our tax dollars in order to cash in on asset forfeitures, what happened in Harris County marks a real tipping point for ending prohibition in the state of Texas and reveals a growing organization within law enforcement that wants to correct currently ineffective marijuana policy by deprioritizing arrests for simple possession.

Harris County courts and jails were long overwhelmed by arrests and prosecutions for small marijuana possessions. According to internal data provided from the Harris County District Attorney’s office, the cost of enforcing marijuana prohibition in Harris County tax dollars prior to decriminalization (including court fees, indigent defense, DA fees, jail costs, crime labs and labor costs from local police) were estimated at $26,663,800 annually.

To put that amount of money into perspective, that’s more than enough money for the city of Houston to build a new high school or a 17-bed medical facility every year. Another way to look at it is that these freed up resources can now give prosecutors and police the ability and time required to test the backlog of rape kit evidence and investigate unsolved violent crimes in Harris County. What a concept! Instead of confiscating assets and ruining the lives of nonviolent citizens, we can prosecute the violent criminals that law enforcement are sworn to protect us from.

These estimates don’t include the tax dollars or collateral damage that marijuana prohibition on families including separation from loved ones, lost income from jailed parents or the emotional toll time spent in state custody can have on children. Even for Harris County, these remain real threats under state and federal law.

But after Ogg’s March 1st decision in Harris County, something changed. It was a change that could be felt in the halls of the Texas state capitol. During the Committee hearing on HB81 to decriminalize marijuana in Texas on March 13th, unlike any previous marijuana bill, not a single Sheriff’s Association came to testify against the bill; just one lonely prosecutor from Odessa. By contrast, the halls of the Texas State Capitol filled with members of the Law Enforcement Action Partnership, friendly state Congressman like Rep. Joe Moody (D-El Paso) and Jason Isaac (R-Dripping Springs), Executive Director Jax Finkle of Texas NORML, and Heather Fazio of Texans for Responsible Marijuana Policy all lobbying on our behalf to get HB 81 and SB 170 into committee.

However, as Bob Sechler from the Austin American Statesman recently reported, “Still, some law enforcement representatives are dubious, saying among other things that low-volume pot possession can provide police with probable cause to investigate bigger crimes, and that there currently isn’t a good, on-the-spot test to determine if a driver is under the influence of marijuana.”

The other argument made by Lawrence, that “low-volume pot possession can provide police with probable cause to investigate bigger crimes,” is evidence of a different addiction: an addiction distinct to law enforcement for asset forfeitures. When an informant remains planted on a suspect for decades after a plethora of evidence to close the case, or when law enforcement stops only the cars going south with cash and not the ones going north with drugs, we have what can only be described as an asset forfeiture epidemic lead by the Controlled Substances Act of 1970. Lawrence doesn’t even take into consideration if the detection of marijuana is either a violent or dangerous threat to roadway safety, admitting his worry is he can’t determine if someone is impaired. (Hint: a good indication the driver is not impaired). By that logic, Lawrence implies he is satisfied with the casualties, tax expenses and arrests of nonviolent citizens whose only offense is possession of marijuana, so long as a portion of those arrested lead to “serious” crimes (or asset forfeitures). This erroneous argument is so preposterous he doesn’t appear to realize he is admitting that encountering someone who has consumed marijuana is relatively safe.

So let’s look at the financial motivations of law enforcement that remain loyal to marijuana prohibition. On the other side of Texas from Harris County, on the I-10 corridor near El Paso, federal grants used to be the major motivator for marijuana possession arrests by a self-proclaimed “Boss Hog” in Hudspeth County, where to fill a federal quota the Sheriff infamously arrested Willie Nelson and even Snoop Dog on road tours for possession. Those funds were more bureaucratic in that the grants kept the Sheriff and private jail facilities employed, but the profit motives were parasitic. The Obama administration tried to do away with private prison contracts but Trump and Sessions are bringing them back.

But what about those civil asset forfeitures? Sheriff’s Associations or prosecutors using our tax dollars to lobby for asset forfeitures are more sinister in that not all the money seized gets accurately reported, and since property and money are seized without due process, victims find it difficult and expensive to go to court dockets titled “The State of Texas vs. $10,000,” only to find in some instances a prosecutor instead of a judge in court.

However, looking at the DOJ’s Asset Forfeiture Program Annual report for 2012, the local money being reported as seized just doesn’t add up to the cost of incarcerating so many non-violent people in possession of marijuana. Harris County reported: $1,387,430 in seized assets, more than most other Texas counties. But we would have to add up the entire state total of $31,520,522 in local asset forfeitures before we can get passed the $26,663,800 in annual costs for prosecuting and jailing minor marijuana possessions in just Harris County alone. Federal agencies target all the big asset seizures but according to this inspector general’s report, what gets accurately reported of that money causes more corrupt internal fighting and competition between federal agencies than any shared resources with local law enforcement.

In short, for local jurisdictions, decriminalizing marijuana makes plain economic sense. And for districts with law enforcement overwhelmed and under budget decriminalization may be the only logical choice to keep up with the payroll.

What do we do as activists? We can pay attention to candidates for District Attorney and Sheriff to vet them on marijuana policy so we can take local action to decriminalize. (After they become Sheriff? Just say “Am I being arrested?” and make sure you know what a Motion to Suppress Evidence is: example here)

But the real people we need to contact to make effective improvement in marijuana policy is not the President, the DA, a cop or anyone in the executive branch: It’s our state and local Congressman in the legislative branch. And this is the right website to do so.

Texas resident? Take Action:

HB 81 and SB 170 to decriminalize marijuana is pending in their respective chambers. Contact your Texas Representative to support HB 81 and SB 170 by clicking here

Vice Chair Todd Hunter is also the Chair of the Calendar Committee which decides if bills get a floor vote in Texas. Hunter held up a decriminalization bill in 2015 by failing to put the vote on the Calendar. If you live in Chorpus Christi, give Todd Hunter a call and tell him to give HB81 a floor vote!

Also in Texas do not forget to mention SB380 to abolish civil asset forfeiture in the state of Texas.

Visit Houston NORMLs website and follow them on Facebook and Twitter.

California: Victims of Inconsistent Marijuana Laws

fifty_dollar_fineNow that 29 states have legalized medical marijuana, eight have legalized adult-use, and several others are considering legislation to legalize either adult-use or medical marijuana during the 2017 legislative session, it’s obvious that the end of marijuana prohibition is near. But that doesn’t mean the ongoing conflict between local, state and federal laws has become any less confusing.

Unfortunately for Ted Hicks and Ryan Mears, two marijuana farmers from Sacramento, California, this confusion lead to a military style raid and both men being charged with illegally cultivating marijuana, a misdemeanor, and conspiracy for planning “to commit sales of marijuana,” a felony.

“I told my 2-year-old son to stay upstairs,” said Mears, 35. “When I opened the security door, there were 15 cops with assault rifles drawn, pointed, with their fingers on the trigger, in vests, ski masks. They grabbed me and pulled me out front, put me in handcuffs. There were 20 to 30 officers. My son walked downstairs and my wife had to grab him. They had guns pulled on them. It was real painful.”

Regardless of spending several months working with local regulators to establish what they thought was the legal framework for their business, Big Red Farms, and being considered “shinning stars” for their diligence related to local licensing, Hicks and Mears found themselves at the business end of automatic weapons. A clear sign that they had become victims of the patchwork of marijuana laws adopted by local and state officials across California prior to the passage of Proposition 64.

If found guilty, both men could face up to one year in jail, and pay thousands of dollars in fines and court costs.

Read more »

Report: Tax Revenue From Retail Marijuana Sales Exceeds Expectations

legalization_pollTax revenue collection from retail marijuana sales in Colorado, Oregon, and Washington is exceeding initial projections, according to a new report published by the Drug Policy Alliance.

Marijuana-related tax revenue in Colorado totaled $129 million over the 12-month period ending May 31, 2016 – well exceeding initial estimates of $70 million per year, the report found. In Washington, tax revenue totaled $220 million for the 12-month period ending June 30, 2016. Regulators had initially projected that retail sales would bring in $162 million in new annual tax revenue. In Oregon, marijuana-related tax revenues are yielding about $4 million per month – about twice what regulators initially predicted. (Alaska has yet to begin collecting tax revenue from cannabis businesses.)

The report also finds that adult use marijuana legalization has not been associated with any increases in youth use of the substance, nor has it had an adverse impact on traffic safety. “In Colorado and Washington the post-legalization traffic fatality rate has remained statistically consistent with pre-legalization levels, is lower in each state than it was a decade prior, and is lower than the national rate,” it determined. A separate report published by the CATO Institute recently provided similar findings.

In addition, the new reports finds that marijuana-related arrest totals have fallen significantly in jurisdictions post-legalization. According to the DPA’s report, the total number for all annual marijuana-related arrests decreased by 59 percent in Alaska, by 46 percent in Colorado, by 85 percent in the District of Columbia, and by 50 percent in Oregon. In Washington, the number of low-level marijuana court filings fell by 98 percent.

To read the full report, please click here.

The Reason a Record Number of States Can Vote to Legalize Weed This Fall

Legalize MarijuanaThose of us who support the full legalization of marijuana are greatly benefiting from political reforms adopted during what is frequently referred to as the Progressive Era in this country.

The principal objective of the progressive movement was eliminating corruption in government, and to accomplish that goal, proponents sought ways to take down the powerful and corrupt political bosses and to provide access by ordinary Americans to the political system – a concept called direct democracy, as contrasted to representative democracy.

It was during this period that the concept of direct primaries to nominate candidates for public office, direct election of U.S. senators, and universal suffrage for women gained traction. And, most important to our work, the procedures known as referendum and initiatives began to be adopted in several states.

In 1902, Oregon was the first state to adopt the option of initiative and referendum to change public policy, permitting citizens to directly introduce or approve proposed laws or constitutional amendments. This process was called an initiative if the change originated by action of citizens, without the involvement of the legislature, and as a referendum if it originated from the legislature but was referred to the voters to decide.

By 1920, a total of 22 states had adopted provisions modeled on the Oregon system. Today, a total of 24 states offer a voter initiative. In the rest of the states, the only avenue to change public policy is through the state legislature.

This brief history of direct democracy is relevant today because it is this access to direct political action by voters that has allowed marijuana legalization to move forward, years earlier than would have been politically possible through the action of state legislatures.

The four states and the District of Columbia that have approved full legalization for all adults, and the five states that will be voting on full legalization in November, all rely on voter initiatives. These progressive procedures have worked precisely as they were intended back in the Progressive Era: They have allowed citizens to go around the establishment to alter the status quo.

Voter initiatives are unpopular among most elected officials.

Altering the status quo has not taken place without some legal kicking and screaming by the elected officials in those states. It comes as no surprise that most elected officials do not appreciate the fact that public policies in their states can, when necessary, be changed without their consent.

As we approach the end of summer and the coming fall elections, we once again see examples of the extraordinary time and resources many establishment politicians and other anti-marijuana zealots are willing to invest to try to prevent citizens in their states from voting directly on marijuana policy.

The reason, of course, is obvious. According to recent national polls, a clear majority of the American public (between 55 and 61 percent) supports an end to marijuana prohibition. If given the opportunity to vote on the issue, they will vote to legalize marijuana.

Elected officials, who otherwise claim to represent the will of the voters in their states, and other self-appointed moral guardians, go to great lengths to try to stop the votes from happening.

Democracy is something they support so long as the public favors the same policies they favor. When the public gets out ahead of the establishment, democracy be damned; they will use any tools available, including procedural and constitutional challenges, to avoid allowing the voters to decide the issue.

Full legalization proposals.

We will have full legalization measures on the ballot in five states this fall: Maine, Massachusetts, Nevada, Arizona, and California. A sixth, Michigan, would have qualified but for last-minute legislation.

In several of the states with pending initiatives, establishment prohibitionists have gone to court in a desperate effort to get the courts to intervene to keep the measures off the ballot.

In Maine, Secretary of State Matthew Dunlap attempted to invalidate a significant number of the signatures gathered by the Campaign to Regulate Marijuana Like Alcohol in Maine, arguing that the signature of a single notary did not match the one on file with the state. Fortunately, Superior Court Justice Michaela Murphy overruled Dunlap’s decision. When the signatures were recounted, the measure, Question 1, qualified for the ballot.

In Massachusetts, once the Secretary of State had qualified the legalization initiative for the ballot, a group of prohibitionists calling themselves the Safe and Healthy Massachusetts Campaign sued to have the measure removed from the ballot, claiming it violated the constitutional limitation prohibiting an initiative from dealing with two unrelated topics. This challenge was subsequently dismissed by the Massachusetts Supreme Judicial Court, and the measure, Question 4, will now appear on the November ballot.

In Arizona, a group calling itself Arizonans for Responsible Drug Policy — including two prominent country prosecutors and the Arizona Chamber of Commerce — filed suit to try to keep the legalization initiative off the ballot, after it had been qualified by the Secretary of State. The group claimed that the 100-word summary (a limit set by statute) did not accurately reflect everything contained in the 30-page proposal. Maricopa County Superior Court Judge Jo Lynn Gentry rejected the argument and approved the measure, Proposition 205, for the ballot.

In California — the big enchilada for the 2016 elections and a state in which opponents to an initiative are permitted to include on the ballot their reasons for opposing the proposal — it was the proponents who went to court. The Yes on 64 advocates successfully challenged all six arguments that opponents had wanted to appear on the ballot, and Superior Court Judge Shelleyanne W.L. Chang found all six “false and misleading.” She ordered the opponents to modify their arguments, most of which falsely claimed the initiative would permit pro-marijuana ads to appear on radio and television and would appeal to children.

And in Michigan, where proponents, MI Legalize, had turned in a sufficient number of signatures (more than 350,000) to qualify a legalization measure for the ballot, the state legislature quickly rammed through a new law in June declaring signatures older than 180 days to be invalid, leaving proponents shy of the required number of signatures. Proponents have filed suit against the state, challenging the new limitations on constitutional grounds, but it appears the appeal will not be decided in time for the initiative to appear on the 2016 ballot, even if the appeal succeeds.

Of the five full-legalization initiatives that will appear on the ballot this fall, only the Nevada initiative, Question 2, was free from a court challenge. Nevada Secretary of State Ross Miller certified the proposal for the ballot at the end of 2014. While there are certainly organized opponents, none elected to challenge the measure in court.

Moving forward.

In the short term, proponents of legalization will continue to focus efforts in the states that offer the option of a voter initiative. So long as our elected officials, and the establishment interests they represent, continue to support the status quo of prohibition, it makes sense strategically to bypass the state legislature where possible.

But that is a strategy that must eventually evolve, as 26 states simply do not offer that option. For that half of the country, we will have to win the old-fashioned way: By building majority support among state legislators to pass the proposal through the legislature.

It’s a significant challenge for sure, but as we’ve demonstrated with the drive to legalize medical marijuana, after a few more states have adopted legalization by voter initiative, enacting legalization by statute will become more realistic.

For those who live in one of the 26 states without an initiative process, we must continue the painfully slow process of convincing individual legislators that prohibition of marijuana is a failed public policy and that full legalization makes sense.

Many already understand this but continue to fear being labeled “soft on drugs” should they acknowledge the obvious. It is frustrating to have to win over supporters one at a time, but each year it becomes easier as public support for legalization continues to increase, and elected officials ignore the wishes of their constituents at their own peril.

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This column first ran on ATTN:

http://www.attn.com/stories/11148/marijuana-legalization-and-voter-initiatives

 

Appeals Court: State-Sanctioned Marijuana Users Not Afforded Second Amendment Rights

marijuana_gavelJustices for the Ninth Circuit Court of Appeals today ruled in favor of a 1968 federal law prohibiting the sale of firearms to any “unlawful user” of a federally controlled substance.

Justices determined that state-registered medical marijuana patients are forbidden from purchasing firearms because cannabis remains classified as a Schedule I substance under federal law. They further opined that the ban “furthers the Government’s interest in preventing gun violence” because marijuana users “are more likely to be involved in violent crimes.”

They concluded, “[The plaintiff in this case] does not have a constitutionally protected liberty interest in simultaneously holding a [medical cannabis] registry card and purchasing a firearm.”

In 2011, the Bureau of Alcohol, Tobacco and Firearms issued a memorandum to all gun dealers in the United States specifying, “Any person who uses … marijuana, regardless of whether his or her state has passed legislation authorizing marijuana for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by federal law from possessing firearms or ammunition.”

In response to today’s court ruling, NORML Deputy Director Paul Armentano said: “There is no credible justification for a ‘marijuana exception’ to the US Constitution. Responsible adults who use cannabis in a manner that is compliant with the laws of their states ought to receive the same legal rights and protections as do other citizens. It is incumbent that members of Congress act swiftly to amend cannabis’ criminal status in a way that comports with both public and scientific opinion, as well as its rapidly changing legal status under state laws.”

The Ninth Circuit decision, Wilson v Lynch et al., is available online here.

Ohio NORML Continues the Fight on the Local Level

Cannabis PenaltiesStatewide marijuana legalization efforts in Ohio have proven to be more difficult than many expected. After Ohio voters overwhelming rejected Issue 3 – a well-funded ballot initiative, that would have legalized the possession of up to one ounce of marijuana for adults 21 and over, but also contained severe restrictions with regard to retail production of the plant – many advocates promised to return with a better plan for marijuana consumers. But those plans were quickly derailed after the Ohio General Assembly established a limited, yet workable medical marijuana program with the passage of House Bill 523.

With no statewide initiative, many activists decided to shift their focus to working with state lawmakers to strengthen HB 523 by expanding access and advocating for amendments to permit for home cultivation for patients and caregivers. And since the possession of less than 100 grams (roughly 3.5 ounces) of marijuana is considered a “minor misdemeanor,” punishable by a maximum fine of $150 plus $100 in court costs, some activists found themselves complacent with the status quo. After considering these points, members of Ohio Chapter of the National Organization for the Reform of Marijuana Laws (NORML) decided to explore reform options on the local level.

Taking a page out of their own playbook, Eleanor Ahrens and Chad Thompson, led by executive director Cher Neufer, decided they would retool a local decriminalization measure that was approved by Toledo voters in 2015. With this strategy the group set their sights on several municipalities across the state. Activists in the municipalities of Newark Bellaire, Bellevue, Cleveland, Elyria, Logan, Huron, Athens and Norwood, as well as in Lucas County, started to collect signatures for a “complete decriminalizationmeasure that would further decriminalize the possession of up to 200 grams of marijuana flower, up to 10 grams of concentrates, paraphernalia, by removing all fines and court costs.

“Complete Decrim is a new innovative way to make any misdemeanor offense basically legal,” Neufer said. “With no fines, no jail time, no drivers license suspension, and no court costs, we are making the police just walk away from misdemeanor marijuana offenses as if it were a legal substance.”

To date, the group has successfully qualified the measure for the municipal ballot in the cities of Newark and Logan this November, but fell short in the city of Athens. Activists with Ohio NORML plan to continue their effort. An effort that could extend well into 2017. For more information about or to get involved with Ohio NORML, please email info@ohionorml.org today!

Why We Should Demand That Congress Reschedule Marijuana

austinLike most Americans who follow the debate over marijuana legalization in this country, I was disappointed that the U.S. Drug Enforcement Administration this week once again determined that marijuana has no medical use and left it in Schedule I of the federal Controlled Substances Act.

Disappointed, but not surprised.

NORML first petitioned the DEA to reschedule marijuana to a lower schedule back in 1973, and we have been involved in two subsequent attempts to accomplish the same result, without success. The DEA is a law enforcement agency. So they will continue to oppose any steps to loosen controls over marijuana until Congress forces them to change.

A Brief History of Rescheduling Attempts.

The initial petition NORML filed to reschedule marijuana in 1973 ended up being an endurance test. The agency refused to even acknowledge our petition or respond to it until we went to the court of appeals and forced them to respond. And this strategy of ignore and delay continued at every step, dragging the process out for 15 years until 1988, when DEA Chief Administrative Law Judge Francis Young, following days of testimony, finally ruled in our favor.

The ruling concluded that “Marijuana, in its natural form, is one of the safest therapeutically active substances known to man. By any measure of rational analysis marijuana can be safely used within a supervised routine of medical care.”

Judge Young continued: “It would be unreasonable, arbitrary and capricious for DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence in this record.”

However, the DEA Administrator simply ignored the decision of his own hearing examiner and rejected our petition, claiming the hearing examiner had relied on anecdotal evidence. NORML again appealed that decision to the U.S. Court of Appeals, but the court allowed the Administrator’s decision to stand, saying he had acted within his discretion.

And twice in the intervening decades NORML has been a party to subsequent attempts to require the DEA to reschedule marijuana; and both times, as they did in this most recent case, the DEA continued to insist that marijuana has no medical usefulness and should remain on Schedule I, along with heroin.

So I hope readers will understand when I say, “Enough is enough! Time to ignore the DEA altogether and focus our efforts on Congress.”

How Marijuana Ended Up on Schedule I in the First Place.

When the federal Controlled Substances Act was being considered by Congress in 1970 — after the prior federal anti-marijuana act had been held unconstitutional — various members of Congress debated the question of where to place marijuana under the new act. A separate provision of that new law established The National Commission on Marijuana and Drug Abuse (aka the Marijuana Commission), which was charged with the responsibility of determining the appropriate policy regarding marijuana and reporting back to Congress. A compromise was reached to temporarily place marijuana in Schedule I until the commission came back with their report.

When the commission came back with its marijuana report in 1972, they recommended that minor marijuana offenses be decriminalized, which would have made it available (again) as a medicine. (Marijuana was on the U.S. Pharmacopeia from the mid-1850s until 1937, and it was available by prescription and widely prescribed for several conditions.)

However, those recommendations were not accepted by then-Presdient Nixon or Congress, and marijuana was left in Schedule I, where it remains today.

In fact, what Congress should really do, and what NORML has been arguing for some time, is to totally de-schedule marijuana by removing it from the Controlled Substances Act and treat it as we do alcohol and tobacco, thus providing states the power to establish their own marijuana regulatory policies free from federal interference.

Bills Pending In Congress.

There are currently several bills pending in Congress that, if adopted, would resolve this matter. HR 1774, the Compassionate Access Act, introduced by Rep. Morgan Griffith (R-Va.) and Rep. Dana Rorhabacher (R-Calif.), would require that marijuana be rescheduled and would prohibit federal officials from interfering in state-compliant activities specific to the physician-authorized use or distribution of medical cannabis.

And Sen. Bernie Sanders (I-Vt.) recently introduced S.2237, the Ending Federal Marijuana Prohibition Act of 2015, that would de-schedule cannabis from the CSA and treat it like alcohol and tobacco.

Of course, neither of these bills have been scheduled for a hearing or given a vote — even in committee. But those conditions may change following the upcoming election in November, and we may well have the opportunity to move a rescheduling proposal forward in the next Congress.

So instead of trying to convince the DEA that they should act responsibly and compassionately and lower marijuana to a more appropriate schedule under federal law, or remove it entirely, it is now time to put our efforts behind a push to convince the next Congress to solve this problem directly.

______________________________________________________________

This column originally appeared on ATTN.com.

http://www.attn.com/stories/10683/how-congress-should-reschedule-marijuana-unlike-dea

Florida State Attorney Drops Charges Against Bob and Cathy Jordan

Today I share with you wonderful news from an all too conservative state, Florida, where the sun shines on everything but justice for cannabis users.

Just a few weeks ago, I announced that the ‘New NORML’ would have an active, working legal committeethat would make a difference for all of us.

Last month, State Senator Jeff Clemens in Tampa announced that he was introducing a medical marijuana bill in Florida, which would allow for the establishment of dispensaries in our state.

The bill was named the ‘Cathy Jordan Medical Cannabis Act’, in honor of a woman who has beenopenly using cannabis as medicine for over a quarter century, championing our cause from her wheelchair while living with an incurable condition- ALS; Lou Gehrig’s disease.

Backed by her loving husband, Bob, who cultivates two-dozen plants on their farm for her personal use, Cathy has been a public advocate for cannabis law reform. Here she is:
http://medicalmarijuana411.com/mmj411_v3/?p=10558

One day after the state senator introduced the medical necessity legislation, publicizing her name and address, the DEA and Manatee County Sheriff’s Office paid her a not-too-polite visit, raiding her home, dressed in swat uniforms, armed with machine guns and wearing masks, seizing her cannabis and arresting her husband for cultivation. Her wheelchair was no defense.

One NORML lawyer from our NLC legal committee immediately stepped up to the plate to come to her defense. Florida CAN, the Cannabis Action Network, contacted Michael C. Minardi, of Stuart, Florida. He undertook the defense.

Michael had already prevailed on a medical necessity case on the west coast of Florida, and he at once met with Bob and Cathy Jordan. Both were adamant that they would take no pleas, but instead sought to fight for their right to use marijuana as medicine.

Based in South Florida, I volunteered with another NLC Committee member, my law office partner, Russell Cormican, and entered into a civil retainer agreement with Cathy Jordan, to prosecute a pro bono civil legal action seeking a declaratory judgment that Cathy’s possession of cannabis warranted a judicial order stating that such ownership was entirely medicinal and lawful.

I could not do it alone, so I contacted NLC Committee member Matt Kumin, who immediately agreed to join the cause on behalf of NORML, coming in as amicus curiae. “This is an impact case,” he concluded.

Together, we decided that we had a viable claim Cathy had a legal right to grow her medicine, and a court would conclude as much. Matt brought in two more NLC colleagues, Alan Silber and David Michael. These guys are already arguing tough cases in the Ninth Circuit. But we have a good plaintiff and a strong case.

This past Monday, the State Attorney dismissed all charges against Cathy and Bob Jordan. The decision by the State Attorney, explaining why he filed a ‘no information.” ratifies the defense of medical necessity for patients, and caregivers as well. The prosecutor’s determination goes beyond the customary and routine post of ‘case declined.’

The decision outlined by the chief prosecutor goes out of its way to acknowledge the legal basis of the medical necessity defense and the ‘progressive, neurodegenerative disease’ that Cathy Jordan deals with daily. The state attorney said he could not in ‘good faith’ proceed with a criminal prosecution against an individual with such a compelling medical reason to use marijuana. It was a courageous decision to see a prosecutor protect a pot patient.

The result came about in no small part to Bob Jordan, Cathy Jordan’s husband. He refused to accept a probationary plea offer. “If I could handle Vietnam,” he told me last week, “I can take whatever the State wants to try and hit me with. I am protecting my wife. No deals. No nothing. I want a trial. I want a jury to see my wife and try to convict her.”

Michael C. Minardi and his client even refused to cop a plea to a deferred prosecution. Matt. Kumin, who has never met Bob, called him, “my hero.” Armed with solid case law, a determined defendant, and a courageous lawyer- Michael Minardi- the good guys prevailed.

A talented team of NLC amicus curiae attorneys are now preparing to go to court and seek a judgment declaring that the use of cannabis by Cathy Jordan should continue as an exception to Florida drug statutes, based on her use being lawful, medically necessary, and legally protected. Hell, we might even get her pot back through a replevin action.

Unfortunately, Florida is a conservative state. I won’t mislead you. The Cathy Jordan Medical Cannabis Bill is already ‘stuck like chuck’ in a legislative committee.

However, also due to the efforts of NLC Committee member, Michael C. Minardi, the criminal prosecution of Cathy and Bob Jordan is dead in the water.

Remember the TV show, ‘The Naked City,’ that ‘there are 8 million stories in the Naked City; this has been one of them.’

My friends, there are thousands of Cathy Jordans across America who still need our help. There are hundreds of you capable of assisting so many of them. The spiritual rewards of engaging such tasks enrich your soul and make your practice so much more meaningful.

Please consider also asking a friend to help expand ranks by joining NORML today. In fact, this week we are promoting new memberships by offering up a NORML Hemp Baseball Cap. Wear it to the ballpark, and let everyone know that it is NORML to smoke pot. Cheer for your home team, but stand up for freedom.

Today, all of us throughout the country celebrate the victory of Cathy and Bob Jordan. We also thank the lawyer, Michael C. Minardi of Stuart, Florida, who stood up for them.

We are all cannabis warriors with stories of our own to tell, lives of our friends to illuminate. Never forget the cause you are fighting for is more than to torch up a joint. It is to light a torch for personal sovereignty and individual freedom.

Thank you.
Norm Kent
Chair, NORML Board of Directors

Closing Kush Clubhouse-RVD-Dispensary Court Case Update on hashbartv

www.hashbar.tv This week Sean Kush takes a look at the progress from the medical marijuana collective vs city court case which caused the unlawful closure of the Medical Kush Clubhouse in Venice Beach. The update looks promising. Could we see the re-opening of the Medical Kush Klub house? go to http For information about the Medical Kush Beach Club go to: www.medicalkushbeachclub.com
Video Rating: 4 / 5

Federal Court of Appeals Denies Petition to Reschedule Marijuana

In a 28-page decision, the US Court of Appeals for the District of Columbia Circuit has denied petitioners request to overturn the July 2011 denial by the Drug Enforcement Administration to initiate proceedings to reschedule marijuana under federal law.

In October 2002, the Coalition to Reschedule Cannabis, a coalition of reform organizations including NORML, ASA, Patients Out of Time and High Times, among others, petitioned the DEA to reschedule marijuana as a Schedule III, IV, or V drug. Following years of administrative delay, on July 8, 2011, the DEA denied the petition, finding that “[t]here is no currently accepted medical use for marijuana in the United States,” and that “[t]he limited existing clinical evidence is not adequate to warrant rescheduling of marijuana under the CSA.”

Petitioners then sought review in the federal Court of Appeals, alleging the decision by the DEA was arbitrary and capricious when it concluded that marijuana lacks a “currently accepted medical use” and has a “high potential for abuse.” They ask this court to remand the case to the DEA for reconsideration of its decision.

Written by Senior Circuit Judge Edwards, the decision ruled “On the record before us, we hold that the DEA’s denial of the rescheduling petition survives review under the deferential arbitrary and capricious standard. The petition asks the DEA to reclassify marijuana as a Schedule III, IV, or V drug, which, under the terms of the CSA, requires a ‘currently accepted medical use.’ The DEA’s regulations, which we approved in Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994), define ‘currently accepted medical use’ to require, inter alia, ‘adequate and well-controlled studies proving efficacy.’ Id. at1135. We defer to the agency’s interpretation of these regulations and find that substantial evidence supports its determination that such studies do not exist.

“In its scientific and medical evaluation,” the court held, “DHHS concluded that marijuana lacks a currently accepted medical use in the United States. In reaching this conclusion, DHHS applied the DEA’s established five-prong test, which requires a known and reproducible drug chemistry, adequate safety studies, adequate and well-controlled studies demonstrating efficacy, acceptance of the drug by qualified experts, and widely available scientific evidence.”

“We will not disturb the decision of an agency that has ‘examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.’”

In this case, we need only look at one factor, the existence of “adequate and well-controlled studies proving efficacy,” to resolve Petitioners’ claim.

At bottom, the parties’ dispute in this case turns on the agency’s interpretation of its own regulations. Petitioners construe “adequate and well-controlled studies” to mean peer-reviewed, published studies suggesting marijuana’s medical efficacy. The DEA, in contrast, interprets that factor to require something more scientifically rigorous.

In making this assessment, we must “remind ourselves that our role in the Congressional scheme is not to give an independent judgment of our own, but rather to determine whether the expert agency entrusted with regulatory responsibility has taken an irrational or arbitrary view of the evidence assembled before it.

The DEA’s construction of its regulation is eminently reasonable. Therefore, we are obliged to defer to the agency’s interpretation of “adequate and well-controlled studies.” Judged against the DEA’s standard, we find nothing in the record that could move us to conclude that the agency failed to prove by substantial evidence that such studies confirming marijuana’s medical efficacy do not exist.”

Petitioners are considering their legal options at this time.

San Diego Medical Marijuana War Continues

War on Medical Marijuana patients in San Diego continues! www.EugeneDavidovich.com —— Eugene Davidovich Preliminary Hearing Operation Green Rx Endless Summer My name is Eugene Davidovich and I have been a resident of San Diego for over 20 years. I am a medical cannabis patient and operated a non profit collective here in San Diego until last February when my house was raided and I arrested in Operation Green Rx later announced by the District Attorney in a press conference as Operation Endless Summer. In this operation a local San Diego Police Detective lied to his doctor about his identity and condition, obtained a valid recommendation for medical marijuana and joined the majority of the medical collectives and coops listed on the San Diego section of the CA NORML list. The detective called me and joined the collective. While pretending to be a sick patient, he requested that I deliver medical cannabis to him. Having seen him once and provided him with a ¼ ounce of medical cannabis, I am now facing 4 felony charges, 000 bail, and permanent damage to my professional and personal life. This was a clear and direct attempt to shut down all non profit medical marijuana collective cultivation/distribution efforts in San Diego. Please join me in the struggle for patients’ rights to collectively cultivate and distribute medication by supporting me in court on July 13th, 2009. For more information visit www.EugeneDavidovich.com ——————

To call what the Hyde family has been through a “parent’s worst nightmare” sounds like a horrible cliche. But, it’s hard to imagine what else you could call it. Their two-year old son Cash was diagnosed last year with a stage 4 brain tumor; he nearly died more times than they can count. He was miserable from the chemotherapy coursing through his body. Until his dad made a controversial decision to give cannabis to his young son. KXLY 4′s Melissa Luck reports.
Video Rating: 4 / 5

Pot Patient Wins Custody Case

Defense Attorney Lauren K. Johnson won a major court victory for parents who legally use marijuana for medical purposes last week in Los Angeles.  In the case of Drake A. (case # B236769), Division Three of the Second Appellate District, California Court of Appeal ruled on December 5, 2012 that there was no evidence showing that the defendant, a father, is a substance ab­user for simply being a legal medical marijuana patient. The court confirmed that while parents who abuse drugs can lose custody of their children, a parent who uses marijuana for medical reasons, with a doctor’s approval, isn’t necessarily a drug abuser.

The father, “Paul M.” was placed under DCFS (Department of Children and Family Services) supervision after he testified in an October 2011 hearing that he used medical marijuana about four times a week for knee pain.  During that same hearing, he also stated that he never medicates in front of his children, nor is he under the influence while they are in his care.  DCFS supervision requires drug counseling, parenting classes and random drug testing.  During subsequent drug screenings the father tested positive for marijuana, and negative for all other drugs.  As a result, the Superior Court of Los Angeles ruled that the child was to become a “dependent of the court based on the trial court’s finding that [the] father’s usage of medical marijuana placed the child at substantial risk of serious physical harm or illness…”.

“Paul M.” appealed the former court’s ruling, which was challenged in the Second Appellate District of California.  The Appellate court subsequently ruled in favor of reversing the Superior court’s judgment.  The official ruling stated “[that the] DCFS failed to show that [the] father was unable to provide regular care for Drake [the minor child at issue] due to father’s substance abuse.  Both DCFS and the trial court apparently confused the meanings of the terms ‘substance use’ and ‘substance abuse’.”

Johnson issued a press release noting that this is the first case to distinguish between marijuana use and abuse with regards to child protection laws. “In overturning a Los Angeles Superior Court ruling against the plaintiff, Los Angeles County Department of Children and Family Services, the Appellate Court said the ‘mere usage of drugs,’ including marijuana, is not the same as substance abuse that can affect child custody, as alleged in this case by the lower court.”  She went on to say, “The ruling illustrates a growing recognition of the legitimate use of medical marijuana in this state and other states. We want kids to be safe, but we also want parents to be able to use legally prescribed medications when children appear not to be at demonstrated risk of harm.”

This has been a pervasive issue in California, as well as other medical marijuana states. Legal patients have lost custody of their children and been forced to turn their children over to a juvenile protection agency.  The NORML Women’s Alliance has been working hard to bring this issue to the forefront.  NORML Women’s Alliance Director Sabrina Fendrick issued the following statement; “This ruling is a small victory in our fight for legal marijuana patients’ parental rights.  We hope that future judicial hearings, as well as child protection agencies will utilize this judgment and adopt new policies that reflect the Appellate court’s ruling.”

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