The judicial branch weighs in on employee marijuana rights, drug doggies, and more.
Sooner or later, everything winds up in court. You spilled a scalding cup of java on your nads at the McDonald’s drive-through; the insurance company refuses to pay for “water damage”; you’re tired of arsenic in the drinking water; ya feel like suing Costco . . . just because. And now that cannabis is entering the mainstream, it’s time to lawyer up, in this week’s legal round-up.
Legal Weed, But Not if You Have a Job
Colorado’s Supreme Court ruled last week that, regardless of the state’s legalization of marijuana, an employer can fire a worker who uses cannabis, even for medical reasons. The case couldn’t have had a more sympathetic poster boy: Brandon Coats, a 34-year-old quadriplegic, was a model employee, but was fired by Dish Network in 2010 after failing a random company drug test. (As if we needed another reason to hate television service providers.) Medical pot has been legal in Colorado since 2000, and Coats had a doctor’s authorization. He never smoked weed at work—nor was he ever under the influence during the day; he used cannabis in the evenings to help with sleep, muscle spasms, and stiffness. Even Dish doesn’t dispute this assertion. Nevertheless, a failed drug test won’t fly in the Zero Tolerance zone, and so, even though his home use was legal and off-duty, the company used their drug policy to terminate Coats.
While both medical and recreational marijuana are legal in Colorado, the court agreed unanimously (6-0) with the satellite television company, stating that laws that protect employees from being fired for “lawful activities” hold water only when those activities are legal under bothstate and federal law. Dish officials said they were as pleased as (non-alcoholic) punch with the decision: “As a national employer, Dish remains committed to a drug-free workplace and compliance with federal law.” Obviously, this ruling may waft over to Washington, which, like Colorado, has legalized recreational cannabis and is one of the 23 medical-MJ states. There’s only one solution to all this nonsense: Legalize cannabis at the federal level.
Good Doggy!
Earlier this month, the U.S. Supreme Court ruled that it is unconstitutional for the police to hold suspects at traffic stops without probable cause. That’s good news for folks with trunkloads full of contraband; cops can’t keep you waiting until the drug-sniffing dogs show up. (In Washington, of course, you’re allowed to drive around with up to an ounce of weed in your vehicle, though it’s probably not a great idea.) In the 6-3 decision, the justices ruled that holding a vehicle for even a few minutes violates the Constitution’s unreasonable-seizure shield. Everyone’s favorite justice, Ruth Bader Ginsburg, wrote in her opinion: “Police may not prolong detention of a car and driver beyond the time reasonably required to address the traffic violation.”
As noted in my cover story (“Fear & Loathing in Legal Territory,” Feb. 4, 2015), drug-sniffing canines here in Washington are being retrained for other tasks, as the smell of ganja is no longer a reason for suspicion.
Blazing on the Front Porch
While I am not a lawyer by training, I have seen several episodes of Boston Legal (big fan of Bill Shatner’s over-the-top performances), and thus can conjecture. That may not be the correct term. Point is, I can extrapolate. So when I read about the Iowa Supreme Court affirming the right of a gal to be shitfaced drunk on her own porch, I’m seeing a green light for cannabis. In 2013, Patience Paye called the cops on her boyfriend. When officers showed up to investigate for domestic violence, they determined she was the aggressor, asked if she’d been drinking (she had indeed, with over three times the legal limit in her blood), and charged her with public intoxication. Paye’s lawyers appealed her conviction, making a case that her front steps weren’t public at all, and that she should never have been arrested. Patience was patient, and the Supreme Court saw her point, ruling last week that the porch of a private home isn’t considered public, so long as the resident hasn’t invited the general public to be there. It just follows, then, that if ya don’t invite the masses to smoke a fatty on your stoop, ya can’t be charged with public stonification. That’s just logical, man.
Canna-Bar
To make sure that these legal lawsuits and challenges continue to advance the cause, we now have the National Cannabis Bar Association! The goal of the newly formed NCBA is to provide attorneys who are specializing in cannabis a place to get stoned and talk shop. Well, that, and to provide a networking platform to share ideas and strategies for a rapidly changing industry and complex political landscape.
“Attorneys have long been at the forefront of the fight for cannabis legalization,” said executive director Shabnam Malek. “Now that 23 states and Washington, D.C., have some form of legalized cannabis, there is a clear need for an organization focused on the business aspects of law and cannabis.”
The NCBA board comprises legal eagles from six states (including Seattle attorney Mitzi Vaughn of Greenbridge Corporate Counsel). The organization is open not only to practicing attorneys, but to paralegals, law students, and retired lawyers who just want to get their hands on some of the legal chronic. On the advice of legal counsel, we withdraw that last statement.
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The Lone Reefer
Our King County Sheriff is outspoken in his support for legalization.
The sky has not fallen because we have legalized marijuana in Washington. Is it going to work long-term? I don’t know; we’ll have to wait and see. But clearly, what we were doing before—the War on Drugs—did not work, so it was time to try something new. The citizens suggested legalizing marijuana—and I support it.”
It’s a reasonable-enough statement, but somewhat surprising in that it comes from our own King County Sheriff, John Urquhart. “I still think it was a good decision for the citizens of Washington,” Urquhart told me in an interview last week. “The initiative [I-502] passed statewide with 56 percent supporting it, and 63 percent in King County, so that’s clearly what the citizens wanted.”
Urquhart’s outspoken support of legalization isn’t being taken all that well by some members of law enforcement. Urquhart did a TV ad last year on behalf of the (successful) Oregon Measure 91, and members of the Oregon State Sheriff’s Association took him to task. “How dare he use his position as a sheriff to spoon-feed Oregonians blatantly false information about Washington state,” said Clatsop County Sheriff Tom Bergin, “right before an Oregon election.”
Jefferson County Sheriff Jim Adkins not only didn’t like Urquhart’s ad, he went NIMBY gun-slinger with a zinger. “You don’t see any Oregon sheriffs going up to Washington to weigh in,” Adkins blasted in a statement. “He needs to get his nose out of our state and show some respect. The issues we face are different.” Like neck beards and living on a swamp-river, I presume.
Members of the Oregon Sheriffs Association claimed Urquhart’s statements were misleading, citing state patrol reports that showed stoned driving arrests had increased. In the ad, Urquhart rightly claims tax revenue is up, wasteful arrests have been eliminated, and DUIs in our state are down, implying that legal weed may have something to do with all these results.
While it’s true DUIs are down overall (DUIs have dropped 25 percent since 2009), arrests involving pot and driving are up. The most current stats from the Washington State Patrol show that cannabis-related DUIs since December 2012 (when we legalized it, man) have gone up, from 988 in 2011 to 1,362 in 2013. A Washington Traffic Safety commission report last week showed the frequency of drivers in fatal crashes who tested positive with THC in their systems (alone, or in combo with booze or other drugs) was highest in 2014 (75) as compared to the previous four-year average (36).
“There have been more arrests for driving with marijuana in their system,” Urquhart admitted, “but, overall, fatality crashes have not gone up. There haven’t been any studies in Washington where there’s a direct causation from legalizing marijuana [to road fatalities]. There might be a correlation, but we’ll need more research on that.”
And the reason for more stoned drivers? “Well, for one, we’re looking for stoned drivers. Because of all the publicity around it. And now we have a per se standard. So we’re watching for that—and obviously there will be more arrests. As they test more blood—they’re gonna find more people with THC. The question then will be, how long has it been in their system? Did it affect their ability to drive? And what other drugs might be in their system?—including alcohol.”
But surely, since ganja has gone legal, officers in the field have constantly had to tackle out-of-control stoners at sex-crazed parties, right?
“No. Not at all. From what I’m hearing from my deputies, it’s a big yawner. No change for them whatsoever. What I have told them, if people are smoking marijuana in public, use your discretion like you would with drinking in public, or like speeding. Don’t be afraid to write a citation. So they’re doing that. But I haven’t heard any pushback.”
I asked the Sheriff if it was strange to be a voice for legalization. “To be honest, it’s very, very weird. I have been a cop for 40 years, I spent a good amount of that time doing drug investigations, and was a street-level narcotics investigator. And now, in some quarters, I’m the face of all this. Most police chiefs and sheriffs don’t want to speak out on this, regardless of their what their personal feelings are. And of course, the police chief has to kowtow to who the mayor is. A sheriff has more freedom. I just don’t care, to tell you the truth.” (FYI, the Washington State Sheriffs’ Association wrote a letter to the Oregon sheriffs during the campaign, clearly stating that Urquhart’s views were not endorsed by the organization.)
Urquhart isn’t a Lone Ranger (Lone Reefer?) on legalization. Founded in 2002, LEAP (Law Enforcement Against Prohibition) is a group of over 5,000 current and retired cops, judges, and prosecutors committed to ending decades of failed drug policies. Like Urquhart, they don’t like the trillion dollars spent on the failed War on Drugs or the $80 billion spent on incarceration in the U.S. each year—which could instead go to rehabilitation, job training, and education.
At a press conference last month, executive director Major Neill Franklin explained LEAP’s position: “As our nation’s top police and prosecutors reflect back on their careers, we have come to understand that many of the so-called tough-on-crime principles to which many of us gave our lives are flat-out wrong,” said Franklin. “We can reduce crime and incarceration at the same time, but to do that we need alternatives to arrest, balance in our laws, and continued improvement in community relations.”
Every 45 seconds a person gets busted for marijuana. This adds up to more than 700,000 pot-related arrests in 2014 alone. Of 1,561,231 total drug arrests last year, weed made up 45 percent of ’em. Of the 1,700 daily cannabis busts, 88.4 percent were solely for possession. Still, Urquhart understands that not all law enforcement will agree with his stand on legalization, and he’s fine with that—so long as they have ideas of their own on failed policy.
“The only thing that gets me pissed off is when police chiefs criticize the decision that the citizens of Washington made, for legalizing marijuana, but offer no alternative to that. They all know the War on Drugs doesn’t work. What are we going to do differently? Marijuana is one small step. Let’s see if it works. It’s a grand social experiment. And it appears to be taking hold.”
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The Good, the Bad, & the Very Ugly
An Afghanistan/Iraq vet faces a life sentence for less than an ounce. Thanks, Oklahoma.
The Good
Oregon has joined Alaska, Colorado, D.C., and our own great state in the Brotherhood of Ganja, officially legalizing marijuana on July 1. In several ways, the Oregonians are doing it better than us, allowing home grows (four plants each), setting the tax at 17 percent (as compared to our newly lowered but still obnoxious 37 percent excise tax), expunging the records of those with cannabis convictions, and even letting citizens fly with weed within the state. Oregon also allows the most pot per person of any of the legal states: up to half a pound of Grade A herb (eight ounces) as compared to our paltry single-ounce (or 28-gram) limit. Adults 21 and over can carry up to an ounce of cannabis and have a pound of edibles in their homes, as well as 72 ounces of cannabis-infused liquids. To get a sense of how much weed you can possess, the Portland Police Bureau’s handy reference guide compares chronic quantities to the city’s famous Voodoo donuts.As for buying weed at a retail outlet: Not so fast, Portlandia. Because of bureaucratic red tape (green tape?), Oregon’s recreational stores may not be up and running until fall 2016. Governor Kate Brown is considering signing a law that would allow sales of recreational cannabis by existing medical dispensaries to begin October 1. Of course, Rose City residents are always welcome in Rain City if they’re running low in the meantime. Visitors will have to smoke all their legal ganja before they head back to P-Town, however: Ya can’t bring cannabis across state lines in either direction.
The Bad
Rush Limbaugh. Just the mention of his name can make you throw up in your mouth a little bit. The Great Bloated Reefer Madness Fiend was at it again last month on his why-is-this-still-on-the-air radio show.“I don’t have any experience with this so I’m unable to render an opinion,” said Limbaugh. “Maybe I should go smoke some and find out what this is all about and be able to render an . . . [indecipherable mumbling]Oh, yeah, eat a brownie. That’s what ‘wake and bake’ means, right? Yeah, there’s an NFL player who had a Snapchat or Instagram post. He woke up and he’s all happy, and said, ‘Time to wake and bake,’ and somebody said, ‘Wow, that guy does the weed.’ So that’s what wake and bake means. Bake some cookies or brownies, I guess. Have you had them? . . . [heavy breathing]What do they taste like? . . . [more gasping, munching sounds]I do wonder what they taste like.”
OK, a few notes and we’ll move on. First, “waking and baking” is not about edibles—“baking” is a reference to adding a heated element, such as fire, to cannabis, then inhaling through a device. Secondly, the “waking” part of a wake ’n’ bake, in stoner’s parlance, means rising each morning and taking a hit off a pipe or bong. Lastly, Mr. Limbo, I highly suggest, if you truly haven’t already, trying some of the wacky weed. Unlike the oxycodone you so covet, it’s not addictive, and might even calm you while the last of your rapidly dwindling minions abandon your show.
The Very Ugly
It bears repeating that, until marijuana is legalized federally, hundreds of thousands of Americans will continue to be arrested for possession of the plant, and our veterans and loved ones will not have access to its medicinal properties.In our least favorite state, Oklahoma, Marine veteran Kris Lewandowski is facing a life sentence for possession of less than an ounce of weed—which he was using to help cope with PTSD. Lewandowski, who served three combat tours of duty that included stints in Afghanistan and Iraq (thank you for your service), was attempting to wean himself off a fistful of pharmaceuticals that he’d been prescribed for a variety of ailments, including severe PTSD after being honorably and medically discharged from the Marine Corps.
In June 2014, neighbors called the police after Lewandowski had what his wife described as a PTSD flare-up. Comanche County sheriff’s deputies responded to a report that Lewandowski had been chasing his wife with a knife. Cops searched the house, finding six small cannabis plants that did not total a single ounce; in Oklahoma, that’s bad news no matter how many tours you’ve served. Among other offenses, including a disputed domestic-violence charge, the war veteran and father of three was charged with felony marijuana possession and cultivation, and could potentially serve a life sentence under Oklahoma’s draconian weed laws.
Both Kris and his wife Whitney were arrested and charged with felonies, and were told their children were being taken to Child Protective Services. The police told Whitney her kids could avoid that fate—and she’d avoid the felony charge—if she pressed assault charges. Though she opposes the domestic-violence charge, she understandably took the deal. “They’re trying to use me as a victim and to make it look worse on his case,” said Whitney in an interview with Truth in Media. “My husband has absolutely never laid his hands on me ever. He is not an abusive man, ever . . . quite the opposite. He is extremely doting.”
Since the arrest, the family packed up and moved to California (with the Oklahoma DAs approval), where Kris legally obtained a medical-marijuana card to treat his PTSD. After inadvertently missing a court date—while under supervision at a Veterans Administration psych hospital!—Lewandowski was arrested in a guns-drawn raid as he was picking up his kids from preschool. The veteran is currently in police custody at the Orange County Jail, where he awaits extradition to Oklahoma to face his charges. There’s a GoFundMe campaign for those wishing to help with the family’s legal defense, as well as a Weed for Warriors Project. Lewandowski’s next hearing is scheduled for July 22. #SupportOurTroops.
UPDATE (July 20, 2015):
According to the Weed for Warriors project, all felony charges have been dropped against Marine veteran Kris Lewandowski, he has been released from jail, and the remaining charges have been transferred to veteran’s court. Lewandowski had been charged with marijuana possession which he had been growing to treat his PTSD. Under Oklahoma’s sentencing guidelines, he potentially could have served life in prison for the possession and cultivation of cannabis. -
The Weed Wire
A pot ad ran on TV—almost.
NOT READY FOR PRIME TIME
The first-ever recreational-marijuana ad for television was supposed to air last month duringJimmy Kimmel Live on a Denver-based ABC affiliate. At the last minute, KMGH (Channel 7) got cold feet, pulling the plug after the station’s lawyers freaked out.
The ad, for Neos, a vaporizer and cannabis-oil company, was hardly Cheech and Chong—in fact, it didn’t show marijuana at all. Instead, the spot featured young people hiking up mountain trails and enjoying themselves—weed-free. “You lead an adventurous life, always finding new ways to relax,” boomed the REI-looking advert. “Now enjoy the best effects and control with Neos portable vape pen and recreate discreetly this summer.” Blasphemous!
The station is owned by E.W. Scripps Company, which yanked the spot due to concerns the feds might revoke their broadcasting license for showcasing a substance on federal airwaves that’s illegal at the national level. “Scripps has decided not to accept marijuana advertising at this time,” said Scripps mouthpiece Valerie Miller. “We are proud to be a company of free speech and open expression, but we have concerns about the lack of clarity around federal regulations that govern broadcast involving such ads.”
The same last-minute ditch happened last week in Portland, when ABC affiliate network KATU pulled a marijuana-related commercial that was supposed to run during the six o’clock hour. Again, the ad didn’t feature fat nugs or hipsters firing up—it was for September’s Oregon Medical Marijuana Business Conference. And we’d hate for anyone to attend that, right!?
Ya can’t blame the stations, really; they’re terrified about the possibility of losing their FCC licenses. The Controlled Substances Act is serious and specific about not allowing advertising that promotes Schedule I drugs. In fact, a violation of Section 843 is a felony, kids, with prison time and a roommate who’s probably not nearly as friendly as those featured on ABC shows, includingRevenge, Scandal, American Crime, Castle, Rookie Blue, How to Get Away With Murder, et al…
Those marijuana ads may have gone up in smoke, but they’re the beginning of a move toward the mainstream. As noted, local and state laws are well and good, but issues like banking, medical coverage, insurance, and taxes—and now advertisements—are eventually going to need to be approved by Uncle Sam. (The FCC has no problem, of course, with the alcohol industry spending $2 billion a year on advertising and over $500 million on TV ads alone, much less Viagra ads galore.) Before you know it, a canna-company could be advertising alongside Bud Light in the Super Bowl. (Emphasis on the Bowl.)
CALIFORNIA 2016
The next governor of California, Gavin Newsom, spearheaded a report on legalization in his state, intended to influence the half-dozen groups crafting pro-marijuana ballot proposals for 2016. Before we get to the details, let’s note one important factor: Newsom’s an incredibly handsome bastard! Guy makes Gary Hart look downright hideous! (Sorry, Gary.)The Blue Ribbon Commission on Marijuana Policy’s report emphasizes child safety, tight regulations on sales, safeguarding access for medical-marijuana users, and preventing the next “Big Tobacco.” God, he’s got great hair! (Sorry.) The 24-member panel, convened by the Brill Boy and American Civil Liberties Union of Northern California, lays out 58 recommendations addressing, among other things, training standards, stoned driving, age limits, and taxes for public health programs. “We’re not arguing for a free market,” noted the beautiful Lt. Governor. “We’re arguing for a very regulated market that has real oversight, that is flexible.” (I bet he’sflexible.)
The report recommends a flexible tax structure that’s not too high (which would encourage black-market exchanges) or too low (which would encourage teenagers), and that is also union-friendly. (When you’re in Cali, ya gotta kiss up to the unions, even the ones growing ganja.) It also suggests tax revenue go toward drug education, treatment programs, and policing illegal growers who are sucking up water from streams and public parks.
One small problem with the group’s report: Though there are a shitload of pot smokers in California (almost 15 percent of all pot smokers in the U.S.), overall it’s an export state! It’s estimated that California grows almost 40 percent of the nation’s marijuana—and exports over 70 percent of that! Makes me wonder if these powerful and rich growers really are interested in a seed-to-sale tracking system that taxes, inspects, licenses, and regulates marijuana.
OUT OF SIGHT
Gov. Jay Inslee just signed a new open-container law, making it illegal for unwrapped cannabis edibles and other weed products to be visible in the cockpit of a car. House Bill 1276 is an attempt to get marijuana laws in line with those pertaining to drinking and driving. Just as open alcohol containers are illegal inside vehicles (including the glovebox!), now weed is too. So keep your bong, joints, nugs, brownies, and baggies of Blueberry Kush in the trunk. And if you happen to be driving a VW bus that has no trunk (or minivan, Mom), the law states that marijuana items must be stored behind the seat furthest from the steering wheel. Which is probably where the pot smokers are hangin’ out anyway. What a long, strange road trip this has been . . .
