Archive for the ‘Drug laws’ Category
Now that we have some actual experience with marijuana legalization, it is interesting to see how what actually has transpired with the fears and expectations that people had. (As I often point out, experience frequently contradicts expectations.) Philip Smith reports in Alternet and Salon:
Colorado and Washington legalized marijuana in 2012, and Alaska, Oregon and Washington, D.C., came on board in 2014. Voters in a half-dozen states are likely to vote on legalization this year, and they will be wanting to know what kind of impact it has had so far, both in the legal states and nationwide.
In an update in the January/February edition of the Journal of Addiction Medicine, researchers Jane C. Maxwell of the University of Texas at Austin and Bruce Mendelson of the Denver Office of Drug Strategy review the data and provide some insights into the initial impact of marijuana law reforms.
“Data are needed to understand the relationship between the patterns and amounts of use in terms of consequences as well as data on the health conditions of those receiving medical marijuana and the impact of higher potency,” they explain.
Based on the data so far, here are four things we now know about the impact of marijuana legalization that the fearmongers and prohibitionists frequently promised the opposite.
1. Adult pot smoking is up, but not much and it started before legalization. The review’s press release, citing data from the National Survey on Drug Use and Health (NSDUH), says that “over the past decade, marijuana use has increased significantly among adults aged 18 to 25 and those aged 26 years and older.” Actual data from the survey paints a slightly less dramatic picture: Among 18- to 25-year-olds, last month use grew from 20.2% to 22.0%; among those over 25, past month use grew from 5.8% to 8.3%. While adult use has increased modestly, “these trends appear to have begun before 2012, when Colorado and Washington became the first states to legalize marijuana,” the reviewers noted.
2. Pot arrests and marijuana treatment admissions are both down in major legal cities.The reviewers report that in Denver, “arrests for marijuana use/possession and admissions to substance use disorder treatment programs have decreased,” and that “data from the Seattle area also show reduced rates of treatment admissions and police involvement, along with an increased prevalence of frequent marijuana use.” This suggests that marijuana treatment admissions are to some degree driven by criminal justice system referrals
3. Kids aren’t smoking more pot. Those NSDUH surveys show that “marijuana use by youth age 12 to 17 has not increased significantly,” the review found. In fact, it’s been stable for more than a decade, as NSDUH’s authors note in its most recent edition: “The percentage of adolescents in 2014 who were current marijuana users was similar to the percentages in most years between 2003 and 2013.”
4. Some people are having bad experiences. . .
Philip Smith reports in Drug War Chronicles:
On Wednesday, a group of 21 US senators and representatives sent a letter to the Department of Veterans Affairs calling on it to allow VA doctors to discuss and recommend marijuana as medicine in states where it is legal.
The bipartisan effort was led by Sens. Kirsten Gillibrand (D-NY), Steve Daines (R-MT), and Jeff Merkley (D-OR) and Reps. Earl Blumenauer (D-OR), Dina Titus (D-NY), and Dana Rohrabacher (R-CA). All represent medical marijuana states.
Under current VA policy, embodied in VHA Directive 2011-004, which expires Sunday, VA doctors are prohibited recommending marijuana as a treatment option even in legal states. This discourages patients and doctors from being honest with each other.
“According to the current directive, VA providers are prohibited from completing forms seeking recommendations or opinions regarding a veteran’s participation in a state-sanctioned marijuana program. This policy disincentivizes doctors and patients from being honest with each other,” the solons wrote. “Congress has taken initial steps to alleviate this conflict in law and we will continue to work toward this goal. However, you are in a position to make this change when the current VHA directive expires at the end of this month. We ask that you act to ensure that our veterans’ access to care is not compromised and that doctors and patients are allowed to have honest discussions about treatment options.”
If patients can’t get a recommendation from their VA docs and thus can’t access dispensaries, they would be tempted to go elsewhere for recommendations, to doctors “likely far less familiar with their symptoms and medical history,” the solons wrote.
Noting that there has been a “sea change” in the legal framework around marijuana since the directive was issued in 2011, they asked that “upon the directive’s expiration, any new directive remove barriers that would interfere with the doctor-patient relationship in states that have chosen to legalize marijuana for medical purposes.”
But without a new directive, even though the old one is expiring, it will be the status quo at the VA, said Michael Krawitz, a US Air Force veteran and executive director of Veterans for Medical Cannabis Access. Krawitz participated in the process that led to the production and distribution of the directive.
“VA Directives remain in effect with full force even after expiration unless they are officially replaced or rescinded,” he said. “Although I can understand that patients might not know that and might get uneasy about the expiring directive, but in practicality there should be no change in clinical practices caused by the expiration.”
While VA patients could be spooked by the expiration, the status quo is unacceptable, said Dr. Sue Sisley, MD, in clinical psychiatry and internal medicine, who has two decades of experience treating veterans and who is set to do apilot study on medical marijuana and PTSD for veterans.
“I’ve worked with veterans all over the country who are dealing with severe and chronic, debilitating medical problems,” she said. “They just want the treatment that is going to help them the most, with the least side effects. I have seen firsthand the dramatic improvement so many veterans have had while taking cannabis. Not only have they experienced relief from problems such as PTSD, chronic pain, and migraines, but many of them have also been able to break their addiction to more dangerous drugs, such as opioids and benzodiazepines.”
VA staff physician Deborah Gilman, MD, said current VA policy forces physicians to ignore the science if it conflicts with policy.
“Unlike private practice physicians, VA physicians are under a gag order regarding discussing marijuana with patients,” she said. “In other settings, doctors can be honest about their medical opinions regarding treatment options, based on science. In the VA, an administrator can write policy that you can’t disagree with without losing your job. Veterans are fearful of losing either their medical benefits or their access to health care if they acknowledge using marijuana. This causes a VA doctor to give you a medical opinion based on the VA regulation, not on the science. I knew many VA doctors whose professional opinion was that cannabis might help some of their patients, but they could never say so in their office or in public.” . . .
President Obama is in charge. Isn’t he? Doesn’t the buck stop there?
Debbie Wasserman Schultz is the Clinton advocate (co-chair of Clinton’s 2008 campaign) who somehow was given the post of chair of the Democratic National Committee and used her position to make sure that the Democratic debates would be very few in number and aired at hours that would minimize the number of viewers (e.g., 9:00 p.m. EST on Sunday evening on a holiday weekend).
For the first time, she has a primary challenger, Tim Canova (his website), and I have just made a small contribution to Canova in hopes he can defeat Wasserman Schulz. Glenn Greenwald in The Intercept explains why defeating Wasserman Schultz is desirable (from a progressive point of view, though the alcohol industry, the Chamber of Commerce, and other special interests will be saddened) and interviews Tim Canova:
Debbie Wasserman Schultz, the six-term Congresswoman from South Florida and Chair of the Democratic National Committee, has been embroiled in numerous, significant controversies lately. As The Washington Post put it just today: “DNC Chair Debbie Wasserman Schultz’s list of enemies just keeps growing.”
She is widely perceived to have breached her duty of neutrality as DNC Chair by taking multiple steps to advance the Clinton campaign, including severely limiting the number of Democratic debates and scheduling them so as to ensure low viewership (she was co-chair of Clinton’s 2008 campaign). Even her own DNC Vice Chairs have publicly excoriated her after she punished them for dissenting from her Hillary-protecting debate-limitations. She recently told Ana Maria Cox in a New York Times interview that she favors ongoing criminalization for marijuana (as she receives large financial support from the alcohol industry). She denied opposing medical marijuana even though she was one of a handful of legislators to vote against a bill to allow states to legalize it, and in her interview with Cox, she boasted that her “criminal-justice record is perhaps not as progressive as some of my fellow progressives.” She also excoriated “young women” – who largely back Bernie Sanders rather than Clinton – for “complacency” over reproductive rights.
In general, Wasserman Schultz is the living, breathing embodiment of everything rotted and corrupt about the Democratic Party: a corporatist whooverwhelmingly relies on corporate money to keep her job, a hawk who supports the most bellicose aspects of U.S. foreign policy, a key member of the “centrist” and “moderate” pro-growth New Democrat coalition, a co-sponsor of the failed Stop Online Piracy Act (SOPA), which was “heavily backed by D.C. favorites including the U.S. Chamber of Commerce and the music and motion picture industries” and would have allowed extreme control over the internet. In 2013, she demanded that Edward Snowden “should be extradited, arrested, and prosecuted” because “jeopardized millions of Americans” and then called him a “coward.” “The progressive wing of the party base is volubly getting fed up with her,” declared The American Prospect last week.
This year, however, Democrats nationwide, and in her district, have a choice. For the first time in her long Congressional career, she faces a primary challenger for the Democratic nomination. He’s Tim Canova, a smart, articulated, sophisticated lawyer with a history of activism both with the Occupy movement (he’s against the Wall Street bailout for which Wasserman Schultz voted and the general excesses of big banks and crony capitalism) as well as a steadfast opponent of the Patriot Act (for which Wasserman Schultz repeatedly voted).
He has worked with former New Mexico Governor Gary Johnson against the Drug War and private prisons; worked with the Sanders campaigns of the past; and was a former aide to the late Sen. Paul Tsongas. He is an outspoken advocate of the Ron-Paul/Alan-Grayson sponsored Audit the Fed bill, and a vehement opponent of the Trans Pacific-Partnership Trade agreement. And he has vowed to run a campaign based on small-donor support, calling her “the quintessential corporate machine politician.”
As David Dayen reported last week in The New Republic, the widespread dislike for Wasserman Schultz around the country has already triggered substantial support and donations for Canova. To compete, he will need much more. You can visit his website here, but beyond that, I spoke with him late last week to explore his views, his motives for running, and what he believes are the greatest contrasts between him and the incumbent he is challenging:
* * * * *
GREENWALD: My guest today is Tim Canova, who recently announced a primary challenge in Florida’s 23rd Congressional district to the Democratic incumbent, Debbie Wasserman Schultz, who, in addition to representing that district, is the chair of the Democratic National Committee. It is the Congresswoman’s first primary challenge ever.
Tim is a former aide to the late Senator Paul Tsongas and currently a professor at Nova Southeastern University Shepard Broad College of Law. Tim, thanks so much for taking the time to talk with me. I want to begin by asking you:
It’s one of the most difficult things in American politics to challenge an entrenched incumbent, and in this case, Congresswoman Wasserman Schultz is sort of the embodiment of an entrenched incumbent. It’s her sixth term that she’s currently serving. She hasn’t really been challenged very successfully in the past, and she’s also the chair of the DNC and has that whole apparatus behind her. What are the motivators that led you to take on this challenge?
CANOVA: If we had spoken a year ago, this wouldn’t have been on my radar. Last summer, I was very active with a bunch of grassroots organizations here in South Florida, lobbying against the fast track vote for the Trans-Pacific Partnership, and we were lobbying her office, trying to make contact with her or her top aides, and we got nowhere. And it was frustrating. She was one of the only Democrats in the House in the country to vote for fast track and she was the only Democrat in Florida’s delegation to vote for fast track. She had voted for the Korean Free Trade Agreement. She’s been taking lots of corporate money.
According to the Center for Responsive Politics, she took $300,000 in just a two year period, 2012 to 2014, from groups that support the TPP, and only about $23,000 from groups opposed to it. The Citizens Trade Campaign that I’ve been working with, it consists of a lot of organized labor, a lot of union people, and a lot of progressive Democrats. And these are constituencies that she’s been taking for granted, precisely because she’s run unopposed all of these years. She’s been able to take working folks for granted.
And the TPP was really a lightning rod issue. I think it should be. We saw how just a week or two ago, TransCanada, the big Canadian energy giant, announced it was going to sue the U.S. government for $15 billion, for not going forward with the Keystone XL pipeline. And that’s under NAFTA’s investment protection provisions. The TPP has very similar provisions. So now we’re going to open up these types of challenges to another half-dozen to dozen countries that are not in NAFTA who will be able to challenge the sovereignty of U.S. law. And when I say “challenge it,” you probably have read up on this enough to know that these companies are not going to be able to overturn the laws, but they will be able to get the taxpayer to have to pay for their compliance with the laws. So it really shifts the cost of compliance from corporations to taxpayers.
It’s a way to enshrine in international law what these corporations could not get through in constitutional jurisprudence, which is the regulatory takings approach, the idea that whenever the government regulates in a way that impedes the value of an investment, it should be considered a taking of property requiring just compensation. They couldn’t get that line of analysis through the Supreme Court, they go around it and they enshrine this in multilateral trade and investment agreements, bilateral investment treaties. And it’s become a litmus test at this point, and deservedly so. It’s environmental laws, it’s health and safety, it’s labeling laws. It really puts an awful lot of the kinds of protections that we’ve come to rely on and need up for sale, in a way.
GREENWALD: The TPP is obviously controversial in certain policy and intellectual circles. My guess is that a small percentage of Americans have even heard of that agreement, let alone have strong opinions about it, although they probably are a lot more informed and opinionated about trade issues generally because of the effect it’s had on jobs and the NAFTA controversy.
Do you have a strategy for communicating why a seemingly esoteric conflict like the TPP is something that moved you and ought to move voters to reject their incumbent representative?
CANOVA: Well, my friends in labor who are very supportive of this candidacy, and are really like-minded in that somebody should step up and challenge her – they make the argument that it’s going to lead directly to a lot of job losses, and they’ve got the statistics about just how many job losses came about from the Korean Free Trade Agreement. I’ve been trying to link these discussions about TPP to what every Floridian should see as an existential threat, and that is climate change. In 20 or 30 years down the road, big parts of South Florida could be underwater.
It’s not just the tourist industry, it’s people’s homes and businesses that could be in danger. And if we’re going to start confronting climate change, either through regulating carbon emissions or to finding funds for infrastructure investments to mitigate the effects of climate change, TPP just gets in the way right down the line. Now I hear you, and I agree with you, that most people don’t understand those connections and many people have never heard of the TPP. I’m hoping this campaign starts elevating the discussion and informing people and helping to educate voters. I think it’s already beginning to happen a little bit.
But I’ve also got to say the TPP is not the only issue we’re running on. Wasserman Schultz has been taking – and you know this, The Intercept published a piece about the kind of money she’s been taking from big alcohol PACS. She’s for private prisons.
GREENWALD: While she’s been a hard core Drug War warrior and in favor of the penal state for putting people in cages for consuming drugs.
CANOVA: Exactly. And, you know, that’s not popular in this district. In 2014 there was a statewide referendum on medical marijuana. Fifty-eight and a half percent of the voters in this state voted for it, for medical marijuana. It needed 60% to pass, so it came close. She was against it. Her votes in Congress have been against medical marijuana. I say, allow states to decide these issues. On medical marijuana, and recreational marijuana. We should not be locking people up, for what? Using the same drugs that apparently the last three American presidents, and, by some surveys, a majority of the American people have tried.
GREENWALD: One of the things that I do think people understand relating to the TPP and some of the other critiques you’ve voiced is the idea that there are a lot of people who go to Washington, take lots of money from corporate interests, and end up serving those interests at the expense of the ordinary voter, often contrary to the rhetoric they like to spout. That’s probably part of the reason for Donald Trump’s success, who has sold himself as a self-funder and therefore immune to those influences, and it’s definitely a big part of Bernie Sanders’s success as well, critiquing this kind of systemic, legalized corruption.
Where does Debbie Wasserman Schultz fall on the spectrum of political officials with respect to how much corporate money she relies on, and then how much corporate interest she serves? . . .
Continue reading. There’s lots more. And if you can, contribute a bit to Tim Canova to kickstart a Washington makeover.
UPDATE: More on Debbie Schultz. (I thought her name was hyphenated—Wasserman-Schultz—but it isn’t: Wasserman is simply her maiden name. So the common usage, first name and last name, seems appropriate.)
David Olinger reports in the Denver Post:
Raymond Schwab, an honorably discharged veteran, moved to Colorado last year to get treated for post-traumatic stress and chronic pain with medical marijuana.
He didn’t expect Kansas would take his children in return.
“They’re basically using my kids as a pawn to take away freedoms I fought for,” he said. “It’s a horrible position to put me in.”
He and his wife, Amelia, say Kansas took the five youngest of their six children into custody last April, and they’ve only seen them three times since.
“I don’t think what we’re doing is illegal, immoral or wrong,” Amelia said.
The Schwabs’ case highlights how differences in marijuana laws can make a legal user in one state an unfit parent across the border.
They’re not the only Kansas parents at risk of losing their children over cannabis use. In Garden City, medical marijuana advocate Shona Banda was arrested on child-endangerment and felony drug charges after her 11-year-old son talked about his mother’s drug use at school.
Kansas has rejected legislative efforts to permit medical marijuana use. Colorado legalized medical marijuana, then passed a referendum that allows recreational use as well.
Child welfare officials in Kansas did not return phone calls Wednesday concerning the Schwabs.
Raymond Schwab is a 40-year-old Gulf War veteran. He served from 1994 to 1996 in the Navy and later qualified for a 50 percent disability rating.
He lived in Colorado when the state legalized medical marijuana and obtained his own card.
He also tried to treat his symptoms with an assortment of medicines prescribed by the Department of Veterans Affairs — pain medicines, muscle relaxants, anti-anxiety drugs — but “they were making me crazy, they made me worse,” he said.
Finally he developed a heroin addiction, but said he overcame that years ago with cannabis therapy.
The turning point in his family life began with a VA job offer in 2013. He went to Topeka to work as a benefits agent for fellow veterans.
“I loved it. I loved my job,” he said tearfully.
But two years later, he decided to transfer to a VA job in Denver, where medical cannabis is legal. That’s when a family squabble led to the loss of five children aged 5 to 16.
Raymond and Amelia say that as they were packing to leave, her mother took the kids to a police station in another county and reported them abandoned, an action her mother now regrets.
Nine months later, they say, child-protection workers and a Kansas judge are demanding that they give up cannabis if they want their kids back. . .
Talk about a bad mother-in-law!
Note that if he were drinking alcohol instead of smoking cannabis, child protective services would not have a problem despite the significantly greater dangers and health risks of alcohol. (Of course Kansas is the state that not only elected Sam Brownback as governor, but re-elected him after his policies failed utterly.
Radley Balko reports in the Washington Post:
A couple weeks ago, I posted about a case in Kansas in which a couple was wrongly raided by a police tactical team. Robert and Addie Harte and their two children were held in their home by armed officers for over two hours as the officers searched the house for marijuana. They found no drugs. After spending $25,000 to get a judge to order the Johnson County Sheriff’s Department to turn over documents related to the search and investigation leading up to it, the Hartes discovered that Robert Harte, along with hundreds of other people, became a suspect when Missouri State Highway Patrol Sgt. Jim Wingo saw Harte, his son and his daughter emerge in August 2011 from a hydroponic gardening store and wrote down the Hartes’ license plate number.
About eight months later, Johnson County Sheriff’s Department deputies Mark Burns and Edward Blake conducted trash pulls at the Harte’s home. According to police, drug field tests on some wet plant material found in two of the trash pulls tested positive for marijuana. Based on those tests, the department raided the Hartes on April 20, 2012. The Hartes later learned that more conclusive crime lab tests on the “plant material” revealed it to be the looseleaf tea enjoyed by Addie Harte.
My post generated quite a bit of attention and outrage. Subsequently, Orin Kerr of the Volokh Conspiracy blog, hosted here at the Washington Post, took issue with the headline I wrote for that post, “Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home.” Kerr chastised my characterization of the ruling. According to Kerr, the ruling by U.S. District Court Judge John W. Lungstrum ruled only on “a pretty technical Fourth Amendment issue that seems pretty far removed from what you would imagine from reading Balko’s post — and especially his headline.”
I don’t agree. It’s true that much of Lungstrum’s ruling focused on the field tests. And it’s true that Lungstrum evaluated the probable cause issue for the purpose of determining if the Hartes’ rights were violated, and if the police officers and/or Johnson County were liable for violating them. It’s true that I didn’t mention the field tests in my headline (though I mention them extensively in my post). It’s also true that my headline was intended to be provocative, and was written from the perspective of the Hartes. But none of that means the headline or the post were inaccurate or misleading. I also linked to Lungstrum’s decision in the post.
From the Hartes’ perspective, the headline covers precisely what happened to them. They were raided by a tactical team. The only things they did to cause that raid were shop at a hydroponic gardening store and drink loose-leaf tea. Those two actions are why the police began to investigate them (in a half-hearted sort of way), conducted field tests on the tea for which the officers had little training, and procured a search warrant. Those two actions are why a local judge signed off on the search warrant. It’s why a raid team was sent to the Harte home. And after the fact, it’s why a federal judge determined that the police had probable cause for the search, that the use of a tactical team was reasonable under the Fourth Amendment, and that the police didn’t violate the rights of the Hartes or their children.
I didn’t include information about the field tests in the headline because it would have made for a cumbersome headline, because they’re discussed in the post itself, and because I don’t think they diminish or substantially qualify what I stated in the headline. Yes, someone viewing this case through the perspective of the police could have written a headline like, “Federal judge: Police not liable for relying on faulty field tests.” That would have been quite a bit different from my headline. And like my headline, it would also have been accurate. I chose to emphasize what happened from the Hartes’ perspective, because I find what happened to them to be outrageous, and that’s what I think is important about this story. My point was to emphasize just how little oversight there is when it comes to these raids, how few protections are afforded to potentially innocent people on the receiving end of them, and how when things go wrong the victims of mistaken raids have little recourse, and the cops who wrongly raided them face little accountability.
The disagreement here also reflects how differently legal academics sometimes see these cases than the rest of us. In his initial post Kerr, a self-described “Fourth Amendment geek,” was so focused on his very technical legal issue that he neglected to even acknowledge what happened to the Hartes, or the utter incompetence of the Johnson County Sheriff’s Department. After some criticism from his commenters, he later conceded both points in an update. But until that update, you could be forgiven for thinking that Kerr believed the only real outrage in this story was my headline, and the only real victim was Judge Lungstrum. It was a classic example of missing the forrest for the trees, only I’m not at all convinced he was right about the trees.
Exchanges like these are common in online commentary about these issues. Someone will write about what they believe to be an outrageous example of police or prosecutor misconduct, only to be corrected by a legal scholar, who will then calmly and somewhat condescendingly explain how the police or prosecutor in question was acting entirely within the law, complete with strings of citations to court opinions. But that’s almost always beside the point.
To be clear, I don’t think Judge Lunstrum’s ruling was wrong on the law, nor did I state or imply as much in the post. (Although as is often true in these cases, and for the reasons I’ll lay out later in this post, I think Lungstrum could also have written an entirely justifiable opinion that allowed that Hartes to proceed with their lawsuit.) It is the law itself that is the problem. . .
Later in the article:
. . . As I mentioned in the original post, I’ve been following this case since shortly after the raid took place. I’ve been to Kansas City, where I interviewed the Hartes, their attorney, and several other people in the area who claimed to have been wrongly raided by tactical teams. There’s a lot more to this case than what was in my original post, Lungstrum’s ruling, or Kerr’s response. I think it’s worth delving into exactly what happened in the months leading up to this raid, because while Kerr is certainly right that Judge Lunstrum’s opinion was well within the parameters of current Fourth Amendment case law, it’s also an illustration of just how much Fourth Amendment case law has failed to protect our rights. All the assertions that follow are either from my own reporting, from Lungstrum’s opinion, or from the Harte court filinglinked in Kerr’s post. (I’ve also previously reached out to the Johnson County Sheriff’s Department to request an interview. They never responded to those requests.)
The hydroponic gardening store
Let’s start with the hydroponic gardening store. Kerr writes:
As the affidavit in support of the warrant explains, officers placed a suspect under surveillance after the suspect made a purchase ata particular hydroponics store that officers believed was largely used by those growing marijuana.
Perhaps it’s unintentional, but Kerr’s wording here seems to suggest that Harte was already a suspect at the time he made his purchases at the hydroponics store. It’s important to emphasize that it was Harte’s completely legal, completely innocuous purchase of gardening supplies to grow tomatoes and vegetables with his son that made him a suspect in the first place. Prior to that, he was unknown to the police. He had done nothing else to arouse suspicion. This is a major source of a lot of the outrage about this case. If Harte had never gone to that particular store, or had bought the supplies at Walmart, there’s no trash pull, no alleged false positives on the field tests and no raid. . .
And do read the entire article. It’s lengthy, and it shows the extent to which laws and law enforcement are now used against innocent people. It’s a stunning column.
Something is very seriously wrong, not only with law enforcement agencies and police departments, but also with the judiciary, which seem increasingly less judicious (e.g., judges who order people arrested for handing out leaflets on jury nullification, an arrest in violation of free-speech rights). In the Washington Post Radley Balko reports a recent incident:
In April 2012, a Kansas SWAT team raided the home of Robert and Addie Harte, their 7-year-old daughter and their 13-year-old son. The couple, both former CIA analysts, awoke to pounding at the door. When Robert Harte answered, SWAT agents flooded the home. He was told to lie on the floor. When Addie Harte came out to see what was going on, she saw her husband on his stomach as SWAT cop stood over him with a gun. The family was then held at gunpoint for more than two hours while the police searched their home. Though they claimed to be looking for evidence of a major marijuana growing operation, they later stated that they knew within about 20 minutes that they wouldn’t find any such operation. So they switched to search for evidence of “personal use.” They found no evidence of any criminal activity.
The investigation leading to the raid began at least seven months earlier, when Robert Harte and his son went to a gardening store to purchase supplies to grow hydroponic tomatoes for a school project. A state trooper had been positioned in the store parking lot to collect the license plate numbers of customers, compile them into a spreadsheet, then send the spreadsheets to local sheriff’s departments for further investigation. Yes,merely shopping at a gardening store could make you the target of a criminaldrug investigation.
More than half a year later, the Johnson County Sheriff’s Department began investigating the Hartes as part of “Operation Constant Gardener,” basically a PR stunt in which the agency conducts multiple pot raids on April 20, or “4/20.” On several occasions, the Sheriff’s Department sent deputies out to sort through the family’s garbage. (The police don’t need a warrant to sift through your trash.) The deputies repeatedly found “saturated plant material” that they thought could possibly be marijuana. On two occasions, a drug testing field kit inexplicably indicated the presence of THC, the active drug in marijuana. It was on the basis of those tests and Harte’s patronage of a gardening store that the police obtained the warrant for the SWAT raid.
But, of course, they found nothing. Lab tests would later reveal that the “saturated plant material” was actually loose-leaf tea, which Addie Harte drinks on a regular basis. Why did the field tests come up positive for pot? As I wrote back in February, it’s almost as if these tests come up positive whenever the police need them to. A partial list of substances that the tests have mistaken for illegal drugs would include sage, chocolate chip cookies, motor oil, spearmint, soap, tortilla dough, deodorant, billiard’s chalk, patchouli, flour, eucalyptus, breath mints, Jolly Ranchers and vitamins. Back in 2009, the Marijuana Policy Project demonstrated how easily the tests could be manipulated to generate positive results:
As a lab-coated and rubber glove wearing researcher from the South Carolina Center for Biotechnology dumped a sample of oregano into a field test kit, Mintwood Media’s Adam Eidinger produced a positive test result for cocaine with another kit simply by exposing it to the atmosphere. “This is just air,” Eidinger said, opening up a test and waving it as the reagent turned orange, indicating a positive result. (See the YouTube video here.)
The testing done at the press conference replicated that done earlier by the researchers, who found that a surprisingly large number of common substances generated false positive results for the presence of drugs. “While testing the specificity of the KN Reagent test kits with 42 non-marijuana substances, I observed that 70% of these tests rendered a false positive,” said Dr. Omar Bagasra, director of the Center for Biotechnology, who conducted the experiments.
That research came as part of new report, False Positives Equal False Justice, by forensics expert John Kelly in collaboration with former FBI chief scientist and narcotics officer Dr. Frederick Whitehurst. In the report, the pair uncovered “a drug testing regime of fraudulent forensics used by police, prosecutors, and judges which abrogates every American’s constitutional rights,” as Kelly wrote in the executive summary.
“Law enforcement officials, forensic drug analysts, and prosecutors knowingly employ the flawed Duquenois-Levine and KN Reagent tests as well as mere conclusory police reports to wrongfully prosecute and convict millions of individuals for anti-marijuana law violations,” Kelly wrote.
This is the same brand of test kit used in the Harte case. Despite the fact that the sheriff’s department didn’t begin investigating the Hartes until at least seven months after their allegedly suspicious activity (again — shopping at a gardening store) first attracted the notice of police, the sheriff’s department couldn’t wait for the more accurate laboratory tests to confirm that the “saturated plant material” was marijuana before sending a SWAT team into the Harte home. Doing so would have jeopardized the news hook of tying the raids to 4/20. It took all of 10 days to complete those lab tests. The lab not only concluded that substance wasn’t pot, the analysts added, “It does not look anything like marijuana leaves or stems.”
At the conclusion of the raids, the Sheriff’s Department held a press conference to tout their success. News reports emphasized that the raids had turned up drug activity “in good neighborhoods” in places like Leawood (where the Hartes live), and at the homes of “average Johnson County families.”
Once they had been cleared of any wrongdoing, the Hartes wanted to know what happened. Why had they been raided? What possible probable cause could the police have had for sending a SWAT team into their home first thing in the morning? But even that information would prove difficult to obtain. Under Kansas law, the sheriff’s department wasn’t obligated to turn over any information related to the raid — not to the Hartes, not to the media, not to anyone. The couple eventually had to hire an attorney to get a judge to order the sheriff to release the information. They spent more than $25,000 in legal fees just to learn why the sheriff had sent a SWAT team into their home. Once they finally had that information, the Hartes filed a lawsuit.
Last week, U.S. District Court Judge John W. Lungstrum dismissed every one of the Hartes’s claims. Harte found that sending a SWAT team into a home first thing in the morning based on no more than a positive field test and spotting a suspect at a gardening store was not a violation of the Fourth Amendment. He found that the police had probable cause for the search, and that the way the search was conducted did not constitute excessive force. He found that the Hartes had not been defamed by the raid or by the publicity surrounding it. He also ruled that the police were under no obligation to know that drug testing field kits are inaccurate, nor were they obligated to wait for the more accurate lab tests before conducting the SWAT raid. The only way they’d have a claim would be if they could show that the police lied about the results, deliberately manipulated the tests or showed a reckless disregard for the truth — and he ruled that the Hartes had failed to do so.
Keep in mind that this was a ruling for summary judgment. This was not a trial. To dismiss the suit at this stage, Lungstrum needed to view the facts in a light most favorable to the Hartes. And yet he still found that at no point did the police violate the family’s constitutional rights. . .
Continue reading. There’s quite a bit more, and it’s important.
Philip Smith reports in the Drug War Chronicles:
After several years of jostling since the defeat of Proposition 19 in 2010, the smoke has cleared in California and it now appears that a single, well-funded marijuana legalization initiative will go before the voters next November. That vehicle is the California Control, Tax, and Regulate Adult Use of Marijuana Act (AUMA), backed by Silicon Valley tech billionaire Sean Parker, WeedMaps head Justin Hartfield, Lt. Gov. Gavin Newsom (D), and a growing cast of state and national players.
The AUMU has sucked all the air out of the room for other proposed initiatives, most notably the measure from the California Coalition for Cannabis Policy Reform (ReformCA), which had been widely assumed to the effort around which the state’s various cannabis factions could coalesce.
Instead, more than half of the ReformCA board members have now endorsed the AUMA, including Oaksterdam University founder and Prop 19 organizer Richard Lee, California Cannabis Industry Association director Nate Bradley, Law Enforcement Against Prohibition (LEAP) head Neill Franklin, Students for Sensible Drug Policy (SSDP) deputy director Stacia Cosner, and Dr. Bronner’s Magic Soap head David Bronner.
That move came earlier this month, after proponents of the AUMA amended their initial proposal to provide safeguards against child use and protections for workers, small businesses, and local governments that also bring it closer in line with Newsom’s Blue Ribbon Commission on Marijuana Policy. . .
It sounds as though it’s coming together and will be well-considered (and show that we’ve learned from observing the legalization methods used, in Colorado and Washington, for example.