Electronic Freedom Foundation board member and drug policy reform activist John Gilmore memo:
EFF.ORG (where I’m on the board) filed a Freedom of Information request to FAA about “drones” (Unmanned Aerial Systems, or UAS’s).
It’s taken the FAA a long time to release info; they sent us another batch recently. This includes several thousand pages of drone authorizations for law enforcement agencies, universities, and the military.
View EFF-created map of law enforcement ‘drone’ projects here.
Once again, we see in these records that law enforcement agencies want to use drones to support a whole host of police work. However, many of the agencies are most interested in using drones in drug investigations. For example, the Queen Anne County, Maryland Sheriff’s Department, which is partnering with the federal Department of Justice, Department of Homeland Security and the Navy, applied for a drone license to search farm fields for pot,”surveil people of interest” (including “watching open drug market transactions before initiating an arrest”), and to perform “aerial observation of houses when serving warrants.”
The Gadsden Alabama Police Department also wanted to use its drone for drug enforcement purposes like conducting covert surveillance of drug transactions, while Montgomery County, Texas wanted to use the camera and “FLIR systems” (thermal imaging) on its ShadowHawk drone to support SWAT and narcotics operations by providing “real time area surveillance of the target during high risk operations.” Another Texas law enforcement agency-the Arlington Police Department-also wanted to fly its “Leptron Avenger” drone for narcotics and police missions. Interestingly, the Leptron Avenger can be outfitted with LIDAR (Light Detection And Ranging) technology. While LIDAR can be used to create high-resolution images of the earth’s surface, it is also used in high tech police speed guns-begging the question of whether drones will soon be used for minor traffic violations.
More disturbing than these proposed uses is the fact that some law enforcement agencies, like the Orange County, Florida Sheriff’s Department and Mesa County, Colorado Sheriff, have chosen arbitrarily to withhold some or-in Orange County’s case-almost all information about their drone flights-including what type of drone they’re flying, where they’re flying it, and what they want to use it for-claiming that releasing this information would pose a threat to police work. This risk seems extremely far-fetched, given that other agencies mentioned above and in prior posts have been forthcoming and that even the US Air Force feels comfortable releasing information about where it’s flying drones around the country.
EFF news release and links found here.
It has been nearly seven weeks since voters in Colorado and Washington made history, enacting at the ballot box unprecedented measures legalizing the adult possession on cannabis. Yet during this time, federal officials have largely remained silent.
One week ago, US Attorney General Eric Holder cryptically told Bloomberg News that the administration will formally announce its intentions “relatively soon,” but added no further details. Most recently, on Friday, President Obama told ABC News’ Barbara Walters: “It would not make sense for us to see a top priority as going after recreational users in states that have determined that it’s legal. … We’ve got bigger fish to fry.” Of course, federal officials do not target minor marijuana offenders now — so the President’s statement provides little clarity as to what actions the Administration may take going forward as Colorado and Washington begin implementing broader regulatory reforms, including measures to license proprietors to commercially produce and sell cannabis to adults.
Today, in Alternet.org, I speculate as to what actions the Administration may take — and what actions they may not take — in the coming weeks as state lawmakers work toward the full implementation of Colorado and Washington’s newly enacted marijuana laws. An excerpt from this commentary appears below.
Will Obama Go After Legal Pot in Washington and Colorado?
With public opinion firmly behind the will of the voters, is it realistic to think that the Obama Justice Department will take action to try and nullify Colorado and Washington’s legalization laws? It’s possible, but it may not be as likely as some think.
For starters, states are not mandated under the US Controlled Substances Act to criminalize marijuana or to arrest and prosecute adult cannabis consumers and the federal government cannot compel prosecutors in Colorado or Washington to do so. The Justice Department and the US Drug Enforcement Administration could, theoretically, choose to selectively prosecute those individuals in Colorado and Washington who possess or grow quantities of plant that are compliant with state law. But such a scenario is hardly plausible. The federal government lacks the manpower and the public support – and therefore the political will – to engage in such behavior and this reality is unlikely to change any time soon. As acknowledged by former congressman and ex-DEA director Asa Hutchinson at a recent CATO Institute forum on the subject, the federal government never has prosecuted people for possessing an ounce of marijuana and it is not about to start doing so now.
By contrast, the Obama administration may attempt to actively prohibit states from allowing for the above-ground, licensed production and sale of cannabis by authorized proprietors. Justice Department officials could theoretically do so by either bringing a legal challenge against the states, by threatening local officials, or by proposing to withhold federal funding. But none of these actions are assured. Here’s why.
To date, the Obama administration has done little to interfere with the state-approved production and licensed distribution of medical marijuana in those states that explicitly license and regulate this activity — specifically in Arizona, Colorado, Maine, New Jersey, and New Mexico. (In recent days, some of the first state-approved dispensaries opened for business in Arizona and New Jersey. In coming months, licensed dispensaries are also anticipated to open their doors to the public in Vermont as well as the District of Columbia. **AUTHOR’S NOTE: By contrast, the Justice Department has taken actions to aggressively close operations in California, Oregon, Montana, and Washington — though none of these states explicitly license dispensaries.**) In Colorado – where the state has licensed several hundreds of cannabis dispensaries and oversees “seed to sale” regulations governing the plant’s production and distribution – federal officials have yet to either file suit or threaten any of the state regulators who oversee the program. In response to a lawsuit filed in 2011 by Arizona Gov. Jan Brewer, who sought to invalidate the state’s 2010 medical cannabis law, lawyers for the federal government affirmed that the administration had never engaged in such strong-arm tactics and did not intend to.
The federal judge in the case agreed. She rejected Gov. Brewer’s legal arguments that the operation of state-approved medical marijuana dispensaries was preempted by federal law or put state employees at risk for federal prosecution, determining “[T]he Complaint does not detail any history of prosecution of state employees for participation in state medical marijuana licensing schemes [and] fails to establish that Plaintiffs are subject to a genuine threat of imminent prosecution and consequently, the Complaint does not meet the constitutional requirements for ripeness.”
A Maricopa County (AZ) Superior Court ruling from earlier this month further affirms that states possess the legal authority to regulate the legal distribution of cannabis, at least in some specific instances, without running afoul of federal anti-drug laws. In the case before the Court, White Mountain Health Center, Inc. v. Maricopa County, Judge Michael Gordon determined that the federal Controlled Substances Act did not preempt Arizona’s efforts to authorize “the local cultivation, sale, and use, of medical marijuana.” Writing for the Court, Judge Gordon declared that nothing in Arizona’s law circumvents federal law since Justice Department officials could still continue to locally enforce the Controlled Substances Act. In fact, Judge Gordon suggested that the new law “affirmatively provides a roadmap for federal enforcement of the CSA, if they so wished to” since the statute requires patients and proprietors to register their activities with the state. He concluded: “The Court rejects … arguments that the [law] violates public policy simply because marijuana use and possession violate federal law. Eighteen states and the District of Columbia have passed legislation permitting the use of marijuana in whole or in part. The Court will not rule that Arizona, having sided with the ever-growing minority of States, and having limited it to medical use, has violated public policy.”
Some legal experts, including law professor Robert Mikos of Vanderbilt University Law School, suggest an additional legal theory as to why Colorado and Washington’s proposed regulatory schemes may not be subject to federal preemption. Speaking at a recent CATO Institute sponsored forum, Mikos suggested that the newly enacted state legalization laws do not violate the spirit or the intent of the Controlled Substances Act because the federal law exists for the expressed purpose of limiting the consumption of certain substances by the public, particularly young people. One can argue that the proposed statewide regulatory schemes in Colorado and Washington – which impose age restrictions for buyers and limit sellers to those authorized by the state – are intended to serve a similar purpose. Further, the proposed state programs, “do not stop federal authorities from sanctioning registrants.” Notably, Superior Court Judge Gordon specifically highlighted these arguments in his decision to uphold Arizona’s law and to reject claims that it positively conflicted with federal law.
“No one can argue that the federal government’s ability to enforce the CSA is impaired to the slightest degree [by Arizona’s medical marijuana law],” he opined. “Instead of frustrating the CSA’s purpose, it is sensible to argue that the [law] furthers the CSA’s objectives in combating drug abuse and the illegitimate trafficking of controlled substances.”
You can read the full text of my commentary here.
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.”
Our anti-prohibitionist friends at the prestigious Washington, DC think-tank The Cato Institute will feature a live debate today at 4PM (eastern) entitled The Law and Politics of Marijuana Prohibition. The main focus of the debate, in the wake of Colorado and Washington voters recently approving binding ballot initiatives legalizing and taxing cannabis, is the very important–and unknown–federal response to this next generation of state-based cannabis law reforms that run afoul of the current–and unpopular–federal prohibition on cannabis that is now seventy-five years old.
According to Gallup and PPP polling–to say nothing of the vote totals in Colorado and Washington–more than fifty percent of the population supports legalizing cannabis. Even more recent Gallup polling strongly indicates Americans want the federal government to respect states’ efforts to reform cannabis laws.
Representing the argument that the states can indeed expand personal civil liberties via reform of cannabis laws is Vanderbilt law professor Robert Mikos, and representing, well, the status quo, is former congressman and Drug Enforcement Administration head Asa Hutchinson (who argues that states can’t legalize cannabis, because that will violate federal laws…cannabis is an evil drug…blah-blah-blah).
Also of great note, in advance of today’s live debate, The Cato Institute released a new (and compelling) academic paper by Professor Mikos entitled ‘On the Limits of Federal Supremacy: When States Relax (or Abandon) Marijuana Bans’
You can watch this debate @ 4PM eastern live here.
Today, for the first time in 89 years (Washington lawmakers initially outlawed cannabis in 1923, 14 years ahead of the enactment of federal prohibition.), an adult may possess up to one ounce cannabis (and/or up to 16 ounces of marijuana-infused product in solid form, and 72 ounces of marijuana-infused product in liquid form) for their own personal use in private — and they may do so without being in violation of state law.
To be clear: This is not decriminalization — a policy change that amends criminal penalties for minor marijuana offenses, but that continues to define cannabis as illegal contraband under the law and subjects its consumers to civil penalties. Today in Washington, cannabis — when possessed in private by an adult in specific quantities — is a legal commodity. (By contrast, public consumption of cannabis is a civil violation. Existing penalties regarding home cultivation for non-patients remain unchanged. Rules regarding the regulated sale of cannabis to adults are to be codified later next year.)
Nevertheless, the immediate statutory changes effective today provide unprecedented legal protections for adult cannabis consumers. Rather than presuming cannabis to be illicit, and that those who possess it are engaged in illegal activity, the enactment of I-502 mandates law enforcement and prosecutors to presume that cannabis is in fact legal, and that those who possess it in personal use quantities are engaged in legal activity, unless the state can show that there are extenuating circumstances proving otherwise. Moreover, since up to one ounce of cannabis will no longer be classified as an illicit commodity under state law, police will have no legal authority to seize it from lawful adults. Finally, police will arguably no longer be permitted to legally engage in ‘fishing expeditions’ when they encounter cannabis in ‘plain view’ –- such as in someone’s home or in their car. Since marijuana is no longer defined as contraband, state police will no longer have sufficient cause to engage in a further search of the area because, legally, no criminal activity has taken place.
Yes indeed, the dominoes are falling and more will fall imminently. (Colorado’s legalization measure will take effect in early January.) And there is very little that the federal government — which on the eve of legalization said only that it is ‘reviewing’ the new law — can do to stop it. States are not mandated to criminalize marijuana or arrest adult cannabis consumers and the Federal government cannot compel prosecutors in Colorado or Washington to do otherwise.
Like alcohol prohibition before it, the criminalization of cannabis is a failed federal policy that delegates the burden of enforcement to the state and local police. How did America’s ‘Nobel Experiment’ with alcohol prohibition come to an end? When a sufficient number of states enacted legislation repealing the state’s alcohol laws prohibition effectively discontinued. With state police and prosecutors no longer enforcing the Federal government’s unpopular law, politicians eventually had no choice but to abandon the policy altogether.
History now repeats itself.