NORML protests YouTube’s removal of a non-controversial, political advertisement that encourages California citizens who’re voting on Tuesday to come out en mass to vote ‘yes’ on the country’s most important cannabis legalization initiative to date.

Well…if the overlords of public discourse at YouTube didn’t like Mr. Berke’s creativity and support for Prop. 19, what will they do with country music performer Colt Jackson’s video in support of cannabis legalization?

Or, short filmmakers Fordy Shoor’s and Garth Von Ahnen’s Reefer Madness inspired sci-fi narrative that takes a mocking opposition to Prop. 19. Will YouTube’s censors get the comedy and sense of irony, and build a password wall around it, or allow it to stay up misunderstanding that the animation does not support Cannabis Prohibition?

Away from YouTube’s prying eyes, comedian and cannabis law reform supporter Rob Cantrell’s new Pro-Prop. 19 video spoofs US Army legend General Patton as ‘General Potton’?

How about Funny or Die’s Pro-Prop. 19 video? Again, off of YouTube’s system, creative artists don’t have to fear censorship and can address a political concern.

NORML encourages other like-minded citizens and organizations to contact YouTube and tell them to stop censoring Steve Berke’s ‘Should Be Legalized’ video and let it—along with all other pro-cannabis law reform videos—continue to gather public attention and support for the underlying political message: Let’s end 74-year of Cannabis Prohibition in America!

YouTube Censors Pro Prop 19 Political Campaign, Comedian’s Video Supports Pro Pot Legalization Drive

Miami Beach, FL (Oct 26th, 2010) Last week, comedian Steve Berke launched an online political campaign in support of Proposition 19 in California with the recent release of his latest music video, “Should Be Legalized”, a political commentary on Eminem’s music video “Love The Way You Lie.”

The campaign, supported by NORML (National Organization for Reform of Marijuana Laws) was generating huge internet buzz, and had amassed 108,000 views within 2 days, when YouTube flagged it for being offensive, thus requiring users to login to view the video, killing the video’s chance at becoming viral.

“We were on pace to reach 1 million views within a week, and our video was rallying supporters of Prop 19 and decriminalization in every state that had it on the ballot.  Then YouTube flagged us for being offensive and killed any chance we had at reaching our potential audience.   Their censorship of this video is similar to the Internet censorship that takes place in repressive countries like North Korea and China.”

YouTube failed to give any reason to Berke for flagging the video and it is presently inaccessible to the vast majority of worldwide. “The flagging system does not have a system of recourse and re-review,” stated Berke.

Fort Lauderdale attorney Norm Kent, on the Board of Directors at NORML, is among those who are outraged.  ”We will not let YouTube squash a vibrant political campaign the week before the historic November 2nd elections.

Videos of rapper Snoop Dogg smoking marijuana are not flagged as offensive, but a song that merely names him as a marijuana user is? YouTube is effectively freezing a viral political movement as it gains momentum in time for a critical vote. They must remove the flag. If they do not, we will pursue the matter further until they do.”

NORML Executive Director Allen St. Pierre adds, “YouTube’s building a wall around Steve Berke’s video makes no sense in light of dozens of other videos that depict normal cannabis use.  YouTube, whether it means to or not, is stifling legitimate political discourse regarding an important initiative vote in California next week that seeks to legalize and tax cannabis.”

“I just don’t understand it,” said Berke.  “People smoking marijuana in videos on YouTube go unflagged, but our video, that involves actors merely pretending to smoke marijuana as political satire, is flagged immediately.”

“In Eminem’s video, alcohol abuse, spousal abuse, sexual assault, arson and murder are all prevalent and the video is not censored in any way. In fact, YouTube runs ads against it, not only profiting off the video, but also making it viewable to all ages at all times,” Berke added.

The link to Eminem’s “Love The Way You Lie” is here.

The link to Berke’s “Should Be Legalized” is here.

Today I am going to come out of the closet as a Bi-Coastal pot consumer. I lead two lives; one on the East Coast and one on the West Coast.

In Fort Lauderdale, I own a townhouse where I have resided for over a quarter of a century. In this community, I am a lawyer and a spokesman for NORML, very active in drug law reform. But I cannot practice what I preach. That would be illegal.

In California, however, I found a small town near Berkeley, east of San Francisco Bay, where I may retire. It is Walnut Creek, a hamlet, I understand, that has more open public spaces than any other village in America. There, I may eventually choose to grow my own pot. I am allowed to do so.

In Fort Lauderdale, Florida, where I practice law, and get people out of trouble for growing pot, I have to defend people who do what I am entitled to do in California legally. You see, the rules are different here. Life can thus be a bit conflicted.

In early 2006, my Florida roommate, after learning he was HIV positive, decided to move back to his hometown of San Francisco. As a pot consumer, he realized he could now get a medicinal recommendation for marijuana and grow pot legally under California law. The Florida laws are not so kind or generous. Cultivation of any amount is a second degree felony.

We went to San Francisco together, to a community I have visited and loved since the early 1970’s, from my first spectacular drive up the Pacific Coast highway. We found and rented a small apartment in the Haight.

It has been thirteen years since California voters enacted Proposition 215, which allowed citizens to utilize marijuana for medical purposes if a person had a legitimate need. As a recovering cancer patient, I more than qualified for a medical marijuana recommendation.

I sought out a legitimate physician, not one running a medical marijuana mill. I came with a full set of medical records tracking my unenviable medical past, including recent spinal surgery. The doctor thoughtfully reviewed with me the medical risks associated with the use of cannabis. Not that I did not have a little experience. I mean, I am 60 years old this year. My friends’ kids go to Bonnaroo. I lived through Woodstock.

After the screening, my physician then appropriately certified me as an individual who could benefit from the medical use of cannabis. Just like that, I became patient number 380206011. I then proceeded to a medical dispensary, proudly armed with a State of California Medical Marijuana Identification Card.

As a California patient, I am empowered to acquire cannabis lawfully at medical dispensaries. Under the California Health and Safety Code, I am also entitled to grow up to six plants of my own in my little apartment on the bay. I do not have to hide them from the authorities.

I joined the Oakland Cannabis Buyers’ Cooperative, and was issued a Growers Certificate. It affirms that any herbs I cultivate at home would be grown for my personal medical use. I was now at liberty to grow my own medicine. It is still called pot in Florida. We call it medicine in California.

Today, therefore, the same medicine I can consume lawfully in California I have to prevent people from going to jail for in Florida. It makes no sense. Fourteen states and scores of communities across our country have either decriminalized or ‘medicalized’ marijuana. It is not good enough. Americans still face one very large federal stumbling block.

A state may pass its own laws, but so too may the federal government pass laws which preempt those state laws. In the case of marijuana, that is what Washington has done. Our federal government claims marijuana is not medicine. As such, it criminalizes all marijuana possession, use, or cultivation, regardless of what the states do.

At first, patients were lucky. In 2003, the US Ninth Circuit Court of Appeals ruled that the federal government had no right to arrest or prosecute medical marijuana patients- as long as what they possessed was for personal use. The United States Supreme Court reversed that ruling in 2005. Thus, as we sit here today, in 2009, federal law enforcement officials can prosecute medical marijuana patients, even if state authorities will not; even if they reside in a state where medical marijuana use is protected by state law.

Under our Constitution, the police power of the state is to be exercised by the state. California authorities are not disobeying federal laws by not enforcing them. They are not legally obligated to do so. Nor is Florida obligated to follow California laws. Just because you have a medical right to possess cannabis in California does not give you a legal right to grow or possess it in Florida. Though some clients of mine have tried, you can’t get stopped for smoking in Miami Beach and pull out a medical marijuana card from Santa Monica. It won’t fly. Tell it to your bondsman.

Welcome then to my conflicted life. I am permitted to grow my own medicine lawfully in my California apartment. If I were to do that in Florida, police could raid my house and the Florida Bar could seize my card. Instead of representing a grower, I would need a lawyer to represent me. Florida would not care that I am patient number 380206011 in California. What is wrong with that picture?

The cannabis I purchase in a dispensary in Berkeley I can carry in my car and consume in my living room. If I am flying back to Florida though, I cannot carry it with me. That would be a federal crime. But if I am relaxing at an airport bar in either San Francisco or Fort Lauderdale, I can order and consume Crown Royal and Coke. What I can’t get on both coasts is justice. That is far more elusive, and does not come in a bottle.

One national reform group has spent 40 years trying to stem the tide of repression and advance the rights of marijuana consumers. They say it is normal to smoke pot. Their name is NORML, the National Organization to Reform the Marijuana Laws. If there was ever a time to be part of their effort, it is now, as the new administration in Washington has said they are going to put an end to the drug war madness. They have said they will end the raids on medical dispensaries.

We need to see that deed and action follows words and promises.

We need to send a message to our legislators that the silent majority of Americans support vast and overriding changes to repressive drug laws which have incarcerated too many for too long. Join NORML in that effort.

We need to show that moral authority is on our side. Spread the word and you will spread the seed.

First published at http://kentvent.blogspot.com/

The morning after the Academy Awards a band of protestors gathered in Los Angeles on the corner of Main Street and Temple St outside the federal courthouse. They were not there for the Oscars. But one day someone will make a movie about the person they were there for. It may be called ‘Inherit the Wind: the Sequel.’

The protestors were marijuana patients and medical use advocates gathering in behalf of one Charles C. Lynch (photo below of Lynch’s medical cannabis dispensary opening), who was convicted in a United States court last summer of operating a medical marijuana dispensary in violation of federal laws. The organizers have no red carpet. They just wanted to draw public attention to Lynch’s case hoping that the 46-year old man does not spend decades in prison for giving medicine to sick people.

California is one of thirteen states in which medical marijuana is legal, but federal law prohibits its use under any circumstances. That means that though Mr. Lynch obeyed local and state laws, he nevertheless became a federal prisoner. That means he is a victim of American injustice at its worst.

Mr. Lynch was convicted at trial, denied under the Federal Rules of Evidence from presenting any testimony whatsoever about medical marijuana, his own city business license, or the California state law he dutifully and righteously obeyed. A jury thus only heard that some man was selling marijuana to line his pockets, and they convicted him, as a San Francisco jury once convicted Ed Rosenthal.

We had another trial like that in America. It was called the Scopes trial, and as I recall, a schoolteacher was prosecuted for teaching science in his class and then denied the right to present testimony regarding evolution at his trial.

On February 4, a White House Spokesman named Nick Shapiro said that President Obama did not want to waste federal law enforcement resources circumventing state medical marijuana laws. Mr. Shapiro opined that he expected the President’s new appointees to consider this when setting policy for their agencies. How about having one of them show up at the sentencing for Mr. Lynch? How about directing the US Attorney to stand down? I am available if they want to send me.

Somewhere in Hollywood, a producer, watching news footage of this honorable protest, will sit in his studio, and remark, ‘This will make a good film.’ Years down the road, a younger version of Sean Penn will accept an Oscar for having portrayed a role about a middle aged man who started a legitimate business dispensing marijuana to sick people. It will show him struggling to open the collective, reaching out to his consumers, helping out his neighbors, and raising his family. Then the scene will switch to federal SWAT agents smashing down his door, arresting him and locking him up. A US Attorney will then put him in jail for violating federal laws. Freed years later, his community will see him as a hero and martyr, not a villain or thief.

While gay people were being beaten mindlessly in alleys for decades, someone may have said the same of Harvey Milk’s inspirational calling in San Francisco for gay rights. But he was not alive for the motion picture. He was gunned down. For Mr. Lynch and his family, there is no time for a movie tomorrow. This is real life. He is being gunned down today.

Unless our President does something, he is going to jail for years. And no academy award will ever remedy that terrible injustice.

Norm Kent is a criminal defense attorney in Fort Lauderdale and a member of the NORML Board of Directors, who publishes The Broward Law Blog

Here are some related links, courtesy of Americans for Safe Access:

-White House Statement on Medical Cannabis: safeaccessnow.org/article.php?id=5665

-Drew Carey/Reason TV documentary short on Lynch: reason.tv/video/show/413.html

-Recent Los Angeles Times story on the trial: latimes.com/news/local/la-me-weed26-2008jul26,0,6418930.story

-Friends of Charles C. Lynch website: friendsofccl.com

By Norm Kent, Esq., Member, NORML Board of Directors

Richland County Sheriff Leon Lott and Company: ‘Michael Phelps, make our day!’

On this blog, I do not give legal advice. I express legal opinions. The legal opinion everyone is asking me about is can Michael Phelps actually be charged? After all, there is no proof there was anything in the pipe at all. There is no controlled substance to present to a court. There is not even a pipe that could lead to a paraphernalia charge. So how can they possibly prosecute him?

In my law office I have a steel Florida Marlin, stuffed by an ichthyologist, which I caught off the shores of Key West, in the waters of the Atlantic Ocean.

Under the fish, there is a plaque which reads, “Behold the bright, blue Marlin; this creature would not be here today had he not opened his big mouth yesterday.”

Michael Phelps should have come by and read it. His publicized admission that he toked from a bong at a frat party in a South Carolina dorm has stirred a whirlwind of controversy and put him in harm’s way.

The real bad news came from the sheriff in the jurisdiction where Michael allegedly toked up, with a pronouncement that he was going to investigate the case to see if he could prosecute young Mr. Phelps.

The sheriff’s public information teased the media: “The Richland County Sheriff’s Department is making an effort to determine if Mr. Phelps broke the law. If he did, he will be charged in the same manner as anyone else…”

Sheriff Leon Lott then commented to a local newspaper about the quality of his case. He stated that, “this one might be a lot easier since we have photographs of someone using drugs and a partial confession. It’s a relatively easy case once we can determine where the crime occurred.” Not so, Sheriff Lott. You are leaving out a lot.

First and foremost, look at Michael’s exact words, never acknowledging he smoked pot. Instead, there was a carefully worded admission that he engaged in regrettable behavior, it might even have been written by a publicist—more worried about that Speedo endorsement than a criminal prosecution. That does not a confession make. Score lap one for Phelps.

Second, what if some classmate who was at the party decides to turn the bong over to the authorities, instead of selling it on EBay? If they find Michael Phelps’ fingerprints on it, along with residue of cannabis, he can arguably be charged with possession of drug paraphernalia, since the pipe is supposedly packed with pot. But how would you know months later that the pot was not added after the fact? How would you prove it was the same bong? The Phelps defense would be that there is no continuous chain of custody that can establish there was contraband in the pipe at the time he held it in his hand. There is no way to show what was in the pipe when he held it. Phelps would win the second leg.

Third, the pictures alone are insufficient as a matter of law to sustain a conviction for possession of drug paraphernalia. Someone would have to come forth and authenticate it as an actual pipe. Someone would have to come forth and attest to the fact that they took the photo. Without real parties to affirm and swear to the authenticity of the alleged contraband, the evidence is entirely circumstantial and legally inadmissible. Phelps wins again.

Fourth, since the law prosecutes possession, and there is no way to prove that there was ever pot in the pipe when Michael exercised dominion and control over it, the charge would be subject to a Motion to Dismiss for failure to establish evidentiary proof of the contraband. Proof of possession typically requires an assertion by a drug testing laboratory, which is an arm of the sheriff’s office, to swear that the substance with which you are charged is actually illegal. There is no pot to test. Phelps wins a fourth round.

Venue, or location is important too. In order for any prosecution to be initiated by a law enforcement agency, someone will have to come forward with a sworn statement and independently establish the location of the alleged act. Typically, a second degree misdemeanor is not an extraditable offense. All Michael has to do is stay out of South Carolina. Phelps wins a fifth lap.

However, do not lose sight over the fact that Michael’s unsolicited statement could be used in tandem with witnesses to convict him after the fact. Just as you do not need a body to establish a murder, if the sheriff brought in a witness who said he put pot in the pipe, a second person who said ‘I handed Mike the pipe with pot in it‘, a third person who said ‘I saw Mike smoke the pipe with pot in it, and I am sure it was pot based on my experience,’ and tied that up with Mike’s admissions and a picture, who someone could say was taken contemporaneously with the criminal conduct, he could arguably go down. But even then there is a problem for the prosecution.

Under the legal doctrine of Corpus Delicti, a defendant’s confession or admission of guilt cannot be introduced until after the state has presented evidence showing that a crime has in fact occurred. So Phelp’s admission cannot come into play or even be used as evidence until the commission of an actual crime is established through other, substantial competent evidence.

This last scenario would require testimony from other witnesses who were at the bong party with Michael. These persons would have to come forward and admit to their own conduct as either equally guilty culprits or co-conspirators. It means they too would be putting their own scholarships and educational privileges at risk, and they are not sitting with millions of dollars in endorsements

In essence, I suspect that very soon the Sheriff will publish a statement that after ‘due diligence,’ his ‘investigation’ revealed an insufficient basis upon which to proceed.

And maybe the next time Mr. Phelps gets caught with marijuana he will stand up and courageously say: “It’s normal to smoke pot. I am an Olympic gold medal winning athlete and it has not impaired me one bit.”

If he does, I will invite Michael to join the NORML advisory board. I will even buy him his own bong.

Norm Kent, a Fort Lauderdale criminal defense lawyer, can be reached @ www.normkent.com. He is the publisher of the Broward Law Blog.

Okay, it is only February 1st, and more people this year have already died from peanut butter than pot.

Seriously, when you think about what has crossed the pages of our nation’s conscience in the past month, you have to wonder why we are all not getting high.

With thanks to Michael Phelps, I have ten good reasons to believe drug law reform will ‘take’ this year. Here is why.

Number One: The President
First of all, we elected a President who has admitted inhaling, and whose half brother just got arrested in Kenya for possession of marijuana. Growing up in urban Chicago, and having come from Hawaii, home of ‘Maui Waui,’ we have a man in the oval office that has an herbal background.

I am therefore not intimidated that, on his third day in office, while he was working on a nationwide economic stimulus package, some renegade prosecutors raided a medical dispensary in California. Those ugly efforts will cease soon enough. I am encouraged by President Obama’s prior public statements that such raids are counterproductive and provide illusory answers to real problems.

Number Two: The Medicine
Just as I was exploring the placement of my mom into an assisted living facility for early stage Alzheimer’s patients, I see a study released by Ohio State University this month. The research is indicating that marijuana has some potential capacity to reduce brain inflammation, which plays a role in Alzheimer’s. Mom, those brownies might taste differently next week.

While evidence showing the benefits of marijuana in multiple sclerosis cases has been advancing significantly, work in Alzheimer’s disease is still in its infancy. Still, another recent study performed at the Scripps Research Institute in California found that THC, the active ingredient in marijuana, inhibits the formation of a brain plaque that is a hallmark of Alzheimer’s disease.

Number Three: The Politics
If you light up a joint while walking down High Street in Medford, Massachusetts, not much is likely to happen to you. As of Jan. 2, Massachusetts became one of 12 states that have decriminalized marijuana possession to some extent. The new civil penalties for possession of less than 1 ounce include a $100 fine and forfeiture of one’s stash for those over 18 years of age. Minors will receive the same fine and be required to attend drug education classes.

In city after city, and state after state, once silent minorities are becoming vocal majorities and voting to enact legislation freeing marijuana from unjust law enforcement. When given the chance, we are winning the war against prohibition. Legislators in Michigan, Connecticut and even Florida are starting to re-introduce bills to lower penalties for pot. The whirlwind is commencing; just ask anyone in a dorm room within a wave of the White House after the inauguration.

Number Four: The Media
Marijuana has gone mainstream. Media outlets are no longer hiding in the shadows afraid to produce honest reports about the culture of marijuana. We are less likely to see commercials of pot smokers having their brains grilled in a frying pan. We are more likely to view legitimate programming which produces truths rather than trash about your stash.

One such report was featured on NBC news last week, a snippet of an hour long production on MSNBC entitled ‘Marijuana, Inc.’ Focusing more on economics then the sociology of pot, the well-supported report inescapably concluded that marijuana commerce is here to stay and unlikely to change. As even the NY Daily News said, “When it comes to marijuana, a whole lot of people voted some time ago to just say yes.” Ask the cast of the award winning Showtime series, ‘Weeds,’ which captures a growing American spirit.

Number Five: The Public
Even the Department of Health has said that 95 million Americans have over the age of 21 have tried marijuana at least once. Everyone except Bill Clinton has inhaled. The anti drug warriors have a hard time explaining to the average adult in the 21st century that millions of Americans are wrong when they light up every day.

It is normal to smoke pot. The vast amount of marijuana users today are parents choosing to calm down instead of liquor up, not just kids, looking to get high after class. Of course, they are too, adults treating arthritis, patients using it for multiple sclerosis, or people with HIV fighting a wasting syndrome. Pot smokers cross ethnic, sociological, and economic boundaries.

Number Six: The Celebrities
There is a lot of reason to hate the celebrity culture, paparazzi, and people who get their daily pulp from finding out where Brittany Spears went shopping. As more media types get busted with pot, the less newsworthy it becomes. The public could care less. An arrest for pot is not a career-ending event. As I finish this piece and send it off for distribution, I am watching Snoop Doggy Dogg being interviewed on ESPN for the NFL Countdown to the Super Bowl. It does not seem to have hurt him. And guess what Michael Phelps got caught doing this weekend? Toking off a bong!

Macauley Culkin, Bud Bundy, Willie Nelson, Art Garfunkel, and Al Gore’s son also make the High Subscription List. So do Allen Iverson, Matthew McConaughey, Whitney Houston, Oliver Stone, and even Queen Latifah. All have posted bail for pot. They are not doing too badly for themselves. Go visit Celebstoner for more prime examples of the intersection of celebrity and cannabis.

Number Seven: The Growers
In speaking out against rescheduling marijuana so as to remove it from its classification as dangerous, the most significant point that the Office of Drug Control Policy makes is that today’s weed ‘is not your grandfather’s pot.’

Exactly! It is not, but they miss the mark when they say today’s pot is ‘stronger.’

Today’s pot is also cleaner, safer, and healthier to consume. From vaporizers to hydroponic labs, the marijuana grown and consumed today is more precisely cultivated, carefully processed, and lovingly manicured then the mold-encased, dried-out weed we grew up on decades ago. That pot was often delivered to Americans from overseas after being buried in the dark, musky cargo hulls of ships for weeks at a time.

Now that Americans grow our own marijuana at home, we do not hear stories on a daily basis about people smoking rat poison or buying oregano. We have returned to the roots of our forefathers, lest we forget that George Washington, Thomas Jefferson, and James Madison all grew hemp. They did not turn out too bad, either. Today’s pot growers are the new revolutionary farmers.

Number Eight: The Police and Jails
Sadly, the criminal justice system in America is teeming with serious crimes and violence against Americans. A Department of Homeland Security must necessarily focus on threats from abroad. From drive-by shootings to corporate white collar crime, the jails in our country are simply not capable of housing all those who should arguably be locked up. So law enforcement has to prioritize. Building jails and keeping people in prisons costs more money than communities can afford. Pot smokers are the residual beneficiaries.

The necessities of twenty first century law enforcement have reduced pot to secondary priorities. More and more cities are encouraging cops to treat simple pot possession as a civil traffic infraction and just write a ticket. As those progressive initiatives take hold, pot prosecutions will diminish and pot users will be treated more fairly.

Number Nine: The Non Profits
The wealth of non profit organizations advocating drug law reform is growing exponentially. We are not just NORML anymore. Benefactors like Peter Lewis and George Soros have underwritten drug reform movements the way Hugh Hefner once helped NORML. The Marijuana Policy Project, Students for a Sensible Drug Policy, the Drug Policy Alliance, and Law Enforcement Against Prohibition are just a small sampling of honorable groups fighting to change the public perception in the way drug consumers are viewed and treated. If you enhance their efforts today, there is less of a chance that you will be bonding yourself or your child out of jail tomorrow.

Number Ten: The Internet
There is no better way to end this column then to point towards the awesome power of networking to generate partnerships for the common good. Overnight, hundreds of thousands of reformers can be linked for a specific goal, a targeted protest, or unified voice to speak out for or against a new law or proposed regulation.

The NORML blog and podcast draws hundreds of thousands of Americans daily who would otherwise never be reached but for the arm of the ‘Net. Stopthedrugwar.org, Marijuananews.com, and cannabisnews.com are amongst the target specific Internet resources drug law reformers can access instantly. There are too many more to mention.

Finally, the Internet has spawned awesome networking groups such as Facebook and MySpace, where activists, organizers, and reformers can synthesize their partnerships and causes. And there is always something new unfolding, like Twitter, which I have not figured out, but I know is catching on.

It’s Up to Us!

For too many years, pot smokers have been political prisoners, captive to repressive government and a rolling tide. 2009 represents a renewed opportunity to make the waters of justice run our way again.

*This was originally published at KentVent.com

On July 1st of 2008, Florida enacted a new law which enhanced penalties for marijuana grow houses. Authorities heralded it as the ‘Marijuana Grow House Eradication Act.’ It is just another excuse to lock decent people up for longer times.

There are some provisions of the act which bring back the dark days of the draconian Rockefeller drug laws in New York, legislation which sent small marijuana growers to jail for thirty years. Some might first be getting out today.

Law enforcement argued that they needed the new law because of the increasing number of grow houses operating in the state and violent crime which tend to be associated with these operations. Sure they did.

“Grow houses are not only furthering this dangerous drug trade within our state, they are bringing violent crime into our neighborhoods,” said Attorney General McCollum. “This new law will help protect our families and communities.” No, it won’t.

There was no accompanying empirical or independent study or statistical backup to lend truth to the public statements of Mr. McCollum. Nor was there any journalist anywhere in the state that took him to task or asked for documentation to sustain his claims. They just regurgitated and repeated the pablum they were fed by law enforcement.

The new law makes it a second-degree felony to grow 25 or more plants, no matter how small or large those plants are. Baby seedlings or mature daddies, 25 plants can get you 15 years. It used to take 300 plants to reach that harsh a penalty. Put it in perspective. If you lived in California, and you were given a medical marijuana card, you would be allowed to grow up to six plants of your own. Thus, if the cast of Real World was growing its own medicine in San Francisco they could film some great episodes. If they were doing it in St. Pete, Florida, they could be doing those episodes for the next 25 years from the State Penitentiary.

The Florida law also changed to make it a first-degree felony to grow 25 or more plants in a home with children present. That penalty is now 30 years. Already, I am representing a 50 year old gentleman, who was a schoolteacher in Miami for 20 years; who retired because of a disability. He grew his own pot in an outdoor shed behind the garage, apart from his children, used it for himself, and knew nothing about the law. He is now facing the rest of his life in jail.

“Marijuana is the most commonly used illegal drug in America and we must take a stand against the for-profit growers who were previously exploiting higher thresholds,” said one of the bill’s sponsors. “By lowering the number of plants necessary for criminal charges, we’ve given Florida’s authorities valuable tools in the fight against these criminal operations,” he foolishly added. No, they have not given law enforcement any more tools. They have just given decent people longer sentences for essentially innocent conduct.

Many of the larger grow houses I have seen over the past 30 years as a criminal defense lawyer are truly marijuana cultivation operations designed solely for entrepreneurial reasons and major marketing. Exclusive homes in gated communities worth hundreds of thousands of dollars have been rented, sealed, and converted into home grown hydroponic laboratories.

When they are inadvertently discovered, law enforcement makes an entry only to find no one lives there, and the place was being used to solely grow pot which would be commercially marketed for a profit. If pot is going to be against the law, you can understand that type of operation being targeted. Greedy people violating the law go to jail.

The new law enhances penalties. The difference in changing the law is significant, because what the legislature has done is gone from targeting entrepreneurial operations to including individuals simply trying to cultivate their own medicine. The less you grow, the more you are likely to now face a greater penalty.

Two of the individuals I currently represent are domestic partners who purposely started a grow house in their backyard exclusively because, at the age of 45, they did not “want to go purchasing pot on the streets in their car during the dark of night.” My client said they thought this was the smart and safest way not to commit a crime, but to “tend to their own garden.” And the price they pay for a safer way to acquire pot is a speedier way to go to jail for a longer time.

Another individual I represent who was growing pot is an artist. He and his wife have two children. They are painters. They paint, they smoke, they raise their children. At six a.m. one morning last summer, agents from the Drug Enforcement Agency knocked on their door to say they were investigating grow houses.

Separating wife and husband, they argued they smelled pot and had a right to enter. They warned the couple that “if they did not cooperate,” they would have to take their children to the local family services agency, the typical bureaucratic disaster in this city that it is in your own. They reminded them that under the new law they could lose their children and face 30 years in prison. The couple had no guns, ran no gangs, and committed no violent acts. They grew some weed to fulfill a passion they had engaged for 20 years. These are the types of people these new laws target.
In this operation, the one law enforcement authorities bragged about as Operation D Day, sixteen agencies combined on one single day in Florida to bust 150 grow houses which would have netted purportedly $41 million worth of marijuana plants. I guess we will never know now. Overall, on that day, April 28, over 9,000 plants were seized and 135 arrests were made throughout the state.

A review of the county wide press releases said very little about finding any guns, weapons, AK-47s, or rifles. About ten guns were found in South Florida, and a bullet proof vest. If you were Noel Llorente, you might have needed one.

Mr. Llorente, you see, lives in Opa-Locka with his wife, Isabel. He was leaving for work when unmarked cars pulled up, DEA agents jumped out, yanked him out of his vehicle, threw him down with guns drawn, handcuffed him, and then stormed into his home searching for drugs, smashing in the front door along the way. Panicked, Isabel tried to call 911. Agents grabbed the phone from her. A few minutes later, agents realized they were in the wrong house. Whoops!

“Sorry, they told me, Sorry,” Noel Llorente said. Then the agents went on their way. “So it goes,” said the Little Prince, “so it goes.”

Marijuana is, of course, against the law in Florida. The agencies had a right to make the arrests, conduct the seizures, and raid the grow houses. They were doing their job enforcing the law. We cannot castigate them for doing their duty. We can condemn, censure and criticize the legislators who enhanced the penalties for the acts, instead of adjusting the laws to respond to the practical realities of marijuana use.

Authorities correctly point out there is an emerging trend that identifies an increasing number of indoor cannabis operations statewide. One law enforcement officer said that the number is growing exponentially, at a rate they will never catch up to. Well, does that also not say to those same agents of justice that people see their prosecution as an injustice? If so many are defying the law, should we not be reducing the penalties rather than enhancing them?

I understand that law enforcement correctly stated that many ‘Cuban nationals’ were arrested in this operation, intimating that it is all part of a foreign conspiracy.

I understand too, that each county sheriff talked about how some of these major grow houses have led to more serious crimes.

I understand also that if Floridians were allowed to grow their own plants in their own backyards without the threat of law enforcement breaking in their doors and taking away their children there would be no need for Cuban nationals or terrorism.

Finally, I understand how the terrible law terrifies the decent citizen and creates the very terrorism the government seeks to end. There is a very simple way to end the problems these law enforcement officers want to cease. Legalize the pot they criminalize. Medicalize it as over a dozen states have now done.

Thomas Jefferson once said that “That government which governs least governs best.” And like his friend, George Washington, not to shabby an American himself, Thomas Jefferson was a hemp farmer.

Maybe America today needs more cultivators and more grow houses, not less. Maybe like the patriots who threw tea off a British ship in a Boston harbor, the families who have grow houses in their backyards are today’s revolutionaries. Maybe tomorrow, history will prove them right.

Who knows, if I am right, maybe someday someone will make a TV show about it and call it ‘Weeds’. Then the show will win awards, people will laugh at it, and we will all look up and say how stupid these laws were. After all, families who grow together, grow together.

Norm Kent is a Fort Lauderdale criminal defense and constitutional rights attorney who can be reached at Norm@normkent.com. Norm also blogs publicly about legal issues at www.kentvent.blogspot.com

By Norm Kent, Esq., NORML Board Member*

“Look outside the window, there’s a woman being grabbed. They’ve dragged her to the bushes and now she’s being stabbed. Maybe we should call the cops and try to stop the pain. But Monopoly is so much fun, I’d hate to blow the game. And I’m sure it wouldn’t interest anybody.
Outside of a small circle of friends.”

–song by Phil Ochs

Duval Street is the epicenter of Key West, home to Sloppy Joe’s, Hemingway’s and a host of bars and hotels which have for a century captured the spark and soul of this land of the lost.

The Environmental Circus is gone, Valladares’ News Stand is history, and though La Te Da still stands, Larry Formica and his pink Cadillac have long since passed. Where a beat up wooden dock and a collage of cultures once gathered on historic Mallory Square, cruise ships now pour out thousands of tourists in flowered shirts onto the city’s main streets.

Fantasy Fest still wreaks havoc to the city every fall, but the Pirate image of this out of the way city has been lost for a long time now, to t shirt shops and condos; to name hotels and tourist traps. The heart of the city, Duval Street, has seen some of its landmarks become chain pharmacies, and cheap coffee shops like Shorty’s and Dennis Pharmacy have become convenience stores.

Walking down Duval Street in 2008 you are more likely to find a foreign exchange student from Slovakia peddling a bike for extra cash than you are to stumble upon a runaway teen from New York hustling a street corner for change. The times they are no longer changing. The times they have changed.

The temperature on October 17, 2008 in Key West was its typical and tropical 75 degrees. Ladies were sunning themselves bare-breasted at the Pier House’s private beach. Fishermen were working the pier, vacationers on mopeds criss-crossed the narrow streets, and more than one drunk stumbled down an alleyway. After all, it is still Key West.

But the heat on Duval Street was about to get hotter.

The shops on Duval Street opened their doors as usual, with no threats of a hurricane brewing. Merchants, if anything, were readying themselves for the annual, sin-filled festival of self-ordained decadence, Key West Fantasy Fest. On that date, many of them, head shops, were selling rolling papers, glass pipes, bongs, and other products designed to enhance the “right of happiness,” a constitutional right not too often protected by our courts.

The stores had signs all over them saying the products are for ‘legal and tobacco use only.’ But this distressed the new mayor, concerned that his little town was sending the wrong message: “You know that you don’t really smoke tobacco out of those things.” He sounded like Sarah Palin telling us how you could see Russia ‘from my house here in Alaska.’

The misguided mayor of this island city disapproved of the displays and set to do something about it. So he called the feds. You see, under broad Florida state laws, those pipes are legal. Not so under federal law. Understandably, this confuses the average citizen. Heck, it confuses lawyers too.

Title 21, Chapter 13 of federal law states: “Drug paraphernalia means any equipment, product or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance …”

Supported by the local district attorney, the Mayor found his answer. On this quiet morning in October, federal authorities from 16 different agencies, aided by local and state operatives, converged on Duval Street and the neighboring streets where head shops dispensed their products lawfully, or so they thought.

Store by store, law enforcement entered with badges and guns, uniforms and crates- that’s right, crates- to cart away and confiscate the inventory of these stores to the waiting Budget U Haul Rent-a-Truck conspicuously parked in the center of the street.

Systematically, the feds sucked up any items they deemed as contraband that they say could be used to violate Title 21. The items taken then were rolling papers, lighters, ash trays, bongs, catalogues, pipes, and anything they say could potentially be used to violate the law. There was no order or determination of probable cause by a jurist, no ruling by a court that the items were illegal, just law enforcement officers with cartons and guns.

Furthering their operation, these officers then seized all the financial records of the stores, including their receipts and credit card purchases. That means if you have visited Key West lately and you purchased one of those glass pipes, the Feds now know where you live too. Your credit card number is now sitting in a federal database as a drug paraphernalia consumer. No, there was no judicial hearing on that either.

As a matter of fact, no one was charged with a crime, but the feds carted off 11,920 items defined as drug paraphernalia under the federal law, with an estimated value of three quarters of one million dollars. Not a bad haul for one sleepy, sunny morning in Key West.

Since the raids, at least two stores have summarily closed their doors, their inventory entirely depleted. Said Abby Frew, the owner of a shop called Energy: “The financial loss was too great. Stay open? I don’t think so. They took all my stuff.”

“I wanted to clean up the city’s image,” said Mayor Morgan McPherson. “I did not like what I saw in the windows of all those stores.” He added that if the business people don’t like it, they “call their congressman.”

He cleaned it up all right. Aided by a complicit federal government following their own set of laws, he kicked the businesses out without due process of law. He disgraced its community, screwed its businessman, and advanced a disgusting partisan personal political agenda. In the old Key West, he would have been recalled and reviled. In the new Key West, he becomes a hero.

An enlightened mayor might have called the chamber of commerce or invited a community discussion to discuss alternatives. The mayor might have used code enforcement and local ordinances to mandate zoning changes. Instead, he called and asked the Feds to do what city cops were not allowed to do.

Moti Elfasi, an Israeli by birth, is one of those businessmen whose inventory was seized. Having lived in Key West for a decade, he loves the atmosphere and the community of the island. But his head is spinning over what happened to him.

Here is what he told local reporters: “I don’t understand America. They gave me a license in Key West. I paid my taxes. I obeyed the law. Florida said it was okay to sell the things. But now people from Immigrations and Customs Enforcement, and federal agents from the Drug Enforcement Administration come in and take everything away from me without even a notice to remove it first.”

It’s more than that, Moti. You detrimentally relied upon the representations of Key West city representatives that you could lawfully do what you were doing. Day by day, hour by hour, Key West city police patrolled your business, and no one told you that you could not do what you were doing. You have been operating openly and legally for years. You paid your taxes. You had an occupational license. You employed your neighbors. Now you got screwed.

Key West is not the first city to deal with this conflict between state and federal laws, nor will it be the last. California is of course the epicenter of this cosmos of confusion, with the feds neither recognizing medical dispensaries nor Prop 215. Just last week, our government pushed the envelope even further, raiding head shops in San Diego.

Across this country, over the past few years, other shops across this country have been systematically and surreptitiously raided, and their products also seized. Meanwhile, pipes and paraphernalia are now being marketed nationally, expanding rapidly in convenience stores from coast to coast. Find one repressive right wing mayor in the right town with the wrong agenda and you could conceivably become the target. Ask Tommy Chong. It’s still happening on a wider scale.

What happens to the products which are seized?

Agents quietly warn the businessmen to suck up the forfeiture and not challenge it in court. The advisory goes something like this: “Most likely we will just destroy this stuff as contraband, but if you attempt to challenge it, well there is no saying we won’t come back and arrest you.” Facing a not-so-veiled threat of criminal prosecution, the stores live with the bankruptcies, seizures, and loss of their products. The feds say they will “destroy the contraband.” More likely, some of them will use it at their bachelor parties.

These raids may deprive stores of their inventory, but our government abandons fundamental principles. Our citizens lose their rights. Lawyers are denied the opportunity to meaningfully contest the seizures. One more chink is carved into the heart of liberty.

If the past stays true to form, these unconscionable seizures will not make the national news. Politicians are too complacent, the drug law reform movement is too weak, and the massive pot smoking public is too disorganized, probably more concerned about getting high on those products designed for legal purposes only.

As for those merchants, outside of a small circle of their friends, no one cares.

*Orginally published December 28, 2008 at http://www.kentvent.blogspot.com/