California City Remains A Lesson In Pot’s Unintended Consequences

Robert Taft Jr., director of the licensed 420 Central dispensary, with Ocean Grown Jack Herer sativa. “I'm fighting for the patients we have. People want to go to a safe store.” Photo Credit, Orange County Register report, 3/29/16

Robert Taft Jr., director of the licensed 420 Central dispensary, with Ocean Grown Jack Herer sativa. “I’m fighting for the patients we have. People want to go to a safe store.” Photo Credit, Orange County Register report, 3/29/16

Confusion and civil lawsuits abound in the Orange County, California city of Santa Ana over legal marijuana sales –and the fringe shops that may or may not be legal.

Attorney Arthur Travieso is representing a shop called Live2Love and four other unlicensed pot shops in lawsuits against Santa Ana, claiming the city’s lottery process was unfair because it allowed multiple entries by the same individuals, as long they applied and paid a $1,690 fee. Some shops also say they are legal under the state’s medical marijuana law and don’t have to follow city regulations.

The OC Register newspaper also notes that “… Santa Ana police garnered unwelcome international attention after a May raid caught on video showed officers forcing Sky High customers to the ground and eating merchandise. Three officers involved in the raid were charged this month with petty theft and vandalism.” And, you guessed it, that brought more lawsuits.

Read the cautionary tale here: http://www.ocregister.com/articles/city-709935-shops-pot.html

First Court-Sanctioned Case of Interstate Medical Cannabis Commerce

A potentially precedent-setting cannabis case comes out of the Northeast this week. Linda Horan, a lifelong Labor activist, said her last fight would be to pave the way for medical cannabis to be used in New Hampshire. While the Legislature there authorized medical cannabis more than two years ago, the State itself was slow to implement the policy leaving legal medical patients in limbo. Until dispensaries opened, NH was refusing to authorize patient cards to qualifying residents.

Enter Horan. With Stage IV lung cancer, she argued that by the time the dispensaries would be open, she would be dead. While wasting syndrome took more than twenty pounds from her in just a few short months, her tenacity never failed her, or her team of supporters. She sued the State for the right to have her medical card, arguing that she could travel to the neighboring State of Maine where she could procure her medication under its reciprocity laws.

Maine has allowed medical marijuana since 1999, and authorized medical dispensaries in 2009. Both were passed at the ballot box while the NH law was passed through the Legislature. Unlike Maine, NH does not allow for so-called “home grow” where patients can grow a limited number of plants for themselves, leaving the only legal means for patients to procure medical cannabis through dispensaries.

Judge Richard McNamara, a broadly respected judge whose rulings are rarely overturned ruled in favor of Horan, directing the NH Department of Health and Human Services to issue Horan a patient card. The decision hinged upon the fact that medical cannabis was, in fact, available to Horan, albeit in a nearby State.

What sets this civil case apart from all others is McNamara’s explicit insistence that Horan could bring medical cannabis over the border, essentially ruling that NH would authorize interstate commerce. According to the Portland Press Herald, “In his ruling, McNamara rejected the state’s argument that allowing Horan to possess marijuana from Maine would destroy the tight distribution controls lawmakers envisioned in passing the law. He noted that the law allows visitors from other states to obtain marijuana in New Hampshire, suggesting that lawmakers knew other states would have similar provisions.”

At 4:30 PM the day before Horan was scheduled to drive to Maine, the NH Attorney General advised DHHS to authorize patient cards for all qualifying NH residents.

While McNamara is not a federal judge, it will be interesting to see what kind of a precedent this may set for future cases, particularly as Oregon’s adult use market comes online, immediately next to Washington State. While all eyes have been watching whether interstate commerce would be allowed there under the Cole Memo which requires legal states prevent diversion to non-legal states, a dying woman’s last wish for non-opiate palliative care may have just cleared the path for interstate commerce between legal, neighboring states.

For Horan’s part, she says, “I’m over the moon.”

Read more about Horan’s story at the Concord Monitor.

Court Tells Feds To Lay Off Medical Pot Providers

A federal judge seems to have settled an issue between federal law enforcement and local marijuana operations in states with laws allowing legal pot. At issue was an amendment to a federal spending bill saying that law enforcement cannot use federal funds to go after marijuana operations or users in states that have laws governing such things. As Washington Post blogger Christopher Ingraham explains, “… when the legislation was passed, advocates and lawmakers on both sides of the issue agreed that the bill basically prevented the DEA from going after medical marijuana dispensaries, provided that such dispensaries were acting in compliance with state law. The DEA, however, didn’t see it that way. In a leaked memo, the Justice Department contended that the amendment only prevents actions against actual states — not against the individuals or businesses that actually carry out marijuana laws”
 
The judge did not find that argument at all amusing. Read the results here: Federal court tells the DEA to stop harassing medical marijuana providers

First Product Liability Lawsuit May Challenge Marijuana Industry Growth

The LA Times Reports, "The list of ingredients on a LivWell container includes pesticides. The company says they are safe. (AAron Ontiveroz / Denver Post)" in its 10/8/15 "A first for the marijuana industry: A product liability lawsuit" article.

The LA Times Reports, “The list of ingredients on a LivWell container includes pesticides. The company says they are safe. (Aaron Ontiveroz / Denver Post)” in its 10/8/15 “A first for the marijuana industry: A product liability lawsuit” article.

You knew this was just a matter of time. A legal-marijuana user has filed a product liability lawsuit against a cannabis company alleging use of harmful substances in their production process.
 
The Los Angeles Times reports that the attorney representing the 24-year-old medical  marijuana user is seeking “class action” status for the litigation and expects more clients to join the lawsuit.
 

As Government Delays, Civil Lawsuits Set Pot Policies

As California considers a sweeping regulatory changes in how it handles marijuana use, the civil courts continue to define how laws will actually be applied. A good recent example, covered by NBC in San Diego, involves a “… couple whose home was raided by agents with guns drawn” who has filed a lawsuit against San Diego law enforcement, alleging their rights as medical marijuana patients were violated.
 
The report points out that “… the lawsuit filed in U.S. District Court is the latest example of the ongoing debate over the rights of medical marijuana patients in California – how their treatment is regulated and how, according to their attorney, these type of cases are perceived by law enforcement.” This particular couple had previously arrested and put on trial for marijuana infractions, but found innocent.

Medical Cannabis Parents Getting Caught Up with Child Endangerment Charges

As cannabis laws shift at a rapid clip across the country, medical cannabis patients seem to be unexpectedly caught in a web of child protective services. Such was the case for Shawnee Anderson according to Al Jazeera America. An argument over a dirty diaper turned into a loud couple’s squabble, prompting a neighbor to call the police. The fight proved to be the least of their worries as police found remnants of their medical cannabis. The couple spent five days in jail and have been fighting while their son was placed in foster care for nearly two weeks.

This story is not unusual for parents in the 23 states where medical cannabis is legal. While it is legal for medical purposes, civil issues like family law are proving tricky. The article notes that “Meanwhile, low-income families of color are more likely to face neglect charges involving pot, as they tend to live in more heavily policed neighborhoods and give birth in hospitals that may be more likely to conduct drug testing on newborns.”

As we have reported before, the lack of Civil Gideon means there is no requirement that the government provide legal services for people who cannot afford them. This puts low-income families at a significant disadvantage when going up against state child advocates well-versed in the court system. Without legal counsel, parents may lose custody of their children simply for legally consuming a drug.

See more on the story here, “Parents face child abuse investigations over pot use.

We also recommend following the national story on Shona Banda who is fighting for custody of her son, and against felony charges that could put her in jail for 3 decades. See “This Mom Faces Prison For Medical Marijuana.

New Civil Actions Coming For Marijuana Water Use

As reported 8/29/15 in the Sacromento Bee, "California regulators undertake unique experiment to govern water use for marijuana. Video by Paul Kitagaki Jr."

As reported 8/29/15 in the Sacromento Bee, “California regulators undertake unique experiment to govern water use for marijuana. Video by Paul Kitagaki Jr.”

You probably saw this coming: The state of California is using civil lawsuits to make environmental cases against legal marijuana growers, especially when it come to water use during the state’s history making drought.
 
Many growers claim this is just sour grapes over the legalization of some uses of marijuana, while other growers are embracing the regulation. It makes for interesting cop stories, especially for those trying to understand how police raids are part of civil litigation. And you can catch up on the via The Sacramento Bee story here:California takes new approach on water regulation for pot farms