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The LawDawg Blog


The Small Farmer Program: A Worksheet for Farmers Headed Into the Regulated Era

Flash Update: The Small Farmer Program Worksheet 

Hey team,

We know there are a lot of questions about how regulations affect our small farmer clients, and the answers are undoubtedly complicated and ever-changing.  In an effort to organize the various categories of issues that farmers can start thinking about now, I wrote up a simple checklist of issues to go through with my clients.

The checklist evolved over the past few months into what I now call the “Small Farmer Program,” and I’ve sought input on the program from a County Ag Commissioner, a successful Bay Area consultant, my attorney colleagues, and dozens of small farmers and other cannabis business women and men.  With their additional insight, the Small Farmer Program has become a helpful rule of thumb for our office to gauge where a farmer is on their path into the regulated era.  Rather than keep this information internal, however, I want to share it with the community so folks can start looking over some of the categories of issues they may need to start thinking about if and when Nevada County issues permits.

I formatted this so you can answer a lot of these questions by yourself, although we are here if you need us.

Keep it confidential!

Remember that we keep this document in our confidential files for our clients because it contains sensitive information. If you do use the worksheet, please take all precautions to ensure your information remains confidential.

Here it is:  The Small Farmer Program Worksheet

Much love and respect,

hb

#protectourfarmers

Summary of our Comments to the Emergency Regulations: Owners, Priority, and Terpenes

Well the time for comments to the emergency regulations has come and gone. The California Greenspoon Marder attorneys, spearheaded by Senior Counsel David Frankel, prepared and submitted our comments.  I think its important to briefly share the three we felt were the most relevant to our clients: (1) ownership rules, (2) the definition of priority, and (3) the regulation of terpenes (aka “terps”).

Some ownership rules apply only to LLCs. Why?

First and foremost, our corporate guru David Frankel correctly spotted the odd regulation that all members of LLC (limited liability companies) are considered “owners,” and require the full panoply of disclosures, background checks, and so on, even if they are not participating in the management of the company and receiving less than 20% of the company’s profits.  Consider, however, that shareholders in a stock corporation are not considered owners if they receive less than 20% of the company’s profits, and are thus subject to less stringent rules.  Although our office is finding the stock corporation with an “S corp” designation to be the most workable company for small cannabis businesses, many if not most, of the newly emerging small businesses are converting to LLCs. As such, LLCs should not have more burdensome requirements than other types of companies, so we asked the agencies to limit the “ownership” rules only to those LLC members who are participating in the membership and control of the business.

Who gets priority if an MBC or Cooperative merges with a for-profit entity?

Secondly, the agencies will give “priority” licensing if an applicant operated in compliance with the Compassionate Use Act of 1996 and its implementing laws before September 1, 2016. There are many applicants who were operating in the form of nonprofit mutual benefit corporations or cooperatives as of September 1, 2016, but who now want to convert to a for profit corporation or LLC. Under the MBC merger statute in CA Corp. Code Section 8010, an MBC can merge with a domestic corporation or other business entity. Under the corporate rules, the new for-profit company is supposed to get “all rights and property” of the old company, so we asked the agencies to make it clear that these new for-profits enjoy the priority status earned by the old company. That seems fair to me!

What’s up with terpenes?

Our final note relates to the regulation of terpenes, as the new regulations barely mention this type of activity, which is a pretty big deal right now.  Terpene businesses would usually fall into the category of Type 6 or Type N, depending on whether the terpenes are considered cannabinoids for purposes of the definition of “Extraction” in Section 40100. Most terpene manufacturers use steam distillation, which is a nonvolatile mechanical process. The distillation equipment can be installed permanently in a licensed premises but can also be installed on a vehicle so that the terpene manufacturer is able to distill terpenes from fresh cannabis plant material at or near the cultivation site. The regulations are silent concerning mobile terpene distillation equipment and operations. In addition, the regulations have been developed to address public health and safety issues related to cannabis products that are intoxicating or which involve potentially dangerous manufacturing processes.  We respectfully suggest that the department develop regulations that are better suited for terpene manufacturers and also that permit mobile terpene operations at licensed cultivation sites.

Conclusion

As a concluding note, we want to acknowledge that the shift into these regulations may be difficult.  Unlike most law firms, our little office has been serving the California cannabis industry for over three decades between David and myself.  We are in this with you.

Much love and respect, hb and the Nevada City Greenspoon Marder team

#protectourfarmers #cali4life #greenspoonmarder

CDFA Comment Letter to Emergency Regs final 1 12042017 pdf

BCC Comment Letter to Emergency Regs final 12042017 pdf

DPH Comment Letter to Emergency Regs final 12042017 pdf

David Frankel: “I Walk the Line,” a message for Nevada County cannabis businesses

Nevada County cannabis people are used to “Walking the Line” – like the Johnny Cash song:  

I keep a close watch on this heart of mine
I keep my eyes wide open all the time
I keep the ends out for the tie that binds
Because you’re mine, I walk the line

Especially the part about keeping your eyes wide open all the time.  We are used to being under threat of petty acts of retribution, retaliation and robbery. California’s War on Cannabis has officially ended in our favor with the passage of Prop. 64.  Yet, Nevada County cannabis people are not quite out of the woods.

The County started the process of creating a commercial cannabis ordinance that would enable some Nevada County cannabis businesses to apply for state licenses.  The process has been far from perfect and it is unclear whether and to what extent Nevada County’s Planning Department and Supervisors will follow the voters’ intentions.  In a stated attempt to take it slow and address the concerns of all stakeholders, the County put Nevada County cannabis businesses at a severe disadvantage compared to those in other similarly situated counties that have adopted local ordinances in time for 2018 state licensing such as Humboldt, Lake, Mendocino, Sonoma, Trinity and Yolo.  

Nevada County cannabis people must continue to walk the line between being documented enough to take advantage of impending state licensing programs and being below the radar of those who would commence enforcement or robbery.  Recently, there have been some disturbing trends.

First, Nevada County growers were encouraged to enroll with the Regional Water Board Cannabis Program, which requires disclosure of the grow site and its operator, setbacks, and some environmental studies.  They incurred substantial costs and exposed themselves to the light of day, so to speak.  For this, every single one of them was rewarded with an inspection and abatement from the Nevada County Sheriff’s Office which uses anonymous and/or self-generated complaints to justify abatements.  Lesson learned.

Then, there was an armed home invasion robbery by some people who were pretending to be cops calling themselves the “Nevada City Drug Task Force.”    To add insult to injury, the Nevada County Sheriff took the report from the victims of the home invasion robbery and referred it to the District Attorney for possible prosecution as a commercial cannabis operation.  Lesson learned.

There are hundreds of Nevada County cannabis businesses actively working to become compliant to seek licenses when the County ordinance is finally adopted.  Many of these people would like to be part of the process so that their voices can be heard but are afraid to reveal themselves, with good reason.  

Imagine involving the people with the most experience in the field of commercial cannabis in the process of creating the ordinance under which they will be governed?  That seems too good to be true because of a legitimate fear that people will be raided, robbed, abated and/or prosecuted as a result of speaking their views publicly.

To those folks, we say “There is a way.”  Our law office is able to meet with clients, take their comments and input to the County and put it in a letter to the Supervisors and Planning Department that keeps the client’s identity strictly confidential.  That way, our clients are able to provide real world input to the proposed cannabis ordinance without risking themselves.

For example, constructive comments to the process could include:  

  • Reasons to include microbusinesses and nurseries
  • Reasons to include distributors, testing labs, and manufacturers
  • Reasons to include brick and mortar dispensaries and delivery services
  • Reasons to include the larger cultivation operations (10,000 sq. ft. and greater)
  • Reasons to include processors
  • Reasons to not require a residence on large parcels zoned for Agriculture or Timber
  • Reasons to allow outdoor cultivation on large parcels zoned for Residential Agriculture

As they walk the line pending the adoption of a Nevada County ordinance, here’s what local cannabis businesses can do now:

  • Check the zoning and setbacks of any property being considered for licensed operations
  • Prepare a property and/or premises site plan, drawn to scale, that shows all the areas that need to be noted under the state regulations (cultivation area, processing and storage areas, waste area, well, streams, setbacks, etc.)
  • Engage one of the Water Board consultants that we work with to do an environmental review of any property that is eligible for licensed operations so that the property can be evaluated prior to next Spring’s mad rush for Nevada County and state licenses
  • Confirm the legality of all water sources, obtain well permits, diversion and stream bed alteration documents as appropriate
  • Set aside funds and time for preparing all the necessary documentation that will go into a license application

California cannabis collectives will enjoy one more year of use before they sunset in January 2019.  Keep all collective paperwork up to date and, if applicable, obtain any required Seller’s Permits related to your cannabis operations.    

As the Man In Black would say, keep a close watch and your eyes wide open all the time.

*By David Frankel, Senior Counsel, Greenspoon Marder LLP, Nevada City

Welcome to David Frankel, our new corporate attorney!

Hello all!

Now that Fall is upon us and we’ve had a chance to catch our breath from another busy year, I am pleased to finally and properly introduce the experienced Cannabis business lawyer, David Frankel, who joined our firm as a Senior Counsel in my office. His bio can be found here: https://www.gmlaw.com/attorneys/david-frankel/.

David’s career includes many keystone legal efforts in the Cannabis field:

1. First and foremost, David has represented Cannabis patient collectives since 1997, which gives him the most experience in California cannabis law of any attorney in Nevada County, with over 2 decades of focused practice! (I think its safe to say that we’re a powerhouse team.)

2. He was Woody Harrelson’s hemp lawyer for 10 years and in that role, he negotiated, documented, and closed complex investment transactions in the hemp industry in US and and in Canada. (You’ll have to ask him to bust out a Woody story when you meet him. He’s got some good ones!)

3. He was instrumental in the seminal cases of HIA v DEA I and HIA v DEA II which successfully challenged the DEA’s illegal ban on hemp foods and oils that contain naturally occurring THC.

4. He’s worked for almost 20 year against the DEA and US Department of Justice on behalf of Lakota hemp farmer Alex White Plume in which their legal team recently prevailed in getting Alex freed to work in the Cannabis field(s) – pun intended (US v White Plume), as described in the PBS documentary Standing Silent Nation. (Link here: http://www.pbs.org/pov/standing/.)

5. David accompanied musician and activist Michael Franti on a humanitarian trip to the Middle East which was the subject of Franti’s documentary, I Know I’m Not Alone. While not a musician, David toured with Michael Franti and Spearhead to speak at their concerts, informing the public about medical marijuana in the early post-215 years. He appears on Franti’s album Stay Human as the voice of the activist (clip here: https://www.youtube.com/watch?v=XMOgsWtLlr8).

6. He’s a Deadhead. (You know it matters.) 🙂

Now that our farmers are moving into the new legal landscape, David’s decades of complex corporate and investment experience in the Cannabis space are invaluable to creating new businesses, negotiating and executing complex contracts and investments, and applying for permits and licenses.

With his much-needed help, the Nevada City office is currently focused on (1) overseeing and developing pre-regulatory compliance for farmers and other cannabis-businesses, (2) corporate and tax strategies, and (3) permitting/licensing where available, in addition to our other offerings.

I’m asking all clients to make sure to set an appointment well before the New Year to ensure they are on track by January 1, 2018, so please spread the word about this valuable new resource in our office. We’re grateful to have David here and, once you meet him, I’m sure you’ll be grateful we have him too!

Much love and respect,
~hb #protectourfarmers #growgreen #cali4life

From Zero to Sixty: Cannabis Corporations in the Last Days of the Collective/Cooperative

As most farmers are aware, the shift out of SB 420 (i.e. the collective/cooperative model) into MCRSA (i.e. the local permit/state license model) is in part intended to bring cannabis cultivation into the light, primarily the taxable light. In light of these changes, my farmer clients commonly ask if they should start a corporation in preparation for the future, or if they should continue on as they have in the past.

This article is intended to flesh some of the issues out regarding starting a lawful California cannabis corporation now.

I.  Who Should Not Start a California Cannabis Corporation

1.  Do not start a shell corporation to establish priority.

A shell corporation is a business that is formed, but ignored in any meaningful manner. It is generally unwise to form a “shell” corporation to gain “priority” status under MCRSA or Prop 64, a tactic some attorneys and even our local policy organization advised in the past.

The statutes do not mandate local Cities or Counties give “priority” to prior-existing corporations, but instead order the State agencies issuing the state licenses. (Cal. B.P. Section 19321, 260554.2.)  While the issues are related, the buying and selling of pre-existing corporations may prove to be a fruitless exercise that serves only to generate more money for the attorney who set the shell corporation up in the first place.

Local jurisdictions (Calaveras/Mendo/Humboldt) have thus far cared more about the pre-existence of the farm in light of CEQA than any “priority” offered by a shell corporation, so don’t get played.

2.  If you aren’t ready to learn how to run a legitimate corporation, don’t start one. 

Those who are not ready to operate in strict compliance with the collective/cooperative rules should refrain from starting a corporation now, as they could expose themselves to criminal liability for financial and tax crimes instead of the simple cannabis crimes. Financial crimes are far worse, as they are often felonies and may be considered “moral turpitude,” forever precluding any type of licensing.

If you ain’t ready, you ain’t ready.

II. Why Does Corporate Status Matter?

For those who are ready to move into the next phase of California’s lawful system of cannabis production, the remainder of this article is for you. The first thing to know is MCRSA and Prop 64 authorize commercial activity, which will operate within the U.S.’s hyper-capitalistic economy. Thus, in order to best protect yourself and your assets, a smart farmer should have a working knowledge of basic business, and of those corporate rules that come along with it. Here’s a few issues to be aware of:

1.  Taxes

Taxes on California cannabis are wild, and they appear to have no end in sight with the allowance given to locals to tax even further. This massive taxation will likely put some mom-and-pops out of business, but by thinking strategically about taxing now, you can take the right steps to avoid unnecessary taxes.

By my account, cannabis taxes thus far are:

  • $148 per flower pound (due at harvest);
  • $44 per leaf pound (due at harvest);
  • 8% sales tax (which would be negated for wholesales from grower to dispensary/retailer if the growers can obtain a resale certificate, but growers who direct sale would be liable);
  • 15% excise tax (applies only to purchases of cannabis products, so this is a bigger issue for retailers);
  • Local cultivation and/or sales tax (TBD depending on your City/County);
  • Absolutely no write-offs for cannabis-only related expenses, per 26 U.S.C. § 280E.

By making sure you’re not paying extra self-employment taxes and ensuring your small business can obtain “pass-through” taxing when you move out of the collective/cooperative model, you can eliminate or greatly reduce the possibility of double taxation (i.e. where your corporation gets taxed and then your salary from the corporation gets taxed again).

2.   The Reputation and Goodwill of Your Business May Prove to Be Critical in an Industry Where Your History Matters.

I cannot understate the value of building your corporate personality and the “goodwill” of your business now, as the age of your corporation and its existing reputation matters, both for “priority” status under MCRSA and Prop. 64, and also for competitive local permits. Mostly, however, consumers care!

3.  Allows Strategic Business Decisions in Quick Turn-Around Permits.

In addition to the obvious issue of taxation, growers may not get a lot of time to ponder these issues before having to make a quick decision about permitting in light of the quick ebb and flow of the local cannabis rules in each City and County. (Hello, Mendo!)

4.  Allows Strategic Business Decisions in Non-Transferable Permits.

Many of local permits are non-transferrable, which means you may be stuck in the same corporate formation for several years if the County permits go on hold during a CEQA analysis. Taxes may prove to be unbearable if you don’t have corporate protection once taxes kick in in earnest in about 2019-2020 (once the collective/cooperative model dies).

5.  Protects You From Personal Liability if Your Business Gets Sued or Goes Under.

With a functioning corporation, you get the added benefit of a corporate “veil,” meaning your personal assets would likely be protected if your business got sued. Considering there will be tons of lawsuits as these issues get worked out, protect yourself by making sure you and your business are distinct entities. 

III.  Overview of California Cannabis Corporations

1. Current Law Continues to Demand Not-for-Profit Status.

Current law still requires non-profit status, but allows for profit making in the future. This odd conundrum leads to the common question: “How can we protect ourselves now but prepare for the future of California cannabis?”  

There are three primary choices: (1) do nothing, which essentially means you are a sole proprietor, (2) incorporate as a not-for-profit Mutual Benefit Corporation that can be transitioned to a for-profit company in the future, (3) organize a for-profit corporation that chooses to operate on a not-for-profit basis, or as a “management” or “holding” company for a distinct not-for-profit collective or cooperative. 

2.  Sole Proprietorships

California law continues to require a cannabis farmer be organized as (1) a collective or a cooperative, which (2) must be operated in a not-for-profit manner. Thus, operating as a sole proprietor of a commercial cannabis operation is arguably illegal at this time.  

There is the rare case where a grower provides cannabis to a dispensary of which they are a member.  If your garden is organized as a producer for a dispensary, however, your hard work is actually building someone else’s business. 

Additionally, once you begin to file taxes on your commercial cannabis business, sole proprietors will be subject to self-employment taxes, which essentially doubles your standard taxes. This self employment tax is in addition to the other taxes described in the previous section.  

3.  Cooperatives and Not-for-Profit Mutual Benefit Corporations

In 2008, Jerry Brown declared medical cannabis cooperatives must be formed as “Consumer Cooperatives” or “Agricultural Cooperatives,” which are specific types of businesses where members are united in common purpose and generally get an equal vote on the corporation’s major decisions. Cooperatives have stringent voting requirements that greatly limit their flexibility as an entity.  

At some point, dispensaries wisely began utilizing Mutual Benefit Corporations [“MBC”], another type of corporation that allows the Board and governing members greater flexibility in building the dispensary’s business.   The MBC can have members with voting rights similar to a cooperative, or members who do not get to vote, or even members who can vote on only some things, and this pliability makes it a desirable form.

The downside, however, is a MBC may not make the best business sense once the corporation gets big enough to own assets (such as real property or personal property like a greenhouse or a tractor).  An MBC cannot distribute assets or “dividends” to its members like a profit corporation can do for its shareholders, as the only time a MBC can distribute assets to members is at dissolution, unless the governing documents such as the Articles of Incorporation (AOI) or bylaws state otherwise. (Corp. Code Section 8717.)  

California law thankfully allows a MBC to merge with or transition into a for-profit company (C.C. 8010), which cannabis-related MBCs should not do until:

  • Collectives/cooperatives may legally operate on a for-profit basis (watch out for AB 64); or
  • You’re governed by the rules of MCRSA/Prop. 64, i.e. where you have a local permit and a state license.

          4.  LLCs, Partnerships, and Other Traditionally For-Profit Corporations

An LLC is a common entity type for small businesses, as LLCs offer traditional corporate protection, but don’t have the same rigmarole as traditional corporations that issue stocks to shareholders.  Most folks who have cannabis-related LLCs traditionally operate them in addition to their MBC and, in those cases, the LLC “manages” or acts as a “holding company” for the non-profit MBC’s assets or Intellectual Property, such as the company’s logo, the secret nutrient formula, or special growing techniques.  

In such cases, appropriate contracts/leases would need to be drafted setting forth how the LLC interacts with the MBC to ensure the transactions between the two corporations are sufficiently “arms-length” to be unquestionably legitimate.

Technically, you can run an LLC in a not-for-profit manner by declaring so in the Operating Agreement (CC 17701.10), which is a common structure in areas where the local jurisdiction is more friendly to creative cannabis businesses. In Nevada County and the surrounding Counties, you will likely be prosecuted if you tell an officer your cannabis business is an LLC, even if you can prove your financials are managed in a not–for-profit manner.  Thus, while a not-for-profit LLC is a legitimate possibility, its wisdom in practice largely depends on your jurisdiction.

If your cannabis business has a creative corporate structure involving an LLC or other type of for-profit, it is critical that Sierra Foothills farmers do not discuss their business model with law enforcement, and you should be wary of obtaining a permit in the name of the LLC. 

          5.  What Corporate Structure is Best for the Small Farmer?

For the aggressively professional and forward-thinking Sierra Foothill farmers, the most strategic method is to maintain (and operate) two corporations (i.e., a not-for-profit to manage the cannabis and a for-profit to manage the assets), as growers may not get lengthy notice when the Sierra Foothill Counties finally do issue cultivation licenses. Thus, having one of each type of corporation allows you to make a strategic decision about which corporation to get the permit under, if and when they are issued. For example:

  1. If not-for-profit status is still required by the State when your County issues a permit, or if the County grades applicants on the length of their previously existing corporate status, then having a longstanding not-for-profit corporation would be extremely helpful; or
  2. If the County issues licenses after for-profit becomes legal, then it would be needlessly cumbersome to get the permit as a non-profit unless you desire to remain a non-profit in the future (which a lot of folks do) or unless you don’t get time for a lengthy transition before your application is due.  If you’re in the latter category, you should ensure your governing documents allow for flexible transition now, or you could screw yourself in the future.

However, for the majority of small farmers just trying to make it through the day, a Mutual Benefit Corporation which allows easy transition to an LLC or stock corporation is perfectly workable, as it the safest option for now and can be converted to a for-profit in the future. 

If you are in a friendly jurisdiction, you could skip the MBC and go right to the LLC, but that’s dangerous ground in hostile Counties and may hurt you if your jurisdiction requires proof of not-for-profit status when permits are available.

IV.  CONCLUSION

In sum, I am aware the corporate stuff is unfamiliar and daunting. But, while the massive taxes are my least favorite part of the end of prohibition, I strongly believe wise steps to protect yourself from over-taxation and the lack of any risk of arrest will make this transition worth it someday.   

For now, just continue to hold on tight, start to ponder these concepts, and then take initial steps if and when you’re ready. Above all, please stay safe this coming season.

<3, hb

Written by Heather L. Burke, Criminal/Administrative/Corporate/Litigation

In consultation with attorney Fran Cole, Diamond Baker Mitchell, L.L.P, Corporate/Civil Litigation

***This blog is excerpted from a larger chapter in the The Farmer’s Corporate Handbook, due in May, 2017.  Additional chapters include (2) How to Run a Legal Cannabis Corporation, and (3) What Legal Cannabis Producers, Manufacturers and Distributors Need to Know About Contracts, and more!  Stay tuned!  

#protectourfarmers #cali4life

The Tortoise, the Hare, and the Ostrich: Legal Compliance in the 2017 Growing Season

I used to joke that many farmers act like ostriches by burying their heads in the sand when it comes to staying on top of the sweeping new laws relating to cannabis cultivation.  That approach is understandable in light of the volume and complexity of the new laws, but I recently realized the age-old story of “the tortoise and the hare” may provide significant insight for those trying to find a path forward, particularly here in Nevada County. That story taught us—as we all remember— that slow and steady wins the race.   This principle is applicable to growers in Nevada County’s current cannabis realm for three primary reasons:

1. Protect What You’ve Built in the Industry Thus Far.

Before thinking about the future, farmers should start by protecting what they’ve built so far.  For most, this means perfecting their legal compliance now, as one’s compliance with state law matters this season more than ever, especially in the ban counties such as Nevada County (yes, we are still under a ban).  It is critical to protect yourself from arrest this season, and from felony arrest in particular, as we are expecting the Sheriff’s Office to mount an aggressive anti-cultivation campaign. The County will get $100 per plant out of compliance, per day, which adds a unique financial incentive not previously in play.  Moreover, thanks to our “interim” ordinance, law enforcement can “summarily abate” (i.e. slash-and-burn) without a hearing wherever there is any violation of state law! Thus, even a misdemeanor violation of Prop 215 and/or the Collective/Cooperative rules could possibly get you immediately chopped, fined $100 per plant, perhaps arrested, and having to “lawyer up” for a criminal case.  Talk about insult to injury!

Additionally, although Prop. 64 (aka “AUMA”) downgraded illegal cultivation to a misdemeanor in most situations, it is still a felony where the plants are grown in a way that harms the environment.  Law enforcement will likely interpret the environmental crimes broadly, so unpermitted clear-cutting in an area close to the watersheds or irresponsible use of pesticides might get you arrested for harming the environment. Since you can be denied a state license under MCRSA for a felony conviction based on purposeful injury to our Mother Earth, you should not half-ass your legal or environmental compliance this year.

Finally, as Congress defunded the DEA and fed DOJ from investigating and prosecuting conduct that is in “strict compliance” with California’s medical cannabis laws, a half-assed informal Collective or a defunct Not-for-Profit Mutual Benefit Corporation [“MBC”] is probably not enough to protect you from the Feds if they come in. (P.S., #fdt.)

While our County’s ordinance status is imperfect, I am choosing to be grateful for this momentarily lull after a barrage of sweeping changes over the past 2 years, both locally and state-wide. Instead of acting like the braggadocios hare (who has a popular Instagram page, so he must be legal, right?) or the purposely ignorant ostrich, I am encouraging my clients to follow the wise tortoise’s lead and take this precious time to perfect their legal compliance, particularly as we are only beginning to methodically digest the deluge of new laws.  I strongly advocate a “safety first” approach, focusing on protecting what you built in this industry thus far as we inch towards the future with wisdom.

This simply is not the year to risk everything because we’re ticked off the County did not give us grow permits after Measure W. Complaining is self-defeating. Get over it, and bring your legal status into line while there is time to do so thoughtfully.

2. Prepare for the Future, But Do So Wisely.

You can be proactive during this short respite by taking small but significant steps to prepare for permitting, if and when it is available.  Should Nevada County allow you a mere few days to turn in your permit (recall what happened in Mendocino County), you may regret burying your head in your expensive pile of fancy dirt. There is much to do, now.

Firstly, we can look to the cultivation ordinances in Calaveras, Mendocino, and Humboldt, make educated guesses about the requirements of a future permitting ordinance here, and get working on it.

Secondly, as we move from collectives/cooperatives to small businesses, there are a LOT of corporate and tax rules that now may apply.  You could, for instance, get answers to the following questions now, instead of making critical decisions under a stressful timeframe:

  • Should you start a MBC? (Hint: beware of anyone selling you a MBC without assessing the cons as well as the pros.)
  • Was your MBC created in haste to get you “priority,” but you don’t really use it or have any idea what to do with it? How do you breathe life into an existing non-profit corporation?
  • Does your defunct MBC get you “priority” under MCRSA? (Hint: no.) If not, what does?
  • Does an MBC and a popular Instagram page equate to legal compliance?  (Hint: yikes!)
  • If you have a MBC, do you know if you will need to dissolve it or whether it can be morphed into a for-profit entity in the near future (should AB 64 pass or you get state licensing)? Should your bylaws be updated now, before you bind yourself to a non-transferable permit?
  • What Water Board tier are you? What can be done today to prepare if you may a higher tier? Does compliance with the Water Board BMPs even matter now, before you can submit a Notice of Intent?
  • Have you met with a CPA and started thinking about the process of tax compliance, even if you’re not ready to commit to paying taxes just yet? Is your CPA subject to the attorney-client privilege, or are you telling your most critical secrets to someone who is not bound by statutory confidentiality?

While the questions can go on ad infinitum, a knowledgeable lawyer can give you a fairly good overview of these issues so you that can take your first step at developing an Action Plan.  Don’t wait to make a game plan until the game is on.  While we have precious time to prepare and plan, prepare and plan for Goddess sake!

3. Intent Matters. A Lot.

An intention to operate lawfully actually has cognizable significance in the legal realm. I find that developing an intent to be lawful is often matter of self-perception, as cops and prosecutors told growers they were illegal for decades, even when the growers were trying to do it right. This unfortunate self-perception of illegitimacy is a result of that conditioning, and the time has come to stop playing into their narrative and to create your own story about your intention and understanding of your own legitimacy.

No, you still cannot talk to law enforcement about your new self-realization, but it is a hugely significant step forward if the only change you make this season is to alter your intention surrounding the lawfulness of your canna-business.  Like everything else in life, intent matters.

***

In closing, I note that the work of the tortoise is undoubtedly tedious and perhaps lacking in glamour, but it is methodical and wise. You will be better prepared than the ostrich who refuses to look up from his pile of dirt, and you will likely outlast the rabbit, who gained a reputation for folly.  As we alter our perception of our County’s currently undesirable status from an affront to a respite, we can change our perception of ourselves along the way, and create our own story.  Then we trod on slowly, but wisely, to the finish line.

#strongertogether #protectourfarmers #cali4life #setmypeoplefree ~hb

My musical meditation for this post is a live version of Bad Brains, The Meek Shall Inherit the Earth. You’re welcome.

 

Discussing Federal Cannabis Issues with Attorney Omar Figueroa

I got a chance to sit down with one of my colleagues and friend, the brilliant attorney Omar Figueroa, this morning to chat about what’s up with the feds. Know this! ~hb

Choose Your Own Adventure: Gate Notice Edition

If you received a Gate Notice, or you just want to educate yourself, the Law Offices of Heather L. Burke is excited to offer this Choose Your Own Adventure-style game!  While we do advise you see your lawyer if Law Enforcement has requested to visit your home or property, now you can see all the possibilities for yourself in a fun and friendly format:

Key

Please note that additional information is available when you hover over the options, although these extra features may be hidden when browsing on your phone. Thus, we’ve provided a short key with the brief descriptions of each options here:

Here Are Your Options

OPTION 1

  • Calling Law Enforcement Back

It is best to have your attorney call Law Enforcement for you, but you can call them back yourself if you feel comfortable.

  • Consent to an Inspection

You may consent to allow Law Enforcement to “check off” your garden. This means you are inviting them onto your property, so it is best to talk to an attorney before you make your appointment.

  • Self-Abate

You can self-abate any plants that are out of compliance prior to your inspection. They can’t fine you if you abated before they arrive.

  • In Compliance 

Hooray! Even if law enforcement enters by warrant, they can’t cut the plants if you are in compliance with state and local law!

  • Ordinance Citation

You may be fined for every plant and every Building Code violation. Those fines can add up fast, so try to be in compliance!

OPTION 2

  • Don’t Call Law Enforcement Back

You have Constitutional rights to not call Law Enforcement back. However, this may not always be a good idea. Let’s see why on the next screen!

  • Warrant for Abatement

If you don’t consent to an “inspection” and if Law Enforcement has Probable Cause that a nuisance or a crime is occurring, they could get a warrant and may abate any unlawful cultivation, fine you, or even arrest you if you are violating Prop 215.

  • Self-Abate

Even if you cut down your own plants in front of Law Enforcement, fines and fees may still apply!

  • Ordinance Citation

You may be fined for every plant and every Building Code violation. Those fines can add up fast, so try to be in compliance!

  • No 215?

California still requires compliance with Prop 215, which means cultivating cannabis “for profit” or not having a collective or cooperative is still illegal. Also, cops can arrest you for environmental crimes. Don’t do it!

The Ordinance Appeal Proess

*The process after a citation is the same, regardless of how Law Enforcement got onto the property.

  • Appeal

You can appeal your citation, but fines and fees may accrue every day until your hearing if you did not “self-abate.”  It is best to talk to your attorney before filing an appeal!

  • Win Appeal

You can win the appeal if Law Enforcement cited you incorrectly, and sometimes even if they entered your property illegally!

  • Lose Appeal

If you lose your appeal, you may owe a lot of money, but you cannot be arrested!

  • No Appeal

If you don’t file an appeal, then Law Enforcement may come back and abate (either with your consent or with a warrant) if you don’t self-abate. You will owe money for any fines and fees, but you cannot be arrested!

  • No Police Action

Every once in a while, Law Enforcement might not follow up with you. You might make it through to the end of the season, but you will be left wondering what can happen next.  This scenario is extremely rare, so don’t count on it!

 

 

 

 

Probable Cause in Planning and Planting Your Legal Cannabis Garden.

This is the first in a four-part video series entitled “California Cannabis Law,” and this Part I focuses on Probable Cause in Planning and Planting Your Legal Cannabis Garden.

Part II will focus on State Law Compliance, Local Ordinance Issues, and Federal Law Update, and will include an overview of all three areas of law which may apply to the lawful cultivation of cannabis.

Part III will address the Future of Cannabis Cultivation in California, including priority issues and how to move forward in California’s new legal era.

Finally, Part IV will discuss Resentencing and Expungement, including Proposition 64’s allowance for redesignation, legal invalidity, and expungement.

Happy 2017 from The Law Offices of Heather L. Burke!!

 

Prop 64’s Effect on Criminal Records: Legal Invalidity vs. Redesignating Prior Felonies

**This is a technical analysis that is not necessarily fun reading, but may be helpful for attorneys or people who want to clean up their prior cannabis felonies .

Prop 64 fundamentally redefines California’s criminal cannabis laws, in particular Health & Safety Code [“H.S.”] §§ 11358 (cultivation), 11359 (possession for sale), and 11360 (transportation/sales).  Each of those crimes are now misdemeanors, unless its someone’s third offense for that particular crime.[1]  AUMA also allows people to redefine their criminal histories to reflect Prop 64’s changes to the standard marijuana felonies.  There are two avenues for updating one’s criminal record, one of which applies to people who are still serving their sentences (H.S. § 11361.8(a)-(d).)  The other avenue, for folks who have served their time and are off probation or parole, is the focus of this article.

Legal Invalidity vs. Redesignation (H.S. Section 11361.8(e)-(h).)

Under Prop 64, people with cannabis felonies on their record can now “apply” either (1) to have their prior conviction dismissed and sealed because the prior conviction is now “legally invalid,” or (2) to have their prior convictions reduced to misdemeanors.  Judge Couzin’s bench brief on Resentencing Procedures (PDF attached below) is helpful on this procedure, but there are a few substantive notes I want to add: 

1.  ”Redesignating” The Prior As A Misdemeanor

This avenue is available to everyone with a conviction for H.S. §§ 1135811359, and 11360, as well as anyone with a prior “hash” felony, H.S. § 11357(a).  It is critical people realize Prop 64 actually “redesignates” these felonies to be misdemeanors “for all purposes.”  (H.S. § 11361.8(h))  This includes future priorability!   Thus, someone with two prior felonies who gets them “redesignated” will now have two AUMA priors, which then allows any future criminal offenses to be charged as felonies! (See an example in footnote [2], below.) 

Thus, folks who are no longer working in the cannabis industry or who want licensing to become doctors, lawyers, teachers, etc. may want to get their records redesignated.  Those who are still in the cannabis game, however, may want to leave well enough alone, since a prior cultivation felony is not priorable under H.S. § 11358(d)(1).  Arguably, it is legally invalid as-is, so why mess with a good thing?

2.   Declaring The Prior to Be Legally Invalid

AUMA says a person who has a criminal record for conduct that “would not have been guilty of an offense or who would have been guilty of a lesser offense” can now seek to have the sentence declared invalid or get it reduced to a misdemeanor.  This language is unclear, but I imagine most judges will read this to say that if one’s conduct would have been perfectly legal under AUMA, then they can get the conviction dismissed and sealed as “legally invalid.”  (Judge Couzins agrees.)  That means the conduct would not have been a crime under AUMA (which only allows 6 plants, 1 ounce of flower, and/or 8 ounces of concentrates), so the dismissal/sealing on grounds of “legal invalidity” will be far more difficult to obtain.
 
There is no question that those who have felony convictions for cultivating 6 or less plants (11358) are eligible to have their priors declared legally invalid, as are those who have possession for sale (11359) and transportation (11360) for possessing or transporting their personal stash (so long it’s a single ounce of flower and/or 8 ounces of concentrates).  

Everything else, however, is legally murky, as H.S. §§ 11359 and 11360 are not determined by quantity, and instead are focused on whether the conduct was being possessed, transported, or sold consistently with AUMA or MCRSA’s regulatory regimes, which presents somewhat of a quandary because these schemes are not yet in effect.  Presumably, however, if one’s conduct was within S.B. 420’s collective/cooperative defense as we know it today, that might also be sufficient for a declaration of legal invalidity, but that’s no slam dunk and may require an evidentiary hearing, depending on your DA. [3] 

One interesting issue will arise where the arresting or investigating officer(s), and/or their police reports, are no longer accessible due to the passage of time.  Since the prior conduct is presumed to be legal, and the burden is explicitly placed on the prosecution to prove otherwise, older convictions may more easily be declared legally invalid due to the prosecution’s simple inability to locate the old evidence.  This will be a huge asset to those cannabis foremothers and forefathers with felony convictions dating back to the 1980’s or earlier.
 
In any event, the prosecutor can always elect not to contest an application for legal invalidity and, thus, discussing these issues with opposing counsel in advance might save our clients from putting them through another emotional, costly, and often difficult evidentiary hearing on an old conviction. 
 
                                                                                 ***
In closing, our clients are undoubtedly in a better position under Prop 64, since cannabis crimes now default to misdemeanors instead of felonies, and even those misdemeanors are allowable only where one cannot obtain a permit under MCRSA or AUMA.  This fundamental shift in the law provides defense attorneys new arrows in their quiver, with which to continue to strike down cannabis prohibition and keep people out of cages for a plant.  
 
<3, hb

Footnotes:
​ 
[1] As the priors are statute-specific, a prior 11358 conviction should not be “priorable” in a future § 11359 case.  

Additionally, cultivation (11358) remains a felony where committed with an environmental crime, and transportation (11360) remains a felony where the cannabis is being transported out of state.  Sections 1135811359, and 11360 may also be charged as felonies where the defendant has a prior conviction for murder, child molestation, or other serious or violent crime.  This last rule seems like an odd thing for AUMA to throw into the mix, but I am not going to address it here in detail since most of us will rarely see that become an issue in the standard cannabis cases.

[2]           Take cultivation (11358) as an example:

If a person has two cultivation priors, they could seek to have them “redesignated” as misdemeanors, so their criminal history would show two prior violation of the new subsection (c) in H.S. § 11358.  That is great, in that their criminal history is now comprised of two misdemeanors instead of two felonies, a definite improvement.  Where this gets wonky, however, is that those two misdemeanors are also now “priorable” under H.S. § 11358(d)(1), since this section allows a felony charge where there are two priors of § 11358’s new subsection (c).

The same is true for possession in § 11359(c)(2), and also for transportation/sales in § 11360(a)(3)(B)

[3]   If that person already went to trial and used a collective/cooperative defense, it’s doubtful AUMA’s procedure will be interpreted to allow a mini-bench trial on the exact same issue in order to get a declaration of legal invalidity, but I suppose that remains to be seen. 

[4]    Note that H.S. § 11361.8 does not extend to priors for H.S. §§ 11366 or 11366.5, which was a common plea bargain for many cannabis crimes because they were wobblers and did not require registration as a narcotics offender.  These folks may still access the regular route for expungement and reduction under P.C. §§ 1203.4/17(b), and discretionary relief may be made more available due to Prop 64’s passage. 

Why I’m Voting Yes on 64: A Tortured Analysis

Admittedly, Prop 64 does nothing to alter the corrupted capitalist economic system in our nation.  That means that if-and-when cannabis enters the commercial market, it enters a capitalist commercial market where traditional market forces will be in play, for better or worse.  And I’m still voting yes. Here’s why:

I am a criminal defense attorney. My task each day is to defend those who are charged with cannabis felonies throughout the California. Prop 64’s primary redeeming quality is it will have a sweeping effect on current California’s cannabis prohibition, where cultivating cannabis is currently presumed to be a felony unless one can prove their conduct was medical and not for profit.  Today’s cannabis law and today’s cannabis industry simply do not match, which works to the advantage of law enforcement who often seize upon this confusion out in the cannabis fields to arrest famers first, and ask questions later.  

Importantly, illegal cultivation is a straight felony under SB 420 or MCRSA, as misdemeanor cultivation does not even exist in California law today. This should be a heightened concern to growers in ban counties, such as most of the Sierra foothills.  However, if 64 passes, any illegal conduct becomes a misdemeanor unless its (1) a person’s 3rd offense, (2) if the cultivation is conducted in conjunction with an environmental crime, or (3) if transporting out of state.  Even with the influx of cash to law enforcement from Prop 64, law enforcement does not have the same resources or authority to investigate misdemeanants as it does felons. Perhaps equally important, Prop 64 explicitly negates the smell of cannabis as the necessary probable cause that cops use to get into homes and cars. That’s a sweeping disadvantage to law enforcement and will have massive effects on how they can investigate our people. I cannot stress how important these changes could be for growers. 

Next, I am wary of those (often wealthy out-of-staters who moved to California in the recent years for the specific purpose of cultivating cannabis) who are advising those of us who were born here that the corporations are going to take over.  Those corporations are already here, my friends.  There are people at our own local policy meetings that would happily vertically integrate if they could and push the diversity of our small farms out of the market in favor of market domination. If we think the big guys have the small farmers’ backs today, we’re kidding ourselves. It is already happening.  The competitive application processes thus far around the state have been a bloodbath, as is often the case in a corrupted capitalist system such as ours. Steve DeAngelo of Harborside spoke in Nevada County recently and said the future of the small farmer is to lease space from the large cultivators!  And he wasn’t talking about Prop 64, folks. 

To some degree, the preservation and promotion of self is human nature, regardless of the economic system in play.  In fact, the most common question at my office is “how can I establish priority for future licensing?,” raising the inference that if there is a cap on number of permits, most folks want to be one of those few, to the exclusion of others.  Lets also take a moment to recall Prop 64’s allowance of priority and vertical integration sent hundreds—perhaps thousands—of NorCal growers to ill-advisedly rush to file for cooperatives prior to September 1 this summer. The same insane bumrush happened last December regarding the MCRSA priority. Trust me, someone out there is already gunning to throw other small farmers under the bus, Prop 64 or not.  Prop 64 just takes that felony bus and makes it a misdemeanor. 

In California, we should instead look closer at competitive capitalism, the effect of money in politics, and a grossly unjust legal system, rather than reject a second semi-legalization initiative.  Instead of infighting, I wish our community would focus on addressing the corruption in these underlying power systems, making sure that more small businesses, people of color, women and those with cannabis-related criminal histories, are supported in this new era.

Finally, a particularly violent anti-64 grower I know (in another County) has thrived in the black and grey market because his cannabis is subpar by all accounts, and has been so for years.  Market forces should drive out the growers who lie about their pesticide use or inflate the cannabinoid content.  The market will make sure the money he made in the past would now go to someone who does play by the rules, who is willing to have their cannabis tested by a laboratory, who pays taxes, and who makes sure their product is labeled truthfully; someone who makes sure to follow the appropriate regulatory process.  Small growers will be able to get their permits and can even thrive, if they are willing to do the hard work of increasing the quality of their brand, marketing their product well, banding with others, coming to the policy meetings to shape the regulations in their favor, and who will do the work required of legitimate business.

I admit this is a tortured doom-and-gloom analysis, and it saddens me that I just don’t see another option. Prop 19 was far better than Prop 64, so I doubt the next one is going to be better.  Who would fund another and more expensive legalization initiative after two failed in California? My heart is heavy about this, as the harsh realities of Prop 64 has exposed some of the darker sides of California cannabis, on both sides of the issue.  I can only pray we respect each other’s opinion and each others Constitutional and ethical imperitive to VOTE, and look forward to that day when we reunite in a meaningful way to focus on the greater problems we continue to battle: money in politics and a broken legal system.

Those evils will persist, regardless of the outcome of this election. Please do not let this divide our community any further.  Either way, we have so much work to do. 

#rise #dividedwefall #fuckthatCOINTELPROshit #protectourfarmers #sameteam 

My musical meditation for this sad soulful post is Murs, “The Time is Now.” 

Look, not now, but right now, it’s time to change the game,
A new style, something different, you know, uplifting,
New sound from the West that we all can get with it,
The Pacific to be specific.”  

#cali4life <3, ~hb

What to Know About Aerial Surveillance During Harvest

It’s October in NorCal, which means it’s officially harvest time in the outdoor cannabis growing counties, such as Nevada County, Yuba, Humboldt, Mendo, Lake, etc.  The leaves are yellowing and the smell of cannabis is wafting through the air.  As the outdoor grow season winds down, the Sheriff’s helicopters and fixed wing planes are in full effect in their last ditch effort to take down as many gardens as possible before the end of the month.  Since that means it’s time to hunker down and protect your year, our office decided to dedicate this blog to the laws that officers should follow when flying above your garden, and what you can do when you see them.   

First, all growers should know the basic laws regarding aerial surveillance.  Law enforcement aircrafts are not allowed to violate FAA rules, which mandate that fixed wing aircraft must fly at least 1000 feet above congested areas and 500 feet above sparsely populated areas.[1]  Helicopters can fly lower, at approximately 500 feet or even lower, so long that they aren’t “physically intrusive.” 

However, on the hill, we all know cops constantly violate these rules, particularly with helicopters. Thus, the question becomes: “What can you do about it?”  Here are a few actions that cannabis farmers can take when aircrafts are too close to your garden for comfort:

  1. Document it!

All aircraft have their identification numbers on the side.  If you can read them, it’s too close.  So write it down! Quietly take a photo or video, but don’t make a big stink about it. [2]  In fact, write down everything they do, particularly if they circle you or pass back and forth repeatedly (also called “aerial acrobatics”).  If law enforcement ever shows up at your garden, your lawyer will probably kiss you if you’ve already documented any of the following:

  • Date and time.
  • Aircraft number, color and other markings
  • Flight pattern (i.e. did they fly in a circular, zig-zag, or back and forth pattern? If so, how many times?)
  • Estimate how many feet the aircraft was above you. Was it at tree-top level? Could you see into the eyes of the pilot or any passengers? Can you document what any of them were wearing or doing?
  • MOST IMPORTANT: Document how the helicopter’s close altitude affected your senses.  Could you feel the wind from its wings? Could you feel dust being kicked up into your face? Was the noise deafening?  Were you scared for your safety?

    2. File a Complaint With the FAA

If the law enforcement aircraft is coming too close, the FAA should know! The FAA takes this seriously and will contact the pilot quickly. They may even ground the pilot if their conduct was dangerous.  You can file a complaint by emailing them at FAAHotline@faa.gov or using their online form here: https://www.faa.gov/contact/safety_hotline/.  

This is strong medicine and should be used cautiously, as the FAA is a federal agency and their complaint form requires you to disclose your name and address. 

     3. Get Your State Law Game on Point

If you get a close fly-over, particularly one where the aircraft circled you, consider yourself officially on the Sheriff’s radar.  Thus, I advise all my clients who have a contact with law enforcement to consider it a warning, and for Goddess sake, take this opportunity to make sure your conduct complies with state law!!  I know trim is getting close and friends are starting to trickle into town. But this is a time to keep on your toes, not to relax. Not quite yet.  

Also take this opportunity to remind your staff they are not allowed to make any statements to law enforcement.  Never. None. Nada. NO STATEMENTS.  If you cannot do this due diligence because you’re either too scared or too lazy to have a grown-up conversation with your workers, get another job.  #truth

     4. Get Naked

This one is my favorite, but it only applies to helicopter surveillance of gardens on the same property as one’s home. The reason is that the law gives greater respect to that “intimate activity associated the sanctity of a man’s [or woman’s] home,” which means officers are not allowed to look as closely at those areas near a home where folks historically kept an outhouse, hung their bloomers, or sunbathed in the nude.  The more naked you are, the greater your “expectation of privacy.”  #seriouslytho 

                                                                            *****
In prepping for this blog, I actually took my staff up in a small plane and toured Nevada County!  To be sure, full season outdoor plants grown in a patch are easy to spot, even from a plane at 1,000 ft up.  While it was impossible to see inside a greenhouse with my naked eye, my cell phone camera did a fairly good job of spotting green-colored foliage from within greenhouses that had the sides rolled up.  So expect another blog in late February – prior to the outdoor planting time – discussing how to alleviate this easily-solvable problem (and how it is unwise to have an outdoor garden on the same site as a light dep or greenhouse!!).  But that’s a story for another day…
 
I close this post with a reminder that unlawfully obtained evidence may be suppressed in any criminal action, although it is near impossible to get it suppressed in a civil ordinance action.  So, yes, cops may legally cut you down, even if they learned about you illegally.  Know this!  Our sacred herb grown under the sun is soon ready to bless up, so please be safe out there during these final few weeks, my dear friends and family.
 
Much love, ~hb  
#roots #legalizeit #cali4life
 
As always, I end my blog posts with a musical meditation: John Holt’s legendary “Police in Helicopter,” a roots classic that’s been banging in every roots dancehall I’ve ever been in since I was a kid. And that’s no small number.   
 
We don’t trouble your banana, we don’t trouble your corn.
We don’t trouble your pimento, we don’t trouble you at all.
But if you continue to burn up the herbs, we gonna burn down your cane fields. 

 ‘nuff said.
 
*Written by Heather Burke. Legal research by Heather Burke and Sarah Smale.

[1] This rule applies to aircrafts owned and operated by law enforcement, as well as to those private carriers who contract with law enforcement.

[2] If you do take photos or video, please immediately get them to your attorney and then delete them from your phone.  If law enforcement does execute a search warrant, they will seize your phone and the photos/videos will be lost or used against you.  

Nevada County: “Let Us See Who Is Strongest.”

I was not designed to be forced.  I will breathe after my own fashion.  Let us see who is the strongest.” 
-Henry David Thoreau, On the Duty of Civil Disobedience
To be sure, we are living though one of the most widespread acts of civil disobedience in modern history, as the cultivation of cannabis is sweeping through California and beyond in numbers we can barely begin to comprehend and in spite of any regulation that has attempted to ban it. 
 
In Nevada County, the full scale ban of all outdoor and commercial cultivation on the June 7th ballot, entitled Measure W, will do little-to-nothing to change this trend.  At best, Measure W is a temporary vindication of the moral majority in a conservative retirement County, a moralistic approach that cannot be effectively enforced considering the sheer numbers of humans involved in this honorable work.  To be clear, if W passes, the question is not if the ban will someday fail, but when it will fail.  

​Here’s why:   
 
At the most basic level, young people overwhelmingly agree with sensible cannabis regulations.  These youths will someday rise to take the seats of County Supervisors and, even better, the Sheriff.  Case in point: my 14-year-old son toured the Supervisors’ offices on a school field trip.  Upon meeting Supervisor Ed Scofield, he and his young colleagues wasted no time in grilling the elderly and hopefully out-going Supervisor about the wisdom (or lack thereof) of Measure W.  I talked to several of the children afterwards, and they said Scofield’s answers appeared rote, and didn’t jive with the reality each of them already knew to be true.  I cannot help but smile when I imagine these fresh-faced teens immediately spotting Scofield’s BS, holding their own against a failed policy that is literally aging before our eyes.  This scenario has replayed itself in my mind as a symbolic moment, and one that we should take to heart if Measure W passes.  
 
Even if it does pass, the pro-regulation camps have undoubtedly benefited in spectacular ways that will catapult us into the next fight, whatever that may be.  The greatest of these benefits is in the recent announcement that Nevada County has more registered Democrats that Republicans.  I’m sure the Sheriff had no idea that his pet project would motivate the most vibrant “Get Out the Vote” campaign ever seen in Nevada County, causing our historically red county to turn blue.  This is a truly fascinating development with far reaching implications that is likely causing some handwringing in the Republican establishment.  Not only will the new Democratic majority affect the two Supervisorial races also at issue this week, it more importantly and undoubtedly will have drastic impacts for generations to come.  So for that epic change to our County’s political landscape, I would like to extend my sincere thanks to our very own Sheriff Royal. 
 
Another unexpected side effect of Measure W is that it provided a pathway for numerous No on W folks to rise to local and even state-wide prominence.  Jonathan Collier, for example, was relatively low key before Measure W, but not since.  Jonathan has excelled in diplomacy, forging bonds with unlikely allies that I never thought possible.  Indeed, he was chosen to debate pro-W hothead, Supervisor Dan Miller, at the Democratic forum (and JC killed it!).  Diana Gamzon of the California Growers Association is another standout who whipped a disorganized bunch of No-on-W folks into a lean, mean, fundraising and public outreach machine. Mark Shaefer worked with the No on W Committee to raise a significant amount of funds for the PAC, a feat that few thought were possible considering the dearth of funds for 2014’s Measure S.  Last but certainly not least is Forrest Hurd, a father whose articulate and compelling story about how Measure W will harm his son Silas’ very life has reverberated throughout the State and nation.  The list of these rising stars goes on and on.
 
The Sheriff could have gone for the old fashioned “divide and conquer” method that some Bay Area cities are doing by giving out one or two permits, and then over-regulating those to death.  But instead he chose to unite us with a singular goal, and spawned a quick rise of articulate, well trained, and energetic cannabis superstars.  I could not have handpicked a better team of advocates to embark on the post-W journey with (whatever that may be) and, for that, I’m again grateful to the Sheriff for a new cadre of pro-regulation heavyweights that he created.  And it will not be long before others rise as well, as folks are becoming less and less scared of law enforcement retaliation with each passing day, particularly as they can now take safety in the great numbers of others who are also freely speaking out.  
 
Finally, it must be noted that the Nevada County pro-regulation community united against W in a way that we have never done before, precisely because we never had to.  Measure W thus provided the impetus for the rise of a tightly knit and supportive cannabis community, a community that did not exist in this way before January 12th.  Indeed, innumerable and life-lasting connections were made as our people rose to new levels together.  Win or lose, it truly has been a team effort.  With this newly united front, we’ve forever changed the face of cannabis in this community, and this beautiful face is here to stay
 
At the risk of sounding cliché, please remain encouraged, regardless of what happens on Tuesday.  Measure W’s impact will be fleeting, as it cannot stop the tides of reasonable cannabis regulation sweeping the nation. If it passes, we trod on, united.  So to the future, place your strong hopes there.

Then get back to work.
 
~Love, heather b.

#NevadaCounty #Rise #NoW

**​My musical meditation for this post is Nas and Damien Marley’s epic Strong Will Continue.  
“Stand up and fight if you know that you’re right and know you will never fail,
Tipping the scale and the wind shall prevail and the boat shall forever sail,
Hey, there ain’t no stopping or cruising,
Even when you’re battered and bruised,
Hold down all the sprinklers on Mt. Olympus,
My god’s tougher than Zeus.”

Basil’s June 7th Voting Guide

*** Heather’s Note:
If you’re from Nevada County, you are hopefully lucky enough to know and love Basil McMahon, an inspiring local artist and advocate.  Basil put out his voting guide for the June 7th election, and he’s on such point that I had to share.  See you at the polls!

Basil’s Voting Guide:

Here are my (Basil’s) endorsements for the California primary ballot. This is a voter-guide “cheat sheet” for down-ballot and local Nevada County races, so you don’t have to go out and do the extra research. Investigate. Speak up. Own your beliefs. Question Authority. Always vote, even if you spoil the ballot.
Fight like hell for your right to vote!

Thank you to everyone whose reached out to ask me- I’m honored that you would take my opinions into consideration. Take them with a critical awareness, and a grain of salt. I’m always open to learning, listening, and changing my mind. This time around, the ballot is pretty short, so I added some extra commentary. These are my own opinions and do not reflect those of any organization.

FOR MORE INFORMATION on progressive candidates to support in other races you can start here:
http://berniecrats.net/#CA
http://www.drugsense.org/dpfca/votersguide0616.html

— PRESIDENT

Bernie F*cking Sanders

Never in my life have i felt so proud to be able to support a presidential candidate. This is the kind of moment that defines a generation politically. Back on the day when he announced and I was posting left and right about feelin the bern, I would never have guessed he would get this far. RESPECT. If Bernie wins California by something like 75% to 25%, he could mathematically overtake Clinton in the pledged delegate count. That, unfortunately, is extremely unlikely to happen. Never give up if there’s still a mathematical possibility, but don’t fool yourself of the chances. If Clinton secures the nomination, low information voters and young millenials who have internalized their disenfranchisement and become disillusioned with the democratic process (heres looking at U!) will be quick to look for explanations as to why Bernie diddn’t win- and the most convenient explanations will be the ones that reinforce their worst suspicions about the election process being rigged. My only hope is that enthusiasm for Bernie Sanders, the dude who has been fighting from within the system for social and economic justice since before your parents were born, doesn’t turn into jaded apathy and suspicion of the “system” just because the results don’t reflect your preferred outcome. Are you going to give up fighting just because of the results of one rigged primary battle? Bernie wouldn’t do that 2 u now would he. He’s in it for the long haul.

Keep in mind, whoever the democrats nominate will be the last and only person standing in the way of a neo-fascist clown assuming the presidency. Yeah, it blows. Fun times!!
Fortunately for you, California Voter, you live in a safely democratic state, and you can vote for whoever you damn well please come november without worrying that voting for your conscience might run the risk of letting Trump win. Unless everyone else does, in which case, your American Individualism is running right up into your need to vote strategically. I know, i know, its hella awkward.

I will not however, in good conscience, recommend any vote that would increase the chances of a Trump presidency.

— UNITED STATES SENATOR

Kamala Harris

The current Attorney General of California is running to replace retiring senator Barbara Boxer (D) in a crowded field. The top two candidates will go to a runoff in November. Expect Harris (frontrunner) to go up against Loretta Sanchez, another democrat with less reliable ‘progressive’ credentials (every democrats’ favorite buzzword). Some people jokingly suggest Kamala Harris is the new female Obama. Elizabeth Warren has come out with a full force endorsement. A (relatively) progressive woman of mixed ethnicity in the United States Senate? we could use more of those.

— UNITED STATES REPRESENTATIVE- District 1

Jeff Gerlach (NPP)

This is our “House of Represenatives” Congressperson seat. District 1 covers the entire north-eastern part of the state. Doug La Malfa, often photographed with his cowboy hat, is firmly entrenched in this safe republican seat. Unfortunately, due to partisan gerrymandering, District 1 is drawn up to be extremely difficult for a progressive candidate to win. Heidi Hall (now running for a Nevada County Supervisors seat) put up a formidable effort against La Malfa in last election cycle in 2014. Watching Hall debate La Malfa during this campaign, I learned that our current House Rep denies the existence of global warming, supports fracking, vilifies the obama EPA and generally personifies the worst characteristics of a tea-party obstructionist in congress. Yee Haw. I also gained alot of respect for Heidi Hall, who spoke persuasively and forcefully for not just progressive ideals, but simple rational thinking.

Unfortunately, La Malfa’s seat is a safe republican seat that no democrat, no matter how centrist, is likely to be able to steal away. Fortunately, that means you get to vote your conscience!

Jeff Gerlach has been a visible and consistent participant at local events concerning medical marijuana and has supported the efforts of the Nevada County California Growers Association. He has endorsed Bernie, stands for many progressive causes and has as good a chance as any unaffiliated candidate to stick it to the man.

— STATE SENATE Distrct 1

Rob Rowen (DEM)

Rowen is the only democrat running against Ted Gaines, the republican whose held the seat since 2011. Gaines diddn’t even bother to show up at a recent local candidates forum, hosted by the league of women voters- and shows his disdain for public deliberation. Jerkface.

-MEMBER OF THE STATE ASSEMBLY District 1
NO ENDORSEMENT
Brian Dahle, the republican whose held the seat since 2012, is running unopposed. Write in a candidate. Perhaps “Banksy,” or “Hunter S. Thomson.”

— NEVADA COUNTY

— COUNTY SUPERVISOR District 2

Richard W. Harris

Richard Harris, a local insurance company professional, decided to step into the county supervisor race last minute against Ed Scofield, who is running for his third term in office representing the South County district. It takes a great deal of courage and character to stand up and offer yourself to public service, especially when competing against an established incumbent. I am especially grateful that Mr. Harris decided to stand for office, considering Ed Scofield ran un-opposed in the last election cycle (and did so only months after pushing hard to enact the highly restrictive marijuana growing ordinance of 2012). It was a unfortunate reflection of how poorly organized the progressive opposition was at the time that the community could let Scofield and his favored special interest groups stand unopposed in south county.
Scofield has been a stalwart opponent of medical marijuana ever since i moved to Nevada County. He was, notably, the only one out of the 5 supervisors who refused an invitation from the NC Cal Growers Association to have a one-on-one meeting after measure S failed in 2014. Unfortunately, the loudest and most influential voting bloc in South County is the ASPOA (Alta Sierra Property Owners Association), and Scofield is their main man.

Harris has reportedly been fighting back against a smear campaign, claiming he is a “big time” grower and one-issue candidate. Characters like Sheriff Keith Royal, Supervisor Ed Scofield and Don Besse of SAM have been implicated in accusations of slandering Harris, who recently penned a letter attesting to the fact that he has in years past grown 12 plants- and no more than 12 plants- to support the medical needs of his daughter, who has a debilitating disease.

This all speaks to the courage and character that it takes to put your hat in the ring and stand for local elected office. It is a sad testament to the tenor of county politics that a good citizen’s character would be impugned for simply being a cannabis provider for his own daughter’s medical needs. Dirty politics indeed.

— COUNTY SUPERVISOR District 2

Heidi Hall
Dwane Strawser

In District 2, two candidates are competing to replace retiring incumbent Nate Beason. Regardless of the outcome of the race between Hall and Strawser, the county will be much better off with Beason in the rear-view mirror. He has been an obstacle to progress in more ways than I can count. He played a principal role in pushing through the county’s outside events sound ordinance, which dictates that if you host more than 50 people on your private property after 10PM, you have to obtain a special permit from the sheriffs department. The consternation caused by this contentious edict alienated even some of the board’s more traditional allies, like the vinyards, the wedding industry, and the NC chamber of commerce. Nice work.

Now District 2 (which includes Nevada City and much of municipal Grass Valley) is presented with two very different options for who should take over the vacancy left by Beason. Heidi Hall- manager with the State Department of Water Resources (endorsed by the NC Democrats), and Dwane Strawser- Grass Valley City Councilman and bike shop owner (Endorsed by the NC Republican Party).

There is much ado concerning who is best suited to demonstrate leadership and effectiveness in Nevada County’s open supervisorial seat. In an era of conservative dominance on the county board AKA the Old Boys Club, some suggest that an outspoken advocate for progressive issues (especially if their voice is only one out of five) will be sidelined and marginalized- this is the spectre of political isolation that candidate Heidi Hall is combating. This veiled accusation- that she might be an ineffectual leader because she is outspoken and would be politically marginalized- is compounded by the fact that she is, of course, female, unlike the rest of the cowboys that runs the BOS.

This to me seems to be a classic example of patriarchy operating in the political sphere, which functions to dismiss and minimize the potential of a woman’s competency and efficacy in public roles of leadership traditionally reserved for men. Basically, its hella wack and I personally think that a woman’s voice, and wisdom, on the Board of Supervisors is sorely needed- particularly if that female voice speaks out in support of environmental justice, community diversity and democratic transparency. Mrs. Hall has shown courage and a willingness to be proactive and transparent in stating her positions, including a No vote on Measure W. If she is successful in her election, she will be an integral ally in the cause of smart and effective MMJ regulations in the county.

Dwane Strawser, her opponent, also running for District 1 Supervisor, does not fit into the neat “Republican” box that most people are trying to stick him into. He was recently a democrat, but changed his party affiliation to “Decline to State” shortly before this election. He has been endorsed by the local republican party, and has received a significant amount of funding from a tea-party affiliated PAC called Citizens for Good Governance. He has accepted these endorsements without protest, and it brings up concerns about the influence of money in politics that mirror the concerns clearly evident on the national political scene. Clearly, many on the right think he is a good safe investment.

Strawser has so far been unwilling to take a position on Measure W. This has been a red-line that many in the community view as disqualifying- they complain, rightfully so, that if you are going to stand as a public official, you should at least stand for something- one way or another. He has been accused of not having principles, and of wanting to play each side off the other for political gain.

My sense, after talking with Mr. Strawser about Measure W for some time, is that there is more nuance here than most people are willing to see. Strawser has shown a concerted effort to educate himself on the issue of Medical Marijuana in the county and what I feel like is a sincere intent to engage on the issue with the NC Cal Growers Association. In short, he has been alot more interested in dialogue and problem-solving than Nate Beason. He understands that Medical Cannabis is a big part of the local community and that we won’t be backing off this issue, even if measure W passes. He has shown a willingness to listen and seems sincere in his desire to find common ground to work through some of the problems the community is facing. If he ends up winning the election, he will be a key ally (despite whatever political stripes you want to paint on him) in crafting local policies which provide a regulated path forwards for good stewards of MMJ cultivation in Nevada County.

— BALLOT MEASURES

— Proposition 50, SUSPENSION OF LEGISLATORS
Yes. I think.

— MEASURE Y
Vote No

— MEASURE W
Vote Hell No

Thanks for reading. 🙂 ~Basil. 

What the County Isn’t Telling Us About Their Cannabis Initiative

Only once in the conversation about Nevada County cannabis cultivation have we heard the Sheriff suggest “an overturn of the ban could lead to the formation of a committee that would search for alternatives to an outright prohibition on outdoor grows.” Not a word of this possibility was hinted at the Board of Supervisors meeting on January 12, nor in the official numerous statements in the fallout over the poorly drafted language of the two enactments, nor even in the purported “intent” language the Board will ratified on February 9th.

If indeed it is true that a “No” vote in June would indeed result in the formation of a commission to “search for alternatives to outright prohibition,” we must ask why the County is keeping this alternative secret, particularly where all parties agree cannabis cultivation is going to continue in spite of the ban: if growers flourished under threat of state and federal arrest, they will be undaunted by a civil land-use ban.  If it is not true that such a committee will be formed, your Sheriff just straight up lied to you.  Only one of those two things can be true. 

However, the Sheriff already conceded the ban will be ineffective as he immediately doubled his helicopter budget mere days after the ban was enacted. If the urgency ordinance was expected to be effective, why would the Sheriff need twice as many resources to locate gardens from the air? He wouldn’t.

And when all parties agree outright prohibition won’t work, but enact it anyway, the governmental purpose cannot be to stop the prohibited conduct. There must be another reason.  So what is the real purpose of the cultivation ban in Nevada County?

Its simple…

By expanding control over the subject matter, the Sheriff can shape discourse about cultivation to suit his partisan position (and the doubling of his budget) as we move towards the end of prohibition. We saw this play out at the BOS meeting where photos of gardens were purported to be “bad actors.” I was familiar with those photos, as many were of my clients’ gardens. The overwhelming majority were not diverting water and were “organic. None were cited because of smell.  Instead, the Sheriff located the gardens by air and called the “complaint” into the abatement unit themselves.

The Board sadly allowed the Sheriff to contort these “facts” to support a civil ban, which the Sheriff immediately bootstrapped into a need for increased crime surveillance. The need for more helicopters will soon become a need for more officers, and so on, ad infinitum

Rather than verify the Sheriff’s “facts,” the Supervisors rushed to enact a law they did not understand, as was made clear when they admitted the “emergency” ordinance will continue regardless of the June election. Then they incredulously downplayed the importance of their vote by demeaning compliance, suggesting growers violate the law.  Our Board Chair, Dan Miller, stated, “If you’re growing one, two plants outside… I don’t think there’s gonna be an issue.” He joked no one would notice cannabis plants placed inside a patch of artichokes, suggesting a manner to elude detection.  At the Town Hall meeting on the Ridge, Supervisor Hank Weston said growing outside was okay if neighbors didn’t complain, contradicting the clear message of the Sheriff’s request to double his helicopters.

How can the Board ask growers to respect a law the Supervisors don’t respect, particularly after they’ve flaunted the ease of violating it in the faces of those to whom the regulation really matters? When lawmakers irreverently advise the breaking of the very rules they enact, they breed disrespect for the entire rule of law.

After the vote, bitter disappointment spread throughout the community like wildfire, though the disappointment was not limited to the ban, as no one believes the ordinance will curb the tide (and the Sheriff already banked on it to the tune of $55,000). Rather, the bubbling excitement of all stakeholders – the hope that irrational prohibition was subsiding to make way for effective regulation – was thoughtlessly squelched, and with it the trust many of us have been building with patients and growers for decades. 

Instead, the Sheriff hints of a “commission” if-and-only-if we vote “No” on his woefully-drafted and expectedly ineffective ban on June 7th, which brings me back to my question of why the County has not told us a “No” vote could mean the formation of a committee purposed to bring growers into compliance, generate enough revenue to monitor compliance, and unite the community in an unprecedented effort. 

To be sure, if the County wanted effective cannabis policy, they would have sought it from the outset. However, as discussed above, effective regulation is not their point, lest the Sheriff’s role in the conversation (and thus his budget) be reduced.

When voting in June, please remember a “No” vote is a vote for regulations that work.

#NevadaCounty #NoW #Rise 

*Originally posted as Op/Ed on YubaNet here: What the County Isn’t Telling Us About Their Cannabis Initiative

The Future of Cannabis Cultivation in a Banned County.

The story is so often repeated in my ears that it’s become a mantra for the vast majority of the cannabis growers these days: “I want to be in compliance. I want to do things right.”  The laws that define what it means to be in “compliance,” however, recently underwent a dramatic shift with the new regulations passed in Sacramento last October, the Medical Marijuana Regulation and Safety Act (“MMRSA”).  MMRSA abolishes the old-school “collective/cooperative” model in about three years, which fundamentally changes the game.  This article is dedicated to what laws will be affecting NorCal growers during that interim period before MMRSA becomes mandated and the old collective/cooperative model is abolished.
 
To fully understand the transition into these new regulations, I must paint an overview of the laws relating to cannabis cultivation.  Currently, there are three distinct tiers of law that all growers should be aware of in this changing legal landscape; (1) civil/land-use ordinances,  (2) state law, and (3) federal law.  It looks like this:
Fed Law
_________
 
State Law
_________________________
 
County/City Civil Ordinance Law
_________________________________________________
Tier 1, Civil Land Use
The first tier is the land-use ordinances that are set by the locality (City and/or County) and are civil in nature.  The closer one is to the land, the more authority the government has to regulate the use of that land. So when it comes to the particular uses of particular land, City ordinances generally trump County, County ordinances trump State, and the State trumps the Feds.  That system makes sense, of course, because we don’t want Los Angeles telling us how to regulate the use of the North San Juan Ridge, nor do we want the Feds telling Nevada City what kind of businesses are acceptable downtown.  The most important thing to note about local ordinances is that they are civil, and thus violations are non-arrestable public nuisances, for now.  Cops can seize your plants, they can charge you extravagant fines, but they cannot cage you.  
 
Tier 2, State Law
The second tier is State Law, and is comprised of Prop 215, the Medical Marijuana Program, and now MMRSA.  A violation of the State Law is a felony criminal offense, which means they can cage you for violating these laws.  There is no “misdemeanor” cultivation crime in California: its either 100% a felony or 100% legal.   Currently under California law, there are three and only three ways any cannabis cultivation-related conduct is legal: if the cultivation is occurring (1) for your own personal use, (2) for the use of someone for whom you are their nurse or primary caretaker, and (3) on the behalf of a valid collective or cooperative.   The new MMRSA laws abolish this third category, the collective/cooperative, one year from the date the State licenses start being issued.  The State has said they expect to issue licenses in early 2018, which means collectives/cooperatives will protect you only until early 2019.  If you are operating in what I call a “ban county,” you better stay tuned for that date.  Know this!
 
​MMRSA fundamentally changes the game in that it, in essence, requires everyone have a state license for any and all commercial cannabis-related activity. Additionally, it also mandates they have permission from their local City or County as a prerequisite to obtaining the state license.  That means, before you can even ask the State of California for a license to cultivate cannabis, you must prove that your City or County has given you a permit or other authorization.  
 
Let me repeat this last sentence again:  Before you can even ask the State of California for a license to cultivate cannabis, you must prove that your City or County has given you a permit or other authorization.  
 
As we are all aware, the enactment of MMRSA catapulted many City Attorneys and County Counsels around the State to thoughtlessly enact full-scale bans.  Thus, once MMRSA abolishes the collectives and cooperatives, you wont be able to be arrested for violations of the local ban, but you won’t be able to get your state license either.  And without a state license, any and all cultivation activity will be a straight up felony.   Yes, MMRSA does give you about three years to get your state license but, if you live or work in a “ban county,” you will not be able to get that license.  So if you are in a “ban county” when collectives/cooperatives die out, your choices are simple: stop growing, move, or be a felon.  It’s that simple.  
 
Additionally, folks in “ban counties” must be aware that law enforcement will not be happy to find out that you are operating in spite of a civil ban.  Thus, presume they will seek you out with vigor (and we know the Nevada County Sheriff will do so because he already doubled his helicopter budget) and, when they find you, they will be trying hard to arrest you to build up their anti-cannabis campaign.  So please don’t give them that pleasure: (1) be kind, but say nothing, (2) do not consent to searches, (3) hand them your collective/cooperative papers that you had ready and waiting for them, (4) make sure that your attorney’s business cards are handy. 
 
Tier 3, Federal Law
The third tier is Federal Law, under which the cultivation of cannabis has no medical defense and carries decade-long mandatory minimums as penalties.   In August of 2013, the Feds said they would hold off prosecutions in States that have enacted a robust “regulatory scheme,” such as MMRSA.  However, it must also be noted here that the Feds will continue to prosecute cases where money from the sale of marijuana goes to “criminal enterprises,” even in California.  Thus, if you cannot get a local permit under MMRSA, any cannabis cultivation for financial gain is now a “criminal enterprise” that could bring one under the federal government’s criminal purview as well as the State.
 
Summary
So yes, it’s a huge risk to work in a City or County that bans cultivation after the collective/cooperative defense is abolished.  Maybe not today, but it will certainly be illegal to continue on in usual fashion once the dust from MMRSA settles over the next three years.  And since the legalization initiative expected to be on the November 2016 ballot does little to help the situation, this is the world we are living in for perhaps decades to come, particularly if your County votes to uphold a ban (making it bulletproof), as well as if the Feds keep cannabis a Schedule I drug (#feelthebern). 
 
Please note that a good attorney cannot advise you to violate even a civil ordinance.  We can only advise you what your risks are, so that your decision is appropriately informed, but the choice to engage in cannabis-related conduct in spite of local, state and federal prohibition, is on you.   One thing is for sure, if you live in a “ban county,” but you don’t vote or donate to the groups working towards cannabis regulations, your County will continue to stay a “ban county,” soon bringing your conduct under State and Federal criminal law. 
 
In closing, I must say that I sometimes feel a bit tricked by MMRSA.  Growers were asked to come out of the cannabis “closet,” and then the government shut the door behind them, forever locking them inside this new world.  But, as I’ve said before and I’ll say again, it’s time to accept what now is, and work to shape it for the better.  Righteous cultivators are the foremothers and forefathers of a new era for a medicine that can cure cancer and eradicate plastics.  Our heavy work has only just begun.  If indeed you have chosen cannabis cultivation as your life’s work, you must adapt or be left behind.  
 
As always, I end my post with a musical meditation, which today is Lauryn Hill’s “Lost Ones.”  ​

My thoughts on the Yuba County narc detective’s recent arrest for trafficking 247 pounds of cannabis out of state.

I respectfully reject the SacBee’s quote attributed to me in their recent article regarding Yuba County narcotics detective Chris Heath’s arrest for transporting 247 pounds of cannabis in Pennsylvania while armed with his duty gun and $11,000.  The reporter opened up the conversation by asking me if Heath’s situation “was like catnip” for attorneys like me.  I laughed, and joked that it was more like straight vodka.  The question was so silly that I thought the real interview started after that.  Lesson learned. 

Each and every one of my clients, and certainly anyone who has ever heard me speak publicly about the current state of cannabis law, knows that I take my task as a medical cannabis lawyer extremely seriously, perhaps to a fault.  Of course my early visceral reaction to discovery of Agent Heath’s abhorrent conduct was a brief spat of laughter due to the comic hypocrisy and fleeting moment of vindication, though under no circumstances do I think this is the time to celebrate with trite jokes.  Quite to the contrary, when a narcotics detective assigned to the investigation of cannabis cultivation in a County that has enforced a per se prohibition of all cannabis-related conduct blatantly dismisses both state and federal prohibition to engage in the sophisticated interstate trafficking of marijuana, a far more pernicious state of affairs become evident. What must this incident teach us?  Certainly Agent Heath’s actions do not teaching us that we act like cats after consuming catnip (I’m not a cat person, so I’m not even sure what this means. Do cats get drunk on catnip? Is it like caffeine?).  

First and foremost, I do not see how we can ignore that both Yuba and Butte Counties have prohibited the distribution of cannabis by banning dispensaries, as well as the cultivation of cannabis (Yuba to a slightly greater extent).  Both counties are known for aggressively prosecuting violations of the state law as well, creating a culture in their local government (law enforcement included) that vilifies and criminalizes any and all cannabis-related conduct.  However, most stakeholders seem to agree that cannabis-related activity is going to continue to proliferate in NorCal, in spite of the flood of local bans: if growers couldn’t be stopped under threat of state or federal arrest, they certainly can’t be stopped by a civil land-use ban.  Thus, when a grower has decided to continue with what is often times his or her life’s work in the face of a ban, he or she will just take greater precautions to not get caught, which often includes moving further into the woods and becoming more unregulated.  Without regulation, there will be a decline in good management practices in the rush to harvest quick, and the criminal mindset will undoubtedly fester. 

This phenomenon is supported by Agent Heath’s own statement to me early in November when I asked him, off the record in a case where he was testifying against my client, if he had seen a reduction in the number of grows in Yuba since the ban.  Over the course of November (the height of the NorCal outdoor season), I asked that same question to Agent Heath, another Yuba County Deputy assigned to marijuana abatement, and two Code Compliance officers, and each agreed that the number of grows had remained about the same, but that the sizes of the grows had increased, as had the trash around the gardens.  In Heath’s particular and very sad situation, this criminal mindset festered right on into Yuba County’s own Narcotics Task Force.

Secondly, how we want to treat Agent Heath now that he’s been caught speaks volumes about our various positions on cannabis prohibition in this new era.  While many rejoiced in the streets, a bay area attorney whom I admire, John Hamasaki, poignantly suggested that he didn’t agree with prosecuting Agent Heath for illegal trafficking because the cannabis laws are arcane and unjust in-an-of themselves.  Although I admittedly happen to be one of those people who sees great value in “reinventing the enemy’s language,” or using the power structures of the oppressor against them, John’s got a point.  If we want to abolish the criminal prohibition of marijuana, prosecution of anyone at all under such laws becomes inappropriate even here.  While Agent Heath would clearly constitute a per se bad actor under every interpretation of California’s cannabis laws, the argument is that, once we say even one prosecution for cannabis is appropriate, we’ve imposed a “moral center” for cannabis crime; a standard by which certain marijuana distribution is right (i.e. legal) and some is wrong (i.e. criminal).  Arguably, if we truly deem the substance itself to be non-deserving of criminal ramifications, then marijuana conduct should not constitute a public offense under any context.  I get it.  

But clearly the Chris Heath scenario is somehow different, or else why would so many in my area (Nevada/Yuba County) rejoice, particularly when those rejoicing are the ones who would usually lament the news of any random NorCal grower getting picked up out of state with 247 pounds?  The answer is obvious, of course: Heath violated the public trust.  And though I was raised in an era where I trusted the local marijuana growers a lot more than I trusted the racist cops who (on a good day) were “just doing their job” of enforcing nonsensical marijuana laws, meaning my trust in law enforcement was low from the outset, even I was incredulous to my very core when I learned of Agent Heath’s arrest.  The breadth of this violation of an officer’s solemn duty to protect and serve is nothing less than gut wrenching.   

Sadly, this is not the first time this has happened.  There was Jason Fredricksson in 2011, a San Leandro Police narcotics detective who was caught selling cannabis he stole from cases he was investigating. And who could forget the federal marshal who was federally indicted for robbing NorCal marijuana growers at gunpoint in 2014? (While that was the only crime for which the US Marshall was caught, he is also rumored to be responsible for the rash of marijuana robberies here in Nevada County after the first summertime round of light deprivations greenhouses are harvested in July.)  An El Dorado County Sheriff was arrested last year for stealing a bevy of drugs from evidence lockers, and I just heard about a Texas Sheriffs Deputy was indicated last for conspiring to distribute more than a ton (over 2,000 pounds!) of marijuana in that state.  The list does not stop there, not even close. 

I suppose it would be the more evolved course of action to demand our state and federal prosecutors refrain from charging these bad actors with violations of the criminal codes relating to cannabis, as there are likely more than enough criminal codes relating to the violation of their public oaths and various ancillary crimes (conspiring to cross state lines to commit a felony, for example) to put cops like these away for a long time. 

But at the same time, fuck those guys… 

In short, the answer remains unclear to me.  So what can I say I’ve I learned from this incident? Not much I suppose, except that reporters don’t have an “off the record” button and that cops like to transport marijuana just as much as the next guy.   

But the theoretical queries our community has been debating for decades about how to treat cannabis-related conduct in this new era stay the same, only with a new anecdotal feather in our cap.  As was made clear in my unreported comments to the reporter, this is an opportunity to discuss how civil bans and vehement criminal prosecutions make the Agent Heaths of the world a possibility.   

One thing does remain clear in all of this, however; this is no time for shallow celebration. And this sad situation is nothing like catnip (whatever the heck that is).  

Tips for a Happy Harvest

Hello and Happy Harvest to all from The Law Offices of Heather L. Burke! 

It seems we began harvest a little early this year and that “end of the season” work is in full effect already, even on this first day of October.  Harvest means its time to hunker down and protect what you’ve poured your heart and soul into over the past year.  In order to keep safe and happy during the upcoming month or two, here’s a few tips from the Law Office of Heather Burke for a Happy Harvest season.

1.     Strive for a Legal Trim.

In California, the only way that your trim scene is legal is if (1) you are the only trimmer and you are trimming your own personal cannabis for the year, (2) you are trimming as a caregiver for someone who you have consistently “assumed responsibility for the housing, health and safety” for, or (3) the most likely scenario, where you and your workers are part of a legitimate medical cannabis collective or cooperative.  

Please know that, in order to be part of the collective, everyone trimming the cannabis must be a member of the collective with a valid medical cannabis recommendation.  So that means when you hire a super hottie (guy or gal) from South America or some European nation that just showed up in Nevada County after Burning Man, hangs out on Commercial Street or on the Ridge with scissors around their neck, and does not have a medical cannabis recommendation, you are risking a felony case for yourself and everyone else in order to have that hottie work at your spot.  If that’s a risk you’re willing to take, so be it.  But be aware that your decision subjects you, the hottie, and all the other workers to a felony conviction.  Do so at your own risk and realize your decision may negate your entire year’s work.  If you have any desire to be wise, ask that hottie out on a date, but do not invite them to work for you this year or any other year until you are legally allowed to hire non-patient processors.  (Side note: AB 266 will allow you to hire non-patients, but is not the law just yet and processing [i.e. trimming] will still be a straight felony until then.)  

Simply put, do what you can to be legal.  And if you have the chance to choose a worker who is already a patient who can join your collective, or one who cannot because of their immigration status, be wise and choose the patient so you don’t lose your collective defense and turn a year’s worth of legal work into a felony.

2.     Trim Season is a Time for Happy Work, but it is Not a Time to Rage.

A common downfall of a few trim scenes is that some folks come to trim for the specific purpose of partying, using illegal drugs, and otherwise engaging in debauchery.  While that scene is quickly losing credibility in an industry that is arising to take a place of honor in the mainstream, please remember that this is NOT the time to do a bunch of drugs, get wasted, and try to hook up with randoms.  I repeat: THIS IS NOT THE TIME TO DO DRUGS, GET WASTED OR TRY TO HOOK UP WITH RANDOMS.  This is “Game On” time for your entire year’s work.  It is instead the time to be at your highest energetic level, and to put your best energy into this medicine that is about to be released to medical cannabis patients around the state.  So take this opportunity to abstain from alcohol or other unnecessary intoxicants if possible, increase your physical activity such as yoga or running, and take that extra moment to love on your partner who has to take care of the house and kids in your absence.   

Also, since many trim scenes are only arguably legal under current California law, particularly where even one of the trimmers is not a member of the collective, your entire season of otherwise lawful conduct can be transformed into an illegal FELONY when the trim scene is not conducted by members of the collective.  With that legal vulnerability, why would you risk your year to have a month-long party that is costly, reduces your work productivity, and may transform your legal work into a felony?  Trim is not the time to rage, but is instead the time that your responsibility should actually tighten up.  

And while this should go without saying, its sad that I still have to stress that you should not invite cokeheads, other druggies or straight idiots to your work.  God knows there are plenty of them in town, but they should be shunned at this time of year more than ever. And seriously, do not allow folks on probation or who have an active “4th Waiver” to work for you.  I mean, seriously?!

So have a good time with your collective and enjoy each other’s company, but remember that trim is a time for collective work, not for debauchery.  Be happy, but be wise!

3.     Your workers need to be members of your collective.

As noted above, trimmers should be members of your collective in order to legally trim for you.  So make sure that any trimmers sign a document indicating that they are members of your collective before they start any work!!! 

Do this with ALL of your workers, even if they are from out of state or international.  While the law does not technically recognize trimming by non-patients, the law also does not recognize a lab to test medical cannabis or a security guard who works at a dispensary.  That means that there are some types of conduct that are so socially acceptable and even so socially desirable to warrant an accepted exception from criminal law.  While trimming (i.e. processing) is not quite on par with laboratory testing in terms of social acceptability, failing to preserve the collective status of the workers who are not medical cannabis patients precludes your badass defense attorneys (such as myself) from a possible Equal Protection or other Constitutional motion to dismiss any criminal case for treating trimmers different from labs, despite that both trimmers and lab techs “process” cannabis to a similar degree.

So the moral of this story is to preserve any collective defense by having your trimmers join your collective.  Its easy to do, so there is literally no reason not to, except if you are trying hard to be a dumbass.

4.         Trim Should be a Healthy Environment for Processing an Herbal Medicine.

It is very important that your trim is run in a manner that is respectful to the powerful plant medicine that you are working with. 

Please recall that this herb has long been considered the healing of the nation, and that more and more studies are being released showing cannabis’ ability to perhaps cure cancer in some cases by causing apoptosis, or the healthy killing off of unhealthy cells that could devolve into cancer.  So consider your cannabis to be a medicine or, at very least, a food, and treat it as such.  Your workers should wear gloves, the medicine should be stored in a manner that is worthy of a medicine, and please don’t let your workers smoke cigarettes when they are working with the cannabis!  Come on, dude.  

5.         Be Nice to Cops, but Don’t Say Shit.

No one wants to hear the painful truth that cops could raid your trim scene, but we all must remain cognizant that law enforcement is doing everything they can do ferret out and prosecute trim scenes during the next two months.  Be safe rather than sorry.  You are fortunate to live in an area with numerous capable criminal defense attorneys, so call your local lawyer and get some of their business cards to keep by your front door or to hang at the garden, carport, garage, or wherever your workers are posted up.  

Remember that if cops do arrive at your gate, do NOT allow them inside without a warrant, but please be kind to them.  Our law enforcement is just doing their job, which for now still includes the ferreting out of criminals who have infiltrated the medical cannabis marketplace, such as those drug trafficking organizations who are happy to use Avid on their plants, those who illegally divert water from the Yuba, those who don’t mind spilling their excess fert or (gasp!) pesticides into the river, and the slim few who use violence in their dealings (although you should not forget that it was actually a federal agent who was arrested last year for being one of those who were violently robbing gardens in the area).

So please be respectful to law enforcement, but do not roll over for them.  You have rights! Use them! Make sure all of your workers have an attorney’s business card in their wallet or pocket at all times while they are working for you and that they are all advised that the policy of your collective is to request a lawyer and make NO STATEMENTS TO LAW ENFORCEMENT!!!  Don’t be shy about talking to your workers about this, as this advisement is a critical part of your basic due diligence in managing your collective’s trim scene.  If you are too scared or embarrassed to talk about these issues with your workers, then get a new job, since you clearly can’t handle the realities of this work. 

Here’s a short recap of this section, since it is by far the most important piece of this article:

  • Don’t consent to law enforcement entering your property, or any property you are working on. 
  • If cops come on the property for any reason, do not make any statements and in particular do NOT admit that you were trimming!  You are allowed and encouraged to point them to your collective paperwork.
  • Affirmatively ask for your attorney. You must expressly ask for your attorney in order for this right to be properly invoked. 
  • Make sure that any and all workers understand that the previous three rules are the policy of your collective and also that they have the contact information of an attorney.  *Remember that this is your duty as the project manager.  If you don’t like it, get another job.  

6.         Get Prepared for The Sweeping Changes in the Future.

Ya’ll betta recognize that there are sweeping changes coming to trim scenes around the state in the next couple years with AB266 and with the possibility of adult-use (inappropriately, but often, called “recreational”) legalization.  So next year, I will be asking growers and trim scene managers require their workers be registered to vote and that they do vote, but we’re not quite there yet.  It has never been more important, however, to get involved in some way, even if that involvement is merely registering to vote yourself.  If you have 99 full season outdoor plants but you don’t want to “like” the Nevada County Chapter of the California Growers Association on Facebook, your priorities are out of whack, as you are working in full knowledge of law enforcement while at the same time harming your own scene by refusing to take part in our shared future.  Can you really think the DEA is watching your Facebook “likes” but has turned a blind eye to your ½ acre of 10 foot cannabis plants?  Not likely.  So get real and get involved, since it will soon be “do or die” time for your scene. 

Its time to protect what you’ve got or you’re gonna lose it.  #straighttalk 

                                                         ***
So that’s about it for now.  Please have a happy and healthy harvest season! 

          Love and Mad Respect, xoxoxox  <3 
          The Law Offices of Heather L. Burke

#protectourfarmers #thefarmerslawyer #legalizeit #cali4life #happyharvest #bewise #hugyourfamily #begoodfamily #realfamilyvalues #itsthattimeagain #hunkerdown #donttalktocops 

*As always, I offer a musical meditation for this post. Today’s is: John Holt, “Police in Helicopter” 

Is Your Grow Legit?

Is Your Grow Legit?

It is no secret that California’s medical cannabis laws are infamously vague.  However, there are numerous common sense moves a smart cannabis grower can do to be as legit as possible in today’s hazy legal environment.  The gist of these moves is grounded in responsible stewardship, both of this plant that has been used medicinally by over a million people in California alone, and also of the natural environment that we fiercely protect here in the Sierra Nevada foothills.

A short summary of State law regarding cannabis gardens is a helpful starting point.  In this state, cannabis cultivation is by default a felony.  However, that illegality is excused (and thus legal) in three situations: (1) where growers can prove they are growing for their own personal medical use, (2) where growers can prove they are growing for the medical use of someone they care for, or (3) where growers can prove they cultivate cannabis for a medical cannabis collective or cooperative.  As the caregiving exception is largely limited to nurses and spouses of dying people, the most commonly available avenue for legitimacy for non-caregiving cultivators today is to operate the garden collectively or a cooperatively when the garden would produce far more cannabis than is needed for their own personal use.

The law that allows a collective or cooperative garden says that patients “who associate within the State of California in order collectively or cooperatively to cultivate marijuana for medical purposes” will not be subject to the default felonies that would otherwise apply.  Since this statute does not define what it means to “associate” to “collectively or cooperatively,” law enforcement usually wants cooperatives to be formally registered with the state as a regular business, as dispensaries will often do.  However, the statute is notoriously vague in its inability to define what a “collective” is with any specificity. 

So, while there is no magic paperwork that can be filed to become a collective, there are several clear rules of (a green) thumb to abide by when planning to grow this herb.  The most important of which is that the expected yield of the plants must be reasonably related to the number of patients in the collective cultivation project.  That means that, even if your doctor gives you a “script” for 99 plants or 5 million pounds, a cop will likely have a good chuckle as they slap the cuffs on if you claim those 99 ‘12-footers’ are all for your own personal use.  While a good criminal defense attorney may get a Not Guilty verdict later on down the road because of that recommendation, I don’t know anyone who wants to be arrested and go to a jury trial in order to prove they were legit.  So, be wise; make a yield estimate based on common sense and extrapolate back from there to find a reasonable number of patients that must be in your collective.  There is no exact science for the yield, nor for how much cannabis the various patients can reasonably use, but using wisdom and common sense in planning out your garden will get you far.

Additionally, either make sure the other patients in your collective know that you are cultivating cannabis on their behalf, or to associate with a dispensary for which you become a “member grower.”  BEWARE of any shadeballs, including shady attorneys, who will sell you patient recommendations.  Buying recommendations, even (or especially) from attorneys, may constitute fraud, conspiracy, aiding and abetting, and a litany of other state and federal crimes, for both the attorney, who in reality is nothing more than an illegal script-peddler, and also for the grower in some instances. While a cannabis conviction carries arguably minimal repercussions, convictions for fraud and other crimes related to the buying and selling of scripts would be devastating.  

Another rule of green thumb is that collective grows are supposed to be non-profit.  What “non-profit” means unsurprisingly has been the subject of much debate.  The appellate courts over the past few years have essentially forced cops, prosecutors and trial judges to accept that cultivators can be compensated for their expenses and labor but, until banks are allowed to accept cannabis-related monies, the financial workings of a cannabis garden will always be suspect to law enforcement.  So go meet with a tax attorney or CPA who specializes in medical marijuana issues and take all reasonable precautions with your money.

The final piece of growing legal is to grow green.  Please, never divert water from the Yuba watershed unless you have the proper permits, and always make sure you store and dispose of nutrients or pesticides wisely.  Good gardening demands a symbiotic relationship with the earth, so learn and utilize best management practices, or “BMPs,” for cannabis cultivation.  The foothills are full of organizations working hard to give you the information you need to use these BMPs, so its high time local growers take BMPs seriously. If you are understandably uncomfortable with going to those meetings, quietly seek out those longtime growers in the area who are more than willing to share their green techniques privately. So get with the times and get green.                        

The takeaway from this article is nothing more than to seek wisdom and common sense in all your cannabis-related endeavors.  If you moved to the foothills for the sole purpose of growing cannabis, please respect our land and our community by being a good steward of this venerated plant and of the natural resources intimately involved in growing it. For those who strive to grow legally and use care in their practices, cannabis cultivation is an honorable profession that demands respect.  Let’s keep it that way.

The LawDog’s Marijuana-Land February 2015 update

Hello team,

It has been far too long since I have last posted an update, mostly because we have been singularly focused on remedying federal, state and local laws prohibiting freedom of cannabis-related conduct in ways that have never-ever-ever been seen before in this Nation’s history, so please forgive the long hiatus. As most of you know, I like to tier my discussions of cannabis law by jurisdiction; federal, state, and local.  So I’ll stay true to form here and start with the most exciting update: the Feds.

Federal Happenings:

As you all likely are aware, the case that my colleague Zenia Gilg and I have pending before the Eastern District of California in Sacramento went to an exciting and historic evidentiary hearing last October. I’m not going to lie: it was a major event in canna-history and was nothing short of a post-apocalyptic Good v. Evil battle.  After the hearing, the parties filed perhaps thousands of pages of evidence, and hundreds of pages of briefing.  (Yes, my wrists are still hurting from so much typing!) On February 11, 2015, we had a final oral argument where our esteemed judge took the matter under submission and indicated she will return a verdict within 30 days.

More about that hearing can be found in Time Magazine online here:http://time.com/3706996/marijuana-pot-schedule-one-drug/ and also by one of the best canna-law scholars around today, Jeremy Daw of The Leaf Online here: http://theleafonline.com/c/politics/2015/02/final-arguments-schedule-hearing-decision-expected-march/.

Whether the judge rules for us or against us, the decision is of epic proportions, so I’ll leave it to the real legal scholars such as The Leaf Online to dissect more succinctly.  However, our case appears to be just one of many facets evidencing the failure of the war on marijuana, as every single day I wake up to more news that supports that marijuana’s federal scheduling is utterly nonsensical.  This of course includes U.S. Representative Blumenauer’s (yes, the adorable bow-tie wearing Congressman from Oregon) and Representative Polis’ (of the “interrogated DEA Administrator Michelle Leonhart and made her look like an idiot in 2012″ fame) recent introduction of two bills that would remove marijuana from Schedule I and tax it like alcohol.  (You can follow the Regulate Marijuana Like Alcohol Act here:  H.R. 1013.)  Although I understand similar bills have been introduced, there is more support today than ever, so these bills are in a truly unique position to actually move forward.

Also, since the last time I blogged, other critical events have occurred that I’ll simply list here to aid your mental digestion:

(1) Congress revoked any and all Department of Justice (DOJ) funds to investigate and prosecute what Congress itself dubbed “medical marijuana” in any State that has approved it.  (Click here.)

(2) Our current U.S. Surgeon General joins Surgeon Generals of the past, such as Jocelyn Elders, in the assessment that cannabis does have some therapeutic application.  (Click here.)

(3) The Federal DOJ has indicated they will lay off of cannabis prosecutions in what they title “Indian Country.”  (Click here.)

(4) Physicians of the Veterans Administration may soon be allowed to recommend medical cannabis to our Nation’s most honored citizens, our war torn veterans.  (Click here.)

So check your local news and/or social media on or about March 11, 2015, as we may have a decision back by then.  I am being asked quite frequently what the ramifications of this case will be on other federal distribution cases that are occurring now around the nation and, while the law says a decision of one trial judge is not binding on another trial judge, one of the federal prosecutors’ numerous below-the-belt strategies here was the repeated reminder to our judge that she would be the one and only judge ever to find an equal protection violation relating to cannabis’ current scheduling.  To be sure, most federal judges fear setting precedent, so a decision in our favor here could mean that other federal judges would gain a strength in consensus, and could cause the wall to quickly tumble around the nation.  Such a fallout would cause Congress to act quickly to reschedule, deschedule, or perhaps (as suggested by the American Medical Association) create a new schedule solely for marijuana.   At this point, we simply do not know which way the judge will rule, nor is it immediately clear what the ramifications will be.  What is clear, however, is that the Schedule I status is nothing short of nonsensical and must be changed so that no more people go to prison for a plant, so today I only ask humbly for your prayers at this very critical time in marijuana history, as there’s nothing left to do but smile, smile, smile.

State Happenings:

Okay, now on to my great State of California!!!!  What’s happening here, you say? Well, among other things, my colleague Omar Figueroa and I recently finished drafting a cannabis legalization initiative called The California Artisan Cannabis Initiative.  Although it is nothing short of kick-ass, Omar and I lack the funds necessary to vet the initiative as a viable option for the 2016 ballot, and more importantly, we both strongly feel that a united effort for cannabis legalization in 2016 is absolutely critical for a successful initiative, so we have offered the draft up to the collective consciousness as somewhat of a drawing board for the groups that do have the money and manpower to get the job done.  Excitingly, we are soon meeting with one of these main groups, and I am really hoping they will take on some of the truly visionary pieces we came up with and move those provisions forward into the frighteningly scientific process of readying a piece of proffered legislation to the mainstream voting process, which entails polling, focus groups, statistics, political advisers, etc., etc., ad infinitum.   Another colleague who does amazing work with the state Legislature in Sacramento also asked if he could present a piece of our initiative language to the legislator(s) in the state Capitol who will likely be introducing a bill this year that would regulate the medical cannabis industry in California.

So there are a ton of possibilities for our work to inform the collaborative efforts that are going to regulate and hopefully legalize cannabis in #Cali in the foreseeable future.  It’s huge and we’re excited!

Although the future is bright, we are still seeing many criminal prosecutions of cannabis-related activity in Counties across the state, so please don’t forget that marijuana still occupies a quasi-legal status in California that leaves many open to criminal liability until our state regulatesandlegalizes this plant.  I am faced every single day with individuals who think their conduct is safe because ganja has swiftly gained social acceptability, but it is high time to be cognizant of the difference between that that which is morally wrong (malum in se) and that which is simply illegal (malum prohibitum).  In days of old, cannabis was a drug, and drug use was considered immoral, i.e. inherently wrong.  While times have clearly changed, as drug addiction is now largely viewed as a disease, and use of cannabis in particular is no longer on par with outdated notions of addiction, particularly where used for medical purposes, (see, DSM V, discussed here), marijuana cultivation, possession, transportation, and distribution remains illegal by default in California.  Thus, it is no longer considered morally wrong, while the default position is illegal.  Although certain marijuana-related conduct may be excused in certain situations (like under our medical marijuana protections), those protections are very limited, and its no secret the overarching medical marijuana laws in this state are vague, at best.  (See here and here.)  And considering the increase in butane and supercritical CO2 machine prosecutions, the state government will pervert the intent of the Compassionate Use Act to continue to put humans in cages at all costs until we, the People, rise to say otherwise.

So my advice is to remember to act with righteousness in all your endeavors, and always use “best practices” in any cannabis-related activity.  As we are perhaps the first industry in history to beg for government regulation, it is up to each and every one of us to become leaders in the areas of environmental and social responsibility as our industry moves towards regulation.  If you are not cultivating or distributing with respect for your brethren and for mankind, then you are not working towards the movement, but against it.  #respect #legalizeit #CaliForever #nuffsaid.

Local Happenings:

Now, on to my home territory of Nevada County, the home of the hippie enclave of Grass Valley and, my current hood, Nevada City.  Yes, we are the new cannabis mecca, as our only traffic jams in these rolling hills are caused by trash bags full of marijuana falling out of cars into the freeway, there is a new TV pilot on AMC (of Breaking Bad fame) about the cannabis-infused life one cannot escape in the foothills, and we deal with the conspicuous influx of “trimmigrants” at every summer’s end.

But this is the land that I love and, in that regard, we “local yocals” have been working on huge moves to alter the local landscape, including the formation of a local chapter of the highly-esteemed Emerald Growers’ Association.  The group will be hosting or co-hosting the following events, so please “like” our Facebook page for updates about these events.

March 10, 2015:  CCPR Grass Valley Legalization Roundtable 

March 21, 2015: SYRCL (The South Yuba River Citizens League) cannabis cultivation discussion

April 3, 2015: Nevada County Emerald Growers Association Meet and Greet Party on the Ridge

April 4, 2015: Nevada County Emerald Growers Association Meet and Greet Party in Nevada City at HeartBass.

So there you have it, my update for all ya’ jurisdictions.  Please be safe, be kind and, most importantly, be ready to leave your comfort zone to be present for the 2016 legalization movement in the greatest State in the Union.  The word on the street is that, if California goes legal, the rest of the Nation will soon as well, so don’t forget this is a moment of historic import with national and even global implications.  We will lose in 2016 without the support of our base, i.e. those who historically do not come out of their early November trim camps to vote, but I hereby put you on blast that your support will be REQUIRED for all of mankind and to make history in 1 year, 8 months, 12 days, or 20 1/2 months, or 620 days from today.  I don’t care how you get there, but ya betta’ be there on November 4, 2016.

In my usual fashion, I end this unusually long post with a musical meditation.  I have recently been called again to the lyrical melodies of the great Lucky Dube, whose spirit left this earth too soon.  I’ve blogged about this particular song before a few years back, but that only makes it all the more poignant, as his words have never rung more true. No more prison for plants!  Lucky Dube, “Prisons,” here: https://www.youtube.com/watch?v=1Z3sVa9SJkI.

Know this! #legalizeit #JahBless #California2016 #Rise

Nevada County – Measure S Brings Common Sense Back to Cannabis Cultivation

Fifteen years ago, the thought of any local government authorizing and regulating cannabis cultivation was a pipe dream (pun intended) and I am very grateful to Nevada County for the fact that their current ordinance legitimizes the cultivation of medical cannabis in the first place. Indeed, both Sheriff Royal and County Counsel Barrett-Green emphatically denied any plans to ban all cannabis cultivation if Measure S did not pass, as even the County government appears to understand cannabis cultivation isn’t going anywhere. Quite honestly, there are worse things than the current ordinance, such as a Fresno County-style outright ban. So, for that, I want to give the County “props” where props are due.

With that said, however, its no secret the current cultivation ordinance cannot be reconciled with the realities of how legal, medical, cannabis is grown in this County. And it is not a surprise Ordinance 2349 doesn’t make sense with agricultural realities, since it was enacted as an knee-jerk measure without the reflection afforded the usual process for enacting local laws, and was in large part copied from other counties. Suffice it to say, the current ordinance was created by bureaucrats, however well-intended, who did not understand cannabis gardening and without meaningful input from actual cannabis cultivators.

For instance, the current ordinance does not allow cannabis to be grown on a terraced hill, as the plants have to be located on a contiguous single plane. However, the use of the natural terracing of the County’s sloped landscape is a much better use of our most precious resource: water. Opponents of Measure S argue that cannabis cultivation uses too much water, but this is in part due to requirement that plants be grown in the manner least conducive to water conservation, i.e. a flat, single-plane, garden area. The County’s stated purpose for this nonsensical rule is to make it easier for law enforcement to measure the garden size. Measure S will, however, change the quantity limitations from square footage to a specific plant number, which is undoubtedly easier to quantify.

Another way Measure S brings common sense back to local cannabis cultivation is that it continues to restrict cultivation on residential parcels under two acres. Rather than allowing a “free for all,” as is often posited by opponents to the measure, the ban on growing in small residential parcels and the concurrent allowance under Measure S for 60 mature plants on rural properties greater than 30 acres encourages cannabis patients to move their plants to the outlying areas, and to reduce cannabis plants grown in towns. This push to the more rural areas, again, (surprise!) makes sense.

I should briefly note here the current ordinance puts landowners in the precarious legal position of admitting knowledge of, and consenting to, cannabis cultivation on their rental properties. Since landowners already have full rights to restrict cultivation on their properties, it makes no sense to add more pointless laws to the books when landowners are already protected by State law and by common sense (just put it in the lease!).

For those illegal marijuana grows that steal water and decimate the environment, the conversation on Measure S needs to make clear that neither ordinance applies to gardens grown in violation of State law, as both Measure S and Ordinance 2349 apply only to legal medical cannabis cultivation. Don’t we want to encourage growers to get into compliance so we can regulate their impact on our natural resources, such as water? The current ordinance is so antithetical to the realities of growing cannabis that very few, if any, growers are seeking to be in compliance at the outset of the growing season because 2349 essentially punishes small medical growers for the bad conduct of illegal growers. And the more our County restricts legal cultivation in a manner that is so disconnected with basic principles of gardening (any plant), the more we pave the way for the bad guys in the ever-expanding marijuana marketplace.

We should seek to regain a common sense approach to marijuana cultivation by enacting local legislation that encourages medical cannabis to be grown in outlying areas in environmentally friendly ways that encourage compliance, and thereby force out the illegal drug dealers, thieves, and environmental degradation.  These are just some of the reasons I think a “Yes on S” vote is the right choice to bring common sense back to cannabis cultivation in Nevada County.

As usual, here’s my musical meditation for this post:

Santigold’s “Disparate Youth.”

“Don’t look ahead, there’s stormy weather
Another roadblock in our way
But if we go, we go together
Our hands are tied here if we stay….

**
…And they all said I was mislead
But now the odds all stand beneath me….”

Why Are Some Nor-Cal Growers Against Legalization?

I’m sure we’ve all begun to notice that many of the folks who used to chant “legalize it, legalize it” now chant the opposite, despite making the entirety of their living in the cannabis industry.  As marijuana legalization or regulation looms over California, I often hear a disconnect between those who want the cannabis laws to move forward, and those who, despite being in the cannabis industry for most of their adult lives, do not want change.  In fact, one prominent cannabis guru I spoke to actually defined the divide as the “activists vs. the growers.”  Although many identify as both, I notice that a lot of Nor Cal growers (and distributors everywhere) do not consider themselves to also be activists per se.  This isn’t a new distinction, but there is a growing partition between the groups that warrants attention because of the critical time our state is entering.  Its do or die time, kids.

Let me tell you a story.  Today I was out with a friend who asked me how long I thought it would be until marijuana was legalized federally.  I first gave them an estimate based on how long it could take if Congress had to do it, which as we all know could take forever (if ever), so I guesstimated 10 years.  But then they asked how long if we get legalization or regulation through a channel other than Congress, i.e. by the judiciary or by executive order.  And, being the optimist I am, I sincerely think we’ve got a couple years left before some branch of the federal government finally says, “okay, enough is enough!”  When I brought the time estimate down from 10 years to 2, they smiled and flipped me off.  They were kidding, of course, but the point is the same as if they were serious: they don’t want marijuana to be legalized because it will take away from their income.  While that’s a humorous example, I have heard numerous growers lately say they hope marijuana does not become legal.  Ever.  Like, never.  Sadly, most admitted without hesitation that they didn’t want to become legal because they would lose money.

Sometimes I think, “are these really the same people who used to run around with chillems saying that ‘herb is the healing of the nation?’”  However, when I hear this, I usually smile and say nothing, but we should all be cognizant that much of it is based on personal financial interests and, in some cases, greed.  Not always, but come on, lets get real.

I’m not sure I have anything very lofty to say about the distinction (I’ll leave that to the commenters), except to recognize it.  And to recognize that sometimes it hurts, man. I developed my  entire career towards cannabis criminal defense and cannabis policy because many of these same friends needed legal help due to to the grossly unjust state and federal marijuana laws.  So sometimes this position feels personal (particularly when the person saying that is someone who I’ve gotten out of legal trouble on more than one occasion).

I mean, money isnt always a bad concern in a capitalist nation, so I can’t fully condemn their position. But there has to be a better way.  The conspiracy theories about Phillip Morris and other shady corporations buying up the marijuana industry and turning it GMO and “chemie” could eventually come true: but only if we, the People, let them.

If we are pissed because our income may be compromised when marijuana is legalized or regulated, it might be a good idea to start the conversation by calling some of the thousands of humans who are still serving lengthy prison sentences for marijuana violations, and ask them if they’d go back and legalize marijuana so they could have skipped their prison sentences. I’m betting they would say yes.

Another point that comes to mind for me is that, if someone produces crappy or chemical-laden cannabis that is not fit for human consumption, then they should get another job.  Though if someone cultivates or distributes quality cannabis, whether for medicinal or adult use, then the market will support them.  People will always pay for quality.  However, if we bury our collective heads in the sand because of fear of how you’ll perform in the marketplace, then not only you will fail in your endeavors, but we will all fail.

We’ve been talking the talk about marijuana’s healing properties for so long and its time to walk the walk.  Herb is the healing of the nation, know this!

#Rise

HB

Btdubbs, my colleague, Omar Figueroa, and I are currently working with the Legislative Counsel in Sacramento to draft a law that all parties to this industry can get on board with.  Keep a lookout for that and, in the meantime, go register to vote.  Bad laws exist because of good people who don’t vote, so don’t let that happen to the industry we have all dedicated our lives to.

PS, more on the newest Ammiano/ Police Chiefs bill, and also on Zenia Gilg’s and my upcoming evidentiary hearing in the Eastern District of California on the constitutionality of the federal scheduling of cannabis in the coming posts!

Musical meditation: Horace Andy, “Money, money, money, is the root of all evil.” https://www.youtube.com/watch?v=q908-K6FxVY

Big happenings in Heather’s little marijuana land

Well, its been about a month since I’ve posted and, as we’ve all seen, the tidal wave of good news in the federal marijuana scene keeps on a’coming.  As there is so much happening all over the place, this is not intended to be a meta-analysis,  but rather just a short summary of whats happening in my little world, with a focus on the feds.  With that said, here’s the biggest fed news that’s coming across my desk as of late:

First, the U.S. House of Representatives has twice (yeah, you heard that right, TWICE) voted to de-fund the executive branch (law enforcement & prosecution) from investigating and prosecuting marijuana related conduct that is protected in medical and recreational states.  As we all know from watching School House Rocks (still my “go-to” when I need a civics refresher), once the House of Representatives passes a bill, a.k.a. a resolution, it goes to the Senate, where it then goes on to the President and, then, becomes law.  I think the Senate has until September to move the bill along, so be on the lookout for that.  Beware, this is no amendment to the Controlled Substance Act, the federal statutory scheme that relegates marijuana to be the most dangerous drug in the Nation.  I say “the most,” rather than “one of the most,” because National Institute of Drug Abuse [NIDA] Director Dr. Nora Volkow recently admitted before Congress that scientists wanting to study marijuana have to go through several more hoops to get marijuana to study than does any other drug!  She admitted its easier to test heroin and cocaine on human subjects than it is to test marijuana.  When pressed about the rationale for these extra hoops, Dr. Volkow shrugged.  So yeah, a shrug pretty much sums up our federal drug policy today.

Secondly, this morning, the Congressional Committee on Oversight & Government reform held the 5th of a 5 part series on the “mixed signals” the feds are sending with their haphazard marijuana policy.  Today focused on transportation and marijuana, and was surprisingly bland, with the government witnesses (all transportation bureaucrats) admitting that a causal link between THC and marijuana fatalities has not been established at this time.  While they have shown some correlation, even they have to admit that correlation is not causation.  My hero, Rep. Connolly (D. VA) summed up the hearing pretty well:

I just think it is amazing with some of the hyperventilated rhetoric about marijuana use and THC that 50 years after we’ve declared it a class 1 substance, we still don’t enough data to know just how dangerous it is in (regards to) operating a vehicle. That really raises questions about either the classification (of marijuana) itself, whether that makes any sense, or raises serious questions about how our government is operating in terms of the data it does not have and the science it does not know and yet the assertions that we (the federal government) make. That is not a good recipe for rational public policy.

Next, and possibly of the least importance to the legality of the situation, but of great importance to the public discourse on the subject, the New York Times came out very publicly against the fed’s grossly unjust marijuana prohibition (I would call the fed’s stance “draconian,” but that word is just getting old in this context.  Its true…, but too often overused nonetheless.)  I’m not sure that this will have any more impact than the Pope saying marijuana should remain illegal, but I suppose it should be noted.  I also should admit that I didn’t initially think that Gupta’s about-face was a big deal, but he is cited by law-makers left and right, so hopefully the NYT position will do some good, above and beyond simple public perception.  (Side note: I don’t mean to downplay public perception in the movement, but look how far that got us with the 100:1 crack-cocaine to powder-cocaine sentencing disparity: nowhere…. not with the executive or the judiciary, despite the vast public understanding that the law was utterly racist.  I digress…)

Finally, and what I believe to be most importantly, the direct examinations in the federal case ofUnited States v. Pickard in E.D. Cal. (Sac) have been completed, as of this week!  For those of you who have not yet heard my constant blabbering about the historical impact of this case, ya better listen up!

Earlier this year, a federal judge granted our motion for an evidentiary hearing to determine whether cannabis’ current designation as a Schedule I substance violates Equal Protection and, more excitingly, the Equal Sovereignty of the States.  Its a new legal theory had, as far as I know, has never been filed in a federal cannabis case.  Its a pretty big deal to get an evidentiary hearing, very rare indeed.  My colleague, lead counsel Zenia Gilg, and myself, recently filed the written direct exams of our seven witnesses: Dr. Carl Hart, Dr. Gregory Carter, Dr. Phillip Denney, Dr. James Nolan, Chris Conrad, Sgt. Ryan Begin, and Jennie Storms.  I attached the direct exams that have to do with the cannabis science below, including the government witness, Dr. Bertha Madras.  Like I said, federal prosecutors filed the direct examination of their only witness, Dr. Madras, this week too.  It is also attached.  So we go to a hearing on August 18, in just under 3 weeks, where the Court and the parties will decide when to set the live hearing, where each of these witnesses will be testifying in person and will be subject to cross-examination.  The declarations are filled with science, and I’ve had to read them about 100 times to even get the gist, so enjoy if you have the time!

Well, there’s about a billion other things , and the federal wall appears to be crumbling, whether by executive, judicial, or legislative action.  Since I can’t get through everything in this short blog, these are just the biggies on my federal marijuana radar this month.

In sum, my thought is to look out and look alive. Shits gonna be coming down the fed pipeline so quick that the righteous need to be alert.  No time to slack.  As noted by the great Busy Signal in the video (linked below), “We nah go a jail again.”  #Knowthis! #legalizeit

Ps, quick note regarding what’s up in California; my colleague Omar Figueroa and I are meeting with the attorney from the California Office of the Legislative Counsel in a week or two to cement language for the CA regulation/legalization bill (if Tom Ammiano and the Police Chiefs Union doesn’t get to it first, yuck!).  So, another blog about that to follow in the coming weeks.

Dr. Hart Direct Exam (filed) 

Denney Direct (Filed)

Carter Direct (Filed)

Bertha Madras PHD Declaration Direct Exam July 29 2014

As always, my musical meditation of the moment.  Busy Signal, “Nah Go Jail Again:” http://www.youtube.com/watch?v=W73K8p-TW2Y

The Legislative Counsel Initiative Process: The Kick Off

In an effort to make the process of the California cannabis legalization/regulation voter initiative that Omar Figueroa and myself are in the process of crafting for the 2016 election more accessible to the public, and to craft a cannabis legalization or regulation initiative for 2016 that is collaborative, I decided to start this blog for to allow the cannabis friendly community in our great State of California a chance to see inside the process and hopefully be a part of the making of history.  To be clear, when I say collaborative, I mean an initiative that seeks to protect the seriously ill, the mom and pops growers, the large scale cultivators, distributors, and even social cannabis users.  We’re kidding ourselves if we think our state legislature is going to protect those rights, although I appreciate Tom Ammiano’s efforts.  Heck, I appreciate everyone’s efforts.  But plainly Ammiano’s bill isn’t right for our state.  So what next?  Do we, as so many have sadly done, bury our head in the sand and do nothing?  Or do we rise to the occasion to claim those rights we have been fighting for lo’ these many years?  The answer is clear to me and I hope to you as well.

So, to start the process, my colleague Omar Figueroa and I drafted a letter to our state Legislative Counsel asking them to help us draft an initiative according to certain overarching principles that Omar and I and a few of our colleagues identified (and that I’ll discuss in greater detail in a subsequent post). To read the letter and our request, please check out the attached PDF copy of the letter.  Why did we ask the Legislative Counsel to help us write it? Well, in what I presume to be an effort to make government more accessible to the common person, our state law says our Legislative Counsel must draft an initiative for anyone who asks them to, provided the request is (1) supported by 25 elector signatures and (2) there is a reasonable probability that the initiative will be submitted to the voters. See Cal. Government Code § 10243.  The process is called the Legislative Counsel Voter Initiative Process.  A mouthful, huh?  The really cool thing about this process is that this is the same way the Compassionate Use Act was drafted back in the day (it was enacted in 1996, so I’m guessing it was submitted to the Legislative Counsel likely the year or 2 before that).  That means we’re treading on historical ground here, using the same process Peron and the other CUA originators used, which to me makes the process more special.

We easily got the necessary 25 signatures, most from our fellow activists at the Emerald Cup in Santa Rosa, CA on December 14, 2013 (a GREAT event, btw), others mailed in their signatures, and then I got many more at an ASA meeting here in Nevada County (where the ASA group is vibrant!). And viola!  Omar and I submitted the letter and signatures to the Legislative Counsel in the Capitol Building in Sacramento last week and the process began.  The best part of filing it was taking my son into the rooms for the state Assembly and Senate, to see where our state’s legislative action happens.  It was exciting.  I’m surprised how many people don’t know how the federal legislature works, much less so the state, and I often send out the Schoolhouse Rocks videos to anyone who will watch. Those videos are gems of knowledge. No joke.  I digress…

Quickly after we filed the letter, Omar got a call from the Legislative Counsel attorney who was assigned to our initiative request.  The attorney expressed excitement about writing the initiative, which is so cool!  He indicated that he was slammed with work because of the state Legislature’s deadlines for this 2014 session & so he was grateful that we are looking towards the 2016 election, so he can start work on it in a few weeks. We know more about his response to our requests sometime in March, I imagine, but for now we can be sure that we met their basic requirements under the Government Code and that this is happening!  For now, read the attached letter and keep a lookout for more on this soon.

Legislative Counsel letter here:

Legislative Counsel Letter.1.27.14.NO signatures

In closing, my musical meditation for this post is from the great Mos Def, who says: 

“We are alive in amazing times
delicate hearts, diabolical minds

revelations, hatred, love and war.
and more and more and more and more
and more of less than ever before
it’s just too much more for your mind to absorb

It’s scary like hell, but there’s no doubt
we can’t be alive in no time but… NOW!!!”
https://www.youtube.com/watch?v=_33JbnD4OHE 

This one’s for you, Busy.

Just a few weeks ago, I posted some top rankin’ songs in honor of Buju Banton, penned up in federal prison for the next 7 years. The first song I posted in Buju’s honor was by the Jamaican dancehall artist, Busy Signal, whose song “Jail” has sent dancehalls around the world into a serious jam session, with the entire hall shouting the lyrics in unison.  Its amazing to see hundreds of your brethren shouting, “No, we NOT go to jail again!!!”  The vibe is deep, particularly when those dudes in the dancehall are historically the ones who the police profile and arrest more often than any other group of men in this nation. So they know what they are talking about and there’s no denying its very meaningful.   Sadly, tho, my man Busy just got picked up in Kingston for old drug charges stemming here in the U.S. and was of course denied bail.  Just this morning, he waived any rights to not be extradited and thus he’ll be shipped to the U.S. in a month or so to face his old charges.  I hear the charges are in a state court, rather than a federal court, which to me means there is some hope he’ll be doing a short bid.  Fingers crossed and spirits lifted.  So tonight, I’m reposting “Jail” in his honor, and hoping all the dancehall DJs put this song back in their lineup, so we can all jam down for Busy.   “Like a ship, we gonna sail again…”
I’m dedicating this Gregory Isaacs song to Busy Signal too, “Idren Gone a Jail,” meaning ‘the children have gone to jail.’   Like Gregory said, “when me go to jail, me a go weep and wail.”  And like I have said and will continue to say, no one should be going to jail for drug crimes, especially not these artists who enrich our communities, our lives and our souls.  Gone for now but not forgotten, Busy and Buju.

This one’s for you, Buju.

These top rankin’ songs are dedicated to Buju Banton, who music critics once called the “next Bob Marley,” currently sitting in federal prison in Florida for the next decade for a crime many believe he did not commit. 

Talkin ’bout detention, detention.

The list of reggae songs about the plight of the incarcerated is pretty long, so here are just a few of the best roots songs.  I’ll do another post with some top ranking reggae songs soon, but for now, feel these roots. 
Probably one of the sickest songs about the plight of the incarcerated ever known to mankind, Izzy Vibes’ Jailhouse Rockin.  They said they wrote the song after a trip to Spanish Town prison in Jamaica.  Although the jailers made it seem like everything was cool, they could hear the prisoners locked far away shouting out to them, “everything is not as it seems.”   Know that.

Sometimes you just got those prison blues

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Its interesting how many blues songs are about ONE prison in particular, to wit: Folsom Prison (duh).  I included a picture of Folsom so you can see where we house almost 10,000 (or possibly more) incarcerated human beings in max security. And thats just one max security prison in California, think about how many people are in max security in the rest of California and elsewhere in our vast nation? The statistics on just how many people are incarcerated today or have been at some point in the past are staggering.  I refuse to believe that such a huge fraction of our population should be caged in numbers that are setting records all over the globe.  Are we really safer? Studies say no.  Well then why do we keep doing it?  As I head into court this morning to personally see more people sitting in the “in-custody” boxes in the court rooms, waiting patiently to hear how long our government wants to send them down the river, I am befuddled why our government continues to do this. I mean let face it, our separated system of government with all these checks and balances is a brilliant system of government. But when such brilliance is contorted and demeaned by those with a little power, its a slippery slope until even the everyday-Joe’s such as yourself are carted off for our own bid.  Folks always talk about the slippery slope like its impending, but we’re already falling down the slippery slope of mass incarceration and there but for the grace of God go you and I. 

How many more prisons do we need, how many more songs must be sung, till our incarceration happy society realizes the heavy truth about imprisoning humans?  It aint right, kids.  It aint right.


The Classics.

A few tried and true songs that I bet influenced you as well. There are few things in this life as fun as boot stompin’ to Willie Nelson singing “Mama Tried” live… “No one could steer me right.”  -hb

Are the Mass Arrests of the Occupiers the End of the Occupy Movement?


Overview of Legal Grounds for Arresting Occupiers in the First Place: 

    The First Amendment limits the government from making any law “abridging the freeing of speech…or the right of the people peaceably to assemble.” But law enforcement have cited all sorts of laws when arresting the folks on the ground at Occupy.  We’ve all heard of folks getting arrested for trespassing [Penal Code § 602], unlawful camping, the catchall “crime” of disturbing the peace [Penal Code § 415].   But how is the government allowed to arrest us for doing these things when we’re Constitutionally allowed to assemble and talk politics, so long as we’re being peaceful? 

    Despite the mandatory language of the First Amendment, the government actually is allowed to abridge (i.e. limit) speech to some extent and just how much they can limit it actually depends on where you speak to some extent.  That means you can say one thing in one place that you may not be able to say in another place.  And that makes sense to some degree, right?  We can say a lot of things in our homes that we’d never say in public.  Similarly, the government is authorized to limit our ability to speak freely about politics depending on where we are. 

    So in these public parks and sidewalks where the Occupy movement is largely being played out, the law says a restriction on our right to talk about politics must be 1) a reasonable restriction on the “time, place, and manner” of our speech and 2) the law cannot restrict only the political speech (meaning the law cant be based on the content of our speech, i.e. restricting political, but not other types of, speech).   The law also 3) cant be vague or too broad and 4) the government cant have unfettered discretion in such restrictions (meaning the local police chief cant choose who gets to stay and who has to go willie nille since that gives them too much power). 

    Imagine, then, that you’re camping out with your friends in Justin Herman Plaza (hoped to soon be called Bradley Manning Plaza) in San Fran with the other Occupiers and the cops pull you out of your tent at 4 a.m., telling you to 1) leave or 2) get arrested.  Simply put, your options then are to either 1) leave or 2) get arrested.   Its difficult in the heat of the moment to get a copy of the law that they’re threatening to arrest you on, determine if its unconstitutional, and then convince the cop that it is so.   So what they say is going to happen at that point probably will.  

Do These Arrests Really End the Action?

    The ideological quandary there then becomes simply how far you’re willing to take it; are you willing to go to jail and fight your arrest in court, often a long drawn out process reminiscent in some ways of gambling, though here the gamble is with your criminal history with perhaps devastating financial, professional, familial or societal repercussions?  Well that’s up to you, as that’s a highly individual decision left to each protestor. 

    However, the constitutionality of many of the laws Occupiers could be arrested or prosecuted for has yet to be determined and how do we test these laws without being arrested for it, fighting it in court, and possibly appealing it?   Indeed, the arrest and prosecution may be an inherent part of the struggle to get the underlying message out.  Can and will cops continue to arrest the 99 based on unconstitutional laws drafted and enforced by the 1?  Frighteningly, the answer is yes… unless WE SAY NO.   Simple right?  We all know the 1% aren’t going to stop until someone stops them (you’ve heard of the quote “absolute power corrupts absolutely”).

    But if your decision is to change the law by getting arrested, make sure to get a lawyer who wants to fight it with you and not one who will advise you to take a plea without pressing for your (and our) rights.   The entire process is rendered moot by getting arrested and then pleading out to a violation in court when folks get scared with the formality of the courtroom, just like the process is rendered moot when we ask for change and then run scared at the first sight of the fuzz.

    So, while it would be nice if the government didn’t suppress our rights in the first place, they do and that’s a big reason why we’re protesting at all right?   The arrest, prosecution, and appeal process can actually help define the law for our society and for future protests.  We all know of many examples of how our society has changed for the better by the oppressed saying NO to the oppressive regime.   Thus, those arrestees who press on to fight their cases on ideological grounds are to be commended and honored as revolutionaries, and are critically necessary to a free and evolving society. 

    These mass arrests of the Occupiers aren’t the end of their protest then.  On the contrary, if you want it to be, its just the beginning.

Classic Rockers

I grew up listening to these songs and knew all the lyrics to Social D’s songs before I knew any of Johnny Cash’s.  Its a travesty I know, but I’m from So Cal, so it figures (I even used to think Scarlet Begonias was a Sublime song!).  These rock songs moved me even from a young age and I never listened to them without thinking about the songs’ meaning, that good kids were going to prison. 

Jailer, Jailer

We all know Peter Rowan from Old and In the Way, from his work with Grisman, or his varied and amazing solo stuff.  But this song brought it home to me today. Its a must listen.  

“Jailer, jailer, throw away the key…. For my cage is better than your cage.”  - Wow. True that. -hb

Can cops really search your car if they smell weed???

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Is the smell of marijuana in your car enough to allow a cop to get you out of the car and search the entire thing?  In short, yes.  The longer answer is that law actually says they should NOT be doing it. But do they? Of course.  And many attorneys assume they can and that a cop’s word about smelling marijuana is impervious and don’t try to fight it.  But they should. 

Here’s the run down: 

You and I have a Fourth Amendment right to be free from unreasonable searches and seizures by law enforcement.  Our forefathers thought this was important because the British government could enter anyone’s house to search & arrest them, without any cause whatsoever.  Just because some snooty constable didn’t like they way a guy dressed, the government could issue “general warrants.”  Well our early government thought that was wrong and thankfully drafted the Fourth Amendment.

This Amendment limits the power of the federal (and now state) governments from searching your house  or arresting (a.k.a. seizing) you or your stuff unless they have a warrant supported by probable cause.  Probable cause to search is generally found where a reasonable person would believe, based on all circumstances known to the officer at the time, that a certain place contains evidence of a crime.  But don’t be fooled by how easily probable cause can be defined here, because its a difficult concept for lawyers and judges alike. 

In a case where there was probable cause to believe a car contained evidence of a crime, such as where an officer personally observed a driver chugging a bottle of tequila while on the freeway, the officer could certainly get a search warrant for that car.  That seems fair, right? But cars move, which means that, by the time an officer got a warrant, the tequila chugging driver would be long gone, probably passed out on his couch at home watching the Chargers lose.   So some judges realized that cars are too “readily mobile” to require search warrants and the judges allowed law enforcement to search a car without a warrant whenever they have probable cause to believe the car will contain evidence of a crime (like empty tequila bottles, etc.).  

So, again, where cars are involved, cops don’t need a warrant to search anywhere in a car they claim evidence of a crime might be (including your trunk or a locked briefcase).  We all have a reduced privacy interest in our vehicle precisely because we can use them to escape.  (Though you’d all know that I can’t get away too fast if you’ve seen my old Rav4, but that’s beside the point.)

Of course, the automobile exception isn’t the only way to get into your car.  They can search your car if they’ve already arrested you or if they are going to impound it, since its now inventory.  However, here we’re assuming a scenario of one sober man with fresh, unburned cannabis in his car, so I’ll leave a discussion of these other exceptions for another scenario.

So, you’re driving down the road and you get pulled over because you have a taillight out and you have some cannabis in the car with you.  The officer walks up to you and asks for your ID and registration, which you politely hand him through the slightly rolled down window.  He or she leans in to grab your documents and says, “do you have any marijuana in there.”  Knowing that you do and that it’s the sticky icky icky icky, so you know it reeks, you reply “Yes. But I have a recommendation!” 

The cop may check your recommendation or they may not.  At this point, its almost irrelevant in their mind.  All they’re thinking is “yes! I smelled it, so I can get in here!” And then they may pull you out and start searching, though they may let you go if you have (1) your medical recommendation documents, (2) they only find a small amount of cannabis (generally under 3 pounds in Sonoma County), and (3) there is no other evidence of sales (like your own incriminating statements/a scale/pay-owe notes/large amounts of cash) or (4) of driving under the influence (again, your incriminating statements/joints in the ashtray/smell of burning marijuana).  If they find other bad evidence, or if they just feel like it, they can and probably will arrest you.  

Whether they arrest you or not, your constitutional right to be free from unreasonable searches and seizures was just violated.  How, you ask?  Well, the prosecution often relies on a case called Strasburg (incidentally arising in our neighboring county of Napa) to say that odor of marijuana is probable cause to search a car.  But that case didn’t really say that at all.  What it actually said was that probable cause was present to search that car in that situation, which presumes that there will be situations when the smell of cannabis alone does not give probable cause.  In Strasburg, the cop saw a suspect smoking a joint in the driver’s seat of a car.  Also, when he asked the kid about the marijuana smell, the kid handed the cop a bag of marijuana but the cop could clearly see a second bag of marijuana in the car.  

So the court in Strasburg relied on two factors to support a finding of probable cause there; first, the kid was obviously smoking in the driver’s seat.  And what do driver’s do? They drive.  That raised the reasonable inference that the kid was going to drive while impaired from smoking.  The second ground was that the cop saw 2 bags of cannabis, though the suspect only handed him one.   Well back in the good ol’ days of 2007, our Legislature had enacted these weight limits on how much weight of cannabis a qualified patient (i.e. someone with a valid recommendation for the therapeutic use of cannabis) could legally possess.  Just last year in 2010, though, our state Supreme Court said that the state and various counties couldn’t really impose those strict weight limits where someone was over the limit, though they still provided a safe harbor from prosecution where patients were under their county limits.

Anyhoo, what this means is that there is no law that says the smell of marijuana alone is sufficient to search your car after you’ve given the officer your valid recommendation, though they’re going to go ahead and do it.  However, in the Strasburg case, the officer reasonably thought the guy may drive after smoking.  Thus if the officer in your case has no cause to believe that you are smoking and driving, then he has less factors to rely on to get into your car.  Also, since the defendant in Strasburg gave the cop one bag, but had another bag of cannabis showing in plain sight in his car, then the cop had reason to believe that the guy was over the 8 ounce limit in effect at that time in Napa.  Thus, if the officer in your case has no cause to believe you have more cannabis that is reasonable, then he again has less factors to rely on to get into your car. 

In Massachusetts, their high court recently held that smell was insuffient to grant probable cause to search a medical cannabis patient’s car and, even in California, a case came out just last month saying smell of cannabis was not sufficient to give probable cause to do a warrantless search of a package.  That means there’s hope in the near future to change this ridiculously abused standard. 

Also, if marijuana becomes legalized to some extent, rather than what we have now (which is mere decriminalization of a still illegal substance for certain people), then probable cause based on odor will further be eroded.  Just think of how many cops lie about smelling cannabis and get into someone’s car, home, etc! It’s a racket, particularly in places like Northern California where cannabis use and transportation has proliferated since its decriminalization.  So a cop could claim to smell herb and, even if he was lying, he’d have a pretty good chance at finding some.   

What this all means for us is that, although cops shouldn’t be searching through our cars without the smell of burnt marijuana, or some factor to believe you’re driving is impaired, or some reason to believe that your cannabis possession is somehow unlawful, they’re still going to do it.  So be kind to the officer, but be smart and shut the heck up.  

You also have a Fifth Amendment right to keep quiet and you shouldn’t be afraid to use it.  Then, get a good attorney and work together with that attorney to build your defense where they can present all the arguments to a judge, whose job it is to decide ultimately what was reasonable.  But, if your attorney says, “smell is enough, so forget that defense,” they’re technically wrong.  And when that technical mistake costs you (what I believe to be) your greatest and most precious right, your Fourth Amendment right, its time to get a new lawyer.   


The humble lawyer?

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Some folks might not understand how significant humility is to my practice, since we generally think of criminal defense attorneys as the opposite of humble.  Indeed, the thought of a criminal defense attorney generally conjures a picture of a sleezy old white guy negotiating DUI “deals” all day long with a cell phone attached to one ear and a jerky attitude.  So where does humility fit into all of this, particularly when you want an aggressive criminal defense attorney rather than some weak hearted plea miester?

The venerated tenet rings particularly true here, “don’t mistake my kindness for weakness.”   A soft tone and warm handshake doesn’t necessarily indicate a weak heart and this truth will be revealed where it matters most, cross examination of the fuzz.  Even with law enforcement though, why be mean except in the rare case where there is a strategic gain that translates directly into a tangible benefit for my client?  I prefer to think of humility as a grounding in the earth, a power not even cognizable by the fuzz, and thus a power they are unable to tap into.   This grounding assists me in never losing focus on the ultimate issue, the persecution of cannabis users, free thinkers, the untamed, etc. by an overzealous police state deathly afraid of losing the workforce to enlightenment, aka free critical thought.

Actually, a concrete example of humility in practice is based on the judge who I wrote about in my last post.  I was so disenchanted with the judiciary because of what I perceived as her refusal to THINK.   However my colleague decided, instead of feeling anger towards her, that we try to educate her with kindness and in humility.  It was difficult to retrain my neural pathways towards humility there because I was so frustrated with the injustice, but doing so was the ethical and most beneficial course of action.  And now we forge on with a new goal that will hopefully benefit our next client, despite the heartbreak knowing our last client fell victim to the machine. 

Humility is the strongest dedication to truth, so much so that my own wants and desires are entirely negated. I become the public consciousness, a single vapor in the ultimate song of freedom.  My desire to fight executive interference in our community is no longer about me. It is about us, the community, the collective.  The WE.  Thus my fight is OUR fight and that’s where the real powers lies. 

Humility IS power. 

First Post

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Today I had a huge disappointment in court.  I was observing a respected colleague defend a medical marijuana patient who is facing felony charges despite being under the Sonoma County guidelines.

I watched as the judge practically spat on the client’s rights, as the bulk of her legal rulings were so legally incorrect that everyone in the courtroom was painfully aware of her ignorance.  Her reputation for such ignorance is so widespread that often the mere sound of her name draws terse smiles from the defense bar here in Sonoma.  

It was disheartening to know that there are human beings like this in our world.  Indeed, at least the prosecutors are generally knowledgeable, albeit blind to the gospel truth.  This judge was almost giddy at her own ignorance.  I felt sick. 

I read a quote today that resonates with my what I heard in court this morning:

“When I was 5 years old, my mom always told me that happiness was the key to life. When I went to school, they asked me what I wanted to be when I grew up. I wrote down “happy.” They told me I didn’t understand the assignment and I told them they didn’t understand life.”

Thus the lesson I learned today was to remember that LIFE is the ultimate assignment.  The weaker succumb to the petty power plays spinning around us.  Our job, as the strong, is to gently remind them of the real assignment.  Sometimes, as today, I fear some are too far gone….