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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

Picture

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.