Category: Uncategorized


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.