Editorial; Marijuana nullification?

March 22, 2016

 

The U.S. Supreme Court has declined to take up a challenge to Colorado’s voter-approved law legalizing recreational marijuana, but the legal question the case raises can’t be ignored indefinitely. The question is as old as the republic: How far can states go in substituting their own laws for those of the federal government? The issue of marijuana raises that question now. In the past it has been raised by the issues of tariffs, slavery and desegregation, and in the future it could come up in relation to anything from abortion to immigration.

The states of Nebraska and Oklahoma asked the court to overturn Colorado’s four-year-old law, claiming that it imposed costs on their law-enforcement systems. The lawsuit described the emergence of a $100 million marijuana industry in a neighboring state, and argued that “If this entity were based south of our border, the federal government would prosecute it as a drug cartel.”

Instead, the federal government has turned a nearsighted, if not quite blind, eye toward Colorado’s law, along with similar laws in Oregon, Alaska, Washington state and the District of Columbia. The federal government also has largely looked away from the more narrow laws in 22 states legalizing the use of marijuana for medical purposes. Under the federal Controlled Substances Act, marijuana is categorized as a drug whose possession and use is prohibited under all circumstances.

The federal classification of marijuana is foolish, destructive and should be changed — but it’s still the law, and like other laws, foolish or wise, it is meant to be obeyed. Yet the U.S. Justice Department has told prosecutors to ignore state legalization laws, as long as marijuana possession, use and sale remain within a set of guidelines. Federal authorities will step in, for instance, to prevent interstate commerce in marijuana, or to keep the drug out of the hands of children. Within those guidelines, just about anything goes, as Oregonians can see from the proliferation of pot products and retailers.

The Justice Department’s permissive approach avoids a confrontation over the limits of state and federal authority. Such confrontations have occurred in the past. The friction goes back to the nation’s founding, when it was the states, not a federal government, that dissolved the colonies’ ties to the British crown and ratified the U.S. Constitution. In the early 19th century, advocates of state supremacy argued that states have the right to secede in response to what they perceived as federal overreach — a position that led to the Civil War. Figures ranging from John Calhoun to George Wallace have advanced variants of that idea, claiming that states have the power to nullify federal laws with which they disagree.

Advocates of marijuana legalization have not argued for nullification. So far the Justice Department, and now the Supreme Court, have sidestepped the question of whether nullification has occurred. But marijuana legalization laws such as Oregon’s can’t be squared with the federal Controlled Substances Act, and as a practical matter, the state laws have been allowed to prevail. Someone, somewhere, is bound to point to this as establishing a precedent for states’ right to set aside other federal laws.

If Oregon can legalize marijuana in defiance of federal law, why can’t other states make their own rules regarding health care, the environment or civil rights? It’s regrettable that the Supreme Court decided against hearing a case that raised such questions, because they are inherent in any state law legalizing marijuana — and, perhaps soon, in other state laws that openly conflict with federal law.

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Kentucky considering roadside driver drug tests

Mike Wynn, @MikeWynn_CJ 11:54 p.m. EDT September 16, 2015

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Above:  Schwendau, assistant director of Highway Safety Programs.

Right now, officials are only testing the kits for accuracy and reliability, administering them to volunteers after an arrest is complete. If they prove reliable, lawmakers say they will consider legislation next year to expand their use as a common part of police work.

Schwendau says police might soon use the swab kits in the same way they rely on roadside breath tests to identify drunken drivers, adding one more step to “remove that question of doubt” during a traffic stop.

Defense attorneys are more skeptical, warning that the tests could lead to invasive searches or give officers false pretense for arrests.

“They are chipping away at our rights — I just don’t know how else to put it,” said Larry “The DUI Guy” Forman, an attorney in Louisville who specializes in impaired driving cases.

Damon Preston, deputy public advocate at the Department of Public Advocacy, cautions that the courts still need to determine the reliability of the kits and what circumstances warrant their use in the field.

“The ease or simplicity of a sobriety test should never infringe upon the rights of persons to be free from unwarranted or invasive searches of their bodies,” he said.

The side of safety

The swabs don’t show a person’s level of impairment — only that drugs are present in their system. Supporters say Kentucky law would not allow them as evidence in court, and to build a case, police would still rely on the same process they currently use in investigations.

That typically involves a field sobriety test followed by an evaluation from a drug recognition expert, who is trained to monitor the suspect’s behavior and physical condition to determine their level of intoxication. Police also collect blood samples, which are much more conclusive.

Schwendau said the roadside tests could help police narrow down which drugs to test for in a blood sample. He said the kits already have proved successful in other states, particularity in California where authorities have upped the ante with digital devices precise enough to provide court evidence. That has saved the state money in the long run because more suspects are pleading out cases, he said.

On his website, Forman advises people to refuse field sobriety tests and breathalyzers to improve their chances of a successful defense in court. If swabs become commonplace in Kentucky, Forman says, drivers should refuse them as well.

One problem, he argues, could occur when people use drugs earlier in the day but are pulled over after the effects have worn off. He cited concerns that the swab could still test positive even though a driver is no longer under the influence.

Forman also questions how variations in temperature or allowing kits to sit in a hot police car for long periods might affect the results.

“It just gets really, really hairy, really fast,” he said.

But Schwendau points out that drivers who are not impaired will be vindicated in later tests. He also worries that while most people know it’s wrong to get behind the wheel drunk, many still think it’s OK to take an extra prescription pill before driving.

“We are doing it to save lives and get risks off the road,” he said. For police, “the best decision I think always is to err on the side of safety.”

Deadly risks

According to Kentucky State Police, authorities suspected that drugs were a factor in nearly 1,600 traffic collisions across the state last year, resulting in 939 injuries and 214 deaths.

In some areas struggling with epidemic drug abuse, high drivers are more common than drunken drivers, according to Van Ingram, head of the Office of Drug Control Policy. A lot of areas are having problems with drivers who are intoxicated on both drugs and alcohol, he said.

House Judiciary Chairman John Tilley, D-Hopkinsville, said lawmakers will want to look at the highway safety office’s pilot project before putting forth any legislation. Still, he reasons that the swabs also could help exclude drivers who might otherwise fall suspect because they swerved accidentally.

Officials have distributed 100 kits for the pilot tests, which they hope to wrap up in October.

Schwendau said he will bring the results to a state task force on impaired driving along with the Governor’s Executive Committee on Highway Safety.

Even if the kits are approved and adopted, police face a cost of $7 per unit.

Schwendau said local communities would have to choose whether to use them since the kits are too expensive for the state to provide. But departments could apply for federal grants, he said.

“It’s not our place to force it on them,” Schwendau said. “We just want to offer them a better tool.”

Reporter Mike Wynn can be reached at (502) 875-5136. Follow him on Twitter at @MikeWynn_CJ.

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Warning: protein bars contain hemp seeds

  • By Rachael Tolliver | Fort Knox Public Affairs

    Posted Apr. 23, 2015 @ 11:54 am

    FORT KNOX, Ky. — For anyone who relies on protein bars as an afternoon or after-workout snack, they should be warned about unmilitary-friendly ingredients in their all-natural selections.

    “Strong & Kind” bars, which include Hickory Smoked, Roasted Jalapeno, Honey Mustard, Thai Sweet Chili and Honey Smoked BBQ, contain hemp seeds in their ingredients. These seeds may contain low levels of tetrahydrocannabinol, a chemical found in marijuana, which the Army believes may be detectable in drug screening tests.

    This ingredient is not included in the Kind fruit and nut bars and a complete list can be found at www.kindsnacks.com.

    The Army’s position on the consumption of hemp seeds, or its derivatives, is similar to its sister services’ and follows laws and guidelines set forth by U.S. law enforcement agencies.

    Army Regulation 600-85 para 4-2, (p) states that, “…Soldiers are prohibited from using hemp or products containing hemp oil.” And the “…Violations of paragraph 4-2 (p) may subject offenders to punishment under the Uniform Code of Military Justice and or administrative action.”

    DoD regulations are based on several considerations, some of which are U.S. laws. In this case, the U.S. Drug Enforcement Agency categorized hemp seeds, “if they contain THC…” as an illegal product. (www.dea.gov/pubs/pressrel/pr100901.html)

    Additionally, the Department of Justice issued a ruling on what products that contained THC were exempt from being treated as an illegal drug under the Controlled Substances Act.

    In part, the ruling reads: “Specifically, the interim rule exempted THC- containing industrial products, processed plant materials used to make such products, and animal feed mixtures, provided they are not used, or intended for use, for human consumption and therefore cannot cause THC to enter the human body.” (http://www.deadiversion.usdoj.gov/fed_regs/rules/2003/fr0321.htm)

    As such, the Army has written its policy to adhere to and to enforce these laws. The bottom line is that soldiers may not consume hemp seeds or hemp oil.

    So how can a product designed for consumption legally contain hemp seeds?

    In 2004 the Ninth Circuit Court of Appeals issued a unanimous decision, which DEA did not appeal to the U.S. Supreme Court, protecting the sale of hemp-containing foods. Those foods generally contain naturally occurring THC at less than the USDA guideline of 1 percent. Industrial hemp remains legal for import and sale in the U.S., but U.S. farmers still are not permitted to grow it.

    According to University of California at Berkeley, most of the THC found in hemp seeds are located in the seed hulls, which are removed during processing. Today’s hemp seeds are processed to reduce levels of THC to negligible quantities, but 15 years ago industrial hemp had higher THC levels and the seeds were prepared differently for processing.

Colorado Supreme Court to hear case of man fired over medical marijuana –

 

 

By Rachel Estabrook Sep 29, 2014

Tomorrow, Colorado’s Supreme Court will consider whether employers should be able to fire workers for using medical marijuana.

Brandon Coats, the plaintiff, is suing Dish Network for firing him in 2010 from his job as a telephone operator after he tested positive for marijuana.

As a teenager, Coats was injured in a car accident, which left him unable to walk. 

“I use marijuana at nighttime, and just a little bit gets my spasms to where my body’s not going out of control,” he says.

Dish Network did not respond to Colorado Public Radio News’ requests for comment, but has said in court that the firing is in line with a policy that complies with federal law making marijuana illegal. Lower courts in Colorado have sided with Dish Network.

Coats has appealed to the Supreme Court because, he says, he wants to work again.

“There’s a lot of people out there like me  who would like to have a job but cannot, because their impairment requires them to use marijuana, and because marijuana’s looked down on for employment, they’re not able to get jobs,” he says.

Despite the legalization of both medical and recreational marijuana, Colorado law does not require employers to allow marijuana use. The statute authorizing medical use of marijuana states, “Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.” Amendment 64, which approved recreational marijuana use for Colorado adults, has a similar provision.

But Coats’ attorney has cited a Colorado law called the “Lawful Activities” statute, which prohibits an employer from discharging an employee for engaging in lawful activity off the premises of the business during nonworking hours.

Lara Makinen says most employers in Colorado have drug-free workplace policies spurred by the federal Drug Free Workplace Act of 1988. Makinen is on the board of the Colorado chapter of the Society for Human Resources Management. And she says, only a very small portion of employers have relaxed those policies since the legalization of medical and recreational marijuana in Colorado. Many employers have actually tightened their drug testing policies, according to a survey by the Mountain States Employers Council.

Makinen holds regular phone calls and writes a newsletter for other human resources professionals in the state, and she says she has gotten a lot of questions about marijuana. “They want to know whether to stop drug testing, whether to change their policies,” she says. “They want to know, if someone’s smoking pot in their car at lunch, do I have to let them keep working after lunch?”

She says she’s sympathetic to Brandon Coats’ case, but worries that a ruling in his favor would open up employers to more lawsuits, and potentially embolden some employees to show up at work impaired. “Especially in jobs that have high safety standards, physicians, operating machinery… we have to be able to say as an employer, you have to come here clean and clear-headed,” Makinen says.

Coats’ attorney, Michael Evans, says his case isn’t about recreational marijuana, nor about using medical marijuana at work.

“We’re looking for something that both employers and employees can find a reasonable, working, practical solution,” he says. “For somebody in Brandon’s situation, who uses it after work, and who’s in a safe position answering phone calls from a desk… I think we can find a way to live together and not terminate these people.”

The Coats v. Dish case has gotten significant national attention. Makinen says there is no precedent, despite the fact that 22 other states and the District of Columbia have legalized medical marijuana. “The bottom line is there’s no one else who has policies on this stuff,” she says.

– See more at: http://www.cpr.org/news/story/colorado-supreme-court-hear-case-man-fired-over-medical-marijuana#sthash.mpfNvmqL.dpuf

Colorado rolling out 30 new tests to regulate marijuana industry

 

 

By Katie Kuntz Rocky Mountain PBS I-News – • Updated: September 29, 2014 at 5:37 am • 1

Medical and retail marijuana dispensaries in Colorado will receive about 30 new rules related to almost every aspect of their businesses.

The state Marijuana Enforcement Division (MED) released the new rules Thursday. They change such things as the start-up licensing fees, and rules for cultivation, production, edibles, sales, employee training and product testing. Right down to a hand-washing requirement.

2 photos Photo - A worker waves a sign to attract business to the "Canna Med Medical Clinic," a medical marijuana dispensary on Galley Road just east of Circle Thursday, January 26, 2012. Mark Reis, The Gazette + caption

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State officials have contended that Colorado’s recreational marijuana industry is a work in progress, and these new standards underscore that fact.

“I think the new rules make a lot of sense,” said Mark Slaugh, CEO of iComply, a cannabis industry compliance and consulting firm. “We’re putting out consumer education and teaching business owners and workers how to be responsible vendors, from a business decision, it’s a no-brainer.”

Among the new rules is a revision of a proposal that caused an uproar at a hearing earlier this month, production caps on greenhouse or outdoor grows. The proposed rule would have allowed greenhouses to produce only half the amount of plants allowed at indoor or warehouse operations. The new rules do not make that distinction and allow the same number of plants, 3,600, for the first-level cultivation process.

“I think that the state really listened to the greenhouse workers and was responsive to the impassioned testimony,” said Meg Collins, executive director of the Cannabis Business Association, and a member of the work group committee writing the production rules.

The enforcement division also established minimum “responsible vendor training” requirements along with minimum public health and safety requirements for anyone manufacturing edible marijuana products. The state has issued 18,666 marijuana occupational licenses. Each individual with a license will be required to meet new minimum training standards if hired by a shop, cultivation center, testing facility or product manufacturer. There are 496 licensed medical shops and another 242 recreational stores in Colorado. The state has received 177 additional applications for recreational stores and grow operations that could be approved by Oct. 1.

“I believe it’s our responsibility to be as safe as we can be and make sure every bud tender and customer knows what to expect,” said Brian Ruden, a retail and medical marijuana store owner in Denver, Louisville and Colorado Springs. “It’s just better for the industry to err on the side of caution when the whole country is looking at the industry now.”

Aside from safety and health training, new rules will normalize the amount of marijuana found in any edible – ensuring that a single serving size has no more than 10 milligrams of active THC, the intoxicating chemical in marijuana. “So that could be something as small as a peanut butter cup or bonbon or as large as a soda,” said iComply’s Slaugh. “If there is more than one serving in the product, it has to be easily identified.”

The serving size rule is meant to ensure a more safe consumption of edible marijuana. Edibles have a greater risk for over consumption because the digestion of marijuana causes a later onset of the effects. Some people respond by eating more.

Testing requirements have also changed. MED will not only require testing for potency in edibles, but also for chemicals like pesticides and for the presence of fungi.

“I already spend a small fortune every month testing, and that is only going up because of all the other things they are testing,” Ruden said. “I’m excited for more responsible regulation, but frustrated with the expenses, the licensing fees, taxes and testing.”

Others expressed concern with what the new rules don’t include.

Marijuana testing facilities will only test product from licensed cultivation centers, not home growers or medical marijuana caregivers.

“We’re still not able to know how to dose,” said Ashley Weber, medical marijuana patient and caregiver advocate. “From a caregiver’s side, not being able to test means you don’t know what you’re giving your patient and you are never going to be able to be on a consistent level. And for parents with kids with epilepsy, (they) can’t know if they are overmedicating their children (or) when (to) give the medication.”

MED has not yet considered expanding testing services to caregivers.

Others were concerned that the mass of new regulations might mean more costs, and continuing competitions from the black or gray markets.

“The more rules you have the more challenging it is because we are driving up the price,” Slaugh said.

“We can offer a consistent, safe product and a wider variety and you don’t have to deal with a drug dealer – I think legitimate market will always drive away the black market – except for the price.”

__

The Gazette brings you this report in partnership with Rocky Mountain PBS I-News. Learn more at rmpbs.org/news. Contact Katie Kuntz at [email protected]

Read more at http://gazette.com/colorado-rolling-out-30-new-tests-to-regulate-marijuana-industry/article/1538441#RihTWcE1DG3VEMAX.99

Study: Arrests For Marijuana Offenses Increasing In Many States –

by Paul Armentano, NORML Deputy Director July 30, 2014

 

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Law enforcement in many states are making a greater number of marijuana arrests than ever before despite polling data showing that the majority of Americans believe that the adult use of the plant ought to be legal.

According to a just published report, “Marijuana in the States 2012: Analysis and Detailed Data on Marijuana Use and Arrests,” which appears on the newly launched RegulatingCannabis.com website, police made an estimated 750,000 arrests for marijuana violations in 2012 – a 110 percent increase in annual arrests since 1991. Yet, despite this doubling in annual marijuana arrests over the past two decades, there has not been any significant reduction in marijuana consumption in the United States the report found.

In 2012, marijuana arrests accounted for almost half (48.3 percent) of all drug arrests nationwide. Marijuana arrests accounted for two-thirds of more of all drug arrests in five states: Nebraska (74.1 percent), New Hampshire (72 percent), Montana (70.3 percent), Wyoming (68.7 percent) and Wisconsin (67.1 percent).

From 2008 to 2012, seventeen state-level jurisdictions experienced an average annual increase in marijuana arrests, the report found. South Carolina (11.6 percent) and the District of Columbia (7.7 percent) experienced the highest overall percentage increase in arrests during this time period. By contrast, annual marijuana arrests fell nationwide by an average of 3.3 percent from 2008 to 2012.

Overall, the study reported that the five state-level jurisdictions possessing the highest arrest rates for marijuana offenses are the District to Columbia (729 arrests per 100,000 citizens), New York (577), Louisiana (451), Illinois (447) and Nebraska (421). District of Columbia lawmakers decriminalized the adult possession of marijuana earlier this month.

The two states possessing the lowest marijuana arrest rates are California and Massachusetts, the report found. Both states decriminalized marijuana possession offenses in recent years.

Stated the report’s author, Shenondoah University professor Jon Gettman, “After a generation of marijuana arrests, nearly 19 million and counting since 1981, the results are that marijuana remains widely used, not perceived as risky by a majority of the population, and widely available. The tremendous variance in use and arrests at the state level demonstrate why marijuana prohibition has failed and is not a viable national policy.”

Full text of the report is available on the NORML website here or from: RegulatingCannabis.com.

– See more at: http://blog.norml.org/2014/07/30/study-arrests-for-marijuana-offenses-increasing-in-many-states/#sthash.l9sfun7e.MOcw3eNJ.dpuf

Daniel Chong, forgotten in DEA cell, settles suit for $4.1 million

By Stan Wilson, CNN

updated 3:11 PM EDT, Wed July 31, 2013

San Diego (CNN) — A University of California San Diego student left unmonitored in a holding cell for five days by the Drug Enforcement Administration has settled a lawsuit for $4.1 million, his attorney said.

"This was a mistake of unbelievable and unimaginable proportions," attorney Julia Yoo said on Tuesday.

Daniel Chong, 25, drank his own urine to survive and even wrote a farewell note to his mother before authorities discovered him severely dehydrated after a 2012 drug raid in San Diego.

He was held in a 5-by-10-foot cell with no windows but a peephole through the door. It had thick concrete walls and was situated in a narrow hallway with four other cells, isolated from the rest of the DEA facility, said Eugene Iredale, another of Chong’s attorneys.

There was no toilet, only a metal bench on which he stood in a futile attempt to set off the sprinkler system with his cuffed hands, Chong told CNN affiliate KSWB.

He kicked the door and yelled, anything to get someone’s attention, the station reported.

"I was screaming. I was completely insane," he told KWSB.

One matter still unclear is why no one heard him. Chong told the San Diego Union-Tribune last year that he heard footsteps, muffled voices and the opening and closing of cell doors, even from the cell adjacent to his. Yet no one responded to the ruckus coming from inside his cell.

Chong was detained on the morning of April 21, 2012, when DEA agents raided a house they suspected was being used to distribute MDMA, commonly known as "ecstasy."

A multiagency narcotics task force, including state agents, detained nine people and seized about 18,000 ecstasy pills, marijuana, prescription medications, hallucinogenic mushrooms, several guns and thousands of rounds of ammunition from the house, according to the DEA.

It wasn’t until the afternoon of Wednesday, April 25, that an agent opened the steel door to Chong’s cell and found the handcuffed student, Iredale said last year.

Student drank urine to survive DEA cell

2012: Student feared death, dehydration

Upon his release, Mr. Chong told CNN affiliate KNSD that he was visiting a friend and knew nothing about the presence of drugs and guns. He was never formally arrested or charged, the DEA said.

While detained, Chong had given up and accepted death, using a shard of glass from his glasses to carve "Sorry Mom" onto his arm as a farewell message, Yoo said. Chong lost 15 pounds and suffered from severe post-traumatic stress disorder, she said.

"He’s the strongest person I have ever met," Yoo said. "As a result of his case, it’s one of the primary reasons the DEA placed a nationwide policy that calls on each agent at satellite offices to check on the well-being of prisoners in their cells on a daily basis," Yoo said.

A DEA spokeswoman declined to comment extensively about the settlement and told CNN that a review of DEA procedures was conducted and submitted to the inspector general’s office at the Department of Justice. She also referred CNN to a previous statement.

"I am deeply troubled by the incident that occurred here," said DEA San Diego Special Agent in Charge William R. Sherman shortly after the incident. "I extend my deepest apologies to the young man and want to express that this event is not indicative of the high standards that I hold my employees to."

Since the incident, Chong has returned to complete his undergraduate degree at UC San Diego, Yoo said. "He changed his major from engineering to economics and wants to finish school, pursue his career and help take care of his mother."

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Uphold the Third Amendment

 

Glenn Harlan Reynolds 2:14 p.m. EDT July 7, 2013

It’s our right as American citizens to have privacy in our own homes.

 

 

Everyone has heard of the Bill of Rights. The First Amendment gets a lot of discussion, and so does the Second. On Independence Day this year, many people rallied in support of the Fourth Amendment in response to the National Security Agency spying scandal.

Several government officials — like embattled IRS official Lois Lerner — lately seem particularly enamored of the Fifth Amendment’s right not to testify. But how many Americans could even tell you what the Third Amendment protects?

Even among those who could, many would consider it a bit of a joke. But they just may be wrong about that. The Third Amendment may be coming into its own. It provides: "No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law."

I often tell my constitutional law students that the Third Amendment is the only part of the Bill of Rights that really works — because there are almost no cases of troop-quartering. If only the rest of the Bill of Rights were so effective.

In an article published in the William & Mary Bill of Rights Journal last year, however, Prof. Tom W. Bell points out that such violations, while perhaps rare, are not unknown. In 1942, for example, inhabitants of the Aleutian Islands were forced out of their homes, and in some cases troops were actually quartered there, but it took the federal government decades to admit wrongdoing or pay damages.

Likewise, in a 1982 case in the U.S. Court of Appeals for the Second Circuit, prison guards evicted from their quarters and replaced with National Guard troops during a strike sued, and the Court of Appeals found that this action implicated their rights under the Third Amendment, which it characterized as "designed to assure a fundamental right of privacy."

Now we see another Third Amendment case, from Henderson, Nev., in which the plaintiffs, the Mitchell family, claim that Henderson police seized their home — battering the door open with a battering ram — so as to secure an advantageous position in addressing a domestic violence report involving a neighboring house. The police were quite rude — calling the inhabitants "assholes" and shooting both Anthony Mitchell and his dog with a pepper-ball gun — before setting up a lookout post in the house.

Should the Third Amendment have something to say about this? Well, it speaks only to "troops," not police — but then, professional police in the modern sense hadn’t been invented at the time of the framing. And given the extreme militarization of police nowadays — with Nomex coveralls, body armor, AR-15 rifles, grenades, armored vehicles, etc., all documented in Radley Balko’s new book, The Rise of the Warrior Cop, — maybe that’s a distinction without a difference anyway. Armed minions of the state seizing your home by force seem close enough to "troops" for me.

Personally, I think we need to return to the sense of one’s home as a castle, a "fundamental right of privacy" that the Third Amendment was intended to protect. Police, except in those rather rare cases where they reasonably think someone inside is being held hostage or the like, should have to knock politely at the door and — unless they have a warrant — should have to depart if the homeowner doesn’t want them to come in. Those who violate this rule should be prosecuted as criminals, and opened up to lawsuits without benefit of official immunity.

Some may protest that this rule will make it harder to go after drug dealers and such, who may flush their drugs away before police can get in. To which I respond, tough. Protecting Americans’ homes from invasions by armed hooligans is more important than protecting prosecutions under the drug war. One would think, in fact, that preventing such invasions is the first duty of police. It’s unfortunate that so many in law enforcement seem to have forgotten that.

Glenn Harlan Reynolds is professor of law at the University of Tennessee. He blogs at InstaPundit.com.

In addition to its own editorials, USA TODAY publishes diverse opinions from outside writers, including our Board of Contributors.

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JEFF EDELSTEIN: Marijuana defense of the NJWeedman is working

 

Bobby T. is a 27-year-old Philadelphia resident. He’s got a good job, a regular guy, goes about his business. Not looking for any trouble. But — cue the music — trouble found him.

He was driving back to his home from upstate New York after a weekend with some friends. Upon entering New Jersey — Mahwah, to be exact — he got pulled over. The officer said he was doing 76 in a 55. Lousy enough luck there. And the luck got worse once the officer got a whiff of the car.

Pot.
“He smelled the weed,” Bobby T. said. “He told me to get out of the car, asked me where it was, and I told him. He found my bowl and about 2.5 grams of pot.”

Bobby T. was handcuffed and arrested.

It was going to be a slam dunk case for the township of Mahwah. Bobby T. was dead to rights. And then … well, long story short: Bobby T. walked. Didn’t have to pay a dime. Case dismissed.

How did he pull this off? Simple enough: Through the dare-I-say brilliance of Ed Forchion, known far and wide as the NJWeedman.

I wrote about this   earlier in the year. Forchion has created   a printable, fill-in-the-blanks legal brief for anyone in New Jersey who gets caught with marijuana. His argument is as elegant as it is airtight.

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Supreme Court strikes down section of Voting Rights Act

 

 

Updated at 11:10 a.m. ET

The Supreme Court on Tuesday struck down a section of the Voting Rights Act, weakening a tool the federal government has used for nearly five decades to block discriminatory voting laws.

In a five-to-four ruling, the court ruled that Section 4 of the Voting Rights Act is unconstitutional. That section of the landmark 1965 law provides the formula for determining which states must have any changes to their voting laws pre-approved by the Justice Department’s civil rights division or the D.C. federal court. Nine states are required to get pre-clearance, as are certain jurisdictions in seven other states.

Chief Justice John Roberts wrote for the majority that Section 4 is unconstitutional because the standards by which states are judged are "based on decades-old data and eradicated practices."

"Nearly 50 years later, things have changed dramatically," Roberts wrote. "The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased [Section 5’s] restrictions or narrowed the scope of [Section 4’s] coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger."

The court could have made a much broader ruling by striking down Section 5, which dictates that those states must get pre-clearance. However, the court decided that the Justice Department still has a role in overseeing voting laws — if Congress is willing to rewrite Section 4.

Nevertheless, civil rights advocates called the ruling a huge blow to democracy.

"The Supreme Court has failed minority voters today," Sherrilyn Ifill of the NAACP Legal Defense and Education Fund said Tuesday outside of the court.

The ruling underscores the Supreme Court’s lawmaking powers, challenging Congress’ overwhelmingly bipartisan decision in 2006 to renew the Voting Rights Act for another 25 years. Ifill pointed out that the court renewed the law after holding 52 hearings over nine months and amassing 15,000 pages of evidence of the state of civil rights across the nation.

Play Video

It’s now up to Congress to change the coverage rules so that Section 5 — the section requiring pre-clearance of voting laws in certain states — can continue to be enforced.

"The ball has been thrown not only in Congress’ court, but in our court," Ifill said, calling on the public to mobilize behind an update to the law.

Wade Henderson, president and CEO of the Leadership Conference on Civil and Human Rights, he expressed optimism the Voting Rights Act could be fully restored with adjustments in the legislative branch.

"We are very confident that members of both houses of Congress who helped lead the effort in 2006, many of whom are still there, will respond to those challenges," he said on the steps of the court.

While Section 5 may be effectively nullified, now that Section 4 has been struck down, the court’s ruling will certainly renew discussion of what tools the federal government should have at its disposal to ensure voting rights. President Obama noted earlier this year that Section 5 is "not the only tool" available to fight discriminatory voting laws, and he has attempted to start a new dialogue on the issue by forming a bipartisan commission to draft a plan for reforming national voting laws.

CONTINUE READING…

The Nullification Door can Swing Both Ways

By Bruce Johnson  June 24, 2013

Patrick Henry, John Calhoun, and George Mason would be delighted that States are showing some backbone after 220 years of Federal power encroachment. States are again beginning to question Federal authority by, in effect, nullifying some Federal mandates. But the "nullification door" is swinging both ways. Is it not nullification of law by the Federal Government itself when they who hold the federal reins refuse to enforce the laws currently on the books? And when no enforcement of the law is at the whim of an administration, what recourse exists for the citizenry? For the States?

Both ends of the political spectrum have engaged in nullification, the rejection of Federal law. As noted in this piece by David Leib, the current focal points of dissonance between State and Federal revolve around a strange mix of topics; healthcare, guns, illegal immigration, citizen identification, and marijuana. We can clearly identify both ends of the sociopolitical spectrum and note they have become strange bedfellows in disobeying the federal government. Coloradans thumb their nose at federal marijuana laws while Montanans do the same with federal gun laws.

Mr. Leib in his article " Federal Nullification Efforts Mounting in States", lists a few of today’ de facto nullifications:

"About 20 states now have medical marijuana laws allowing people to use pot to treat chronic pain and other ailments — despite a federal law that still criminalizes marijuana distribution and possession. Ceding ground to the states, President Barack Obama’s administration has made it known to federal prosecutors that it wasn’t worth their time to target those people…

Federal authorities have repeatedly delayed implementation of the 2005 Real ID Act… about half the state legislatures have opposed its implementation, according to the National Conference of State Legislatures.

About 20 states have enacted measures challenging Obama’s 2010 health care laws…

After Montana passed a 2009 law declaring that federal firearms regulations don’t apply to guns made and kept in that state, eight other states have enacted similar laws…"

But the nullification door swings both ways. As States issue an affront to select federal law, the federal authorities elected and appointed seem also to have some issues themselves with federal law. Even though they have pledged via their oaths of office to enforce these laws, when it serves their political purposes we often get nonenforcement. Despite vowing diligence there is a steady record that is in effect "legislation via non action" by federal agencies and apparently done so at the direction of the Executive and Judicial branches.

In some instances the federal authorities reject any local, police, or State assistance in enforcing federal law as in the Arizona illegal immigration situation. In many marijuana cases, the federal government seems uninterested that State law conflicts with the law on the federal books. Illinois and Chicago in particular drag out a federal mandate to comply with the Second Amendment. Yet most assuredly those same federal authorities will expect local enforcement of new gun laws in Montana.

When polling place violations go unprosecuted, when sanctuary cities invite illegal immigrants and guarantee no pursuit, when immigration agents are told to ease up, and when the War Powers Act that requires the president to consult with Congress but the president only delivers mere notification… are these not de facto nullifications of law?

When States detect that they are being harmed by new federal law, it is more justifiable for them to act than those oath obligated federal office holders channeling their political wishes by choosing which laws to enforce and which to ignore.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"

As Madison noted in his Federalist Paper #45,

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.".

Article I, sect 8 of the Constitution clearly delineates that which the Federal Government "can" do, and section 10 of the same Article clearly states what the States "can’t" do. State governments preceded the "federal experiment" and it was from these 13 States the powers so delegated to the "federal experiment" originated. But now add in the Supremacy Clause noting State law can not be in conflict with Federal Law, and if such occurrence arise, Federal law will be "supreme’. More complications arise when the powers of Article I, sect 8 are deemed unbound by how activists interpret the "necessary and proper" clause. All of this sets before us a cauldron of countervailing double- entendre laden documents that often seem internal contradictory. Is it a ‘mish mash’ or a brilliant work of governance?

The Federal Papers lend guidance to the Constitution. These papers fill in the gaps and clarify instances in which the English language within the Constitution sometimes falls short. In Federalist #32 and #33, Hamilton, a devout federalist, points to a certain sovereignty status retained by the States.

32nd:

As the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.

Today’s resurgence of nullification of federal law by the States is perhaps the greatest since 1861. John C. Calhoun led a nullification movement in South Carolina in 1832 regarding the collection of federal tariffs on imports. Prior to that, there were the instances of opposition to a National Bank, New England’s opposition to the War of 1812 voiced in the Hartford Convention and also New England’s opposition to the Mexican War and their sending of troops to that effort. Thomas Jefferson himself led nullification efforts in 1798 with the Kentucky Resolution in which "the states had the right and the duty to declare unconstitutional any acts of Congress that were not authorized by the Constitution". Madison followed with the Virginia Resolution in the same spirit.

"If prudently limited and wisely directed, almost any government can be a blessing; yet unless firmly constrained, any government of whatever form will tend to augment its powers in excess, going beyond even the plainest legal limits on its just authority, and will sooner or later become dangerous." Thomas Jefferson (A Constitutional History of Secession, Graham)

Nullification has three stages. (as noted by Graham pp. 108, 109)

Interposition: This involves the identification of the grievances by the offended party (State), adopted by the legislator of that State, and noting the unconstitutional nature of the proposed act by the Federal Government or by other States as being injurious to the offended State. A demand for "appropriate redress" is included.

State Declaration of Nullification: The State will call for assemblies and authorities within the State to then empower such bodies to then craft an ordinance of nullification.

Ordinance of Secession: If the ordinance of nullification should fail to restore proper balance between the Federal Government and the State, by act of sovereign power and ordinance of secession will be adopted.

Secession is unlikely today, but the concept was unresolved in 1861. State sovereignty was a more justifiable position. Virginia, Rhode Island, and New York all ratified the Constitution with the proviso that if they became harmed by the "federal experiment", they retained the powers to withdraw. To extrapolate, and because these ratifications were unconditionally accepted at the convention in which all States were equal partners, these rights to ‘withdraw’ radiated to all the States ratifying at that time.

State resistance to harmful federal legislation is an important component to our federal system. Nullification must be promoted cautiously but once committed, States must hold firm even if it draws an extortion such as the withholding of Federal highway funds. Turnabout is fair play, and as an administration selectively ignores passed law, States gain traction in challenging new Federal law. Principle must trump financial consideration and the promise that is our form of government must not be whittled away.

Read more: http://www.americanthinker.com/2013/06/the_nullification_door_can_swing_both_ways.html#ixzz2XB1xZEFz

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Federal nullification efforts mounting in states

By DAVID A. LIEB — Associated Press

 

 

ohhhh-so-beautiful

JEFFERSON CITY, Mo. — Imagine the scenario: A federal agent attempts to arrest someone for illegally selling a machine gun. Instead, the federal agent is arrested – charged in a state court with the crime of enforcing federal gun laws.

Farfetched? Not as much as you might think.

The scenario would become conceivable if legislation passed by Missouri’s Republican-led Legislature is signed into law by Democratic Gov. Jay Nixon.

The Missouri legislation is perhaps the most extreme example of a states’ rights movement that has been spreading across the nation. States are increasingly adopting laws that purport to nullify federal laws – setting up intentional legal conflicts, directing local police not to enforce federal laws and, in rare cases, even threatening criminal charges for federal agents who dare to do their jobs.

An Associated Press analysis found that about four-fifths of the states now have enacted local laws that directly reject or ignore federal laws on marijuana use, gun control, health insurance requirements and identification standards for driver’s licenses. The recent trend began in Democratic leaning California with a 1996 medical marijuana law and has proliferated lately in Republican strongholds like Kansas, where Gov. Sam Brownback this spring became the first to sign a measure threatening felony charges against federal agents who enforce certain firearms laws in his state.

Some states, such as Montana and Arizona, have said "no" to the feds again and again – passing states’ rights measures on all four subjects examined by the AP – despite questions about whether their "no" carries any legal significance.

"It seems that there has been an uptick in nullification efforts from both the left and the right," said Adam Winkler, a professor at the University of California at Los Angeles who specializes in constitutional law.

Yet "the law is clear – the supremacy clause (of the U.S. Constitution) says specifically that the federal laws are supreme over contrary state laws, even if the state doesn’t like those laws," Winkler added.

The fact that U.S. courts have repeatedly upheld federal laws over conflicting state ones hasn’t stopped some states from flouting those federal laws – sometimes successfully.

About 20 states now have medical marijuana laws allowing people to use pot to treat chronic pain and other ailments – despite a federal law that still criminalizes marijuana distribution and possession. Ceding ground to the states, President Barack Obama’s administration has made it known to federal prosecutors that it wasn’t worth their time to target those people.

Federal authorities have repeatedly delayed implementation of the 2005 Real ID Act, an anti-terrorism law that set stringent requirements for photo identification cards to be used to board commercial flights or enter federal buildings. The law has been stymied, in part, because about half the state legislatures have opposed its implementation, according to the National Conference of State Legislatures.

About 20 states have enacted measures challenging Obama’s 2010 health care laws, many of which specifically reject the provision mandating that most people have health insurance or face tax penalties beginning in 2014.

After Montana passed a 2009 law declaring that federal firearms regulations don’t apply to guns made and kept in that state, eight other states have enacted similar laws. Gun activist Gary Marbut said he crafted the Montana measure as a foundation for a legal challenge to the federal power to regulate interstate commerce under the U.S. Constitution. His lawsuit was dismissed by a trial judge but is now pending before the 9th U.S. Circuit Court of Appeals.

"The states created this federal monster, and so it’s time for the states to get their monster on a leash," said Marbut, president of the Montana Shooting Sports Association.

The Supreme Court ruled in 1997 that local police could not be compelled to carry out provisions of a federal gun control law. But some states are now attempting to take that a step further by asserting that certain federal laws can’t even be enforced by federal authorities.

A new Kansas law makes it a felony for a federal agent to attempt to enforce laws on guns made and owned in Kansas. A similar Wyoming law, passed in 2010, made it a misdemeanor. The Missouri bill also would declare it a misdemeanor crime but would apply more broadly to all federal gun laws and regulations – past, present, or future – that "infringe on the people’s right to keep and bear arms."

U.S. Attorney General Eric Holder sent a letter in late April to the Kansas governor warning that the federal government is willing to go to court over the new law.

"Kansas may not prevent federal employees and officials from carrying out their official responsibilities," Holder wrote.

Federal authorities in the western district of Missouri led the nation in prosecutions for federal weapons offenses through the first seven months of the 2013 fiscal year, with Kansas close behind, according to a data clearinghouse at Syracuse University.

Felons illegally possessing firearms is the most common charge nationally. But the Missouri measure sets it sights on nullifying federal firearms registrations and, among other things, a 1934 law that imposes a tax on transferring machine guns or silencers. Last year, the federal government prosecuted 83 people nationally for unlawful possession of machine guns.

So what would happen if a local prosecutor actually charges a federal agent for doing his or her job?

"They’re going to have problems if they do it – there’s no doubt about it," said Michael Boldin, executive director of the Tenth Amendment Center, a Los Angeles-based entity that promotes states’ rights. "There’s no federal court in the country that’s going to say that a state can pull this off."

Yet states may never need to prosecute federal agents in order to make their point.

If enough states resist, "it’s going to be very difficult for the federal government to force their laws down our throats," Boldin said.

Missouri’s governor has not said whether he will sign or veto the bill nullifying federal gun laws. Meanwhile, thousands of people have sent online messages to the governor’s office about the legislation.

Signing the measure "will show other states how to resist the tyranny of federal bureaucrats who want to rob you of your right to self-defense," said one message, signed by Jim and Arlena Sowash, who own a gun shop in rural Stover, Mo.

Others urged a veto.

"Outlandish bills like this – completely flouting our federal system – make Missouri the laughingstock of the nation," said a message written by Ann Havelka, of the Kansas City suburb of Gladstone.

Follow David A. Lieb at: http://www.twitter.com/DavidALieb

Read more here: http://www.kentucky.com/2013/06/21/2686935/federal-nullification-efforts.html#storylink=cpy

Judge Scalia On How “Easy” It Is to Deny You Your Rights

 

Supreme Court Justice Antonin Scalia has again treated us to his “textualist” reading of the Constitution, telling an American Enterprise Institute audience that unfettered abortion access, “homosexual sodomy” and the retiring of the death penalty are all “easy” to decide against.

Reports Seattle Pi:

“The death penalty? It’s easy. Give me a break. It’s easy. Abortion? Absolutely easy,” Scalia told the AEI faithful.

[…]

“Nobody ever thought the Constitution prevented restrictions on abortion,” Scalia added. “Homosexual sodomy? Come on. For 200 years, it was criminal in every state.”

Scalia’s mantra is that the Constitution is not to be treated as a living, breathing document whose promise of Liberty evolves with its people, but rather an iron-clad relic that should be read as it was set down, and in only that way.

This illuminating talk from Scalia comes as several marriage equality cases stand ready to be taken up by the Supreme Court, a number that will directly challenge the federal law that bans the government from recognizing same-sex marriages, the Defense of Marriage Act.

Another case on the Supreme Court’s docket in the coming months, likely after the November elections it would now seem, will be the Proposition 8 case where a federal judge and the 9th Circuit Court of Appeals decided that the voting majority of California violated state and federal guarantees of equal protection in 2008 by defining away the right to marry a same-sex partner.

Scalia, a Reagan appointee, has sat on the bench for much of the life of the gay rights struggle. He has consistently found cause to rule against gay rights. Most notably, Scalia dissented in Lawrence v. Texas, the case that would serve to eventually make unenforceable state level bans on sodomy.

In the dissent Scalia, while terming the sodomy ban “facially neutral” even though the Texas ban applied solely to homosexual acts, wrote:

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct…. [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.

While this may give us a rather face-slapping clue as to Scalia’s overall opinion of gay rights, the case may be of particular interest in that, with his dissent, Scalia found room to criticize the Court’s majority for its concern over the criminalization of sodomy leading to discrimination, citing that this ignored the will of the people:

So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal.

Proposition 8′s defenders have harped, seemingly to play a tune to which a conservative judiciary might hum, that the voting people of California, through the democratic process, decided against gay marriage and therefore the will of the people should stand — this of course sidesteps the fact that minority rights will nearly always and by their nature find disfavor at a majority poll.

While Scalia’s approach to law, his “textualist” attitude, seems to give him easy answers on topics like abortion restriction and, to quote again “homosexual sodomy,” one can’t help but feel that a judge who knows how he will rule before he has heard the individual cases at hand might be going in with a level of bias that is, to say the least, concerning.

However, for those of us familiar with Scalia’s views on a variety of topics, none perhaps more eyebrow-raising than his refrain that sex discrimination is Constitutionally sound, Scalia’s latest volley against reason and equality, and his apparent admission that being a Supreme Court justice is “easy” when it comes to issues like these, will not be a surprise.

Equal rights proponents were never looking to Scalia for affirmation, but then Scalia’s celebrity has already been cemented among religious conservatives, legislators like Scott Brown, and Republican presidential nominee Mitt Romney who has said he would be looking to appoint similarly minded judges.

Scalia’s latest AEI talk serves, then, as a healthy reminder of what that would mean for America.

Read more: http://www.care2.com/causes/judge-scalia-on-how-easy-it-is-to-deny-you-your-rights.html#ixzz291bcIFf0

“Jury Nullification”

If a juror feels that the statute involved in any criminal offense is unfair, or that it infringes upon the defendant’s natural God-given unalienable or Constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all, for no one is bound to obey an unjust law.

“That juror must vote Not Guilty regardless of the pressures or abuses that may be heaped on him by any or all members of the jury with whom he may in good conscience disagree. He is voting on the justice of the law according to his own conscience and convictions and not someone else’s. The law itself is on trial quite as much as the case which is to be decided.”


U.S. Chief Justice Harlan F. Stone, 1941-1946.

FROM DEMOCRACY DEFINED – FOLLOW THIS LINK…

AND

The Jury’s Secret Power
JUDGES MAY NOT TELL YOU THIS, but when you sit on a jury, you have the right to vote according to your
conscience and to judge the law being applied to the case. As a juror, you are the final safeguard for justice.
It’s the judge’s obligation to give the jury the wording of the law being applied to the case. If the judge fails to
provide the wording of the law or you think the law he gives you is a bad or unconstitutional law or a good law
being improperly applied, or there are other factors that would make you regret a vote to convict someone, then
it is your right and duty as a juror to vote “Not Guilty” even if you are the only juror who does and you therefore
“hang” the jury. You cannot be punished for the way you vote.
Our lawmakers sometimes pass bad laws, and, at times, good laws have been misused. Throughout history
reasoning jurors have refused to convict fellow citizens who were accused of breaking the law: They freed tax
protesters during the Whiskey Rebellion of 1794, refused to convict those who aided runaway slaves in violation
of the Fugitive Slave Act of 1850, freed bootleggers charged during Prohibition 1920-30, and released Vietnam
War objectors 1960-70.
When our country was young, all jurors were told of their right to judge the law, as well as the facts of the case.
Then judges decided that juries should no longer be told of their power to act as a safeguard against bad laws or
unethical lawmakers. Now, all jurors are instructed to accept the law as it is given to them by the judge, even in
cases where the law is clearly unjust.
But now you know the secret: If you are selected as a juror, you have the right and duty to do the right thing:
to follow your conscience and to judge the law as well as the facts of the case. It is the only way to keep
government in the hands of the people.
“I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government
can be held to the principles of its constitution.” –Thomas Jefferson to Thomas Paine, 1789.
For more information, please contact the Fully Informed Jury Association:
www.fija.org
Call 1-800-835-5879 for a free jury packet.