First 2017 Marijuana Bill Introduced In Congress

Rick Thompson January 12, 2017, 1:00 pm

 

Image result for California Representative Barbara Lee

 

In a year which has been heralded as a time of change for federal marijuana laws and policies, the first federal bill proposing a change has been introduced in the United States Congress.

H.R. 331 was introduced January 5th and is sponsored by California Representative Barbara Lee (13th District). The official Congressional description of the bill’s purpose is, “To amend the Controlled Substances Act so as to exempt real property from civil forfeiture due to medical marijuana-related conduct that is authorized by State law.”

At the time of this writing the bill’s language was not available on the Congressional website.

The bill was simultaneously assigned to both the House Judiciary and House Energy and Commerce Committees. The Congressional website describes the Committee split in this way:

Referred to the Committee on the Judiciary, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.

The current Speaker of the House is Rep. Paul Ryan (R-Wisconsin).

Rep. Lee has stated she will boycott the inauguration of newly-elected U.S. President Donald Trump.

Concerns are rampant within the American marijuana industry and patient population that President-elect Trump will emulate other Republicans and move to curtail or eliminate legal and medical marijuana use in the states where voters have approved it. His nomination of Alabama Senator Jeff Sessions for the post of U.S. Attorney General reinforced those concerns, as Sessions has a record of attacking marijuana use in speeches and actions.

During a recent nomination hearing, Sen. Sessions did little to reassure anyone about his position. His evasive answers to questions related to his stance on cannabis use offered no insight, and by not revealing his position Sessions fueled the anti-Trump conversation nationwide.

CONTINUE READING…

How local cops are still colluding with the feds to seize pot-related assets—even in states with legal marijuana.

 

The Shame of “Equitable Sharing”

How local cops are still colluding with the feds to seize pot-related assets—even in states with legal marijuana.

By Nick Sibilla

 

 

 

When voters in Colorado and Washington state approved legalizing marijuana in 2012, those votes undermined an abusive—and profitable—police practice: civil forfeiture. Unlike with criminal forfeiture, under civil forfeiture people do not have to be convicted of or even charged with a crime to permanently lose their cash, cars, and other property. Police can then auction off that seized property and use the proceeds to fund themselves. In the 42 states that allow police departments to profit from forfeiture, that cash flow has funded both the militarization of police and allowed law enforcement to make ridiculous purchases, including a margarita machine, a Hawaiian vacation, and a Dodge Viper. 

In Colorado and Washington, the federal government processed more than $36 million worth of cash and other property in civil and criminal marijuana forfeitures between 2002 and 2012. Pursuing cannabis cases earned local law enforcement in Washington an additional $6 million to $9 million in forfeiture revenue since 2008. Nationwide, the Wall Street Journal reported the federal government scored $1 billion in forfeiture from marijuana cases over the past decade. 

Legalization now threatens that forfeiture revenue for the police departments that have relied on it. Legal cannabis and the subsequent drop in forfeiture have already caused one drug task force in Washington to cut its budget by 15 percent. That’s great news for due process and property rights. 

But marijuana is still illegal under federal law, so local legalization has created ambiguity in civil forfeiture proceedings. Even in states where recreational or medical marijuana is legal, property owned by innocent people is still at risk thanks to “equitable sharing.” This federal program lets local and state law enforcement do an end run around state law and profit from civil forfeiture, simply by collaborating with a federal agency. 

Equitable sharing is a two-way street: For the federal government to “adopt” a forfeiture case, cops can approach the feds and vice versa. The U.S. Department of Justice has applications online for agencies to apply for adoption and to transfer federally forfeited property. Crucially, criminal charges do not have to accompany a civil forfeiture case.

The proceeds from federal forfeitures are deposited into the DOJ’s Asset Forfeiture Fund. After the DOJ determines the size of the cut for the feds, equitable sharing allows the local police to take up to 80 percent of what the property is worth. In fiscal year 2012, the federal government paid out almost $700 million in equitable sharing proceeds to local and state law enforcement agencies. 

Equitable sharing tempts cops to become bounty hunters, even in states with legal marijuana. Tony Jalali is living proof of this travesty. Jalali almost lost his business over four grams of marijuana.

After immigrating to the United States from Iran in 1978, Jalali became a successful small business owner. Jalali owns an office building in Anaheim, Calif.—worth around $1.5 million—that he rents out to fund his retirement. 

Among the more staid tenants—a dentist’s office, an insurance company—was ReLeaf Health & Wellness, a medical marijuana dispensary. Posing as a patient with a legitimate doctor’s recommendation, an undercover Anaheim police officer bought $37 worth of cannabis from that dispensary. Keep in mind that medical marijuana sales were—and are—legal in California under state law, and this Anaheim cop worked for local law enforcement, not the feds.

Jalali never bought or sold marijuana. Jalali was not charged with any crime nor was he warned that renting to a dispensary could lead to civil forfeiture. “I had no idea I was doing anything wrong,” Jalali said.

Yet for the DEA, which collaborated with Anaheim police in pursing the forfeiture, that $37 pot sale was enough evidence that Jalali should lose his property. 

This Kafkaesque nightmare should not have happened under California law. Not only did California voters legalize medical marijuana in 1996, state law bans forfeiting real property (like a home or a business) unless the owner has been convicted of a crime related to the property. In fact, Anaheim authorities even requested aid from California prosecutors to take action against Jalali’s property. State officials refused.

But the state’s protections don’t exist on the federal level. By participating in equitable sharing, Anaheim police could directly benefit from a federal forfeiture, bypassing California law to cash in on Jalali’s property. 

His case was not an isolated incident. In just the Central District of California alone (which includes Anaheim and Los Angeles), the U.S. attorney’s office filed 30 forfeiture actions against landlords and threatened more than 525 marijuana businesses in 2012 and 2013. Since 2008, Anaheim police have received over $21 million in forfeiture proceeds from the federal government. At the same time, for four straight years the city-owned Anaheim Convention Center has hosted the Kush Expo, the world’s largest medical marijuana trade show.

Both the ACLU and the Institute for Justice (IJ), where I work, have launched campaigns to close the equitable sharing loophole and end policing for profit. IJ took Jalali’s case pro bono. The federal government dropped the forfeiture suit this past October and cannot refile the case. 

For the time being, the feds appear to be shifting priorities. Last August, Deputy Attorney General James Cole announced new guidelines to U.S. attorneys. If state laws regarding marijuana don’t conflict with federal law enforcement priorities (like keeping cannabis away from kids and preventing it from crossing state lines), the feds will defer to the states. But even that cautious memo is filled with caveats, like “this memorandum does not alter in any way the Department’s authority to enforce federal law, including federal laws relating to marijuana, regardless of state law.”

The equitable sharing loophole still exists. The federal government can continue to prosecute criminal cases and litigate civil forfeiture actions related to cannabis. Citing the risk of federal forfeiture, Wells Fargo, one of Colorado’s largest banks, has refused to finance properties in that state’s marijuana industry. 

Top Comment

Few things have been more corrosive to the basic concepts of due process and other constitutional protections for citizens/restrictions on police than the War on Drugs.    More…

-ATLDave

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Buying recreational marijuana has been legal in Colorado only since Jan. 1 and pot stores haven’t opened yet in Washington. Yet selling the plant has already generated $14 million in Colorado—a tempting cash cow for local police.

The incentives behind equitable sharing are primed for abuse. Property owners’ protection from forfeiture currently depends on prosecutorial discretion. That is no substitute for meaningful legal reform.

Nick Sibilla is a writer for the Institute for Justice.

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Probable Cause: Linchpin of the 4th Amendment

 

 

Except for the definition and mechanism of proving treason, no area of the Constitution addressing the rights of all persons when the government is pursuing them is more specific than the Fourth Amendment. The linchpin of that specificity is the requirement that the government demonstrate probable cause to a judge as a precondition to the judge issuing a search warrant. The other specific requirement is identity: The government must identify whose property it wishes to search or whose behavior it wishes to monitor, because the Fourth Amendment requires that all warrants specifically describe the place to be searched or the person or thing to be seized.

The principal reason for these requirements is the colonial revulsion over general warrants. A general warrant does not specifically describe the place to be searched or the person or thing to be seized, and it is not based on the probable cause of criminal behavior of the person targeted by the government.

With a general warrant, the government simply gets authority from a judge to search a haystack looking for a needle, and in the process, it may disturb and move all the straw it wants. Stated differently, a general warrant permits the government to intrude upon the privacy of persons as to whom it has no probable cause of criminal behavior and without stating what it is looking for.

The Foreign Intelligence Surveillance Act (FISA) court has been issuing general warrants to the National Security Agency (NSA) since 1978, but it was not until last June that we learned that these general warrants have been executed upon the telephone calls, text messages, emails, bank records, utility bills and credit card bills of all persons in America since 2009.

The constitutional requirement of probable cause is not political fancy; rather, it saves us from tyranny. Probable cause is a quantum of evidence that is sufficient to lead a neutral judge to conclude that the person about whom the evidence has been presented is more likely than not to possess further evidence of criminal behavior, or has more likely than not engaged in criminal behavior that is worthy of the government’s use of its investigatory tools such that the government may lawfully and morally invade that person’s natural right to privacy.

Last week, Robert S. Litt, general counsel for the Office of the Director of National Intelligence, which runs the NSA, engaged in a curious colloquy with members of the president’s Privacy and Civil Liberties Oversight Board. Litt complained that presenting probable cause about individuals to judges and then seeking search warrants from those judges to engage in surveillance of each of those individuals is too difficult.

This is a remarkable admission from the chief lawyer for the nation’s spies. He and the 60,000 NSA employees and vendors who have been spying on us have taken oaths to uphold the Constitution. There are no loopholes in their oaths. Each person’s oath is to the entire Constitution — whether compliance is easy or difficult.

Yet the “too difficult” admission has far-reaching implications.

This must mean that the NSA itself acknowledges that it is seeking and executing general warrants because the warrants the Constitution requires are too difficult to obtain. Stated differently, the NSA knows it is violating the Fourth Amendment to the Constitution, because that amendment expressly forbids general warrants.

In my career as a lawyer, judge, law professor, author and television commentator, I have heard many excuses for violating the Constitution. I reject all of them when they come from one who has sworn to uphold the Constitution, yet I understand the intellectually honest excuses — like exigent circumstances — when they are based on duty. The NSA’s excuses are not intellectually honest, and they are not based on duty. They are based on laziness.

But there was more than met the eye in Litt’s testimony last week. Two days after Litt admitted to the use of general warrants, and while the president was in Europe, the White House leaked to the press its plans to curtail the massive NSA spying. Those plans, which would change only the appearance of what the NSA does but not its substance, have three parts.

The first change relieves the NSA of the need for general warrants to require delivery of massive amounts of data about innocent Americans as to which the NSA has no probable cause, because the second change requires the computer servers and telecoms to preserve their records — instead of the NSA preserving them — and make them “immediately” available to the NSA when it comes calling. And the third is the requirement of a warrant from a FISA judge before the NSA may access that stored data. But because that warrant is not based on probable cause but rather on NSA whim, it is a foregone conclusion that the general warrants for examination, as opposed to delivery, will be granted. The FISA court has granted well in excess of 99 percent of the general warrants the NSA has sought.

Litt must have known what the White House planned to leak when he made his “too difficult” complaint, as it fits nicely with this new scheme. Yet the scheme itself, because it lacks the requirement of probable cause that the Constitution requires, is equally as unconstitutional and morally repugnant as what the NSA has been doing for five years. Moreover, the NSA will not exactly go hat in hand to the computer servers and telecoms once it wishes to hear telephone calls or read emails or credit card bills. Its agents will simply press a few buttons on their computers when they wish, and the data they seek will be made available to them.

These so-called changes should be rejected by Congress, which should overhaul the NSA instead. Hasn’t Congress seen enough? The NSA and the CIA spy on the courts, Congress, the military, the police and everyone in America. This keeps none of us safer. But it does lessen our freedom when those in whose hands we repose the Constitution for safekeeping look the other way. What other freedoms are slipping because Congress, too, thinks upholding the Constitution is too difficult?

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HR 6335 `States’ Medical Marijuana Property Rights Protection Act’

HR 6335 IH

112th CONGRESS

2d Session

H. R. 6335

To amend the Controlled Substances Act so as to exempt real property from civil forfeiture due to medical-marijuana-related conduct that is authorized by State law.

IN THE HOUSE OF REPRESENTATIVES

August 2, 2012

Ms. LEE of California (for herself, Mr. POLIS, Mr. FARR, Mr. STARK, Mr. HINCHEY, Mr. BLUMENAUER, Mr. HONDA, Mr. FRANK of Massachusetts, and Mr. MCGOVERN) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned


A BILL

To amend the Controlled Substances Act so as to exempt real property from civil forfeiture due to medical-marijuana-related conduct that is authorized by State law.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
    This Act may be cited as the `States’ Medical Marijuana Property Rights Protection Act’.
SEC. 2. FINDINGS.
    Congress makes the following findings:
      (1) 17 States and the District of Columbia have, through ballot measure or legislative action, approved the use of marijuana for medical purposes when recommended by a physician.
      (2) Marijuana has long-established medical uses as an effective treatment for conditions that include HIV/AIDS, multiple sclerosis, arthritis, gastro-intestinal disorders, chronic pain, and others as well.
SEC. 3. CIVIL FORFEITURE EXEMPTION FOR MARIJUANA FACILITIES AUTHORIZED BY STATE LAW.
    Paragraph (7) of section 511(a) of the Controlled Substances Act (21 U.S.C. 881(a)(7)) is amended–
      (1) by striking `(7) All’ and inserting `(7)(A) Except as provided in subparagraph (B), all’; and
      (2) by adding at the end the following:
      `(B) No real property, including any right, title, and interest in the whole of any lot or tract of land and any appurtenances or improvements, shall be subject to forfeiture under subparagraph (A) due to medical marijuana-related conduct that is authorized by State law.’.

END

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