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Salvia Divinorum: North Dakota Man, First in Nation Charged With Magic Mint Offense, Sees Charges Reduced

Kenneth Rau, the Bismarck, North Dakota, man with the dubious distinction of being the first person to be charged with a salvia divinorum possession offense in the US, got some good news last week. At an August 13 court hearing, prosecutors announced they were dropping charges of possession with intent to distribute, which could have earned Rau 10 years in prison (20 if a school zone charge were added on).
salvia leaves
Rau still faces a charge of salvia possession, which could still see him imprisoned for up to five years. He also faces misdemeanor drug paraphernalia and marijuana possession charges.

Salvia, a perennial herb native to Mexico with potent, if short-acting and generally unappetizing psychoactive properties, is not a controlled substance in the US. But in the last few years, almost a dozen states have moved to regulate its sales or ban it outright. The North Dakota legislature banned it last year.

Rau always claimed he was unaware of the new North Dakota law when he bought eight ounces of salvia leaves for a high bid of $32 on eBay this spring. Prosecutors once claimed the eight ounces amounted to hundreds of doses, thus the possession with intent charge, but Burleigh County Assistant State's Attorney Cynthia Feland said in court last Wednesday that the amount Rau possessed was really only about eight doses.

Rau is scheduled for a September 22 trial date.

Medical Marijuana: California Supreme Court to Take Up Limits Issue

The California Supreme Court agreed Wednesday to revisit the question of how many plants and how much marijuana medical marijuana patients may legally possess. It did so by taking up a prosecutor's appeal of a May California Appellate Court decision that found a 2003 law designed to make the state's medical marijuana law operational conflicted with the voter-approved Compassionate Use Act by setting fixed limits on how much marijuana patients may possess.
California medical marijuana bags (courtesy Daniel Argo via Wikimedia)
The state's Compassionate Use Act does not specify the amount of marijuana a patient may possess. Instead, that law allows an amount of marijuana "reasonably related to the patient's current medical needs."

The case, People v. Kelly, began in 2005, when Los Angeles County deputies searched Patrick Kelly's home and found 7 plants in his back yard and 12 ounces of prepared marijuana in the house, along with a doctor's note saying Kelly needed marijuana for back problems, hepatitis c, and other ailments. After prosecutors told jurors Kelly had exceeded the limits of the 2003 law, the jury found him guilty. But the Second District Court of Appeal in Los Angeles overturned the conviction earlier this year, agreeing with Kelly's argument that the 2003 law was invalid because it conflicted with Proposition 215, which did not set any specified limits.

Medical marijuana activists are divided on the case. Some, like Americans for Safe Access, argued that the 2003 only set guidelines for police and that the numbers in the law constituted a minimum, not a maximum. Throwing out the law would remove a statewide standard that "protects qualified patients from unnecessary arrests," ASA attorney Joseph Elford argued in court papers.

But the American Civil Liberties Union argued that the 2003 law's eight-ounce limit applies to the 18,000 people who have registered with the state under that law's voluntary registration program. But Prop 215 still applies to all medical marijuana patients in the state, the ACLU argued. That means doctors may continue to prescribe greater quantities of marijuana and local entities may set higher limits.

Feature: The Drug Checkpoint That Wasn't -- Louisiana Lawmen Play Fast and Loose with the Constitution

In its 2000 decision in Indianapolis v. Edmond, the US Supreme Court held that the city's effort to attack the drug trade by holding a checkpoint to look for drugs was an unconstitutional violation of the Fourth Amendment's protection of the right to be free from unwarranted searches and seizures. But in the years since then, a handful of departments across the county, usually in the South, have brazenly trumpeted their resort to drug checkpoints.
nighttime driving checkpoint
The latest department to step into the breach was Louisiana's Beauregard Parish Sheriff's Office, which held such a checkpoint last Thursday night near the town of Starks. Following the lead of sheriff's deputies, the local newspaper was all over the story.

"Narcotics checkpoint a success," blared the headline in Monday's Derrider Daily News story on the police action. The article went on to explain how, following complaints of drug dealing in the neighborhood, police decided to take action:

"The Beauregard Parish Sheriff's Office set up a Narcotics Checkpoint Thursday night near Starks, Louisiana," the local paper reported. "Due to several complaints coming from the Fields area, the BPSO put together a joint operation with the help of Sheriff Ricky Moses and the DeRidder city police department. The operations utilized several BPSO deputies as well as the new Drug Interdiction team led by Detectives Dale Sharp and Greg Hill. Seven police units total were used for the operation in addition to four other units performing regular patrols."

The checkpoint resulted in three arrests for marijuana and hydrocodone possession, a quarter pound of marijuana being tossed from an unknown vehicle's window, and a number of traffic citations.

"If this really was a drug checkpoint, it is clearly unconstitutional," said Steve Silverman, executive director of the constitutional rights defense group Flex Your Rights. "If people went to court and fought it, the evidence would be dismissed -- unless they consented to a search. The sheriff down there must know checkpoints like this are constitutionally questionable, but they can still ask people to consent, and they know how to phrase that request in such a way that people are likely to consent," he said.

"If they are stopping and searching people without probable cause, that would appear to violate Edmonds, but we don't know for sure that's what they were doing," said Marjorie Esman, head of the ACLU's Louisiana affiliate. "Drug checkpoints are unconstitutional, but these guys sound like they are straight up trying to do one," said Esman.

While the Supreme Court has held drug checkpoints to be unconstitutional, it has allowed the use of checkpoints whose primary purpose is protecting certain safety-related governmental interests. Thus sobriety checkpoints are lawful, as are checkpoints to check drivers' licenses and motor vehicle registrations, as well as checkpoints designed to search for illegal aliens near the border. This week, the sheriff's office was busy arguing that it wasn't an unconstitutional drug checkpoint after all, merely a safety check.

"They're really safety checkpoints," backpedaled Beauregard Parish Sheriff's Office Chief Deputy Joe Toler. "The newspaper has its own spin on it," he said, adding that the warning signs specified a safety checkpoint, not a drug checkpoint.

The newspaper article certainly did have a spin, but that spin was provided by Beauregard Parish Deputy Dale Sharp, head of the department's new drug interdiction team. "The Narcotics Checkpoint's main objective was to get the narcotics off of the street," the article said before quoting Sharp: "Anything off of the streets is not in the hands of kids or anyone else," Sharp said in the article.

Sharp also bragged that more checkpoints could be coming soon. "Definitely," says Sharp. "As more complaints come in, we will be doing more."

But Chief Deputy Toler was sticking to the official line. "There just happened to be narcotics officers out there, and it just so happened that we did our safety checkpoint in a certain area where they place is known for drug trafficking," he said. "It just so happened they were all in the right place at the right time," he added.

Drivers and vehicles were not searched without consent, Toler said. "Everyone pretty much consents," he said.

"You can still refuse a search at a checkpoint," said Silverman. "They are not constitutionally allowed to search you just because they set up a checkpoint. You can say, 'I know you guys are just doing your job, but I have to go somewhere, am I free to go?' If they search you without probable cause and without your consent and they find something, you'll get arrested, but it's highly likely the charges will be thrown out. If not, it could go all the way to the Supreme Court."

It appears the sheriff's office is playing a pretty transparent game. They set up the checkpoint because of drug traffic complaints, they searched for drugs, and they had drug detection dogs on the scene -- not, presumably, to assist in reading drivers' licenses. But as long as police are careful to say the right things -- "It's a safety checkpoint" -- they can get away with it.

Flex Your Rights' Silverman also pointed out another permutation in law enforcement drug checkpoint tactics: the drug checkpoint that isn't. "If you see a warning that says drug checkpoint ahead, don't throw your stuff out the window, don't exit at the nearest ramp, don't do a sudden u-turn to get away, because it's not a drug checkpoint ahead, but a ruse by police," said Silverman. "The Supreme Court has held that drug checkpoints are an unconstitutional infringement on your Fourth Amendment rights, but that doesn't mean police can't try to fool you. At those fake drug checkpoints, they will have officers waiting to see who throws what out his window, or who suddenly exits to avoid the nonexistent checkpoint, and they will find a reason to stop you."

So, driving public, if you see a large warning sign that screams "Drug Checkpoint Ahead!" it is either a ruse or an unconstitutional law enforcement activity. But if you run across a sign that warns "Safety Checkpoint Ahead!" know that it is just as likely that police are looking for drugs in the guise of public safety as they are for expired drivers' licenses.

Editorial: Why Hasn't Denver's Police Chief Been Fired for Violating Marijuana Laws?

David Borden, Executive Director
David Borden in Colorado
This week saw an unusual and encouraging move taken by the Hawaii County Council (the "Big Island"). Advocates seeking the deprioritization of marijuana law enforcement, and the continued rejection by the county of federal marijuana eradication grants, tried but didn't quite manage to gather a sufficient number of signatures to get their initiative on the ballot this November.

As it turned out, it was a sufficient number. The council, very uncharacteristically for such bodies, used its discretion to place the question on the ballot anyway. They thought it was important for people to have a chance to vote on this idea, and instead of protesting and resisting as governments have done in any number of places, they actually used their power to help it along.

Shift eastward across an ocean and two mountain ranges, one sees a different display of the use, or abuse, of power. In Denver, voters have passed marijuana reform initiatives not once, but twice. First, they voted to legalize personal possession of marijuana. Then, they voted to make marijuana enforcement police's lowest priority. They also voted in majority numbers for a failed statewide legalization initiative.

Nevertheless, city police continue to invoke state law to justify their flouting of the law that the voters who pay their salaries passed, and the city continues to allow them to do it. I understand that legal technicalities mean that police who don't cooperate with the statute can't be arrested for it. But if Denver has democracy, why hasn't the police chief who bears guilt for this continuing offense at least been fired?

Also this week, a panel required by the law -- the Marijuana Policy Review Panel, modeled after one that monitor's marijuana arrests in Seattle -- recommended that Denver police not do marijuana posession arrests during the Democratic National Convention coming up. Officials, not surprisingly given all that's preceded, have had discouraging words regarding their willingness to take the recommendation. But why should the recommendation even be necessary? It's the law, passed by the voters two times. Shame on them yet again.

And it's not like the panel only has marijuana reformers on it. According to the authorizing legislation: "The Panel shall consist of one at-large member of the Denver City Council; two residents of the City of Denver, as selected by the petitioner committee that initiated this ordinance; one drug/alcohol abuse prevention counselor; one member of the Denver Metro Domestic Violence Fatality Review Committee who is not also a member of law enforcement; one representative of the Denver Police Department; three criminal defense attorneys, one of whom shall be a public defender; one representative of the Denver County District Attorney’s Office; and one representative of the Denver City Attorney’s Office."

Time will tell whether Big Island voters take the same wise step that Denver's voters have. But unlike in Denver, Hawaii County's leaders appear to respect their constituents. That bodes well for the policy's prospects if it does get the voters go-ahead. Deprioritization of marijuana enforcement is only one small step toward undoing the hideously destructive war on drugs. But it's a step nonetheless.

Unfortunately, Denver officialdom won't take that step willingly, despite law that now requires them to do so. Instead they will have to be dragged there kicking and screaming. Better that than letting the arrests go on, with people who never hurt anybody getting dragged off in handcuffs every day.

SAFER: Breaking DNC/marijuana news

For Immediate Release: August 20, 2008 Denver Mayor's Panel Calls on Police to Halt Marijuana Enforcement During 2008 Democratic National Convention Mayor's Panel recommendation rebuffs police who said they would ignore the will of Denver voters, who approved measures making adult marijuana possession legal in 2005 and the city's lowest law enforcement priority in 2007 Official memo from panel will be delivered to Denver mayor and police chief following press conference TOMORROW (Thursday) at 12 p.m. in front of the Denver City and County Building (1437 Bannock St.) DENVER -- A city panel appointed by Denver Mayor John Hickenlooper has officially recommended that the Denver Police Dept. "refrain from arresting, detaining, or issuing a citation" to any adult for the possession of up to one ounce of marijuana during the 2008 Democratic National Convention in Denver next week. (See full recommendation and PDF of memo below.) The Denver Marijuana Policy Review Panel's recommendation comes in response to news reports in which a spokesman for the Denver Police Dept. said police would be arresting or citing adults for marijuana possession despite ballot measures approved by Denver voters calling on them to refrain from doing so. In 2005, Denver voters approved a ballot measure making possession of small amounts of marijuana legal for adults, and in 2007, voters approved a measure designating adult marijuana possession Denver's "lowest law enforcement priority." "The People of Denver have made it clear they do not want adults in this city punished for simply possessing a drug less harmful than alcohol," said panel member Mason Tvert, who led the campaigns for the two ballot measures. "Now a panel appointed by the Mayor of Denver has echoed that call, and we hope police will not defy the people of this city or its mayor when the international spotlight hits the Mile High City next week. "Tomorrow we will deliver an official memo from the panel to the chief of police and the mayor, and we expect police to abide by this very logical recommendation," Tvert said. "If police expect the taxpayers to cover their $1.2 million in overtime during the DNC, it is only fair that they respect the laws adopted by those taxpayers. There will be plenty for police to do during the DNC aside from arresting or citing adults who are simply making the safer choice to use marijuana instead of alcohol." WHAT: Press conference and delivery of memo from Denver mayor's panel to Denver police chief and mayor WHEN: Thursday, August 21, 12 p.m. (noon) WHERE: Press conference in front of the Denver City and County Building, 1437 Bannock St. Then the memo from the panel chair will be delivered to the Denver Mayor's Office in the Denver City and County Building, and to the office of Denver Police Chief Gerry Whitman at 1331 Cherokee St. (around the corner) WHO: Mason Tvert, Denver Marijuana Policy Review Panel member # # # Resolution adopted on August 20, 2008, by the Denver Marijuana Policy Review Panel appointed by Mayor John Hickenlooper: The Denver Marijuana Policy Review Panel recommends that the Denver Police Department should refrain from arresting, detaining, or issuing a citation to any adult 21 years of age or older for the private possession of up to one ounce of marijuana during the 2008 Democratic National Convention.
Denver, CO
United States

Press Release: Medical Marijuana Employment Rights Bill Passes Both CA Houses

PRESS RELEASE Americans for Safe Access For Immediate Release:* August 20, 2008 Medical Marijuana Employment Rights Bill Passes Both California Houses / Anti-discrimination bill AB2279 now heads to the Governor's desk Sacramento, CA -- A medical marijuana employment rights bill, which would protect hundreds of thousands of medical marijuana patients in California from employment discrimination, passed the State Senate today. AB2279 had already passed the State Assembly in May, which means the bill now heads to the Governor's desk. Advocates expect the bill to reach Schwarzenegger's desk in the next few weeks. AB2279, introduced in February by Assemblymember Mark Leno (D-San Francisco) and co-authored by Assemblymembers Patty Berg (D-Eureka), Loni Hancock (D-Berkeley) and Lori Saldaña (D-San Diego), reverses a January California Supreme Court decision in the case /Ross v. RagingWire/. Support for the bill has been widespread, coming from labor, business, and health groups at the local and national level. "Now that both houses of the California legislature have voted in favor of employment rights for medical marijuana patients, the onus is on Governor Schwarzenegger to do the right thing," said Joe Elford, Chief Counsel with Americans for Safe Access, the medical marijuana advocacy group that argued the case before the Court and a sponsor of the bill. "The Governor has a chance to include medical marijuana patients as productive members of society, thereby protecting the jobs of thousands of Californians with serious illnesses such as cancer and HIV/AIDS." The bill leaves intact existing state law prohibiting medical marijuana consumption at the workplace or during working hours and protects employers from liability by carving out an exception for safety-sensitive positions. "AB2279 is not about being under the influence while at work. That's against the law, and will remain so," said Mr. Leno, the bill's author. "It's about allowing patients who are able to work safely and who use their doctor-recommended medication in the privacy of their own home, to not be arbitrarily fired from their jobs," continued Mr. Leno. "The voters who supported Proposition 215 did not intend for medical marijuana patients to be forced into unemployment in order to benefit from their medicine." On January 24, in a 5-2 decision, the California Supreme Court upheld a lower court's ruling that an employer may fire someone solely because they use medical marijuana outside the workplace. The plaintiff in the case, Gary Ross, is a 46-year old disabled veteran who was a systems engineer living Carmichael, California, when he was fired from his job in 2001 at RagingWire Telecommunications for testing positive for marijuana. The decision in /Ross v. RagingWire/ dealt a harsh blow to patients in the courts, shifting the debate to the state legislature. But, before the court made its final decision, Ross enjoyed the support of ten state and national medical organizations, all of the original co-authors of the Medical Marijuana Program Act (SB 420), and disability rights groups. Since it began recording instances of employment discrimination in 2005, ASA has received hundreds of such reports from all across California. Further information: Employment rights legislation AB2279: ASA web page on AB2279, including Fact Sheet and Letters of Support: Legal briefs and rulings in the Ross v. RagingWire case: # # #
United States

Feature: Prosecutors Want Five Years for North Dakota Man Who Bought $32 Worth of Salvia Divinorum on eBay

Kenneth Rau, the Bismarck, North Dakota, man who suffers the dubious distinction of being the first person in the United States prosecuted under laws criminalizing the possession of salvia divinorum, has been offered a plea deal under which he would serve five years in state prison, he told the Chronicle this week.

(Update: Charges have been downgraded to possession -- Rau still faces up to five years, but as a charge he can fight, not a plea bargain -- DB via Phil, 8/19.)
Kenneth Rau
Salvia is not illegal under federal law. The DEA considers salvia a drug of interest, but despite several years of observation has yet to move to place it under the Controlled Substances Act. A DEA spokesman told the Chronicle recently that the plant is being reviewed to see if it meets the criteria for inclusion on the list of controlled substances.

But driven by little more than the now infamous YouTube videos of young people under the influence acting strangely and the story of one Delaware youth whose parents blamed his suicide on salvia, state legislators have not waited for the DEA's measured considerations to act. Since Delaware became the first state to ban salvia, at least eight others, including North Dakota, followed suit. Moves are currently afoot in a number of other states to join the club, with Florida and Virginia being the latest states to pass laws criminalizing the plant.

Salvia became illegal in North Dakota on last August 1, after a bill sponsored by three Republican lawmakers, state Sens. Dave Oelke and Randel Christmann and state Rep. Brenda Heller, sailed through the legislature earlier that year. None of the three legislators responded to Chronicle requests for comment this week.

Rau has said he did not know the drug was now illegal when he bid on an eight-ounce bunch of salvia leaves and was pleasantly surprised when his $32 bid came in highest. The local TV station's web site has inadvertently supported Rau's contention. When the Chronicle first wrote about Rau's case in April, that site's online version of the news report about Rau's arrest was still pulling up salvia ads by Google. (From the east coast at least it is still doing so as of this writing.) Rau emailed the link to Drug War Chronicle, proving that the salvia ads are showing up on computers in North Dakota.

Burleigh County States Attorney Cynthia Feland did not respond to Chronicle calls seeking confirmation or denial of the plea deal. Rau said the deal was offered through his attorney, Benjamin Pulkrabek, from just across the Missouri River in Mandan.

"My lawyer told me she offered me five years if I pleaded guilty," said Rau. "He said he didn't think I would take it, but he had to ask. He was right -- I am not going to accept that. I just don't think depriving someone of his freedom for some dried plant leaves is right."

Rau, a bottling plant worker with an interest in herbalism, altered states, and religion and spirituality, was arrested by Bismarck police on April 9 when they searched his home looking for his adult son, who was on probation for drug charges. Police found a marijuana pipe, eight ounces of salvia leaf, a quantity of amanita muscaria mushrooms, and a number of other herbal products.

Although Rau bought the salvia leaf on eBay for $32, he faces a possible 20-year sentence after being charged with possession of the now controlled substance with the intent to distribute, based on prosecutors' assertions that the leaf contained hundreds of possible doses. He also faces a marijuana possession charge for the pipe. Although prosecutors originally charged him with possession of psilocybin because of his amanita muscaria mushrooms, they have since figured out that amanita does not contain psilocybin and have dropped that charge.

Salvia divinorum, a member of the Mexican mint family, has been used by Mazatec shamans for hundreds of years. Smoking or chewing the leaves, or more commonly, concentrated extracts, can produce intense, albeit short-lived hallucinogenic experiences. While the plant has become notorious through YouTube videos of young people smoking it and behaving strangely, it is also of interest to "psychonauts," or people attempting to explore consciousness through herbal means.

Researchers say that while salvia's effects on consciousness may be disquieting, the plant has not been shown to be toxic to humans, its effects are so potent it is unlikely to be used repeatedly, and its active property, salvinorin A, could assist in the development of medicines for mood disorders.
salvia leaves (courtesy
Daniel Siebert is a salvia researcher and host of the salvia information web site Sage Wisdom. In Siebert's view, while salvia should be subject to some sort of regulation, sending someone like Rau to prison for years for possessing it is almost obscene.

I think salvia should be regulated in the same way we regulate alcohol," he said. "Its effects are quite different, but there are some parallels in terms of the possible dangers from its use. Like alcohol, people can exhibit dangerous behavior if they take excessively high doses. That's why we prohibit driving while intoxicated or allowing minors to drink. But it's obvious that many, many people can enjoy alcohol without getting into trouble with it, and they should not be subjected to harsh penalties. Neither should adults who want to use salvia."

Not that the drug will ever be a popular recreational drug, he said. "Salvia can be very strange and interesting, but it's not something most people consider fun, it's not a recreational kind of experience," he said. "Most people find it bewildering; it's not something most people are motivated to repeat. It won't ever become a popular drug. The main reason people seem interested in it is because the media keeps putting out these sensational stories comparing it to LSD or marijuana. That creates a misleading impression, and people who try salvia expecting something like that are usually disappointed."
salvia (and criminal defense) ads on web version of ND news station report on Rau's bust
"Siebert was sympathetic to Rau's predicament. "I'm shocked and appalled that they can put people in prison for using salvia for personal use," he said. "The drug had just been made illegal there, and he says he didn't know it was illegal. I think that's believable -- most people wouldn't know about an obscure law being passed."

Kenneth Rau now faces a lonely struggle. North Dakota is not noted for its abundance of attorneys skilled in defending cases involving arcane plants, and national organizations have yet to respond to his entreaties for help, Rau said.

Still, Rau is trying to get a defense together. "I'm hoping to take depositions from people like Dr. Andrew Weil or Daniel Siebert or other experts," he said. "I'm looking for attorneys in their vicinities who might be willing to take a deposition."

And he hinted that he may also attempt a jury nullification strategy. "My defense will be to fall back on the fact that the jury is the ultimate judge of the law," he said. "They don't have to listen to the judge; they have the power. Let the jury decide what kind of state they want to live in," he said.

No trial date has been set yet. In the meantime, Rau continues working full-time for a soft drink bottler and subjecting himself to court-ordered humiliations. "I'm trying to live my life," he said. "I've got a full-time time job and another one on the weekends. I also have to take pee tests twice a week and pay them $26 a week for that privilege, on top of trying to pay for lawyers."

Marijuana: Mendocino County Coalition Moves to Further Restrict Cultivation -- But Late-Breaking Judge's Ruling May Undo Their Earlier Victory
outdoor marijuana grow in California, harvested early (from NDIC via
In June, foes of Mendocino County, California's relaxed marijuana cultivation ordinance, managed to narrowly repeal the eight-year-old Measure G, which made marijuana the lowest law enforcement priority and barred prosecution of anyone growing fewer than 25 plants. Now the Yes On B Coalition is seeking to tighten the screws even further on marijuana cultivation.

Measure B, which won with nearly 52% of the vote, undid the lowest law enforcement priority and no prosecution policy by repealing Measure G. Under the new law, only medical marijuana patients and providers are exempt from prosecution, and only if they do not exceed county limits of six mature or 12 immature plants and eight ounces of dried marijuana, the same as the minimum provided for by state law.

In a press release last Friday, Yes On B announced it planned to ask county supervisors this week to further restrict grows in the county. According to the release, the group plans to ask the supervisors to:

  • Amend the existing county nuisance ordinance to name off-site marijuana odors as a nuisance.
  • Amend the nuisance ordinance to name off-site visibility of marijuana plants as a nuisance.
  • Amend the nuisance ordinance to make violation of the ordinance a criminal offense, rather than merely a civil offense.
  • Adopt a new ordinance to prevent dispensing of diesel fuel into unsafe tanks.
  • Adopt a new ordinance establishing a Medical Marijuana Impact Fee to be paid by all medical marijuana growers, with proceeds going into a Medical Marijuana Impact Fund to be used

"The work we began with Measure B is still incomplete, and will be incomplete until reasonable protections are available to all residents from the impacts of nearby marijuana growing," stated a portion of the release.

Expect a battle over this in Mendocino, which takes in somewhere between $500 million and $1.5 billion a year from marijuana crops. Opponents of restrictions came late to the battle over Measure B, but are now organized and mobilized.

Update:A judge's ruling Friday appears to have overturned Measure B's plant limits.

Press Release -- Patients to San Bernardino Board of Supervisors: Stop Wasting Tax Dollars on Failed Lawsuit


AUGUST 11, 2008

Patients to San Bernardino Board of Supervisors: Stop Wasting Tax Dollars on Failed LawsuitMedical Marijuana Advocates to Protest, Attend Aug. 12 Supes' Meeting

CONTACT: Aaron Smith, MPP California organizer, 707-575-9870

SAN BERNARDINO, Calif. — Medical marijuana patients and advocates will hold a demonstration before attending the county Board of Supervisors meeting Tuesday to urge the board to drop its doomed lawsuit seeking to overturn state medical marijuana laws.

    San Bernardino and San Diego county officials have contended that federal laws prevent them from obeying state requirements to issue medical marijuana identification cards to qualified patients who desire them. Although the case has already been dismissed twice, most recently last week in a unanimous decision by the 4th District Court of Appeals, San Diego's Board of Supervisors has already voted to appeal the case again, this time to the California Supreme Court.   

    "In a time of staggering budget deficits and inevitable cuts to county services, San Bernardino’s officials must cease this meritless and wasteful litigation and obey the laws protecting medical marijuana patients," said Aaron Smith, California organizer for the Marijuana Policy Project, who will attend the demonstration and Board of Supervisors meeting. "If compassion for seriously ill San Bernardino patients isn't enough to make the board stop this nonsense, then respect for county taxpayers and the rule of law ought to be."

    WHAT: Demonstration calling on San Bernardino officials to drop its lawsuit against state medical marijuana laws, followed by Board of Supervisors meeting

    WHEN: Aug. 12 – Demonstration begins at 11 a.m. Demonstrators will walk to the Board of Supervisors meeting at 12:30 p.m.

    WHERE: Demonstration begins at the San Bernardino County Health Administration Building at 351 N. Mountain View Ave., and will end at the Board of Supervisors meeting at 385 N. Arrowhead.

    With more than 25,000 members and 100,000 e-mail subscribers nationwide, the Marijuana Policy Project is the largest marijuana policy reform organization in the United States. MPP believes that the best way to minimize the harm associated with marijuana is to regulate marijuana in a manner similar to alcohol. For more information, please visit

San Bernardino, CA
United States

Marijuana: Arizona Court of Appeals Rejects Religious Defense

In a July 31 decision, the Arizona Court of Appeals has held that there is no religious right to possess marijuana. In so doing, the court rejected the appellant's argument that his right to possess marijuana for religious reasons was protected by both the Arizona and the US Constitution.

The ruling came in Arizona v. Hardesty, a case that began when Daniel Hardesty was pulled over by a police officer in 2005 and subsequently charged with possession of marijuana and drug paraphernalia after the officer first smelled smoked marijuana in the vehicle, then found a joint Hardesty admitted tossing from his window. Hardesty, a member of the Church of Cognizance, argued at trial that he used marijuana for religious purposes and should be exempt from prosecution under both Arizona and federal law. The trial court disagreed.

Now, so has the appeals court. While the court accepted that Hardesty's religious beliefs were sincere, it rejected his arguments that under the free exercise of religion, he had the right to use marijuana as a sacrament. Hardesty had conceded that marijuana is a drug that could have harmful effects and that the state had a "compelling interest" in regulating it, but argued that it had not been regulated in a manner that was "least restrictive" when applied to religion.

In his opinion, Appellate Judge Sheldon Weisberg wrote that while the First Amendment guarantees an absolute right to hold a religious belief, it does not guarantee the same absolute right to put that belief into practice. Similarly, Weisberg held that provisions of Arizona law designed to protect religious freedom did not encompass the religious use of marijuana, citing the state legislature's outright ban on the use and possession of marijuana.

"This statute does not provide any religious exemptions nor does it contemplate an exemption for the use of marijuana that would be consistent with public health and safety," the judge wrote for the unanimous court. "By imposing a total ban, the legislature has deemed that the use and possession of marijuana always pose a risk to public health and welfare."

But the appeals court did leave open the possibility that it could decide differently if someone came before it persuasively arguing that marijuana is not as dangerous as the government suggests. In that case, the "compelling interest" of the state in maintaining a complete prohibition on marijuana would presumably be weakened.

Attorney Daniel DeRiezo, who represents Hardesty, told the Arizona Star after the decision that prosecutors had engaged in "Reefer Madness arguments" in alleging that marijuana use could result in serious harm. An appeal to the state Supreme Court is likely, he said.

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