Law enforcement conflicts still exist with legal pot

Local law enforcement agencies have struggled to abide by conflicting state and federal laws.

With the purchase of recreational marijuana now legal, local law enforcement agencies continue to struggle with conflicts between state and federal law in post-Amendment 64 Colorado.

In November 2012, the majority of Larimer County voters joined the rest of the state in approving Amendment 64 to legalize amounts of recreational marijuana and regulate its sale similar to that of alcohol. Retail stores just opened this week in areas of the state, but for more than a year now, it has been legal for any person over 21 years old in Colorado to possess less than 1 ounce of marijuana.

While citations issued by the Loveland Police Department for possession of marijuana have drastically decreased -- a 60 percent drop from 2012 to 2013, according to the most recent department statistics -- police chief Luke Hecker has directed his officers to adhere to federal law following legal searches of people or vehicles.

That means that any amount of marijuana that an officer takes into custody during a legal search is seized, sent to the evidence room and labeled for destruction. Otherwise, Hecker said that officers set themselves up to violate federal law, where marijuana is still classified as a Schedule I drug, by giving it back.

"We defer to our obligation to uphold the U.S. Constitution as much as the statutes of Colorado and recognize that federal laws are overreaching," Hecker said.

Tom Gorman, director of the Rocky Mountain High Intensity Drug Trafficking Area Program, said that law enforcement agencies across the state have had to make decisions about the gray area that now exists between federal and state law.

"What Colorado has done is licensed organizations and individuals to violate federal law," he said.

Larimer County Sheriff Justin Smith said he shares the concerns around the conflict, which has not been made any clearer in the year since the law has been in effect.

"We typically avoid it by not taking custody of marijuana," he said. "If it comes into our custody, we can't be in the distribution business."

The situation is popping up more often with DUI and DUI drug arrests where a person has pot in the vehicle, and Smith said it's handled largely on a case-by-case basis and at the discretion of the officer. If it's not relevant to the case, the marijuana might be left in the vehicle.

"Different agencies have different ways of handling it," Smith said. "I think we all have the same concern, that you have two laws that are both valid."

After the passage of Amendment 64, law enforcement officials had hoped for direction from the federal government on how to proceed, and Hecker said he is "gravely disappointed" in their response, or lack thereof.

In August 2013, the U.S. Department of Justice Deputy Attorney General James M. Cole issued a memorandum indicating that the federal government would not interfere with state measures to legalize marijuana. The memo called for state and local law enforcement to "implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests."

"We have received very little direction and no support for how to rectify the conflict between the federal and the state level," Hecker said.

On Wednesday, retail pot operations opened for business in jurisdictions that voted to license and regulate establishments. Most of those are currently located in Denver; the Loveland City Council voted last August to ban pot retailers, commercial growers and marijuana-related businesses, with some councilors citing the conflict with federal law.

By Jessica Maher, Reporter-Herald Staff Writer, 669-5050, ext. 516, or maherj@reporter-herald.com. Follow her on Twitter: @JessicaMaherRH

Source: The Loveland Reporter-Herald

Court grants secrecy for memo on phone data

A federal appeals court on Friday ruled that the Obama administration may continue to withhold a Justice Department memo that apparently opened a loophole in laws protecting the privacy of consumer data.

The memo establishes the legal basis for telephone companies to hand over customers' calling records to the government without a subpoena or court order, even when there is no emergency, according to a 2010 report by the Justice Department's inspector general. The details of the legal theory, and the circumstances in which it could be invoked, remain unclear.

The ruling, by the United States Court of Appeals for the District of Columbia Circuit, came down on the side of a broad conception of the executive branch's power to keep secret its interpretation of what the law permits it to do. The ruling may make it easier for the government to shield other memos by the Justice Department's powerful Office of Legal Counsel from disclosure under the Freedom of Information Act.

The document at issue is a classified memo issued by the Office of Legal Counsel on Jan. 8, 2010. A report later that year by the Justice Department's inspector general at the time, Glenn A. Fine, disclosed the memo's existence and its broad conclusion that telephone companies may voluntarily provide records to the government "without legal process or a qualifying emergency," notwithstanding the Electronic Communications Privacy Act.

The F.B.I. had asked for the memo as part of an investigation by Mr. Fine into problems with the bureau's use of so-called exigent letters to obtain telephone and financial records without following any legal procedures.

The bureau, which has abandoned exigent letters, said that it did not employ the legal theory outlined in the memo when using the letters, and that it had no plans to use it in the future. But Mr. Fine warned that the existence of the Office of Legal Counsel's theory created a "significant gap" in "accountability and oversight," and urged Congress to modify the statute. Lawmakers have not acted on that recommendation.

The Electronic Frontier Foundation filed a lawsuit in 2011 seeking to obtain the memo under the Freedom of Information Act. But a District Court judge ruled that the memo fell into an exception to that law covering materials developed when the executive branch is deliberating internally about what policy to select, and a three-judge panel on the appeals court agreed on Friday.

The Office of Legal Counsel issues binding legal advice to the executive branch. If it says something is permitted, officials who act on that advice are essentially immune from prosecution. Its power to adopt secret legal theories has come under greater scrutiny since a string of controversial opinions it produced during the Bush administration, including signing off on warrantless wiretapping and on the brutal questioning of detainees.

"Even if the O.L.C. opinion describes the legal parameters of what the F.B.I. is permitted to do, it does not state or determine the F.B.I.'s policy," Judge Harry T. Edwards wrote in the decision on Friday. "The F.B.I. was free to decline to adopt the investigative tactics deemed legally permissible in the O.L.C. opinion."

As a result, he added, the memo was covered in its entirety by the exception. By the same legal reasoning, nearly any Office of Legal Counsel memo would be exempt from disclosure.

"We are pleased with the decision," said Andrew Ames, a Justice Department spokesman.

The Electronic Frontier Foundation had argued that because of the special role played by Office of Legal Counsel memos, they amounted to the government's official "working law" and should not fall into the category of deliberative materials that are exempt from disclosure.

David Sobel, a lawyer for the foundation, called the ruling "troubling," describing the office's memos as a body of "secret law" that the public has a right to know about. He said he hoped the ruling would reinvigorate efforts among some lawmakers to enact a law opening such memos to greater scrutiny outside the executive branch.

"It's kind of hard to imagine how a different case in the D.C. Circuit is likely to have a different outcome in light of this opinion," he said.

Legal specialists said the ruling was in line with how other federal courts, notably the United States Court of Appeals for the Second Circuit, in New York, have dealt with requests under the Freedom of Information Act for Office of Legal Counsel memos in recent years.

During the litigation, the Justice Department also told the court that parts of the memo contained classified information, "highly specific in nature and known to very few individuals," about a secret intelligence-gathering technique that the F.B.I. is using against "hostile entities."

The memo was also requested by McClatchy Newspapers, and a Justice Department letter rejecting that request may offer a clue about its contents. It suggested that the memo involves a statute that makes an exception to data privacy laws for "the acquisition by the United States government of foreign intelligence information from international or foreign communications."

That same statutory exception is said to be the legal basis for a recently disclosed C.I.A. program in which AT&T, under a voluntarily contract rather than a subpoena, searches its vast database of international phone records and provides data about calls that may help the agency identify associates of overseas terrorism suspects.

Most of those communications are purely foreign, officials have said. But when AT&T analysts identify a potentially relevant call that has one end inside the United States, it partly masks the number on that end. The C.I.A. refers the matter to the F.B.I. for domestic investigation.

The bureau still uses so-called national security letters to compel telephone companies to turn over records without a court order. A recent report by a review group appointed by President Obama to review surveillance policy recommended that national security letters be overhauled to require judicial approval.

The government's use of bulk calling records has come under greater scrutiny after leaks disclosed that the National Security Agency has been collecting records of every domestic phone call. On Friday, the government announced that the nation's surveillance court had reauthorized that program for an additional 90 days.

In recent weeks, two Federal District Court judges have come to opposite conclusions about whether the bulk collection program is lawful. On Thursday and Friday, the American Civil Liberties Union and the Justice Department appealed the rulings.

The surveillance review group has also recommended overhauling the program so that the data would remain in the hands of the phone companies and judicial approval would be required for each government search through the records.

By Charlie Savage

Source: The New York Times

Ten stories that made 2013 the year of legal pot

What a difference a year makes! With pot now legal in Colorado and Washington, 2013 saw more marijuana news than ever before. Here are some of the top stories from this historic year in cannabis law reform.

1. U.S. government allows cannabis legalization to commence

After voters in Colorado and Washington legalized cannabis, all eyes were on the federal government. Would they gear up for a legal fight to prove the supremacy of federal pot laws or would they back down from their forty-year drug war? A month after the historic pot votes, President Obama said "we have bigger fish to fry" than cannabis users. But the feds remained essentially silent for ten months on the issue, until Attorney General Eric Holder made a number of speeches indicating the feds will lighten up on pot. Finally, in late August, the Justice Department issued guidance to legal pot states, saying they would not challenge the votes, and citing eight primary concerns that could result in federal interference.

2. Uruguay legalizes marijuana

The tiny South American country of Uruguay legalized cannabis, a little more than a year after proposing such a plan. The move was hastened by the legal pot votes in Colorado and Washington, and U.S. advocates helped advise Uruguayan campaigners. Uruguay is the first signatory to the UN Single Convention Treaty on Narcotics to legalize recreational cannabis, and the country plans on selling pot for $1 per gram.

3. Epileptic children migrate to Colorado for medical pot

Parents of children with severe epilepsy are moving to legal pot states. The moves come after increasing research shows that strains of marijuana with trace amounts of psychoactive THC, but high concentrations of another compound called cannabidiol or CBD, can greatly reduce the number of daily seizures experienced by these young epileptics. In states like New Jersey and Utah, parents are pushing for medical cannabis laws to help their epileptic kids.

4. Colorado and Washington enact legal pot rules

With voters choosing legal pot, state regulators in Colorado and Washington drafted rules to govern a newly-legal recreational pot industry. The rules are markedly different in each state -- Colorado requires pot shops to produce the majority of the product they sell, and Washington requires a complete separation between cannabis retailers and pot growing businesses. Federal officials have been mostly hands-off, but responded to Washington’s proposed rules to demand a change to how 1,000-foot zoning buffers are measured.

5. Some federal prosecutors continue cannabis crackdown

Despite guidance from the Attorney General's Office recommending federal prosecutors lighten up on pot, U.S. Attorneys in California continued a crackdown against state-legal cannabis clubs, despite advice from their boss. U.S. Attorney Melinda Haag fought to shut down Harborside, the state's biggest dispensary, DEA agents raided numerous dispensaries, and prosecutors sent several dispensary operators to prison.

6. Banks want weed money, regulators work to give it to them

Pot businesses clamored for legal access to the banking system, and state officials tasked with regulating the legal cannabis industry joined those calls. U.S. Representatives Ed Perlmutter (D-CO) and Denny Heck (D-WA) introduced federal legislation to allow cannabis banking, and Congress held a hearing on the issue. Bank of America agreed to deposit Washington's cannabis taxes, and state officials in talks with federal banking regulators said they expect changes to federal banking rules in the next six months.

7. DEA spying rivals NSA and CIA

Security contractor Edward Snowden revealed to Americans the extreme scope of their federal government's domestic spying program, in which the feds have compiled massive databases of phone records and other data on American citizens. The purpose for this program is ostensibly to help catch terrorists among us, but Reuters revealed that the federal Drug Enforcement Agency is tapping those databases to fight against homegrown cannabis criminals. Further investigation by the New York Times showed that the DEA actually pays telecom employees to join its domestic spying program and funnel phone data to the agency.

8. Israel moves medical cannabis forward

Israel has been a world leader in medical cannabis research for decades, and that story is finally receiving significant media coverage in light of the legal pot votes in Colorado and Washington. The country's medical cannabis program has expanded dramatically, and a research report estimated Israel stands to earn $450 million in pot taxes if it legalizes the forbidden flower. Israeli doctors developed no-THC versions of the plant and researched its possible treatment of MS-like symptoms. Meanwhile, legislators approved a bill to distribute pot through pharmacies and increase the number of doctors who can authorize its use, and legislators introduced a bill to decriminalize recreational cannabis for non-patients.

9. More jurisdictions move to relax pot laws

States and cities across the country enacted marijuana reforms. New Hampshire legalized medical cannabis through its legislature, and Illinois followed suit, making 20 states that now recognize medical cannabis. Oregon legalized dispensaries and medical cannabis retailers opened in Washington, DC, where politicians indicated they will decriminalize marijuana entirely. Portland, Maine voted to legalize it, and voters in three Michigan cities did the same. Vermont legalized hemp production, and Colorado regulated its new hemp industry.

10. Public support for legalization at all-time high

For the first time ever, reputable polling revealed a majority of Americans support pot legalization. One poll found only 6% of Americans favor jail time for cannabis, and another showed 60% of Californians want legal pot. By October, polling numbers inched even higher, with Gallup reporting 58% support for legalized cannabis. Voters in legal pot states say they made the right choice, and most of them don't even want to smoke pot.

By Ben Livingston

Source: The Smell the Truth

Rocky Mountain High: Colorado preps for legal pot sales

Police were adding extra patrols around pot shops in eight Colorado towns that plan to allow recreational sales to anyone over 21 on Jan. 1. Officials at Denver International Airport installed new signs warning visitors their weed can't legally go home with them.

And at a handful of shops, owners were scrambling to plan celebrations, set up coffee stations, arrange food giveaways and hire extra security to prepare for potential crowds and overnight campers ready to buy up to an ounce of legal weed.

While smoking pot has been legal in Colorado for the past year, so-called Green Wednesday represents another historic milestone for the decades-old legalization movement: the unveiling of the nation's first legal pot industry.

"It could be crazy. Or it could be crickets out there. Who knows? No one's ever done this before," said Robin Hackett, manager of BotanaCare in Northglenn, a suburb of Denver, who planned to have a DJ to greet shoppers.

Preparation for the retail market started more than a year ago, soon after Colorado voters in 2012 approved the legal pot industry. Washington state has its own version, which is scheduled to open in mid-2014.

Employees trim away leaves from pot plants

Pot advocates, who had long pushed legalization as an alternative to the lengthy and costly global drug war, had argued it would generate revenue for state coffers and save money in locking up drug offenders.

Still, setting up regulations, taxation and oversight for a drug that's never been regulated before took some time.

Colorado set up an elaborate plant-tracking system to try to keep the drug away from the black market, and regulators set up packaging, labeling and testing requirements, along with potency limits for edible pot.

The U.S. Justice Department outlined an eight-point slate of priorities for pot regulation, requiring states to keep the drug away from minors, criminal cartels, federal property and other states in order to avoid a federal crackdown. Pot is still illegal under federal law.

With the additional police patrols, the airport warnings and various other measures, officials are hoping they had enough safeguards in place to avoid predictions of public health and safety harm from the opening of the pot shops.

But they confessed anxiety about the opening of retail sales.

"We understand that Colorado is under a microscope," Jack Finlaw, lawyer to Gov. John Hickenlooper and overseer of a major task force to chart news pot laws, recently told reporters about the first day.

Would pot-shop parking lots be full of overnight campers and crowds lined up to buy pot? Would sellers run out of marijuana? Would shoppers abide by state law and refrain from using pot publicly, or would clouds of pot smoke drift through neighborhoods?

“We understand that Colorado is under a microscope.”-- Jack Finlaw, lawyer to Gov. John Hickenlooper

Interviews with dozens of marijuana critics, legalization advocates and industry workers showed many share Finlaw's opinion.

Colorado's on a big green stage as dozens of state and foreign countries mull changing marijuana laws.

Since Colorado and Washington state's votes, Uruguay became the first nation to regulate pot. Across the U.S., several municipalities, including Portland, Maine, have ratcheted back criminal penalties for possessing small amounts of pot.

Critics fear the changing global marijuana approach is setting up Colorado and other places for serious public health problems.

"This movement in public policy basically conflicts with the essence of bringing greater mental health and public health," said Patrick Kennedy, a former Rhode Island congressman and chairman of Smart Approaches to Marijuana, which opposes legalization.

Marijuana supporters, meanwhile, were hoping that they'll make the best use of their chance to show that legalization can work.

Maura Foss, compliance manager at Breckenridge Cannabis Club in the ski resort town, is upping inventory from a normal 5 or 6 pounds to 50 pounds of weed for Green Wednesday.

Foss said she wasn't sure how long the pot would last given a steady stream of tourists calling and coming in seeking to buy it.

"We've been scrambling to get the basics ready, and we're as ready as we can be," Foss said.

By Associated Press

Source: The USA Today