Thursday, March 30, 2017

Marijuana Headaches in Colorado

In a curious juxtaposition, officials in Colorado are frustrated that marijuana growers there are not complying with state law. It is interesting. State officials are frustrated that growers will not comply with their state law while those officials simultaneously tell the growers that they are free to ignore federal law. Once we advocate or condone ignoring law, can we rationally be selective about which laws are ignored?

According to the Gazette, in March 2017, sheriffs deputies performed a "compliance check" at a residence in El Paso County, Colorado. What they found was marijuana which was characterized as "everywhere and most of it is illegal." An interesting characterization, "most." In fact, all of the marijuana found was illegal under federal law. But, perhaps that is splitting legal/illegal hairs. The U.S. Constitution says 
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.
But, that supremacy has recently become a matter of opinion as regards some drug laws but not others. See Medical Marijuana. As regards marijuana, the laws of the United States have become subservient to state law in places like Colorado. 

This recent Colorado "compliance check" involved a house in which the deputies suspected marijuana was being cultivated. They learned that the home's three-car garage had been converted to "a grow space" complete with "professional grade equipment," including "two commercial-grade air-conditioning units." There were reportedly "40 potted plants" and construction that indicated "other rooms in the house were being converted for" growing crops. 

The Gazette says that under Colorado law a property can only have 12 plants. That is to say that it is legal (state law) to have up to 12 of the illegal (federal law) plants in your home. There is a broader exception (state law) for "medical marijuana" by which the limit is up to 99 illegal (federal law) plants instead of 12. The resident of this house claimed he paid $700 to a doctor in order to obtain such a "99 plant extension." However, when he presented his paperwork, it referenced a different residential address, and "was more than a year expired." So, at least 28 of the plants were illegal (state law) and some might conclude all 40 were (federal law). 

The penalty for violating the Colorado plant-limit law is "a $100 fine or up to 10 days in jail." Deputies estimate that there might be up to 100 such "illegal grows" in the county (if deputies ticketed each, it might generate as much as $10,000). According to the Gazette, the Drug Enforcement Agency has publicly acknowledged that it "is aware of about 250 illegal operations within city limits" (ticketing each might generate $25,000). Imagine how many tickets might be issued statewide if Colorado officials decided to? Everyone apparently knows the marijuana exists, where it is, that it is illegal (federal law) and nothing is done about it.

This has implications for Colorado. But, some believe that this marijuana is being exported, and that southern states "along the East Coast, are catching growers in transport" with these Colorado drugs. So, perhaps the issues in Colorado have implications for us all. 

One deputy opined that enforcement will not reduce production, but will merely force growers to "keep looking for a place they can do it legally or illegally in rural counties where enforcement can't keep up." Following this logic, perhaps law enforcement should merely conclude that enforcing any laws is just not worth the effort? Firefighters might conclude that wetting a particular house fire is as fruitless, after all another fire will just break out somewhere else. 

The deputies visiting this El Paso County residence, despite the clear and obvious violation of the state law 12-plant limit did not take any remedial action regarding their "compliance check" findings. Instead, they issued a written warning, and notified the home resident that "they'd be back in 10 days to see if the plant count had been reduced to 12." It is likely that when they returned the count had been reduced, by moving at least 28 of those plants elsewhere. Imagine a trooper stopping a driver for speeding, issuing a warning and telling the driver that another trooper would be checking speed again precisely ten miles further down the road. Odds are strong that this driver would be observing the speed limit at that 10-mile point. 

Meanwhile, according to the Cannabist, Colorado legislators are considering changes in growing regulations. It claims that currently the limits can be expanded by local regulation. The Cannabist says that Colorado allows "recreational users to group" individual growing allowances "into massive co-ops, entire greenhouses of pot that aren't tracked or taxed." And, shockingly, reform bill sponsors are apparently concerned that the state may be "attracting black-market pot growers," and that the state is perhaps "an attractive market for criminal operations." Ya think? Really?

It is really tragic when a state is gracious enough to allow people to flagrantly disobey federal law, and then those same people thank the state by flagrantly flaunting state laws. It is possible that lawlessness may lead to other lawlessness. If police will not enforce some laws, should they enforce any? Does it make sense that imposing statewide plant limits will be somehow less ignored by police than the current plant limits? In a state that has codified ignoring federal law, is it rational to expect people to nonetheless respect state law? Is it rational to be surprised that the policy is attracting criminals?

Colorado legislators and police: "'I am shocked—shocked—to find that' marijuana is being grown here." Casablanca, 1942. Their sincerity is perhaps on par with Captain Renault's shock at finding gambling in that classic movie.

Marijuana is currently a legal issue. It may or may not be a public health issue. Some contend that use of marijuana can decrease opioid use. Others contend that marijuana presents dangers, such as increased stroke risk. The fact is that studying marijuana benefit and risk is reasonably recent, resulting from the rush to "legalize" (meaning ignore the federal law and the Constitution that says that law is the supreme law of the land) marijuana in recent years. 


And, since Colorado elected to legislatively ignore federal law, marijuana become a public safety issue there. These "grow" facilities are largely in houses in suburban neighborhoods. Worse, there has been a decided increase in fires and explosions that firefighters suspect are related to hash oil, a marijuana product. Hashish is produced from Marijuana plants. Hash oil is a product produced by dissolving hashish or marijuana into liquid with solvents like alcohol or butane. A March 2017 house fire was suspected to be related to hash oil. Other instances have been reported or suspected in July 2016, September 2016, and December 2014.

Interestingly, some people involved in these house fires are actually prosecuted in Colorado. Why they are not instead just issued written warnings, like the grow operations, is not clear from the news coverage. As interestingly, there is some suggestion that property insurers cover (to some extent) fires resulting from hash cooking. It seems curious that a property insurer would accept responsibility for an explosion from an illegal (federal and state) drug production operation. 

Back to reform, the Denver Post reports that the recently introduced legislation would "impose a blanket 16-plant per home limit" statewide. This would remove the "local option" of allowing larger volumes. This would apply whether the pot is "grown for medical or recreational purposes," eliminating the 99-plant exclusion that can apparently be purchased for about $700 from a willing medical provider. 

A police source quoted by the Post claims that "voters did not envision massive, commercial-grade home-grow operations in residential areas" when they legislatively adopted the practice of ignoring federal law. This source asserted that the 99-plant medical marijuana limit is a "massive loophole" that "attracts criminal elements from across our nation in search of a quick buck." This 16-plant legislative reform is said to be an effort "to step up the state's enforcement of the gray market, in which marijuana is grown legally but sold illegally."  

But, none of this marijuana is grown legally. Just because the state instructs police not to enforce federal law, does not mean that the ignored behavior is legal. Just because the El Paso deputies decline to enforce the state law, does not mean the 40 plants are legal. Telling people they may ignore federal law, but that they must obey state law has proven ineffective. And, the state's solution is to legislate a new plant limit of 16 per house. 

State leadership somehow believes (1) growers will respect the new 16-plant limit more than they respect the 12, and (2) that Colorado police will enforce the 16 limit, unlike they ignore the 12 plant limit. If people are ignoring your laws and your police refuse to enforce them, increasing the parameters seems unlikely to encourage either compliance or enforcement. But, at least you can say you did something?

The entire situation is curious. I have been invited to speak at the Colorado Workers' Compensation Conference in April. I am sure that I will encounter some subject matter experts and hope to learn more about the challenges of marijuana. Study now is important because the Colorado pot is apparently already being exported to states like Florida, and the trend seems to be towards greater acceptance of states ignoring federal law. As the Beach Boys once sang about (Surfin Safari) surfing in 1962, we might sing of dope in 2017:
They're tokin' in Laguna and Cerro Azul

They're smokin' it in Doheny too
I tell you dope's might wild
It's getting bigger every day
From Hawaii to Florida too
The logic seems sound. I mean come on mom, all the other kids are doing it.



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