Marijuana (Law) Stinks

Time to go down a legal rabbit hole to fuck Bernie, Trump, and the NRA. Recently I was criticizing Dana Loesch, as is my want, and brought up the NRA had never responded to or said anything about Philando Castille. Someone clued me into a tweet where Loesch basically said that possession of marijuana (which Castille had on him) and a gun is a felony.  Putting aside the fact that this is not always the case and it has nothing to do with his legal right to possess a firearm and the fact that he was executed for no reason, it left me, for lack of a better word, triggered. Marijuana is used to persecute people, the poor and minorities in particular, but what drives me nuts about it is not people getting arrested and punished (rarely but too often prison) for possession. Let’s go down the rabit hole.

The 4th amendment, in its most basic form, basically says you can’t be searched, nor can people or evidence be seized, without a warrant. The most extreme and literal interpretation of this rule would mean no one could ever be searched or arrested, nor any property impounded under any circumstances unless a warrant was obtained first.   Clearly this is absurd, as you wouldn’t expect to need a warrant to arrest anyone you see committing a crime, nor a separate warrant to search someone you are arresting regardless whether they pose a threat. So there are exceptions. So far pretty simple and makes sense.

So, basic exceptions.  If you arrest someone you can search them. Arrests are inherently dangerous, I don’t think anyone is gonna argue with that. Also, if cop sees someone committing a crime they can arrest them.  That seems very simple and fair right? If a cop sees a guy punch a woman in the face we expect the guy to get arrested. But, what about when the crime is just something existing? Like, a bomb for example.  IEDs are illegal, so if you are just holding one you are committing a crime. If the police see that, or drugs, or something else that constitutes a crime, they can seize it, and arrest whom is connected to it if they have probable cause. This area of 4th amendment law is known as plain view.

Still with me so far? You see a crime you can do something about it, you see an illegal item you can seize it.  Seems simple.  Now the limitations on the plain view rule are that the officer has to be where he is viewing the item legally, and “incriminating characteristics” of whatever the item is must be “immediately apparent.”  Fairly straightforward- if a police officer has a right to be standing in my living room and sees a ziploc bag of white powder next to a straw he can take it, but we don’t want him taking all my medication and holding me until the lab determines if any of it is illegal.

Let’s take another detour before we return to plain view.  If police have a reasonable suspicion that a crime is occurring, they have the right to conduct whatever investigation is necessary in order to confirm or allay that suspicion.  So if the cops come to my work and my boss says he saw me stealing things, the cops can detain me for a “reasonable period” until they have conducted an investigation to confirm or allay the accusation to the degree necessary to keep me there. Or to put it another way, if the police see me changing lanes without signaling, they are only allowed to detain me long enough to confirm or allay their suspicion, i.e. demand my license and write me a ticket.  However, if they are looking for a particular person or car in the area and I fit the description they can pull me over and detain as long as necessary for them to figure out whether I am the person who they are looking for.  Remember this idea of an investigation, we are gonna come back to it.

Let’s get back to plain view. If a cop sees marijuana he “knows” is marijuana, he can seize it. If he can connect it to someone, i.e. in their vehicle, they can be arrested and the marijuana used against them if it’s in plain view. I don’t like marijuana being illegal, but all that is fairly straightforward.  But…But!  Unlike other types of drugs, such as methamphetamine or heroin, marijuana isn’t just subject to plain view. Marijuana can be seized or investigated under plain smell.  A long standing area of jurisprudence gives police the absolute right to act the same whether they see marijuana or if they smell it. Cop pulls you over and smells weed? He gets to turn you and the cab of the car inside out. Or call the dog, even if you have to wait 90 minutes. Cop is just driving down the street and smells weed? He can pull over and look around and see if he can identify the source.  And if the cop is walking through a neighborhood smells weed from a group of young black men standing around? You see where this is going.

It doesn’t end there. As a public defender I have very few clients in prison for possession of marijuana. I have a lot in there where marijuana was used as the reason for investigation or search that led to more serious drugs or other felonies. Or an active warrant. But those are just the ones arrested and prosecuted. That doesn’t include the people where the police don’t find anything. Or where they decided marijuana was just a reason to search and they didn’t find anything. Police walking or driving through black neighborhoods with the right to detain anyone who smells like weed. This doesn’t take into account of course the ones who resist arrest or detention, or get shot fleeing, or have stuff planted on them.

Socialism doesn’t change that. The fight for 15 doesn’t change that. Income inequality doesn’t change that. Medicare for all doesn’t change that. And it is definitely not a fucking distraction.

A History Nerd Takes On Steve King

Oh for Christ’s Sake.  Let’s start with the obvious.  In 1859 John Brown, several of his sons, some followers, and a few freed slaves tried to raid the Federal Armory at Harpers Ferry, Virginia. They had already killed multiple pro-slavery men with swords (See Pattowattomie Massacre), but the goal that night was to steal weapons with which to arm local slaves and foment an uprising. It failed, ended up in a standoff, and eventually Brown and his surviving followers were captured by U.S. Army Col. Robert E. Lee. (Interesting note- Lee’s Lieutenant who personally led the attack that captured John Brown and his band was future Confederate General J.E.B. Stuart, the namesake of a school just renamed for Barack Obama.) Seven people died overall in the incident, so clearly that is analogous to protesters shutting down a government office. The American flag being taken down and bringing up Fort Sumter is clearly supposed to evoke the fact that the bombardment and eventual surrender of Fort Sumter lead to the American flag being lowered and the Confederate flag being raised.  Because a rebel force dedicated to preserving slavery and attacking the U.S. government is clearly the same as “Welcome Refugees.”

Now that we got that out of the way, let’s dive deeper into Harpers Ferry, Fort Sumter and civility. Herman Melville referred to John Brown as the “meteor of the war.” One could write a thesis on how that developed, but if I were to summarize the effect John Brown had in one word, that word would be paranoia. The South got scared shitless after John Brown convinced them abolitionists were plotting to murder them all in their beds.  This transferred to the 1860 election. Why am I bringing this up? Abraham Lincoln, that’s why. Abraham Lincoln was nominated as a moderate on slavery, promising only to restrict its spread in the territories, and repeatedly stated he had no intention of interfering with it where it already existed.  He said this constantly.  It didn’t matter what he said or did, no one in the south believed him. South Carolina seceded five weeks after his election.  There was nothing he could ever do that would convince the South he did not wish to abolish slavery.  After the first states seceded Lincoln endorsed (along with his predecessor) the Corwin Amendment, which would have amended the constitution to prevent any federal interference with slavery in the southern states.  But it still wasn’t enough.  The south was convinced Lincoln was coming for their slaves, and he would turn a blind eye to radical abolitionists coming for their throats.  Put this where you want- illegals have a low crime rate, Black Lives Matter, the NFL protests, Dems want to repeal the 2nd amendment, MS-13, Sarah Huckabee Sanders not being served, an office being shut down by protesters when the department is kidnapping children- the real analogy here puts King squarely on the side of the Confederates.

Let’s talk about the battle of Fort Sumter. On the date of Lincoln’s first inaugural address on March 4, 1861, seven states had already seceded. Lincoln talked of many things, but he promised to defend federal installations, that he would not attack the confederacy unless attacked, and finished with a famous plea: “We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.” Lincoln was going high when his enemies were going low, and we all know how that works out. Anyway, Fort Sumter. Fort Sumter was federal property. The governor of South Carolina demanded it because he felt offended by a broken promise from former President Buchanan. Lincoln said no, and sent a relief expedition to ensure the fort was properly supplied. The confederates spent a month investing the fort. Jefferson Davis then ordered that the fort be fired upon if it would not surrender and the fort was to be resupplied.  Again, Lincoln was content to let his men pretty much just sit there.  But he couldn’t convince the confederates of anything. He refused to abandon all federal property in the south, nor did he ever consider recognizing the Confederacy as a legitimate government. So the bombardment started, and then the war. Even throughout the first year, when every abolitionist was screaming at him to fight the confederacy by ending slavery, Lincoln refused. The confederacy was undeterred.

So you see Steve King, Fort Sumter was not about a group of protesters seizing a federal office to welcome refugees. It was about a group of extremely paranoid racist traitors refusing to listen to reason, facts, or the better angels of their nature.  It was about militant, violent, white supremacist, incredibly paranoid people living in their own fantasy world and getting a lot of other people killed in the process. You know, Trump.

After Fort Sumter President Lincoln declared the confederacy in rebellion, and issued an initial proclamation for 75,000 volunteers to put it down. Any time my president Hillary Clinton wants to call for 75,000 volunteers to put Steven King and his fuckers down I will be first in line.