The first pipeline protesters will go on trial Monday and the prosecutor is asking that they keep issues of tribal sovereignty, the concerns about the Dakota Access Pipeline and “any other social or political cause” out of the courtroom.
“This trial is not being held so there can be a forum to extend the months of conflict and context over these extraneous issues,” Ladd Erickson, who is prosecuting the case for Morton County, wrote in a motion filed Dec. 12.
But a local criminal defense attorney involved in the protest cases said the 10 people set to be tried on disorderly conduct charges have “a right to explain why they were there,” which the prosecutor’s request seems to preclude. The protesters fear pipeline construction disturbed sacred sites and that a leak could contaminate the Missouri River.
“They just didn’t parachute in from Mars,” Tom Dickson said. “They certainly have a right to say why they were there, why they were doing what they were doing.”
South Central District Judge Cynthia Feland, who is overseeing the trial, has yet to rule on the motion.
The trial pertains to 10 pipeline protesters arrested on Aug. 11, one of the first days of the protests, when protesters gathered near a construction site on Highway 1806 in Morton County. They are scheduled for a joint misdemeanor trial at the Morton County Courthouse on Monday morning.
The defendants are charged with with disorderly conduct, a B misdemeanor carrying a maximum penalty of 30 days in jail and $1,500 in fines. An affidavit filed with the complaint accuses the defendants of pushing through law enforcement lines or police tape to access the work site. Erickson suggests in court documents that, if convicted, the state would seek $1,000 from each defendant to repay law enforcement costs.
Dickson contends the charges are inherently political.
“People have gotten arrested while espousing their political viewpoint which at some point the state contends violates the law,” Dickson said.
But the judge has suggested in her responses to court motions that she believes the alleged conduct, if proven, is criminal.
In an order responding to a defendant’s requests to dismiss her case because she was exercising her First Amendment rights, Feland wrote that the defendant’s alleged actions, crossing onto an access road to the work site against police orders, went beyond free speech.
“The court recognizes that the First Amendment gives the public a right to voice their concerns, to protest lawfully, to criticize the police and even to yell profanities at police officers, Feland wrote in her order.
“Under the facts alleged, rather than obeying the orders of law enforcement and conducting the protest in a peaceful and lawful manner, the defendant directly disobeyed law enforcement and deliberately crossed into undesignated areas, creating a hazardous and alarming condition for both law enforcement officers and Dakota Access construction workers,” she wrote.
Due to this being the first pipeline trial, 65 potential jurors — the number usually called for a felony trial — have been called to fill the six-person misdemeanor jury, according to Ross Munns, assistant court administrator for the region.
Erickson, the prosecutor, noted there could be issues picking a jury due to the public nature of the case and protests.
“The whole state is invested in this,” Erickson said. “It’s not a typical case where the jurors haven’t heard anything on it.”
The trial is scheduled for one day, with extra tables and chairs to accommodate the 20 lawyers and defendants, but Dickson suggested it could take more than a day just to pick the jury.
“It’s more than just been in the news,” Dickson said. “This has been high-profile and high-involvement by the community.”
In advance of the trial, Feland has ordered court-appointed attorneys to track their hours spent preparing for the cases. This is in response to a motion by Erickson, who indicated in court documents he will seek hearings on repayment of public defender fees after trial. He contends protesters are seeking to cost the state and county money through their arrests and criminal cases.
“Our systems are set up so criminal defendants have their constitutional rights enforced. To the contrary, our systems are not set up to be foddered by economic weaponry when people from around the world come to intentionally commit crimes for political purposes and have North Dakota taxpayers pick up the tab,” Erickson wrote in a motion filed Dec. 12.
At least four of the defendants have court-appointed counsel.
Public defenders have been assigned 287 cases and are requesting an additional $670,000 to pay for the additional lawyers, according to Jean Delaney, executive director of the indigent defense commission. Delaney said it’s not uncommon for the state to try and recoup fees, but it’s typically dependent on the person’s funds, not their intentions.
“Whether there is recoupment ordered is based on whether there is a possibility of the client being able to pay it,” Delaney said.
Feland is a former prosecutor, who recently dismissed felony charges against more than 100 protesters arrested during a raid of the northern “front line” camp.
The defendants include Sara Jumping Eagle, a doctor and wife of former congressional candidate Chase Iron Eyes. For two of the 10 defendants, Monday will not be their last date in court, as they have additional open cases relating to pipeline arrests.
The defendants are from 9 different states, including North Dakota, South Dakota, Oregon and Hawaii. They range in age from 23 to 57 years old.
Monday’s trial is just the first pipeline protest trial of the week. Sixteen more protesters are scheduled for trials on Tuesday, Wednesday and Friday, according to the court clerk’s office.
A total of 571 people have been arrested in connection with the pipeline protests, according to the Morton County Sheriff’s Department.
Technology has fuelled a surge in the buying and selling of children online for sexual abuse with advertising a child on the internet as “easy as booking an airfare”, campaigners told an anti-slavery conference in London.
Lawyer Carol Robles-Roman, who was deputy mayor for legal affairs to former New York Mayor Michael Bloomberg, said legal reform was urgently needed to protect children from online sexual exploitation.
The International Justice Mission (IJM), an anti-slavery organization, this week launched a campaign to tackle the “horrific crime” of cybersex trafficking that involves the sexual abuse of children in front of a live webcam.
Michael Moran, assistant director of human trafficking and child exploitation at global police cooperation agency Interpol, said it was shocking that many children used in online abuse are so young they cannot yet speak. Many are sold by their families.
“About 90 percent of this child abuse takes place in the family home,” Moran told Trust Women, an annual trafficking and women’s rights conference run by the Thomson Reuters Foundation.
Although there is no data to indicate the scale of the problem globally, law enforcement and other agencies in various countries are reporting that numbers are on the rise with technological advances making it hard to track down the buyers.
SEX TRAFFICKING RIFE
The United Nations children’s agency UNICEF estimates 1.8 million children are trafficked into the sex trade every year – but this does not include cybersex trafficking.
The IJM said in a statement that the Philippines national police receive well over 2,000 referrals a month of potential online exploitation of Filipino children.
The organization said this was made possible by greater than ever connectivity to the internet with people in North America or Europe paying as little as $20 for a “show”.
The head of the Australian Federal Police recently told local reporters they received about 4,500 referrals of child exploitation material in 2014 but this jumped to 11,000 in 2015.
In the United States, the National Center for Missing and Exploited Children reported a 98 percent rise in reports of suspected child sex trafficking in the past five years, much of it online.
Robles-Roman, now CEO of Legal Momentum, which fights for the legal rights of women, said laws must keep up with technology and ensure children can be protected in an increasingly digital world.
“How can it be legal to advertise children for sex online? I’m here to tell you it is as easy as booking an airfare online,” she told Trust Women.
Robles-Roman said a film to be released in the United States next year, “I am Jane Doe”, would highlight the issue by focusing on the real-life case of Backpage.com, the second-largest U.S. online classified ad service after Craigslist.
Backpage.com was accused of knowingly profiting from the commercial sexual exploitation of children with a case filed by three women who were sold on Backpage.com from the age of 15.
The case was heard in the District Court in Boston but was dismissed by a judge who held that Backpage was protected under the federal law, the Communications Decency Act. The decision was later upheld by the Court of Appeals, she said.
The controversy over Backpage.com is at the center of a continuing debate over how much liability tech companies should face for user-generated content posted on their platforms.
Robles-Roman said it was inconceivable that a law whose clear intent was to protect children from harmful materials can continue to be used to give blanket immunity to website operators that provide an online marketplace for pedophiles.
“We need change to laws to protect children in this digital age,” she said. (Reporting by Paola Totaro, Editing by Belinda Goldsmith; Please credit the Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers humanitarian news, women’s rights, trafficking, property rights and climate change. Visit news.trust.org)
The Army Corps of Engineers dealt a blow to the progress of the controversial Dakota Access Pipeline on Monday, saying in a letter that more analysis and discussion with the Standing Rock Sioux tribe is needed before construction can take place under the Missouri River.
The company behind the construction of the Dakota Access Pipeline, Energy Transfer Partners, needs an easement, or permission, from the Corps in order to drill under Lake Oahe — on the Missouri River — to finish the oil pipeline along its proposed route.
Energy Transfer Partners had been waiting on a decision from the Army Corps since September when they launched a review of a requested easement.
Monday’s letter from the Army Corps to the Standing Rock Sioux Tribe, Dakota Access LLC, and Energy Transfer Partners said construction “cannot occur because the Army has not made a final decision on whether to grant an easement.” It said they would work with the Standing Rock Sioux on a timeline “that allows for robust discussion and analysis to be completed expeditiously.”
The pipeline’s proposed route has inspired protests from hundreds of Native American tribes, environmentalists and others calling themselves water protectors. Since August, they have descended upon Standing Rock, North Dakota near the pipeline’s proposed site to stand in solidarity against the oil pipeline’s construction.
Energy Transfer Partners CEO Kelcy Warren referred to the protesters as “violent mobs” in an interview with NBC News last week.
Warren at the time said the tribe’s worries that the pipeline would destroy its sacred sites and compromise its water supply “were not based on the facts” and that the pipelines were prepared to withstand any rupture.
Energy Transfer Partners did not immediately respond to a request for comment on Monday.
The company said last week that the construction on either side of Lake Oahe was complete, and that they were “mobilizing horizontal drilling equipment to the drill box site in preparation for the tunneling under Lake Oahe.”
But in the letter Monday, Army Corps Assistant Secretary of the Army Jo-Ellen Darcy asked for caution and for more tribal input, writing, “The Army is mindful of the history of the Great Sioux Nation’s repeated dispossessions, including those to support water-resources projects. This history compels great caution and respect in considering the concerns that the Standing Rock Sioux Tribe has raised regarding the proposed crossing of Lake Oahe north of its reservation.”
The “history” likely refers to the Army Corps’ itself taking hundreds of thousands of acres of land from Native Americans when they built the Oahe Dam in the middle of the 20th Century.
The letter went on to recognize that portions of the lake fall within the Standing Rock Sioux Tribe’s reservation boundaries and that the Tribe retains hunting and fishing rights in the lake.
Tribal members and their allies have maintained that the pipeline’s proposed route also cuts across sacred land, including ancestral burial sites. An oil spill would also pose a risk to their drinking water, for which they and millions of others rely on the Missouri River.
In a statement, Standing Rock Sioux Chairman Dave Archambault II responded to the Army Corps letter, saying: “We are encouraged and know that the peaceful prayer and demonstration at Standing Rock have powerfully brought to light the unjust narrative suffered by tribal nations and Native Americans across the country.” He pointed out that the 1,170-mile pipeline was rerouted from its original route near urban Bismarck after citizens there raised concerns about their own water safety. It was then moved closer to the Standing Rock Sioux reservation.
Chairman Archambault also called for continued peaceful and prayerful support of water protectors, writing, “The whole world is watching and where they see prayerful, peaceful resistance, they join us.”
On Jan. 20, 2017, a newly sworn-in President Donald Trump will parade down Pennsylvania Avenue. A federal appeals court will hear a case next week that could determine how close Trump must get to his detractors during the inauguration festivities.
It’s litigation that takes place every four years, as advocacy groups butt heads with the National Park Service over demonstrations during the presidential inauguration, but the latest case has fresh saliency after an election that has already triggered protests in several U.S. cities. This time, the group suing says the government’s position could imperil free speech in public spaces beyond January.
“They are attempting to carve out a hole in the First Amendment that would render our First Amendment free speech rights inoperable,” said Mara Verheyden-Hilliard of the Partnership for Civil Justice, who will argue on Monday in the U.S. Court of Appeals for the D.C. Circuit on behalf of the Act Now to Stop War and End Racism (ANSWER) Coalition, the group challenging the National Park Service regulations.
She could face a tough audience on Monday. Two of the appeals judges assigned to hear the case, both Obama appointees, have previously sided with the government against protesters in cases that raised free speech questions.
ANSWER wants to stage protests during the inauguration at Freedom Plaza, a large open space that overlooks the parade route, and on the sidewalks along Pennsylvania Avenue, all of which are federal lands. The proposed protest sites hold particular symbolic meaning this year, Verheyden-Hilliard said, since the parade will pass by Trump’s new D.C. hotel on Pennsylvania Avenue, close to Freedom Plaza.
While there’s no guarantee the judges will rule before Jan. 20, Verheyden-Hilliard said the group is hopeful the court will act in time.
Under the challenged National Park Service regulations, much of Freedom Plaza and several blocks of sidewalk along the parade route is reserved for the Presidential Inaugural Committee to set up ticketed bleacher viewing stands. ANSWER contends that this creates free-speech exclusion zones that violate the First Amendment.
U.S. District Judge Paul Friedman OK’d the restrictions in January, finding that the decision to prohibit groups from demonstrating at Freedom Plaza and at other spots along the parade route wasn’t based on the content of their speech. The restrictions, Friedman ruled, are in line with the government’s interest in helping the inaugural committee do its job.
A primary issue on appeal is whether the inauguration committee’s activities constitute official “government speech” or private speech, which would trigger more aggressive First Amendment scrutiny. Friedman concluded that the inaugural committee was engaging in government speech. Although the committee isn’t a government agency, the government uses the inauguration to “speak to the public,” Friedman wrote.
ANSWER argues that Friedman applied the wrong standard. They say there is no evidence that the inaugural committee’s activities are the kind of speech that courts have labeled “government speech,” such as inscriptions on park monuments or government-issued license plates.
“If the government can simply redefine spaces along Pennsylvania Avenue — or any quintessential public space in the United States — as reserved for pro-government speech on the days in which that public fora is most in demand and historically used for public free speech including protest, there would be little left of the Free Speech Clause,” ANSWER wrote in its D.C. Circuit brief.
The government in its brief defends Friedman’s “government speech” finding and counters that even with the set-aside for the inaugural committee, 84 percent of the sidewalks along the parade route are still open to protest groups and the public.
A spokesman for the U.S. attorney’s office said they had no comment beyond the written filings.
D.C. Circuit Judges Sri Srinivasan, Patricia Millett and Nina Pillard will hear arguments on Monday. Srinivasan previously considered speech restrictions by the government in a case challenging a ban on protest activity on the marble plaza in front of the U.S. Supreme Court. He wrote a 2015 opinion upholding the restrictions as constitutional.
Millett last year wrote an opinion upholding the dismissal of a lawsuit challenging the arrest of Occupy D.C. protesters who sat inside a tent on the sidewalk in front of Merrill Lynch’s office in Washington.
Demonstrators across the US are planning to hold more than 200 rallies against the Dakota Access Pipeline on Tuesday. The ‘Day of Action’ is expected to be the largest protest against the pipeline since the government halted the project in September.
The ‘Day of Action’ was called for by indigenous leaders in support of the Standing Rock Sioux tribe. Its goal is to stop the US government and the Army Corps of Engineers from building the pipeline, Indigenous Environmental Network (IEN) spokesperson Dallas Goldtooth said, as cited by Reuters. IEN is one of the organizers of the Tuesday protests.
“The purpose is to elevate the issue and to encourage the Army Corps to exert its power to stop this pipeline,” Goldtooth said.
More than 30 groups, including Greenpeace and CREDO Action, will participate in Tuesday’s protests outside the Army Corps offices and at major banks financing the pipeline.
The ‘Day of Action’ comes just one day after the Army Corps of Engineers and Department of Interior delayed a decision on whether to allow a tunnel to be built under the Missouri River reservoir, Lake Oahe –the source of water that is the focus of the protests. The Army Corps of Engineers said it wants input from the Standing Rock Sioux tribe, whose reservation is extremely close to the planned pipeline, before making a decision.
The construction of the $3.7 billion pipeline has been drawing protests since spring 2016, the Sioux tribe and environmental activists claiming it could pollute nearby water sources and destroy the tribe’s sacred sites.
The pipeline is currently about 85 percent complete, Philipps 66, one of the pipeline’s investors, said last week. The only remaining work to be done in North Dakota is the section that would run under Lake Oahe, according to Energy Transfer Partners (ETP), the main company behind the pipeline. ETP maintains the pipeline would be a more efficient and safer way to transport oil from the Bakken shale of North Dakota to the Midwest and the US Gulf Coast.
Demonstrators disagree, however, and continue to come out in full force against the pipeline, sometimes clashing with authorities. Earlier this month, police reportedly used rubber bullets during a protest, with one person taken to a nearby clinic. In September, a video from a protest appeared to show security officers unleashing dogs on demonstrators.
Leaders of the Standing Rock Sioux tribe have vowed to continue protesting the 1,172 mile (1,885 kilometer) pipeline through the winter if necessary, vowing to provide shelter, food, and heating to demonstrators.
Voters in California and four other states on Tuesday could open a wider door to legalized recreational marijuana, posing substantial regulatory challenges and deepening the tension between state and federal drug laws.
Polls suggest legalization is almost a certainty in California, where medicinal use of the drug has been legal for nearly 20 years. Voters in Massachusetts and Maine also appear poised to approve recreational marijuana. Polls tracking similar measures in Arizona and Nevada, where voters are set to weigh legalized marijuana, show much tighter races. Voters in Florida are set to decide whether to expand medicinal marijuana. Recreational marijuana use is legal in Alaska, Colorado, Oregon, Washington and the District of Columbia.
Legalizing pot cultivation, possession and consumption beyond the medical-needs arena will open a Pandora’s Box of regulatory issues—including licensing, banking and taxation—that may take years to sort out, according to lawyers who are working with cannabis clients in states where recreational use is legal.
Veteran cannabis attorneys generally have two things to say to colleagues eyeing entry into the practice: Welcome, and stay on top of the laws. That’s no easy task. In California alone, 40 bills touching on marijuana were in some way considered in the last session—and more than a dozen registered groups lobbied to shape them.
“It seems like it’s the tech boom or the gold rush,” Jasun Molinelli, an Archer Norris partner in Walnut Creek, California, said. “You hear people referring to it as the green rush, and it really has that feel. There’s just that huge interest and an influx of businesses and people.”
The many questions raised by legalization don’t have easy answers: What’s the licensing process for growing or selling? How does a law enforcement agency measure impairment? What is the taxing scheme? What are the banking requirements, especially when major financial institutions have balked at handling pot money? When can employers restrict off-duty marijuana use among their workers? How does a state handle a local jurisdiction that does not want marijuana businesses within their borders? (San Jose, California, adopted a measure Tuesday that bans—at least temporarily—the recreational sale of marijuana.)
Above all, how does a state authorize all the things that go with recreational use—distribution, transportation and tax collection, for example—when the federal government still deems marijuana an illegal drug? Despite the growing number of states that allow marijuana cultivation and consumption, the federal Drug Enforcement Administration in August refused to loosen federal restrictions. Marijuana remains classified as a drug in the same category as heroin.
Although U.S. Justice Department officials said in 2014 they will not pursue financial institutions serving legitimate cannabis businesses, federal bank regulators can still impose civil penalties, cease-and-desist orders and career bans on those who handle money associated with drugs.
Banks are wary about the budding marijuana industry. But the cash flow is huge. Legal pot sales hit $5.4 billion in 2015 and could reach $21 billion by 2020, according to the cannabis industry analyst Arcview Market Research.
“Most importantly right now, for every lawyer, is you have to understand the supremacy clause,” said Molinelli, who’s helping to launch his firm’s cannabis practice. “There’s a major conflict between state and federal law, and even though there might be a one in a million chance that a federal law enforcement agency comes to your client’s door knocking, they still have that right and the client needs to know that.”
Banking and buds
Washington state voters approved the possession and sale of small amounts of marijuana in 2012. But many financial institutions there did not roll out the welcome mat for related businesses. The Seattle firm Garvey Schubert Barer, for instance, had to find a new bank that was willing to handle payments from marijuana clients.
The Obama administration’s guidelines permitted financial institutions to work with marijuana businesses, but attorneys involved in the industry said clients are still chiefly concerned about banking. Many businesses churn through as many as half a dozen banks in a year, getting picked up and dropped months later because of the risks posed by the marijuana industry.
Due diligence requirements outlined by the federal government are costly for banks and don’t shield them from liability if they do something wrong in handling pot clients’ money, said Darren Weiss of Offit Kurman’s Baltimore office. Banks often segregate marijuana money from other funds, a process that makes it more expensive to process drug money than transactions from other businesses.
Rachel Gillette of Greenspoon Marder’s Denver office said any pot business in California will face a “major problem” finding a banking partner because banks will be selective about the clients they take on.
In Colorado, many businesses in the marijuana industry operate “unbanked,” Gillette said, creating an exposure to penalties. One of her clients, Allgreens, a medical marijuana dispensary, was hit with a 10 percent penalty by the Internal Revenue Service for paying taxes in cash. The IRS said last year it would abate future penalties and refund about $25,000 in fines.
“Banking is still a big impediment to the industry coming fully into the light and becoming fully legal,” said Andy Aley, co-chairman of the cannabis industry team at Garvey Schubert Barer in Seattle.
In Washington state, a small handful of state-chartered local credit unions have opened up to marijuana clients, mostly limiting them to deposit accounts. The effect, Aley said, is a lack of access to commercial loans and other financial opportunities that other industries rely on. Some businesses “hid the ball” from their banks by setting up sister companies through which they can route their money, an approach that carries certain risks.
Colorado-chartered a credit union in 2014 to handle its burgeoning marijuana industry. After the U.S. Federal Reserve rejected The Fourth Corner Credit Union’s application for a master account, the credit union sued. In court filings, federal regulators compared pot money to dollars generated by illegal trade with North Korea or an endangered species. A Colorado federal district court judge dismissed the credit union’s suit, saying that although prosecutors could choose not to prosecute marijuana businesses, federal law still made the transactions illegal.
For retailers, banking poses a significant challenge. Credit and debit card processing is “incredibly hard” to obtain, Aley said. Many retail operations function exclusively with cash. With some businesses turning over a million dollars each month in sales, safety is an additional concern.
“Every day we have someone come to us with a ‘banking solution,’ whether it’s ATMs or off-shore accounts or whatever,” said Brian Vicente of Vicente Sederberg in Denver. “Honestly, these are companies that really want to be banked, and the government wants them to be banked, too. It’s just banks themselves that have yet to get in.”
Congressional representatives from marijuana-legal states have twice introduced legislation to shield financial institutions that handle cannabis money from federal regulators. The bills have gone nowhere.
“Two things are clear, in our view,” said Tom Dresslar, spokesman for the California Department of Business Oversight, which supervises state-licensed financial institutions. “One, the lack of banking access is a public and worker safety issue that is only going to grow. Two, the most effective solution would come from Washington, D.C., either through delisting cannabis or ensuring banks and credit unions cannot be subject to civil or criminal liability solely because they do business with legal cannabis businesses.”
Fired up at the IRS
Supporters of marijuana legalization often cite the tax revenues sales will generate.
California’s Proposition 64 would impose a 15 percent tax on retail sales plus per-ounce levies on cultivation. Sixty percent of the revenues will go to youth substance abuse prevention and treatment programs while the rest will be split among marijuana-related law enforcement and environmental cleanup efforts.
But marijuana business owners shudder at dealing with the Internal Revenue Service—particularly the provisions in Code 280E. That code forbids any deduction for costs incurred in the operation of a business involved in the trafficking of a controlled substance. Marijuana’s status as a Schedule 1 drug under federal guidelines—the most restrictive classification—means 280E will force businesses to do taxation gymnastics to allocate expenses.
Jennifer Benda of Fox Rothschild’s Denver office, who handles IRS examinations and tax planning for marijuana clients, said businesses are working to tie more of their expenses to “the cost of goods sold,” which can be deducted, rather than costs for advertising and retailing, which cannot be deducted.
Businesses have also faced challenges finding accountants. “While almost half the country now allows marijuana to be sold for medical purposes, most state boards of accountancy have taken a ‘wait-and-see’ approach when it comes to issuing guidance for CPAs offering services to marijuana businesses,” according to a report from American Institute of Certified Public Accountants.
“There’s a lot of gray” in handling the books for a marijuana client, and until industry standards are developed, the more intricate aspects of taxation and accounting will remain a challenge for many businesses, Benda said. The IRS and the marijuana industry, Benda said, should come to “some kind of agreement as to how things work.”
Weiss of Offit Kurman said he’s seen retailers sell hats, T-shirts and other merchandise in their stores to divide up the space for tax purposes, so more costs can be allocated as deductible.
State taxation is a separate concern. In Washington, there was an excise tax of 25 percent at every level—processing, production and retail—when the state introduced legalization. In time, it became clear this was an unsustainable tax load; the tax has been condensed to 33 percent on retail, in addition to the state’s ordinary sales tax, passing the burden on to the purchaser and alleviating the burden at the earlier stages.
Medical-marijuana sales in California two years ago generated $49.5 million in sales tax revenue, according to the state Board of Equalization. Concerned about the number of high-dollar cash payments, two board members in 2015 floated the idea of creating a state-run depository bank. The California Bankers Association opposed the proposal, which has yet to gain traction in the state legislature.
A lid on licensing
In May, California’s rural Calaveras County—population, 45,000—enacted a commercial medical-marijuana cultivation ordinance. The county received roughly 900 applications.
Molinelli, of California’s Archer Norris, said the math worries him.
“That’s roughly 2 percent of the population,” he said. “If you extrapolate that to the 39 million people in California—and that may not be a scientific extrapolation—that would be over 700,000 applications. Impossible. There aren’t enough people working in the state to handle that. That’s going to be a major problem.”
California’s Proposition 64 would convert the existing Bureau of Medical Cannabis Regulation—an agency still developing rules for medical use—to a general-use Bureau of Marijuana Control. By January 2018, the bureau and several other state agencies would be required to have procedures and rules in place to begin issuing licenses to marijuana businesses. State leaders, wary of diving into the political fray over marijuana legalization, have not signaled what their plans might be.
Some states have tried to control demand by restricting the number of available licenses. Washington had a limited license application window, creating a “closed universe” of businesses able to get in on the profits, Aley said. To get into the business in Washington today requires purchasing a license from another company.
Oregon has no limits. As of Oct. 28, the Oregon Liquor Control Commission reported receiving 1,565 applications for five categories of licenses.
Maryland received 146 applications for 15 licenses to grow medical marijuana, and 124 to process it. Pennsylvania, which this year joined more than two dozen states offering medical marijuana, is expected to get hundreds of applicants for its licenses.
Joints on the job
Companies operating in states with recreational marijuana should reconsider policies on employees’ use of marijuana, attorneys said, particularly because marijuana can long remain in a person’s system and can show up on drug tests weeks after use.
William Bogot, a partner in Fox Rothschild’s Chicago office, said he has several clients that have revised employee manuals and implemented policies for marijuana that align with those for alcohol use—prohibiting intoxication at work, for instance, but allowing employees to do what they wish in their personal time.
Even in Colorado, where voters approved recreational use in 2012, there are risks for individuals because of inconsistent laws.
The Colorado Supreme Court ruled last year that employers can fire employees for off-duty use of medical marijuana because it is still illegal at the federal level. Also, under Colorado’s unemployment-compensation provisions, employees can be disqualified from receiving benefits if they were fired because nonmedically prescribed marijuana was found in their systems, during working hours, said Christian Schreiber, an employment lawyer at Chavez & Gertler in Mill Valley, California.
California’s Proposition 64 explicitly allows public and private employers to enact workplace policies for marijuana, including the creation of “drug-free” environments.
Existing case law in the Golden State does not protect medical-marijuana users at work. In Ross v. Raging Wire Telecommunications, the California Supreme Court in 2008 said an employee fired for using medical marijuana couldn’t sue his boss for disability discrimination or wrongful termination because The Compassionate Use Act of 1996 only shielded users from criminal liability, not workplace actions.
Law surrounding legalized marijuana and employees is “emerging and it’s unknown what will happen,” Schreiber said.
In addition to areas in which federal restrictions on marijuana pose challenges to business, there is another, more hidden, hurdle: intellectual property.
The U.S. Patent and Trade Office won’t grant protection to marks used to sell illegal goods and services, placing marijuana companies in a bind, Aley said. Marijuana busineses that choose to brand their wares lack any federal scheme to prevent other businesses from copying.
Trademark applications for designs clearly tied to the sale of marijuana have been denied. And trademark examiners have, in some cases, asked for additional information when a design creates suspicions regarding its ties to marijuana.
The result is a headache for companies operating across state borders, and it can also present a consumer safety concern, Aley said. A brand that develops a high degree of trust in the content of its edible products sold in one state, for example, could mislead consumers into using products with different quantities of marijuana sold in another state, if a brand is mimicked.
Blazing new business
With all the uncertainty and conflict—and, perhaps, money—surrounding development of a legalized marijuana industry, law firms continue to launch new cannabis practices. Two firms, Archer Norris and Sacramento-based Kronick Moskovitz Tiedemann & Girard, recently announced emerging marijuana groups. Other firms already serving marijuana clients on a less visible level may be preparing to step out of the shadows.
Marijuana’s continued status as a Schedule 1 drug poses a quandary for firms and ethical questions for attorneys looking to jump into the burgeoning industry. The Colorado Supreme Court in 2014 amended comments to the state’s rules of professional conduct to allow attorneys to counsel marijuana businesses operating legally under state law. The Washington State Bar issued a 2015 ethics opinion that permits attorneys to not only advise marijuana clients but to operate cannabis businesses themselves.
Pennsylvania offered attorneys little guidance until medical-marijuana laws were on the books, and only gave a green light once the industry started taking off. The Pennsylvania Supreme Court last month cleared a path for medical cannabis practices. In California, the state bar has not issued formal guidance, although regional bar associations in San Francisco and Los Angeles have published nonbinding opinions describing how attorneys can ethically represent clients involved with legal marijuana businesses.
Bogot said he and colleagues petitioned the Illinois Supreme Court to loosen professional ethics guidelines to allow them to start assisting clients. Lawyers who want to get into the marijuana space in states that could soon allow recreational marijuana should petition attorney-ethics bodies now, he said.
Vicente of Denver’s Vicente Sederberg offered this advice to lawyers in states where recreational marijuana could soon be law: “remain vigilant” in following ever-changing state and local laws.
“It’s essentially the dawn of a new industry and there’s a lot of tweaking going on,” he said.
Project Censored—the non-profit media watchdog organization, founded by Professor Carl Jensen—celebrating forty years of documenting news stories that independent journalists and news organizations cover, that corporate media either ignore altogether or report only in incomplete, slanted fashion. This past weekend, Project Censored hosted a National Media Freedom Summit. The Summit brought together independent journalists, media activists, professors, students, and members of the public, to discuss the links between media power and political power, and to share effective strategies for advancing social justice by promoting media freedom and critical media literacy. Mnar Muhawesh, founder and editor-in-chief of MintPress News and host of the program “Behind the Headline,” led a panel discussion with Abby Martin, David Talbot, and Mark Crispin Miller on the state of media freedom and the significance of independent journalism. Mnar joins us to discuss the panel, the recent journalist arrests in North Dakota, the upcoming election, and the Middle East. Longtime Activist, Journalist, Radio Host and Legal Professional Bobby Rodrigo brings you a special broadcast of “I Take LIBERTY With My Coffee” on Coffee Party Radio. Advocating engagement Bobby points out the Constitution is the Rule of Law. Money in Politics, Tax Reform, the Political Party Machine, Cannabis Prohibition and partisan blind allegiance is on full display as he advocates against the erosion of Constitutional Protections in the name of corruption & tyranny. “If we focused on following the Constitution we would solve many of the ills of our society. Offering guests from Political Organizations, Activism, Media & Artists Bobby invites you to join him for this special broadcast and every Sunday Morning at 10:00 AM on Coffee Party Radio.
Longtime Activist, Journalist, Radio Host and Legal Professional Bobby Rodrigo brings you a special broadcast of “I Take LIBERTY With My Coffee” on Coffee Party Radio. Advocating engagement Bobby points out the Constitution is the Rule of Law. Money in Politics, Tax Reform, the Political Party Machine, Cannabis Prohibition and partisan blind allegiance is on full display as he advocates against the erosion of Constitutional Protections in the name of corruption & tyranny. “If we focused on following the Constitution we would solve many of the ills of our society. Offering guests from Political Organizations, Activism, Media & Artists Bobby invites you to join him for this special broadcast and every Sunday Morning at 10:00 AM on Coffee Party Radio.
A group of women on Wednesday formed a human wall blocking the exits and entrances of Trump Tower in New York City. The group used the hashtags #GOPHandsOffMe and #TrumpVsAllOfUs to amplify their demonstration.
Yong Jung Cho, 26, is one of the founders of #AllOfUs and was at both protests.
“This morning outside of Trump Tower in New York City, about 60 women formed a human wall to demand that Republican leadership un-endorse Donald Trump. It’s no surprise [what was said by Trump in the Access Hollywood tape leaked on Friday] — Donald Trump has been saying things like this throughout his campaign and his entire life in the public eye: racist, xenophobic, and sexist comments that he’s been bragging about as well,” Cho tells Yahoo Beauty. “And Republican Party leadership needs to take responsibility for supporting and continuing to endorse him.”
Cho adds that the experience has been “amazing” so far. “I think the fact that both of these events were led by a multiracial group of women is the key. This response to Trump’s hateful comments, and dangerous comments, is a conversation around the previous racist comments made by Trump,” she says. “It’s important and felt really inspiring to be surrounded by other women of color, a multiracial group of women, to talk about the disgusting and dangerous things Trump has said in terms of misogynistic and racist comments.”
Cho says she felt incredible support from bystanders at Wednesday’s protest, and many of those passing by would stop to cheer on the group. Toward the end of their protest, she says, one woman came to the front of the line with her daughter and commented on how important she thinks it is for mothers, and for everybody, to be taking action against Trump right now.
Natalie Green, 24, is also involved in the leadership of #AllOfUs2016 and was one of the lead organizers of the sit-in on Tuesday in Washington. She tells Yahoo Beauty that the protest at the RNC headquarters was in response “not just to the Trump tapes that came out on Friday but to Trump’s entire campaign of racist, sexist, and xenophobic rhetoric over the past year and a half.”
Green believes that millennial women like herself are standing up and taking action during this year’s election because young people know they have the opportunity to put their voice into the political system. “We constantly read articles about what millennials are thinking, that they don’t care about politics, that they’re lazy — we want to push that narrative. We’re really passionate about this election, and as a generation, we’re frustrated with Trump’s campaign of hate.”
In Washington on Tuesday, Green says that the response she and her fellow protesters received was mixed. “When we first went into the RNC headquarters, there was a security who was honestly pretty aggressive,” she recounts. “He was pulling people out of the lobby area — physically pushing people, grabbing arms, pulling.”
RNC staffers, she recalls, made a point to use alternate entrances into the building to avoid their protest once word spread about it. One staffer who did enter through the main lobby “flicked us off,” Green says.
Those passing by, however, were “very supportive.” Green says many people stopped to take photos with them and that “a lot of women, and mothers with daughters especially, were nodding in agreement with what we were doing as they walked by. It really shows how Trump’s rhetoric is hurting so many people in this country.”
Which is why millennial women activists like Green and Cho aren’t stopping their work anytime soon.
All Native struggles in the United States are a struggle against erasure. The poisoning of our land, the theft of our children, the state violence committed against us — we are forced to not only live in opposition to these ills, but also to live in opposition to the fact that they are often erased from public view and public discourse, outside of Indian Country. The truth of our history and our struggle does not match the myth of American exceptionalism, and thus, we are frequently boxed out of the narrative.
The struggle at Standing Rock, North Dakota, has been no exception, with Water Protectors fighting tooth and nail for visibility, ever since the Sacred Stone prayer encampment began on April 1.
For months, major news outlets have ignored what’s become the largest convergence of Native peoples in more than a century. But with growing social media amplification and independent news coverage, the corporate media had finally begun to take notice. National attention was paid. Solidarity protests were announced in cities around the country. The National Guard was activated in North Dakota.
The old chant, “The whole world is watching!” seemed on the verge of accuracy in Standing Rock.
And then came today’s ruling, with a federal judge finding against the Standing Rock Sioux, and declaring that construction of the pipeline could legally continue. It was the ruling I expected, but it still stung. I felt the sadness, anger and disappointment that rattled many of us as we received the news. But then something happened. Headlines like, “Obama administration orders ND pipeline construction to stop” and “The Obama Administration Steps In to Block the Dakota Access Pipeline” began to fill my newsfeed, with comments like, “Thank God for Obama!” attached to them.
Clearly, a major plot twist has occurred. But it’s not the one that’s being sold.
To understand that this isn’t the victory it’s being billed as, you have to read the fine print in the presently lauded joint statement from the Department of Justice, the Department of the Army and the Department of the Interior:
“The Army will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws.”
Note what’s actually being said here, what’s being promised and what isn’t.
What is actually being guaranteed?
But this next section is a little more promising, right?
“Therefore, construction of the pipeline on Army Corps land bordering or under Lake Oahe will not go forward at this time. The Army will move expeditiously to make this determination, as everyone involved — including the pipeline company and its workers — deserves a clear and timely resolution. In the interim, we request that the pipeline company voluntarily pause all construction activity within 20 miles east or west of Lake Oahu.”
So things are on hold at Lake Oahe until the powers that be think it through some more — with no assurances about how they’ll feel when it’s all said and done. The rest is a voluntary ask being extended to the company.
Let’s reflect on that for a moment: A company that recently sicced dogs on Water Protectors, including families, who stepped onto a sacred site to prevent its destruction, is being asked to voluntarily do the right thing.
But the thing is, they probably will. For a moment. Because what’s being asked of them isn’t an actual reroute. Right now, all that’s being asked is that they play their part in a short term political performance aimed at letting the air out of a movement’s tires.
Presidential contender Hillary Clinton was beginning to take a bit of heat for her silence on the Standing Rock struggle. Between Jill Stein’s participation in a lockdown action, broadening social media support for the cause, and the beginnings of substantial media coverage, #NoDAPL was on the verge of being a real thorn in Clinton’s side. And with more than 3,000 Natives gathered in an unprecedented act of collective resistance, an unpredictable and possibly transformational force was menacing a whole lot of powerful agendas.
So what did the federal government do? Probably the smartest thing they could have: They gave us the illusion of victory.
As someone who organizes against state violence, I know the patterns of pacification in times of unrest all too well. When a Black or Brown person is murdered by the police, typically without consequence, and public outrage ensues, one of the pacifications we are offered is that the Department of Justice (DOJ) will investigate the shooting. It’s a deescalation tactic on the part of the state. It helps transition away from moments when rage and despair collide, creating a cooling off period for the public. “Justice” is still possible, we are told. We are asked to be patient as this very serious matter is investigated at the highest level of government, and given all due consideration.
The reality, of course, is that the vast majority of investigations taken up by the DOJ Civil Rights Division end in dismissal – a batting average that’s pretty much inverse to that of other federal investigations. But by the time a case gets tossed at the federal level, it’s probably not front page news anymore, and any accumulated organizing momentum behind the issue may have been lost — because to many people, the mere announcement of a federal investigation means that the system is working. Someone is looking into this, they’re assured. Something is being done. Important people have expressed that they care, and thus there is hope.
So how is this similar to what’s happening with Standing Rock?
It’s the same old con game.
Federal authorities are going to give a very serious matter very serious consideration, and then… we’ll see.
The formula couldn’t be clearer.
As the joint statement says, “this case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes’ views on these types of infrastructure projects.”
How many times have marginalized people been offered further discussion when what they needed was substantive action? And how often has the mere promise of conversation born fruit for those in a state of protest?
But this is a great moment for the Democrats. A political landmine has been swept out of Hillary Clinton’s path and Obama will be celebrated as having “stopped a pipeline” when the project has, at best, been paused. After all, an actual pause in construction, outside of the Lake Oahe area, assumes the cooperation of a relentless, violent corporation, that has already proven it’s wiling to let dogs loose on children to keep its project on track.
But Dakota Access, LLC probably will turn off its machines — for a (very) little while. They’ll wait for the media traction that’s been gained to dissipate, and for the #NoDAPL hashtag to get quieter. They’ll wait until the political moment is less fraught, and their opposition is less amped. And then they will get back to work — if we allow it.
Here’s the real story: This fight has neither been won nor lost. Our people are rising and they are strong. But the illusion of victory is a dangerous thing. Some embrace it because they don’t know better, some because they need to. We all want happy endings. Hell, I long for them, and I get tired waiting. But if you raise a glass to Obama and declare this battle won, you are erasing a battle that isn’t over yet. And by erasing an ongoing struggle, you’re helping to build a pipeline.
One of Jamie Kalven’s covenants is to always speak up, to always do something when injustice rises up. Whether it’s writing a memoir on his wife’s healing after a violent sexual assault or to reporting on human rights abuses and neglect in the Stateway Gardens public housing project, Kalven refuses to keep quiet.
The longtime social justice warrior and his nonprofit journalism outfit, the Invisible Institute, recently led a shakedown of the city and Chicago Police Department and there’s no stop in sight for the group and their collaborators. There’s more.
“I hired a team of six sailors and we sailed into a typhoon that made us into an even stronger team on the other side,” Kalven says of their work uncovering the Laquan McDonald shooting cover-up and the subsequent media maelstrom that descended upon Chicago once the initial news broke. From there, the controversial police dashcam video was released, indicating that officers lied in their initial incident reports, and, closely following that bombshell, Kalven helmed the release of one of the country’s first large public database of police misconduct records open to the public.
This month Kalven plans to publish his new 20,000-word expose, researched over three years, on the Chicago Police Department’s code of silence, an element of policing that city politicians and the department have long denied. The piece will run online at The Intercept, the journalism website funded by eBay founder Pierre Omidyar. The almond-eyed Kenwood native is confident that the publication will, as he says, stay true to the spirit of whistleblowers covered in the piece.
Kalven has worked on the blue-wall-of-silence investigation for the past three years and began long before his investigation into Laquan McDonald’s death in 2014. The new piece will focus mainly on a federal lawsuit filed against the city in 2012 by veteran narcotics officers Shannon Spalding and Daniel Echeverria. They claim to have received threats on their lives after uncovering police shakedowns of drug dealers and evidence planting as part of an undercover FBI investigation.
In particular, Kalven is curious how the code of silence instills dysfunction in the force and policed vulnerable communities. He wants to get at how reform strategies could shift away from the top-down approach. “Everyone knows who the assholes are in CPD but they don’t share because of the code of silence. So the process of change I’m interested in doesn’t preclude the top down, but how do you create conditions for conscientious officers to be change agents within the department? How do you create the conditions for people in pretty-abandoned neighborhoods that are feeling alienated from civil authority to become change agents and engage?” he asks.
Jamie Kalven in conversation with students at Hyde Park Academy/Photo: Patricia Evans
Another victory for the Invisible Institute and their cohorts came this July from an Illinois appellate court ruling that found all police misconduct records going back to 1967 are subject to Freedom of Information Act requests. Those additional documents will bolster Kalven’s already voluminous database.
For those who have known him over the years, he’s one part adventurer—the young man who once rode a motorcycle from Paris to New Delhi where he met his love, co-conspirator and acclaimed photographer Patricia Evans —and one part “odd duck,” as Dawn M. Turner, a former specialist reporter and columnist for the Chicago Tribune, once described him. Tall and approachable, usually in a flannel button-down with a pen in the pocket, Kalven’s calm demeanor and deep laugh have a way of putting you at ease.
Turner, who met Kalven in 2001 while working on an article about newly installed lights in Stateway Gardens, believes his dedication to the city’s abandoned people laid the groundwork for his success in taking on police misconduct. He’s never been afraid to go where other journalists and activists wouldn’t.
“What was wonderful was that he had cultivated a relationship with a group of people who had been abandoned by a lot of people,” Turner recalls. “You had well-to-do, middle-class blacks in the area who might not have committed to Stateway the way Jamie did. Residents there weren’t just abandoned by the white establishment, but others as well. On one hand, going to Stateway wasn’t something that Jamie had to do, and yet he was compelled to do it. And the reasons were more complex than a black/white thing or a well-to-do/poverty thing.”
Despite the accolades he’s received, Kalven has never tried to dominate the national conversation surrounding police reform. “What often looks dramatic, heroic, crusadic or reckless in a life like mine is actually this daily process of movement that carries you to places you would not have expected it to,” says Kalven on his work that started in 1993 and led to being a community organizer, a journalist with his A View from the Ground blog and a fixer at Stateway Gardens. “For me it was more about dailyness, engagement and building relationships but also a genuine fascination that how interesting it is that there could be this city within a city.”
Though he has in one form or another been at this work for the past twenty-three years, Kalven believes recent wins in police accountability are one part mystery and one part dedication to an immersive, day-to-day recording of the “particular blows inflicted by particular hands on particular bodies” in the city by himself and other activists. In particular, on-the-ground work with longtime collaborator Craig Futterman, clinical professor of law and founder of Civil Rights and Police Accountability Project of the Mandel Legal Aid Clinic at the University of Chicago.
The pair, who have worked together on six lawsuits, met in Stateway Gardens in the summer of 2000 and share similar appreciation for the knowledge, experience and perspective that comes from working with those most impacted by urban police practices. “The central importance when doing civil or human rights work is to be informed by and accountable to the people most affected by it,” says Futterman.
Kalven agrees that the work has always been rooted in injuries to real people and the initial work led to challenging the systems that upheld the injustices. “I asked myself what set of institutional conditions would need to exist for this to uphold this system?” he says. “How would the world have to be organized for what I’m witnessing day-to-day for that to be the case?”
Such questions turned out to be incredibly fertile concerning the nature of police misconduct coverups, record keeping and the blue wall of silence that permeates the city.
Futterman and Kalven were initially alone in disavowing the city’s false narrative concerning the execution of seventeen-year-old Laquan McDonald in October 2014, a story which landed Kalven the George Polk Award for Local Reporting for his Slate piece “Sixteen Shots.” Eventually, a police dashcam video was released, bringing national attention to how the police union, police department and city could cover up crimes of misconduct through false narratives and lies. Despite the acclaim, Kalven will be the first to tell you that uncovering the execution of a child is something he never wished to write about, but dutifully did. The truth of McDonald’s death, similar to the tales of other young and murdered black people such as Rekia Boyd, Trayvon Martin and Michael Brown, caused a firestorm in the media, leading many taxpayers to call for police reform.
His team has also proved capable of producing a national model of transparency in law enforcement that’s taken form in the Citizens Police Data Project, a “biopsy of the city’s accountability system,” in a decade-long collaboration with the University of Chicago Law School’s Mandel Legal Aid Clinic. The most expansive public database of its kind on Chicago law enforcement, it contains misconduct complaint records dating back fifteen years for more than 8,900 Chicago Police officers in the form of 56,000 allegations that are at the public’s fingertips on an easy-to-use site. It’s slated to receive many more records, backdated to 1967, if released. Chaclyn Hunt, a civil rights attorney and director of Invisible Institute’s Youth Police Project, believes the most telling information from the dataset will become clear once the decades of data are added. As of now the database contains all available data on police misconduct that the city has released.
Steve Edwards, executive director of the University of Chicago’s Institute of Politics, believes the dogged fight to create that database is typical of Kalven’s commitment to supporting a public dialog. To be clear, the database is free and available to anyone who wants to use it.
“Many people would have kept it [the database] private for their own use, but Kalven instead used it as a public resource,” Edwards says, newly reminded of when the two first met with Kalven acting as a fixer for a WBEZ story Edwards was reporting at Stateway Gardens. “In Stateway he could have hoarded his access and stories, but he opened it to journalists and reporters across Chicago.”
In essence, the database confirms that until 2015, little was done by the city or police to effectively track and perform pattern analyses of shootings, or examine officers and units with high numbers of misconduct complaints in a city still infamous for the murder of Fred Hampton and for allowing Jon Burge and his midnight crew to torture black men into false confessions. Despite the intrigue, Kalven doesn’t fear much in work or life. Devoted, critical and cerebral, he is loved by many and stakes his integrity into his projects. The only fear he has, says Kalven, is not knowing what to do next.
Chicago by far has had the highest number of fatal shootings by the police, totaling more than any other American city from 2010 to 2014. In April, the Police Accountability Task Force’s Recommendations for Reform on misconduct in Chicago reported that, “CPD’s own data gives validity to the widely held belief the police have no regard for the sanctity of life when it comes to people of color.” The report also found that police shoot blacks at alarming rates; of the 404 shootings between 2008 and 2015 in Chicago, seventy-four percent were of blacks.
The Invisible Institute’s data itself shows that ninety-six percent of the 56,000 allegations were found unsustained.
Kalven never expected to have a moment like this, where the city is now facing the possibility of fundamental reform in police accountability.
“The whole situation is a mess and there’s a chance that we won’t realize the possibilities or seize this moment for fundamental reform, but who could have predicted this moment?” he says. “There’s absolutely nothing linear about it.”