As many of you are aware, I have taken a direct role in helping push homegrows for all adults in the state of Washington for more than a few years now. My first attempt attempt at directly writing specific bill language for legislators was for what became House Bill 2629 in late 2015, with the bill appearing in the 2016 session, sponsored by Rep. Brian Blake. He was kind enough to allow me to write several of the key possession paragraphs that made it in to the final language.
Our group here has been the lead on this issue, but in 2018, my health started to deteriorate and was unable to continue the push as directly in Olympia. A new group came around and took the lead. They asked me to participate, so I helped write the policy on the majority of the new language, especially the legal protections for the grower in the latest draft.
Unfortunately, the one key policy that we were pushing for, a change to the drug forfeiture section, was not added to the final draft, despite my clear protests and documented research on this.
So now I will tell you all the same thing I told the last group that asked for my help writing it. Hopefully this will make sense to you all.
The bill is HB 1131 and it has a companion bill in the Senate, SB 5155. It was first introduced during the 2019 session and now carried over to 2020. The flaw is in Section 2 of the bill, specfically at the end of page 6 and beginning of page 7. (see image below)
Fix the entrapment scheme flaw in the forfeiture section at RCW 69.50.505(1)(h)(iii) by raising the commercial limits. 5 plants triggers forfeitures in that paragraph as it is a commercial amount. If you say I can have 6 plants or up to 15 per household, raise the limit from 5 in the forfeiture section as well to reflect that, plus the harvest yield amount!
Here is what current law looks like now…
(iii) The possession of marijuana shall not result in the forfeiture of real property unless the marijuana is possessed for commercial purposes that are unlawful under Washington state law, the amount possessed is five or more plants or one pound or more of marijuana, and a substantial nexus exists between the possession of marijuana and the real property.
Seizure and forfeiture.
And here is what this bill section amending this part of the forfeiture language looks like. The underlined words are what will be added to the statute by this bill if it passed, and the blue highlighted part is the area of concern:
I am not the first to ask for this. A major law firm asked for raising the limits back when this paragraph was first implemented in 1989! They asked for the numbers to be raised from 5 to 20 plants and up to 2 pounds!
Better minds than mine asked for raising the limits first.
These numbers should have changed when patients were allowed to grow their 60 day supply starting in 1998, again in 2007-2008 when that supply was further defined as 15 plants/24 ounces. It is antiquated, outdated, completely arbitrary to begin with as you can read for yourself from the files we obtained on it at the state archives! They just pulled a number out of their asses and called it good, just like they do with all these plant counts.
So as you can see in the bill’s version, they left the old numbers of “5 plants and a pound or more” in, but added an exception to the end.
The problem is, the old numbers of 5 plants or a pound or more were originally intended to be a PERSONAL AMOUNT too small for law enforcement to worry about diversion to the black market.
So if those old numbers represent a personal amount, then what will those old numbers represent after the bill is passed? Who are these people that will be able to have 4 plants or less than a pound since there is now a clear distinction in this language that will be left behind. Now all a cop needs is an excuse to say your plants were being used in COMMERCIAL ACTIVTY and they can begin seizing it when you exceed 5 or more. Why? Because they don’t need probable cause to do forfeitures! They ignore your “exception” or “exemption from a crime”, so now your plants & stash are CRIMINAL because you had 5 or more!
A much simpler and easier fix is to RAISE THE NUMBERS so commercial amounts are OVER the personal limit. In other words, if you raise the number from 5 plants as the commercial limit to 20 plants, now not only are homegrowers growing less than the commercial limit, but so will the patient community since they can have no more than 15 plants. No extra exemption or exception required! Potential for abuse is dramatically less as long as people do not exceed the commercial limits!
Forfeiture is what they use to come into your home. They find marijuana. Marijuana is an illegal substance. They do not need to prove guilt to seize it. They do not have to arrest you to seize it.
Once that is in their possession, then they start looking to see if arresting YOU is worth their time. Your arrest and prosecution comes after grabbing your assets. So now because of your commercial exemption, the person OVER the forfeiture trigger now has to PROVE they are NOT commercial. Totally different than innocent until proven guilty. Even the labeling requirement on harvests in the bill can potentially be used to infer commercial activity!
Forfeiture is the legal process against your property that ends up in civil court. State cops get cross deputized and can then seize property for the feds, then get back most of it through forfeiture sharing.
Arrest and prosecution is the legal process against you. That happens in criminal court if they decide to press charges.
The homegrow bill touches both of those very different processes. By ignoring one, we are just doing a half-assed job that will be even harder to fix next time.
Meanwhile people will get raided so a whole new precedence can be established. Each county having to create new precedence for their jurisdiction.
So because the homegrow bill is supposed to allow for adults to grow up to 6 plants for personal use, or no more than 15 per housing unit, that means any amounts OVER the forfeiture limit is considered a COMMERCIAL AMOUNT. So instead of raising the numbers in the forfeiture so anyone below would be innocent until proven guilty, they instead gave a COMMERCIAL EXEMPTION, which means you have to prove you are noncommercial! And since forfeitures in Washington State do not require a conviction, they do not need probable cause to seize your plants since you are over the forfeiture amount!
Commercial and noncommercial grows are two different animals. You cannot use a commercial exemption for a noncommercial activity or there will be major issues to personal rights and privacy.
Commercial exemptions do not work for noncommercial activities as the patients in Washington State have learned. Patients are STILL getting raided. Even those on the registry, just like we warned you would happen.
Instead of clarifying the language, the bill created more confusion and will be setting up people who do not understand the law to grow MORE than the noncommercial amounts. 6 plants is more than 5, which is the trigger. 15 per housing unit is obviously way over. Massive potential for abuse here. Every defense attorney, every legislator I talk with can see the abuse potential.
This article from Whatcom County describing a raid over a patient grow was first registered patient we heard about getting raided in their home. They brought out a SWAT team using a search warrant obtained by the Washington State Liquor and Cannabis Board agents. For 10 plants. This was less than a year after the passing of SB 5052, which gutted patient rights.
They use this flaw on patients as well. Having 10 plants put the patient’s grow in the commercial amount of “5 or more plants” in the forfeiture section! In fact, this is why patients who do not register are only allowed to have 4 plants, whereas patients requiring more need to get registered. Why? Because 5 or more plants is a commercial amount!
If this passes as is, 4 plants or less than a pound is STILL the personal noncommercial limit.
Watch this quick video and instead of a car pullover in the beginning of the video, imagine this to be law enforcement going to a homegrow raid:
If you promote it without asking for this fix, especially now you know there is a flaw, I will expose you publicly when people get raided afterward.
Why such harsh words?
Because the DEA cannabis related statistics shows a massive spike in cannabis related forfeitures in the state of Washington! In fact, we jumped from around #10 or so in 2015 to number 1 in the entire country in 2017, constituting almost 50% of the entire country in forfeitures related to cannabis!
That’s less than a year after the massive gutting of the medical cannabis laws in 2016 when Senate Bill 5052 went into effect! Coincidence?
The federal Government Accountability Office also has concerns around this program. Back in November of 2018 they scolded the DEA over the reporting from the states that participated!
It’s no coincidence the state of Washington in 2019 is now debating a bill, SB 6266 over the flaws in the reporting by the state on forfeitures. It is also clearly stated in the latest hearing on this bill that we are, in fact, a state that does not require a conviction!
Pretty simple fix here. As we learned from the past, pass it now, fix it later does not seem to be working for consumers and homegrowers! Especially the minority communities, who will be hit the hardest if this abuse potential continues!
The hard fix is, of course, removing cannabis from the Controlled Substances Act in both state and federal law and remove the criminal penalties on it. But until then, these fine points are critical!
It should be as simple as the home brew and wine making laws: simple and avoids the limits and forfeitures by focusing on what can be removed from the home…
Removing family beer or wine from home for use at wine tastings or competitions—Conditions.
(1) An adult member of a household may remove family beer or wine from the home subject to the following conditions:
(a) The quantity removed by a producer is limited to a quantity not exceeding twenty gallons;
(b) Family beer or wine is not removed for sale; and
(c) Family beer or wine is removed from the home for private use, including use at organized affairs, exhibitions, or competitions such as homemaker’s contests, tastings, or judging.
(2) As used in this section, “family beer or wine” means beer or wine manufactured in the home for private consumption, and not for sale.
It’s really that simple! The Federal law sets the easy to understand limits: 200 gallons if there’s more than one person living in the home!
So why won’t the state just remove it from the state controlled substances act and be done with it? Because they don’t want to lose the federal grant money the state is contracted into if our state’s scheduled drugs to be dramatically different than the federal!
Our rights are being held hostage to commercial contracts and they will take them from you to protect that cash! Even if it means taking medical cannabis authorized by a doctor from sick kids in the schools if their money is threatened!
Adding this policy to that 2018 bill for these sick kids was the only way the prime sponsor and all the people behind the effort could get it to pass. This goes to show us that the state agency federal grant recipient lobby group, including law enforcement, is one of the most powerful in Olympia if they can keep sick children from attending school. after all the bills and court rulings that in the aftermath of the McCleary decision stating it was a primary responsibility for the state provide education to ALL children within its borders.
The homegrow bill is now in the House Appropriations Committee after it was recently passed out of the House Commerce and Gaming Committee. You can Watch the comments by Rep. Melanie Morgan in the January 21, 2020 Commerce and Gaming hearing where she also identifies a flaw in Section 1 of the bill that has the potential to prevent many Washington residents, especially the under-represented minority and other disenfranchised communities from even being able to grow to begin with since a landlord could restrict homegrow rights. It will be reserved mostly for the privileged and wealthier landowners instead of those already being ravaged with the abuses of the drug war on cannabis…
(j) Nothing in this subsection (7) prevents or restricts a property owner from prohibiting the cultivation of plants by a renter or lessee upon or within the property under the terms of a rental agreement, lease, or other contract.Section 1, Page 4, lines 13-16
She also correctly points out that it will be the minority communities who could once again be left out of “legalization” and end up a target in spite of the whole legalization process.
Our group doesn’t care who leads the next homegrow bill effort here in Washington State. We don’t care who you align with. You don’t have to like us. We are not out for an ego boost.
Let’s work to fix the flaws in this bill now. We’ve worked this since 2015 to get this far. Patients will tell you that a “pass it now, fix it later” approach has never worked for us, so let’s not screw this one up when it is not necessary.
How do I know this stuff on forfeitures? One of our co-researchers, John Worthington, fleshed out this flaw and recommended raising the numbers after that first homegrow bill attempt. He was raided over 6 plants by a corrupt drug task force team in 2007.
But also, because I went through both processes acting as my own attorney after getting raided in 2010. They took my plants & stash. They said we had 59 plants, which was technically 1 under our limit back then, as we were allowed 15 per patient with the 4 of us. They did not arrest me until AFTER I tried to get my seized items back in civil court about two months after the raid.
Two years later I was able to get the felony and misdemeanor charges dismissed after successfully lobbying the state legislators in 2010 and 2011 to change the laws. Thanks to the bill writers at the time, you saved our family, and there were a lot of patients released from jail and others who had charges dismissed from all around the state. It was very humbling to meet some of them as they drove to our small ranch to visit us.
You all remember the Collective Garden model that lasted until the laws were changed again in 2016? That was modeled after my noncommercial garden! They only become storefronts because the governor vetoed the commercial model out of the bill, leaving the noncommercial garden model as their only way to survive. Then legislators twisted my collective garden down to 4 patients that must be registered and part of the commercial regulated system, called “Cooperative Gardens” where all patients MUST provide labor to participate. Wheelchair bound? Tough shit, GET TO WORK IF YOU WANT RELIEF.
“The state law helped clarify my situation a lot. They said a patient can be a provider,” Novak said after the dismissal.
Two years ago, a drug task force raided his Wauconda home and confiscated 59 marijuana plants, and Novak was later charged with manufacturing marijuana and possession of drug paraphernalia.
Novak had a medical marijuana card authorizing him to use the drug to reduce the occurrences of seizures from temporal lobe epilepsy.
He said at the time that two other medical marijuana patients were also living at his residence, and he was growing marijuana for a fourth patient, allowing him up to 60 plants, or 15 plants each.
But Prosecutor Karl Sloan disputed his contention that a medical marijuana patient could grow marijuana for themselves and other patients.
The law itself was unclear, and Sloan agreed to continue the case while the Legislature considered several bills.
Last year the Legislature clarified the law, which now says that patients can also be designated providers, and can participate in collective gardens to provide medical marijuana for up to 10 patients.
Tue, 03 Jul 2012
Source: Wenatchee World, The (WA)
Here are the last two public hearings on this bill:
House Commerce & Gaming Committee
Jan. 21, 2019 – 1:30 pm
From Jan. 31, 2019:
Senate Labor & Commerce Committee
Jan. 31, 2019 – 8:00 am