In Washington State, our Liquor & Cannabis Board (WSLCB) has developed policy to tap into people’s cellphones instead of just calling them up over regulatory compliance issues.
311.3.1 RESTRICTIONS ON CELL SITE SIMULATOR USE “An LCB Enforcement Officer may only install or use a pen register, trap and trace device or cell site simulator device with a supporting court order or when there is both coordination with a prosecuting attorney and joint determination of probable cause to believe an emergency situation exists that involves immediate danger of death or serious bodily injury to a person. A court order must be obtained within 48 hours after installation of the pen register, trap and trace device or cell site stimulator device when an emergency situation exists (RCW 9.73.260)”
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.
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:
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.
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.
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.
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!
RCW 66.28.140 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.
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!
(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.
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.
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:
NOTE FROM 420LEAKS: After hearing his testimony in front of state legislators in March, we decided to attend Officer Jung’s court hearing in his lawsuit against the Washington State Liquor and Cannabis Board (WSLCB) in June.
We wish to thank Officer Jung for having the courage to come forward and take his battle to the courts. Although he lost in Pierce County Superior Court, we hope he appeals the ruling as his evidence is overwhelming, to say the least.
Having said that, we wish the agency would be disolved or just go back to being a commercial regulatory agency and stop trying to become police officers.
We have watched the WSLCB beg the state legislators for full police powers after i502 passed in 2012. The legislators turned them down every time. Now they have a dubious win in court.
It changes the nature of the agency relationship to their licensees and the public in ways we did not vote for with our medical or adult use cannabis laws.
It is well beyond time to remove it from the controlled substances act completely. And to take this out of the hands of this agency completely.
The story told by Officer Jung emphatically shows us the level of corruption on the inside, and it begins at the top levels of leadership.
They are an agency that has found itself on the receiving end of a cash windfall, thanks to cannabis regulation and enforcement. It is time for this state to reign them in, if not completely destroy them by absorbing their duties into the other regulatory, without the police state goon squads.
What happens if one of these officers who don’t have the proper training has a weapon accidently discharge, or worse, actually shoots someone?
In his own words: WSLCB Officer and Whistleblower John Jung
However, in recent years, I have noticed what I consider to be unethical and unlawful acts against the public; from inconsistent application of rules to preferential treatment of licensees, but the most notable problem being LEOs without proper police training being passed off as if they are peace officers, contrary to the requirement of RCW 43.101.095.
After Citizen Review Panel investigation into WSLCB’s problematic enforcement activities, it was concluded that WSLCB needed to apply more consistent enforcement practices and meet the state law enforcement training standards by enrolling all new LEOs to the Basic Law Enforcement Academy (known as BLEA) at the Criminal Justice Training Commission.
This was a part of the accountability assessment from the investigation findings. WSLCB acknowledged that more consistent standard training will result in more responsible LEOs for the division. With funding approved, WSLCB initiated BLEA training for all new recruits.
Unfortunately for WSLCB, between 2002-2007, retention of LCB officers who had completed BLEA training had a critically high turnover rate during that period of 43 officers, nearly 50%.
In fact, nearly 80% of the candidates left the agency with full law enforcement credentials to go to other agencies for better working conditions and pay.
To evade this problem, WSLCB simply changed the training requirement to an abbreviated 440-hour version of BLEA or sent recruits to Idaho police academy, which limited LEOs ability to transfer as laterals to other agencies.
Essentially WSLCB created a sub-standard police training for recruits, thereby not meeting the requirement of being Washington Peace Officers (RCW 43.101.095) but yet calling them peace officers.
Soon after Washington state privatized liquor sales and legalized marijuana, the agency met with many challenges to this new role and responsibilities, according to an internal agency document.
Legislatively, the agency attempted year after year to expand LEOs authority including “grandfathering” existing LEOs to peace officer status in order to alleviate these legal challenges.
Unfortunately, it never gained enough support to expand and legalize LEOs as peace officers.
However, in late 2017, the agency, without legislative action, implemented policies not only identifying LEOs as peace officers but also encroached into general authority law enforcement activities.
These troubling actions have left me with doubts about the agency’s integrity, including misinformation in LEOs annual performance evaluation forms which indicate as if LEOs attended and completed BLEA training regardless of their previous training records.
Anyone in the public who gains access to these files will assume all LEOs are peace officers since the documents note completion of BLEA training.
This is nothing more than a deception.
Although many LEOs are aware of this troubling decision by the agency yet many remain silent in fear of retaliation.
I, too, could’ve remained silent about this action and allow this agency to continue to misuse its authority against the public.
However, my personal integrity is greater than the fear of retaliation and that’s why I’ve decided to speak out in order to hold this agency accountable and transparent because the public deserves more.
My claim against the state isn’t about me wanting more training, rather it is about an equal opportunity of training like other LEOs, but more importantly it is about following the law, RCW 43.101.095.
As an enforcement agency, LCB has the obligation to be held at higher standards when it comes to respecting and enforcing laws of this state.
The police state lives on with the blessings of the majority of the Supreme Court in Washington State.
View the full dissenting opinion in Worthington vs Westnet here
WestNET appears in court to initiate forfeiture proceedings but doesn’t want to be called into court by another. WestNET acts like a legal entity when it enters into agreements that it deems beneficial but doesn’t want to be treated as a legal entity otherwise. WestNET agrees to keep records but maintains that it has no records, and contends that it would be impossible for it to keep records. These contradictory positions—once hidden, but now in plain view—impair the integrity of our prior decision in Worthington I and all related proceedings.
I would grant Worthington’s motion to recall the mandate and take judicial notice of the newly discovered, undisputedly authentic evidence.
I respectfully dissent.
Gordon McCloud, J.
Worthington v. WestNET, No. 90037-0 (Dissent to Order)
I find it more than a little disturbing that the cannabis industry has continued to ignore the rights of the people they are trying to market their products to.
While Wall Street is flush with new money and new ticker symbols appearing on American stock exchanges, and new states opening the doors to “legalization”, you would think that someone out there would think it might be a good idea to first make sure the customers you serve will not be subject to police abuse.
However, in many states, even smaller “mom & pop” supported lobby organizations that have sprung up have not pushed for ending harassment, arrests and forfeitures against their potential customers.
For instance, Washington State passed the first medical cannabis legislation in 1979. Again in 1998, with adult use passing in 2012.
However, we still have no arrest and forfeiture protection for the majority of patients.
Adults are still harassed, imprisoned or getting their property seized for having more than an ounce or trying to grow their own.
Not a single bill has ever come out of the industry groups to fix this.
And that’s in a state that “legalized”.
Maybe those of you in the industry will take this more seriously now if you read it for yourself on NBC News, because you sure have been good at marginalizing, gaslighting and ridiculing your potential customers when we tell you this stuff.
But have they backed legislation to first end the Drug War abuse? Not to our knowledge. Considering Amazon is headquartered in our state, you’d think that might be a priority now that they have an eye on this market.
Customer satisfaction on this doesn’t end with the sale. It should begin with ending the Drug War on REAL PEOPLE FIRST.
STOP PUTTING THE CART BEFORE THE HORSE!
More stories of consumers getting harassed in the news lately: