ACLU defends medical marijuana

The American Civil Liberties Union (ACLU) of Hawai'i has put the Hawaii County Council on notice that police helicopter flyovers for marijuana eradication are believed to be in violation of the Hawaii Constitution, the state's medical marijuana law, and the county's Lowest Law Enforcement Priority of Cannabis Ordinance.

"We are particularly concerned that the Hawaii County Police Department (HCPD) is violating individuals' privacy under Article I, S6 of the Hawaii Constitution, along with the Lowest Law Enforcement Priority of Cannabis Ordinance passed last year, and that HCPD may also be violating state law by targeting medical marijuana patients during these 'marijuana eradication' efforts," ACLU of Hawaii Senior Staff Attorney Daniel Gluck wrote the council's Committee on Public Safety and Parks & Recreation on Oct. 6. The two-page letter was submitted as testimony to police's Marijuana Eradication Report for August 2009.

Police Chief Harry Kubojiri refuted the claim that police are targeting medical marijuana patients.

"I'm going to repeat, because I've said it before, the Hawaii Police Department is not targeting medical marijuana patients during eradication missions," Kubojiri said.

He maintained that police are in compliance with the Lowest Law Enforcement Priority of Cannabis Ordinance, spending "one-fourth of one percent" of their time and resources on marijuana, which, in his mind, illustrates the drug is a low priority for police.

"On the other hand, I don't expect my officers nor am I directing my officers to ignore marijuana that they come across incidental to other investigations that they might be doing," Kubojiri said.

The police chief pointed out that according to the state and federal laws marijuana is still illegal, and the Lowest Law Enforcement Priority of Cannabis Ordinance does not legalize marijuana. The purpose of marijuana eradication missions is "marijuana suppression, anti-commercial cultivation, anti-trafficking, and anti-distribution of illicit substances, more specifically marijuana," he said.

Meanwhile, Judith Mura, a resident of La'akea Farm Lots in Puna, affirmed Gluck's charge that the helicopter flyovers are "extraordinarily invasive for law-abiding Big Island residents." She recalled a recent flyover involving a Drug Enforcement Agency (DEA) helicopter and second helicopter that they had chartered. The helicopters flew what she estimates to be "10 feet" above her house before landing on a private road in her Puna subdvision near Isaac Kepo'okalani Hale Beach Park, also known as Pohoiki.

"Luckily I had removed the plastic from my greenhouse, otherwise it would have been torn to shreds it was that close," said Mura, noting three of her neighbors came out to yell at the helicopter pilots and learn that one of the helicopters had an oil leak. The DEA helicopter flew off after 15 minutes, and the chartered helicopter said to have an oil leak sat grounded for a couple of hours before the pilot resumed flight.

"I was just so scared that they could have torn off the roof of my house," Mura said. "If my sheep were out in the field, they could have scared my animals away.

"If I was caught driving that recklessly on the road, they would have thrown my butt in jail," she said. When Mura called police to make a report about the low-flying helicopters, the officer who took her report inquired, "Did they find anything?"

"I said, 'This is not about them finding anything,'" Mura recalled. To her, this is about police engaging in illegal searches by recklessly flying helicopters so low that they endanger private property.

"On a daily basis, it makes me feel like I'm being invaded," Mura said of the helicopter fly-overs. "It makes criminals out of innocent people. People get disturbed, even those of us without having marijuana in our yards. It makes you wonder what it is like when you are growing. She noted the medical marijuana patients she knows who are growing. "They get so scared, and these people are legal. I mean, your heart rate changes when they start to fly."

While Gluck's letter doesn't refer specifically to the incident to which Mura referred, it refers to another incident in March in which DEA and HCPD "flew over one resident's home four times, landed in his neighbor's yard, and spent well over an hour hovering just a few dozen feet above his home." DEA and HCPD had raided that same resident's home in September 2008, despite the resident's "full compliance with Hawaii's medical marijuana laws."

"During that raid, government officials refused to show identification and failed to produce a warrant," Gluck wrote. "They have not produced a warrant to this date, despite breaking a fence to gain entry to the property. They seized his marijuana and, as a result, his health has suffered enormously. These actions by HCPD are simply unacceptable: this particular resident is a seriously ill medical marijuana patient, and the fly-overs cause him extraordinary distress which he fears may lead to a heart attack or a seizure. His poor health simply cannot take the level of harassment and strain brought on by HCPD."

Kubojiri maintained that police, prior to executing a search warrant or embarking on an eradication mission, check with the state to see if a particular property owner believed to be in possession of or growing marijuana has a Department of Public Safety-issued medical marijuana certificate.

"Quite honestly, I'm unaware of the specific incident being alleged in the letter," Kubojiri said. "The most I can do is have someone looking into the allegation."

Dominic Yagong, who is now chair of the Council's Public Safety and Parks & Recreation Committee after the highly-publicized reorganization, is concerned about allegations that police are targeting medical marijuana patients.

"My main concern has always been those patients who use marijuana for medical reasons," Yagong said. "It saddens me when you hear of them either being raided or in their description being harassed, and I hope there is a way we can single out these medical marijuana patients, so they can live their lives without being raided."

Yagong noted that medical marijuana patients should not be bothered, so long as they have no more plants than the medical marijuana law allows them. "If they go beyond those limits, they should face the wrath of the law," Yagong said. "It's like going to a pharmacy. They will only issue the amount of the prescription. You need to stay within the perimeters. The problem I hear is even people within those limits are being harassed and raided. And that's where I have a problem."

Gluck said in an email to the Big Island Weekly that ACLU of Hawaii wants to see council members, the Mayor's office, and Hawaii County police working together "to best effectuate the voters' wishes in passing the lowest law enforcement ordinance last year."

"In addition, as soon as a new U.S. Attorney for Hawaii is confirmed, the Council, the Mayor's office, and HCPD should contact her and take proactive steps to ensure that Hawaii's medical cannabis patients are protected," Gluck wrote.

Kubojiri, Yagong, and Council Chair J Yoshimoto all expressed the need for some sort of clarification of the conflicting county, state and federal laws from an authority outside Hawaii County.

"I believe the state Attorney General should weigh in on this issue, so we can get some clarity," Yoshimoto said. "We should get some guidance, so we know what the public should expect, as well as law enforcement."

Yoshimoto seemed to recall that the county administration planned to seek out an opinion from the Attorney General on the Lowest Law Enforcement Priority of Cannabis Ordinance. He planned to follow up with Corporation Counsel Lincoln Ashida, before he himself writes a letter to the Attorney General.

Kubojiri said Prosecutor Jay Kimura has requested an opinion from the Attorney General, but he wasn't aware on Sunday afternoon if one had been received yet. Calls to Kimura's cell phone were not returned by pres time.

"We need everybody to understand what is government doing with respect to this law, so there is a clear understanding and expectation," Yagong said of the Lowest Law Enforcement Priority of Cannabis Ordinance. "In a nutshell, we passed a law and everyone has their interpretation of the law. A lot depends on the law enforcement interpretation, and their understanding and expectation of the general public," he said. "The problem is the state law says marijuana is legal for certain segments of population. It conflicts with the federal law, so that certainly leads to conflicts for that segment of the community. It does create a challenge for our law enforcement agency, as well. So, I don't know what needs to be done to clear up the issue. But as long as the federal law says (marijuana) is illegal, it is going to be very difficult to pick and choose when you enforce and when you don't."

In noting the need for clarity, Kubojiri pointed to a "White Paper on Marijuana Dispensaries" written in April 2009 by the California Police Chief Association's Task Force on Marijuana Dispensaries.

The 49-page document concludes, "No state has the power to grant its citizens the right to violate federal law. People have been, and continue to be, federally prosecuted for marijuana crimes. The authors of this White Paper conclude that medical marijuana is not legal under federal law, despite the current California scheme, and wait for the United States Supreme Court to ultimately rule on the issue."

Mura, meanwhile, believes marijuana eradication, and prohibition in general, is "a lost cause."

"God knows it's a lost cause. Prohibition just doesn't work. Even God said, 'don't eat from the knowledge of good and evil,' and they still did. Prohibition doesn't work. It costs too much money to persecute people," she said, noting she meant to say "prosecute" not persecute. "It costs way too much money to prosecute people. These are taxpayers' dollars. Using our tax dollars to prosecute us, to create all this, and we don't want it. I'm not a pot smoker, I'm not a pot grower. I know the friends I have that smoke herb are really nice people, so I feel like they're going after the wrong thing. I don't even think it's good for our economy that they do this. The money they spend could have gone to other departments to schools or to the library. Why is it that our tax dollars can't go to something that is creative like that, rather than eradication of something that is not bad for people?"

On the web:

http://www.californiapolicechiefs.org/nav_files/marijuana_files/files/MarijuanaDispensariesWhitePaper_042209.pdf