Category: reason

From Judge Wilhelmina M. Wright’s decision Friday in Goyette v. City of Minneapolis:

The individual Plaintiffs are journalists, photographers, and other members of the press who bring this lawsuit on behalf of themselves and other similarly situated individuals….

On May 25, 2020, George Floyd died as a result of an encounter with four officers of the Minneapolis Police Department, including then-officer Derek Chauvin. Plaintiffs commenced this lawsuit in June 2020 alleging that the State Defendants engaged in a pattern and practice of infringing the constitutional rights of members of the press who were documenting the protests that followed George Floyd’s death. In response to the protests, Minnesota Governor Tim Walz implemented nighttime curfews in Minneapolis and Saint Paul, with an exemption for members of the press. The State Defendants allegedly disregarded the press exemption and targeted the press. According to Plaintiffs, the State Defendants threatened, harassed, assaulted and arrested members of the press in multiple incidents over several days after the death of George Floyd. Goyette moved for a temporary restraining order to prevent the State Defendants from further violating the constitutional rights of the press. The Court denied the motion without prejudice because the protests had quelled and Goyette failed to demonstrate an imminent threat of harm.

Recently, additional protests have occurred in Minnesota in connection with the now-ongoing trial of Derek Chauvin. On April 11, 2021, a Brooklyn Center police officer shot and killed Daunte Wright, which led to additional ongoing protests. Plaintiffs allege that the State Defendants continue to violate the constitutional rights of the members of the press who are covering these protests.

Plaintiffs allege several examples, including the police firing rubber bullets at a videographer who was a safe distance from other protestors, orders directing the press to disperse despite the curfew orders expressly exempting the press, and various other acts impeding the press’s ability to observe and report about the protests and law enforcement’s interactions with protestors….

The court granted the following temporary restraining order, to last (at least initially) for 14 days:

[2.] Defendants Minnesota Department of Public Safety Commissioner John Harrington, in his individual and official capacity; Minnesota State Patrol Colonel Matthew Langer, in his individual and official capacity; and their agents, servants, employees and representatives (“State Defendants”), are hereby enjoined from:

1. arresting, threatening to arrest, or using physical force—including through use of flash bang grenades, non-lethal projectiles, riot batons, or any other means—directed against any person whom they know or reasonably should know is a Journalist (as defined Paragraph 4 below), unless the State Defendants have probable cause to believe that such individual has committed a crime. For purposes of this Order, such persons shall not be required to disperse following the issuance of an order to disperse, and such persons shall not be subject to arrest for not dispersing following the issuance of an order to disperse. Such persons shall, however, remain bound by all other laws;
2. using chemical agents directed against any person whom they know or reasonably should know is a Journalist, including but not limited to mace/oleoresin capsicum spray or mist/pepper spray/pepper gas, tear gas, skunk, inert smoke, pepper pellets, xylyl bromide, and similar substances, unless such Journalist presents an imminent threat of violence or bodily harm to persons or damage to property; and
3. seizing any photographic equipment, audio- or videorecording equipment, or press passes from any person whom the State Defendants know or reasonably should know is a Journalist, or ordering such person to stop photographing, recording, or observing a protest, unless the State Defendants are lawfully seizing that person consistent with this Order. Except as expressly provided in Paragraph 3 below, the State Defendants must return any seized equipment or press passes immediately upon release of a person from custody.

[3.] If any State Defendant, agent or employee of the State Defendants, or any person acting under the State Defendants’ direction seizes property from a Journalist who is lawfully arrested consistent with this Order, such State Defendant shall, as soon thereafter as is reasonably possible, make a written list of seized property and shall provide a copy of that list to the Journalist. If property seized in connection with the lawful arrest of a Journalist is needed for evidentiary purposes, the State Defendants shall promptly seek a search warrant, subpoena, or other court order to authorize the continued seizure of such property. If such a search warrant, subpoena, or other court order is denied, or if property seized in connection with an arrest is not needed for evidentiary purposes, the State Defendants shall immediately return the seized property to its rightful possessor.

[4.] To facilitate the State Defendants’ identification of Journalists protected under this Order, the following shall be considered indicia of being a Journalist: visual identification as a member of the press, such as by carrying a professional or authorized press pass or wearing a professional or authorized press badge or other official press credentials or distinctive clothing that identifies the wearer as a member of the press. These indicia are not exclusive, and a person need not exhibit every indicium to be considered a Journalist under this Order. The State Defendants shall not be liable for unintentional violations of this Order in the case of an individual who does not carry or wear a press pass, badge, or other official press credential or distinctive clothing that identifies the wearer as a member of the press.

[5.] The State Defendants are not precluded by the Order from issuing otherwise lawful crowd-dispersal orders. The State Defendants shall not be liable for violating this injunction if a Journalist is incidentally exposed to crowd-control devices after remaining in the area where such devices were deployed, in conjunction with the enforcement of an otherwise lawful dispersal order.

This raises interesting questions about who is “a member of the press”; for instance, would anyone who is gathering information to communicate the public qualify? (The First Amendment has generally been understood as protecting everyone who uses mass communications technology, rather than creating some specific rights for people who are employed by some media enterprise.) What happens if lots of people wear what appears to be a “professional … press pass” or “distinctive clothing,” precisely because that authorizes them not to disperse when ordered to do so?

I don’t know if much law has been developed recently that helps clarify such matters (which of course arise in other such protest coverage cases as well); but for now, I thought I’d flag the order, which seems interesting and important. If you’re interested in more of the court’s First Amendment analysis, see here.

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This was announced last month, but I’m afraid I somehow missed that at the time. Here’s the story from Ron Collins’ First Amendment News:

Ronald London, a highly skilled and savvy First Amendment lawyer with years of experience, has left Davis Wright Tremaine to head FIRE’s Faculty Legal Defense Fund.

Among other things, Mr. London, a Georgetown Law graduate, worked with Robert Corn-Revere for over two decades in litigating a variety of important free expression cases. For example, they worked together on Motion Picture Association of America v. FCC (2002), where the D.C. Circuit struck down the FCC’s video description rules, and also on the indecency cases where they represented the petitioners in Fox Television Stations v. FCC and in CBS Corp. v. FCC. Additionally, they were counsel for the petitioners in Woodhull Freedom Foundation v. United States (2020) and Pen America v. Trump (2021).

London’s law firm practice included representing clients in First Amendment, media and communications, privacy, advertising, and accessibility cases. He also represented online and traditional media providers in matters before federal and state courts, as well as the FCC and FTC, regarding general regulatory compliance….

FIRE is also looking for experienced local lawyers who can help, and will be able to pay them. (The Fund is being supported by the Stanton Foundation.) And it has set up a hotline, (254) 500-FLDF (3533), for faculty who need help, though they can also submit materials via FIRE’s web site.

FIRE has of course long supported students, including through litigation; now it’s even better equipped to support faculty as well.

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When he was first breaking into the legal weed business in 2011, Joel Pepin did what any sensible, aspiring marijuana entrepreneur would do. He didn’t tell his bank how he was making money.

“You give them an LLC name and you’re sorta vague about the rest, you know what I mean?” Pepin recalls.

He was running a legal business, but if Pepin wanted something as simple as the ability to purchase equipment with a check instead of handing over stacks of cash, he’d have to behave like a common criminal. It’s an uncomfortable legal grey area that continues to afflict most of the businesses within America’s booming marijuana economy—thanks to federal financial rules that haven’t caught up with state-level legalization efforts.

And it’s a struggle to stay one step ahead.

“We had accounts shut down at two different banks,” Pepin tells Reason. “Once you have transactions where there are comments written on the bottom of the checks for ‘wholesale flower’ or that type of thing—they figure out that you’re working in marijuana, and they write you a letter to say you have to pull out your funds and close the account or else they will do it for you in 30 days.”

Things have changed a lot for Pepin since those early days. Today, he’s the co-owner of JAR Cannabis, which has 40 employees, two cultivation facilities, an extraction lab, and two storefronts—along with plans for four more—in Maine, where recreational marijuana was legalized last year.

He’s no longer scrambling from bank to bank, either, thanks to cPort Credit Union, a Maine-based firm that has bucked national trends and has offered banking services to the state’s nascent cannabis industry since 2014. The credit union doesn’t offer loans or financing to marijuana-related businesses, but even the stability of knowing that his checking account won’t be closed next week gives Pepin an advantage over most cannabis entrepreneurs in America.

Medical marijuana is now legal in 36 states. In early April, New York became the 15th state, in addition to Washington, D.C., to legalize marijuana for recreational use by adults over age 21. There were $17.5 billion in legal sales of marijuana last year, but nearly all of those transactions were conducted entirely in cash. Thanks to marijuana’s enduring status as a Schedule I drug, banks that are subject to federal oversight must file Suspicious Activity Reports (SARs) to the Financial Crimes Enforcement Network (FinCEN) each and every time they engage in a transaction with a marijuana-related business—even if the business is fully compliant with state law. The federal law doesn’t prohibit financial institutions from offering banking service to dispensaries and growers, but the added reporting requirements and threat of federal scrutiny keeps many banks away.

According to FinCEN data, 515 banks and 169 credit unions filed at least one SAR related to a marijuana business during the first quarter of 2021. Both numbers had been steadily growing for years as more states legalized marijuana, but have declined slightly since 2019.

The FinCEN data probably exaggerates how many banks are truly doing business with the marijuana industry, says Morgan Fox, a spokesman for the National Cannabis Industry Association, a trade group. He estimates that the real number is less than one-third of what the federal data would suggest. Because banks are required to file SARs for every transaction that might be related to marijuana, a bank that accepts a single deposit is counted the same way as a credit union that offers its full range of services to a dispensary.

It is hard to get precise figures for obvious reasons, but Marijuana Business Daily, an industry trade publication, estimates that about 70 percent of America’s cannabis industry is operating without any access to even the most basic banking services.

Beyond the fundamentals like having a checking account, processing credit cards, and paying taxes, that means cannabis businesses have a harder time getting access to capital to cover start-up costs or pay for expansions. “For smaller growers, especially, that might mean they aren’t able to keep up,” says Fox. Unless you have a deep-pocketed investor or have been around long enough to build up cash reserves, the lack of banking access means most weed businesses can’t scale up.

This lack of access can also be dangerous. Since many pot shops have to operate as cash-only businesses, they are obvious targets for actual criminals.

“We can’t keep forcing legal cannabis businesses to operate entirely in cash—a nonsensical rule that is an open invitation to robbery and money laundering,” says Sen. Jeff Merkley (D–Ore.), one of 27 senators—including five Republicans—to cosponsor the 2021 version of the Secure and Fair Enforcement (SAFE) Banking Act. The bill would change several federal statutes so banks are no longer pressured to consider state-legal marijuana businesses unlawful. An earlier version of the same bill passed the House of Representatives in 2019 with a bipartisan vote of 321-103, but was blocked by the Senate.

Now that Democrats have full control of Congress, the SAFE Banking Act’s prospects look better than ever. Of course, an even better solution to the federal government’s restrictions on how marijuana businesses can engage in banking would be for Congress to simply order the Drug Enforcement Agency (DEA) to remove marijuana from Schedule I.

Even for businesses lucky enough to have access to some banking services, like Pepin’s, there would be huge gains from passage of the SAFE Banking Act or the descheduling of pot—not just for the businesses, but for the entrepreneurs too.

“As the owner of a cannabis company,” says Pepin, “I can’t use that income from the marijuana industry to get an auto loan.”

He’s been running a successful, legal business for more than a decade. It’s time to stop treating Pepin and thousands of others like him as criminals every time they walk into a bank.

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Eighteen states containing 40 percent of Americans have now fully legalized marijuana, but the federal prohibition on cannabis still hangs over the country like a noxious, non-psychoactive cloud. However, a renewed push in Congress could finally end the government’s war on weed.

Last year, the House of Representatives voted in a historic first to end the federal prohibition on marijuana. That bill, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, failed to pass the Republican-controlled Senate, but now that Democrats hold a slim majority in both chambers of Congress, they are trying once again.

In the House, Rep. Jerry Nadler (D–N.Y.), who chairs the Judiciary Committee, plans to reintroduce the bill, which would remove cannabis from the Controlled Substances Act and eliminate federal criminal penalties for cultivation, distribution, and possession.

The legislation would also automatically expunge federal marijuana convictions and require judges to vacate the sentences of those currently incarcerated for federal marijuana offenses on request. It would also end the ban on federal public benefits to those with marijuana convictions.

Meanwhile, Sen. Chuck Schumer (D–N.Y.), along with Sens. Cory Booker (D–N.J.) and Ron Wyden (D–Ore.), announced they will pursue comprehensive marijuana reform this year.

“The War on Drugs has been a war on people—particularly people of color,” the senators said in a press release. “Ending the federal marijuana prohibition is necessary to right the wrongs of this failed war and end decades of harm inflicted on communities of color across the country.”

That bill has not been introduced yet, but in an interview with Politico this month, Schumer said Democrat leadership in Congress will move forward with legalization with or without the support of President Joe Biden.

“I am personally for legalization,” Schumer said. “And the bill that we’ll be introducing is headed in that direction.”

Biden supports decriminalization but not full legalization, a position he hasn’t budged on even as more and more states and Democratic leadership in Congress—not exactly a spry, young group—leave him behind.

“He spoke about this on the campaign,” White House press secretary Jen Psaki said in response to a question about marijuana legalization. “He believes in decriminalizing the use of marijuana, but his position has not changed.”

Maritza Perez, national affairs director for the Drug Policy Alliance, predicts the MORE Act will pass the House again, but it will be a much tougher road for legalization in the Senate.

“The Senate will present a challenge because there aren’t many vehicles where we can get this done with a simple majority,” says Perez. “We’re probably going to need 60 votes, which means we’re going to have to get all the Democrats plus 10 Republicans. I think that will be very challenging given the polarized Congress that we have.”

Perez says the bill is also expected to have provisions intended to funnel tax revenues back into communities that were ravaged by the drug war. These sort of racial justice provisions, as civil liberties groups call them, have become more and more common in legalization bills, and progressive groups consider them make-or-break for their support.

As Reason‘s Jacob Sullum summarized last year, the MORE Act would also:

Impose a 5 percent federal tax on cannabis products, rising to 6 percent after two years, 7 percent after three years, and 8 percent after four years. The revenue would be assigned to drug treatment, ‘services for individuals adversely impacted by the War on Drugs,’ loans for marijuana businesses owned by ‘socially and economically disadvantaged individuals,’ and grants aimed at reducing ‘barriers to cannabis licensing and employment for individuals adversely impacted by the War on Drugs.’

Congress is also once again considering legislation that would normalize banking for the legal marijuana industry, which almost exclusively operates in cash because of its lack of access to financial institutions. In March, Rep. Ed Perlmutter (D–Colo.) reintroduced the Secure and Fair Enforcement (SAFE) Banking Act. The legislation would stop banks from being penalized by federal regulators for servicing legal marijuana businesses.

Democrats’ razor-thin majority in the Senate means the passage of these bills is anything but assured, but the chance to end the federal criminalization of marijuana and let states decide for themselves is closer than ever.

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4/18/1775: Paul Revere’s ride.

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