Collateral Damage in the Marijuana Wars: Patients Who Travel
Marijuana patients are being detained and/or arrested at airports and in their cars for transporting their medical Cannabis. To a patient, or any rational person, the intent of the law seems clear, which is to allow a patient to travel with their medicine, whether Oxycontin or Cannabis. Unfortunately, the Hawaii`i Narcotics Enforcement Division (NED), police, prosecutors and at least some judges don’t see it that way, and they are enforcing the law as harshly as they can.
The issue of inter-island travel is important for Big Island residents, as we make up about 60% of medical Cannabis patients state-wide. Almost all major medical procedures (chemotherapy, surgery, dental work, etc.) take place on Oahu, and without dispensaries, patients must smuggle their medicine, take risks buying it on the black market, or do without it.
In my own personal experience, back in 2007 I talked to a TSA agent at Kona airport, who informed me that I could either declare the Cannabis at the beginning, or pack it, and then produce my “blue card” if they found it. I decided to see what would happen. I put my medicine, pipe, grinder and lighter in an opaque (hemp) bag, placed my blue card on top, placed it in a coin tray and then onto the conveyor belt. It passed through, and I picked things up on the other end…I was shocked, surprised and thrilled! On the return leg, I put the kit into my carry-on bag on the top. Again, it sailed through the x-ray machine without incident. I tried the same thing on two more trips to Oahu during 2007, all with the same result.
Then, on Christmas Day 2007 on my way to Oahu to visit a friend, the world had changed. The TSA staff all looked like they had just arrived from the mainland, they ignored the “blue card” and pulled me out of line. They called airport security, which is really all they can do. The rent-a-cop threatened me with arrest and said the DEA would be taking me away in hand cuffs. The “DEA” never showed up, so the rent-a-cop confiscated my medicine and let me catch my flight. The following day a Hawai’i County vice squad officer called me and asked that I come in for questioning. I was actually going off island, and told the officer I would call when I returned, as I wanted to have a lawyer with me. The officer said fine, and that was the last I heard about it.
In the ensuing few years I had often received second hand accounts of similar events, but never spoke directly to patients who had gone though a similar experience. It has only been in the past year that I have been able to finally talk with others, and learn what exactly has been going on. The following is based on six patients, all of whom had problems on the Big Island. I think it very likely this happens on other islands, but I have not been able to confirm it.
The Federal government does not own the airports, and is not in charge of security at them. The TSA is indeed a Federal agency, but they do not have the power to arrest anyone. Their main concern is things that will bring harm to the aircraft or passengers, such as guns, knives and bombs. They can pull someone out of line for other contraband, but all they can do is detain the person, and call for LOCAL law enforcement. There is also a Federal Aviation Administration regulation (91.19) which allows for carriage of marijuana if…”authorized by or under any Federal or State statute or by any Federal or State agency.” (see attached)
There are private security guards at each check point, and although they carry guns, they are unable to arrest anyone. They are usually retired law enforcement officers, and while some are nice, others are not. They may threaten you, or try to get free information, but you are under no obligation to tell them anything. They will contact the police or sheriff.
Thus far, the police have been releasing patients caught with small quantities of medicine (but of course they confiscate it) and arresting those with larger amounts. The patients being released are charged later by the Hawai’i County Prosecuting Attorney. So, despite all the “Federal government controls the airports” rhetoric, every patient (thus far) has been charged and tried in Hawai’i state court, not Federal. (There’s also the 10th Amendment, in which states are not required to enforce Federal law or prosecute people for engaging in activities prohibited by Federal law.)
Attached (here, here and here) is a copy of a memo from the Alameda County Corporation Counsel to the Sheriff’s Department, which oversees security at Oakland International Airport. It directs the Sheriff to follow California state law if they encounter a patient traveling with medicine and a valid recommendation. I understand that similar procedures are followed at San Francisco, San Jose and Los Angeles airports, but I have not seen anything in writing. I have tried to get Hawai’i County Corporation Counsel Lincoln Ashida to issue a similar memo, but he has simply referred me back to the Narcotics Enforcement Division, who of course stonewalled me. Ms. Jodie Maesaka-Hirata, the director of the Department of Public Safety has also refused to help out.
Patients with less than one ounce have been charged with “promotion of a detrimental drug in the 3rd degree” and those with more than one ounce have been charged in the 2nd degree. For some reason, the Hawai’i Revised Statutes uses the term “promotion of” to include/mean “possession.” Promotion in the 3rd degree, a petty misdemeanor, has a maximum sentence of 30 days in jail, and the trial is before a judge, not a jury. The maximum sentence in 2nd degree cases is one year, and is eligible for a trial by a jury of one’s peers. (But, thus far, no case has gone before a jury.)
The Hawai’i Medical Cannabis Program was passed in 2000, and was the first one done by a state legislature (California’s Prop 215 had been passed by voters in 1996). Although the intent of the legislature would seem clear, the law is poorly written and is being interpreted and enforced in the narrowest possible way, to the detriment of patients state-wide.
The argument being made by the prosecutors (and NED) and which was upheld in Judge Florendo’s court in Kona is as follows. The first part of the law (329-121) defines the “medical use” of marijuana to include the “transportation of.” The second part of the law (329-122) defines where you cannot have “medical use” of marijuana, which includes any “other place open to the public.” The law itself makes no distinction between using (smoking) and simply transporting it. (And, in these cases, the medicine was not open to the public until the TSA pulled it into view.)
There were two cases in Hilo that were dismissed by Judge Takase, who ruled that the law was so vague, no one (patients, police or prosecutors) could properly interpret it. The Hawai’i County Prosecuting Attorney has appealed the ruling. The defendant who was found guilty by Judge Florendo is also appealing. The ACLU has joined the fray and submitted an amicus brief on behalf of the patients. A ruling is expected eventually (it may take one year.). Perhaps the loser will appeal to the state Supreme Court, and it may take even longer to get a final, clear interpretation.
The narrow interpretation is also being applied to patients transporting their medicine in cars, and in effect restricts a patient to being at home (or going to/from their caregiver). This is unreasonable and unacceptable, and we will continue to work to find a remedy.
If you are a patient and are traveling by car, my advice is to put your medicine in the trunk. (If you don’t have a trunk, then lock it in the glove box.) Also, do not smoke in your car.
Finally, know your rights. There are two excellent DVDs produced by the group Flex Your Rights (www.flexyourrights.org): “Busted” and “10 Rules for Dealing with Police” (which is newer). There are free versions on YouTube or you can order them on line. Know your rights and try to exert them. It may come down to your word against that of the police officer, but you must know what to expect, and these videos are worth watching.
If you are a patient and have been detained, arrested and/or prosecuted for traveling with your medicine (either in your car or at the airport) I would like to hear from you. Please contact me at: firstname.lastname@example.org