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Medicinal Marijuana on Trial

December 21, 2010
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There is a precedent setting case about medicinal marijuana and a state’s right to allow it now playing out in California with surprisingly little media attention….Here’s the scoop.

In November 2007 Steele Smith and his wife Theresa were arrested by federal DEA agents in Orange County, California for cultivating and selling marijuana. But the Smith’s aren’t your run of the mill drug dealers and the federal government has left them in legal limbo ever since.

The backstory: In the summer of 2001 Steele was a successful self-employed marketing man who was felled by a gut-wrenching mystery illness. He couldn’t eat and quickly dropped forty pounds from his already thin 6 foot 7 inch frame. His doctors were stymied about what caused the debilitating condition. After four excruciating months a rare-disease specialist diagnosed a condition called Zollinger-Ellison syndrome which pockmarks a victim’s upper gastrointestinal tract with multiple, painful ulcers. Morphine was prescribed for Steele’s constant pain and he lived in that legally induced drug dependent state for the next three years eventually becoming an opiate addict.

In the summer of 2004 his devoted wife guided him on a journey toward detox. “It was either going to kill him or me,” Theresa told me. “I was black and blue from his outbursts. He couldn’t help it, of course, but something had to be done!”

It was an agonizing time but Steele finally found the strength to wean off morphine. But Z-E is a lifelong affliction and he was still hobbled by the lack of nourishment and the incapacitating pain. The Smith’s desperate search for alternatives brought them to information about the benefits of medicinal marijuana, made legal in California in 1996. The Smith’s sought and got a medical “recommendation” for Steele to try marijuana. (Under federal law an actual prescription isn’t allowed for a so-called schedule 1 drug like heroin and, yes, marijuana.) They were directed to dispensaries in Los Angeles, an hour drive away. “All we found were drug dealer types. They were all long haired, tattooed … basically drug dealers who got a store front – intimidating, like your typical head-shop,” Theresa explained.

But miraculously the medicinal marijuana worked! For the first time in years Steele was able to eat and manage his pain. His marketing ideas flowed again and the couple decided to fill the void in Orange County and open their own medicinal marijuana dispensaries to bring relief to others. Their lawyer says they did everything right under California law.

“Mr. Smith set up a legitimate 501 non-profit corporation and he paid all applicable taxes,” a legal brief written by Smith’s attorney Eric Shevin asserts. “He issued patient ID cards, followed pharmacy labeling requirements. He even provided free medical equipment to his customers, like wheelchairs, walkers, porta-potties and wheelchair racks for cars. Mr. Smith allowed the Fullerton Police to document his grow operation thoroughly… and the lead officer even complimented him on the cleanliness and legitimacy of the operation.” By 2006 more than 1000 patients were registered in the Smith’s data base.

So why were the Smiths arrested and threatened with 10 years in prison? Because back then the U.S. Justice Department decided that the federal law against cultivating marijuana should trump the California law. The Smith’s were caught up in a classic battle of a state’s right to pass its own laws. Theresa spent 2 months behind bars. The ailing Steele was held in a maximum security jail for 10 months. Upon release he was 20 pounds lighter and again hooked on narcotics given to him for pain. The Smiths lost everything including their home, cars, their savings and they had to borrow money from Theresa’s widowed mother who died a short time later. They’ve lived under a terrible cloud of legal uncertainty for three years, all the while still grappling with Steele’s disease.

Today’s Justice Department looks at the state’s rights issue differently and the Smith’s trial will surely be a landmark case closely watched by the 15 states that currently allow cultivation and sale of medicinal marijuana. It will be a milestone verdict because federal Judge Cormac J. Carney has made the unprecedented decision to allow a federal jury — for the first time ever – to hear affirmative testimony about California’s medicinal marijuana law. This won’t just be about someone having been caught growing pot. The Smiths will be allowed to give groundbreaking testimony about why their interpretation of the state’s law led them to believe they were acting legally.

In 2008 candidate Barack Obama told an interviewer, “I think the basic concept (of) using medical marijuana in the same way, with the same controls as other drugs, prescribed by doctors (is) entirely appropriate.” Fourteen months ago President Obama’s Justice Department instructed all federal prosecutors not to arrest medical marijuana users and suppliers as long as they followed state laws.

So, now, the feds are left squarely between a rock and a hard place with their three year old case against the Smiths.

Perhaps because Judge Carney has a track record of ruling against prosecutors who he sees as overstepping their authority the feds decided late last week to ask for yet another delay in the December 21st trial, postponing it until late March 2011.

“It’s the eleventh or twelfth delay,” Theresa Smith said in a weary voice. She sees the fight as a state’s rights issue but also, she says, “As a patient’s issue. If it was meth or heroin or some opiate I wouldn’t say that. But this is a plant that God put here for a reason. It helps people – so many people.”

Diane Dimond can be reached through her web site: Her latest book is “Cirque Du Salahi” available at


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Daily Roundup: Colorado’s KushCon 2010 Overshadowing California?

December 21, 2010
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Cannabis Culture 

David Downs —  Mon, Dec 20, 2010 at 11:05 AM

1) The San Jose medical marijuana battleground gets another look from the AP. “The crackdown highlights a stubborn legal reality that persists despite a growing sense that storefront pot shops have become a permanent part of the California landscape: the law around medical marijuana is vague, and you can still get busted. ‘They’re trying to make money off it, and that’s ridiculous,’ Bob Cooke, the state Bureau of Narcotics Enforcement agent overseeing the raids, said of the dispensary owners who have been targeted.” More headlines after the jump.

2) Conversely, KushCon convened tens of thousands in Denver over the weekend, the Denver Post reports. “While Colorado may not yet be the center of marijuana culture, it is the hub of marijuana business. KushCon organizers and exhibitors say Colorado’s for-profit model — legitimized by laws passed in the legislature and rules soon to be adopted by state agencies — is the envy of canna-business owners across the country. ‘Denver is the leader in the world,’ said Michael Lerner, a marijuana media mogul who is putting on the show. ‘Colorado is light-years ahead of the rest of the world in how it regulates and taxes cannabis.’ In happier news, the Raiders beat the Broncos, in what has to be the stoniest match-up in the NFL.

3) The Alameda County district attorney has a problem with Oakland’s licensed pot farms, saying they could be illegal under vague state guidelines that we wrote about in July. California Watch reports.
growing facilities are springing up in Eureka, following planned ones in Berkeley, Sebastopol, Humboldt, plus the entire states of Colorado and Arizona. The Times-Standard reports.

4) Conversely,

5) Meanwhile, cleaner, cheaper high-quality dispensaries are forcing one Marin county club to clean up or go out of business, the Marin Independent Journal reports.

6) And the Emerald Cup gets a post from Peter Hecht at the SacBee. For a closer look at last year, check Redheaded Blackbelt.

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Calif’s 3rd-largest city new medi-pot battleground

December 21, 2010
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The Associated Press
Saturday, December 18, 2010; 3:21 PM

SAN JOSE, Calif. — As marijuana goes mainstream in communities across California, the state’s third-largest city has become the next big battleground over the drug’s future.

Medical marijuana retailers this fall have faced raids and stings by narcotics agents who accuse them of old-fashioned drug trafficking, even as the San Jose City Council debated regulations for pot dispensaries and voters approved a cannabis tax to fill depleted city coffers.

The crackdown highlights a stubborn legal reality that persists despite a growing sense that storefront pot shops have become a permanent part of the California landscape: the law around medical marijuana is vague, and you can still get busted.

“They’re trying to make money off it, and that’s ridiculous,” Bob Cooke, the state Bureau of Narcotics Enforcement agent overseeing the raids, said of the dispensary owners who have been targeted.

Medical marijuana advocates say the raids have undermined efforts by dispensaries to comply with the law and to act as good neighbors who have much to contribute to the city’s hard hit economy.

Dispensaries shut down by law enforcement include members of the city’s Medical Cannabis Collectives Coalition, a group that lobbies the City Council on behalf of dispensaries, said MC3 spokesman Paul Stewart. Dispensary owners in the group were acting in good faith and feel tricked by the raids, he said.

“We’re stepping back saying, we’re the ones trying to work with you to come up with sensible regulations,” Stewart said. “Now you’re hitting the same collectives trying to help you and will ultimately generate revenue for you?”

Much of the confusion over the state law hinges on a provision that prohibits making a profit from medical marijuana. Dispensaries get around this by describing themselves as collectives or cooperatives and requiring patients to designate the dispensary a “primary caregiver.”

Under the state’s medical marijuana law passed by voters in 1996, only a patient with a doctor’s recommendation or that patient’s primary caregiver can grow or obtain pot.

Law enforcement critics complain that dispensaries – some with tens of thousands of members – are no more primary caregivers to their customers than are liquor store owners.

Still, raids on dispensaries have become increasingly rare, especially in other Bay Area cities such as San Francisco, Oakland and Berkeley, which have passed ordinances regulating pot shops like other small businesses.

San Jose officials by contrast have had difficulty reaching agreement on how to regulate dispensaries. This city of 1 million has seen an explosion in the number of pot shops in the two years since the Obama Administration declared a hands-off approach in states where the drug is approved for medical use.
Santa Clara County prosecutor Frank Carrubba, who heads the narcotics enforcement division of the district attorney’s office, estimates that San Jose has nearly 90 medical marijuana dispensaries and the county more than 100 in all.

San Francisco, with a slightly smaller population, has around 30 dispensaries. Oakland, a city a little less than half the size of San Jose, has 4.

“We’re weeding out the people who are selling drugs. The ones who are providing medicine are allowed to exist,” Carrubba said.

How police and prosecutors decide who is a drug dealer and who is a caregiver has become the main point of contention between investigators and the dispensaries in the San Jose cases.

County investigators spelled out their standards in a search warrant affidavit for a recent raid on the Angel’s Care Collective in Santa Clara, a city of 100,000 neighboring San Jose.

District Attorney Investigator Dean Ackermann, an undercover officer, stated that he bought marijuana at Angel’s Care multiple times without ever receiving any kind of health care advice. The officer said he was charged $12 to $13 per gram of pot. He said that’s more than 10 times the cost of cultivating a gram of marijuana.

If the dispensary was truly a collective, the affidavit said the undercover officer was never told how to participate.

The officer’s “only involvement in the collective was to purchase marijuana at street level prices,” the affidavit said.

According to the affidavit, Angel’s Care’s operators told investigators they do not run the dispensary as a business and that all the money goes to cover utilities, wages for 15 employees and “donations” to collective members who supply the dispensary with marijuana.

The operators also told investigators that patients are not purchasing marijuana from the dispensary but are making donations.

At no point in the affidavit is Angel’s Care accused of providing pot to anyone who does not have a physician’s recommendation.

San Jose attorney Jim Roberts, who represents Angel’s Care and two other raided dispensaries, said all were operating as nonprofits in full compliance with California law.

State law allows law enforcement agencies to take a cut of the assets seized in any bust involving illegal drugs.

Roberts is fighting the county’s effort to confiscate the cash agents found at the dispensaries and in dispensary bank accounts frozen following the raids. The cash and other assets sought by the county total more than $200,000, Roberts said.

“What they’re really after is money,” he said.

Carrubba, the deputy district attorney, said his office’s sole interest is prosecuting crimes.

Up to now, county prosecutors have charged 22 operators of medical marijuana delivery services busted in a Craigslist sting with illegally selling marijuana. The owners of just one of the four dispensaries raided have been formally charged so far. Carrubba says that’s because of the complexity of the financial records involved, but Roberts questions the strength of the cases against the dispensaries.

But some dispensary operators are not waiting to find out whether those charges will ever come down. At least one high-profile dispensary canceled the ribbon-cutting for its planned San Jose branch out of concern over more busts.

“The key to resolving this is having the district attorney’s office direct the special enforcement team to stand down,” Stewart said. Until then, he said, “we know the raids are going to continue.”

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Judge issues injunction against L.A.’s medical marijuana law

December 16, 2010
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The ruling finds the law’s provision outlawing all dispensaries except those that registered under the moratorium unconstitutional. It leaves the city with little power to control pot shops. City officials vow to quickly address the concerns. December 11, 2010|By John Hoeffel, Los Angeles TimesA judge handed Los Angeles a setback in its faltering drive to limit the number of medical marijuana dispensaries, granting a preliminary injunction on Friday that bars the city from enforcing key provisions in its controversial six-month-old ordinance. The decision, issued by Los Angeles County Superior Court Judge Anthony J. Mohr, leaves the city with limited power to control pot stores, which opened by the hundreds, angering neighborhood activists when city officials failed to enforce a 2007 moratorium.

Near the end of his 40-page ruling, Mohr acknowledged “there is a good chance that a large number of collectives could open once this injunction takes effect,” but said his order was warranted because the dispensaries that sued the city are highly likely to prevail in a trial.

The City Council first discussed regulating dispensaries 5 1/2 years ago. At the time, the Los Angeles Police Department could find just four of them. It was five years before the city’s ordinance, one of the most complex and convoluted in the state, took effect.

More than 100 dispensaries have filed at least 42 lawsuits challenging the ordinance. “We’re singing ‘Happy Days Are Here Again,'” said Stewart Richlin, an attorney who represents nine dispensaries, while David Welch, an attorney who represents more than five dozen, described his clients as “ecstatic.” He said Mohr’s decision would curtail city enforcement efforts. “It means they can’t use strong-arm tactics, such as arresting my clients,” Welch said.

But Jane Usher, a special assistant city attorney, said, “I suspect that their exuberance will be short-lived.” She noted that Mohr, in ruling against some provisions, also suggested ways to fix the ordinance. “He left 90% of it intact and gave us methods for quickly correcting the remaining provisions. I think we’ll be gracious and accept,” she said.

Councilman Ed Reyes, who led the City Council’s drive to draft the ordinance, said he hoped to have a proposal to address the judge’s ruling by Monday. “My sense of urgency is that great,” he said. “I’ve already learned from the past that, if you open up the window a little, people just crash through. We have to close that window as quick as possible.”

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Marijuana growers in Mexico use U.S. techniques to improve plants

December 15, 2010
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New technology causes plants to grow faster, increasing potency and value.

Melissa Vogrin

As many states across the nation debate the merits of legalizing medical marijuana, Mexico may be throwing another wrench into the argument. Mexican marijuana farmers have begun using United Stated-pioneered techniques in remote mountain communities to produce marijuana that is both of higher quality and higher cost. This is likely to have an effect on the deadly drug war currently raging in Mexico.

Reuters reports that Mexican soldiers have found “60 acres of covered greenhouses equipped with sophisticated irrigation and fertilization systems growing seemingly endless rows of marijuana plants. … [And,] the army recently busted a marijuana lab with potted plants heated day and night by lamps, a change from traditional outdoor cultivation of the crop and a sign drug cartels are using more savvy production methods.”

These plants were found in Sinaloa, located in northwestern Mexico and the central location of Mexican drug trafficking. One soldier explained, “This is new. They now have technology so the plant will grow faster; we think the techniques are coming from (the United States).”

The greenhouses and other indoor facilities tend to increase the THC content of marijuana, which is the active ingredient, thus raising the value of the drug. According to the U.S. State Department, United States-grown marijuana has a THC content that has increased almost 250 percent over the past twenty years.

The Director of the White House Office of National Drug Control Policy-funded National Marijuana Initiative, Tommy Lanier, said that some U.S. types of marijuana have nearly 30 percent THC, but Mexican varieties average between 3 and 4 percent.

Currently, both U.S. and Mexico law enforcement officials believe that Mexican drug gangs are making revenue on cheap and low-quality marijuana. However, if the drug gangs successfully grow higher-quality marijuana, they will be able to sell the new plants for as much as five times the current price. According to U.S. law enforcement officials, top-grade U.S. marijuana currently sells for approximately $2,500 per pound, while Mexican-grown pot typically sell for less than $500.

Hundreds of troops have been sent by Mexican President Felipe Calderón to destroy the marijuana plants, but each time the fields are destroyed and the soldiers move on to a new location, the drug cartels simply replant and start again. It is an ongoing battle and more than 33,000 people in Mexico have been killed in the last four years as a result of the drug wars.

Soldiers explain that “the new greenhouses are harder for the army to detect with fly-overs since they resemble tomato plots common in Sinaloa.”

A possible reason why Mexican marijuana farmers are improving their cultivation techniques is market competition. Medical marijuana is now legal in 15 U.S. states and the District of Columbia, and sales have inevitably increased in those states, especially in California. In fact, seizure of marijuana plants in California has increased by almost 300 percent since 2006. Mexican growers from Michoacan, the state from which the notorious drug cartel La Familia hails, are cultivating many of outdoor marijuana fields in the U.S. that have recently appeared.

Police officer Bill Ruzzamenti, who specializes in the marijuana trade in California’s Central Valley, believes that “Mexican growers working in the United States are taking knowledge learned from experienced marijuana botanists cultivating new strains with names like ‘train wreck’ and ‘California dream’ back home to Mexico.”

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More patients favor cheaper local cards, or just doctor’s recommendations

December 15, 2010
More patients favor cheaper local cards, or just doctor’s recommendations

By John Simerman
Contra Costa Times

Posted: 12/13/2010 03:47:26 PM PST

Updated: 12/14/2010 06:58:08 AM PST


A flurry of competing ads touting low-cost medical marijuana evaluations shouts the obvious: California is awash in pot patients. By some estimates, they number as many as 350,000.

Yet only a tiny fraction has signed on to a state ID card program meant to protect them from arrest or seizure of their weed. That doesn’t appear likely to change, say marijuana advocates, patients and some county health officials who administer the program locally. Not when the cost of the cards can’t compete with privately issued cards or even doctors’ recommendations. When the state created the program in 2003 and launched it two years later, officials figured 100,000 patients would sign on for the optional cards. But the state issued just 12,659 to patients and caregivers last fiscal year, the first time virtually the entire state participated in the program after several counties held out over legal challenges.

Three years earlier, when only 28 counties participated, the state issued 10,274 cards. State cards issued in Contra Costa County rose this year, but other Bay Area counties have seen a slide. San Francisco, which issues more of the state ID cards than anywhere else does, has seen a nearly 30 percent decline in three years, while the number of state cards issued in Alameda County dropped nearly 60 percent.

The culprits: high cost and low need.

Alameda County first tried to insist that pot dispensaries accept only patients bearing the state card, but the county determined it could not legally require it, since Proposition 215, which legalized medical marijuana in California in 1996, requires only a doctor’s recommendation.

In 2007, the state raised its card fee from $13 to $66, saying the program needed to pay for itself. The counties add their own fees, raising the price for cards that must be renewed annually.

Alameda and San Francisco counties charge $103, including the state fee. The cost is $120 in Contra Costa. Medi-Cal patients pay half as much.

Add a general mistrust of handing personal information to the government, and for many patients the cards aren’t worth it, said Pam Willow, who oversees the card program for Alameda County.

“The kind of people who access the state ID card are people who want to dot all the I’s and cross all the T’s. They tend to skew a little bit older than the general population, a little more conservative,” she said.

The same issues arose in San Francisco. The state cards lost their luster in 2008 when the city let pot clubs issue their own, said Dr. Joshua Bamberger, the city’s medical director for housing and urban health. They are free at some pot dispensaries there.

“It’s really a financial thing. If it’s $103 versus less, or nothing, that’s pretty straightforward,” he said. “There are still people who want the state card. Somebody must think they have greater protection, but I have no evidence “… I don’t know why anyone would spend the money now.”

Whether the state can justify its $66 fee is unclear. State law allows the program to set fees to cover expenses, which now run $389,000 a year, according to the state agency. Last fiscal year, the agency collected about $740,000 in card fees.

The agency uses the extra revenue to repay a $1.5 million startup loan for the program, said spokesman Matt Conens. Without loan payments, the state could charge $35, or $17.50 for Medi-Cal patients, to cover its expenses, based on the number of cards issued last year.

A request for annual budget and revenue figures for the program, and an accounting of the startup loan payments, went unmet.

One Oakland man, who was handing out a local dispensary’s marijuana menu on Broadway, said he couldn’t see the benefit of a state card.

“I don’t understand the protection the state card is implying, and I just can’t afford it. I certainly don’t have the extra $100,” said Kenny, who declined to give his last name. Instead, he carries a folder with a letter from a medical firm that includes an image of his driver’s license and a 24-hour number that law enforcement can call to verify his status.

Others see a value to the state cards. Willow called it “the gold standard in terms of the type of protection you can get from it.” She and other health officials, and some marijuana advocates, said highway patrol officers have been specifically instructed to accept the cards, making arrests and seizures less likely.

CHP policy tells officers to accept the state cards, local cards or physicians’ written recommendations and, if possible, call the doctor or card issuer to verify the medical recommendation.

“There is not one form of proof that is preferred. The officer is supposed to use his or her best (sound) judgment,” said CHP spokeswoman Jaime Coffee

One advantage to the state cards: Officers can plug the card number into the state website to easily verify it. One advocate said the state cards seem to make things easier during traffic stops and other law enforcement contacts.

“We get calls routinely from patients who obtain privately issued cards, and law enforcement regularly refuses to recognize those cards,” said Kris Hermes, spokesman for Americans for Safe Access. “Police aren’t necessarily recognizing the state-issued ID card either. However, in many more instances, they’re refusing to recognize a private card.”

Hermes blamed the weak participation on a struggle to get the program started statewide, poor marketing and the rise in cost.

“Ultimately if the purpose is to assist law enforcement and reduce the number of unlawful seizures and arrests, it would make sense to have a well-functioning card system.”

Contact John Simerman at 925-943-8072.

Medical Marijuana ID CARDS ISSUEd
County: 2006-07 2009-10 Change
Alameda 1,475 611 -59 %
Contra Costa 152 262 +72 %
San Francisco 3,975 2817 -29 %
San Mateo 586 299 -49 %
Santa Clara 581 303 -48 %
Statewide 10,274 (28 counties) 12,659 (56 counties) +23 %

November 23, 2010

Northern California is home to thousands of pot growers. There are no known incidents of pot farmer terrorist attacks on critical infrastructure.

November 21, 2010 

 Northern California pot growers bomb a car and a bus, then take over Shasta Dam in a bid to free an imprisoned comrade. It sounds like the plot to a very cheesy Grade-B thriller, but it was actually the premise for a day-long terrorist attack drill conducted by 20 state, local, and federal law enforcement agencies Wednesday.

According to an account published in the local paper the Redding Record Searchlight, the Shasta Dam scenario had the “Red Cell” pot grower/terrorists blowing up the car and bus to create a distraction and then taking over the dam. Holding three people hostage, the terrorist pot growers then threaten to flood the Sacramento River by opening the flood gates unless their imprisoned comrade is freed.

The drill was part of the US Bureau of Reclamation’s Critical Infrastructure Crisis Response Exercise Program, which started in 2003. It identified six dams, including Shasta, the nation’s second largest, as possible terrorist targets. Similar exercises took place at Utah’s Flaming Gorge Dam in 2003, Washington’s Grand Coulee Dam in 2005, and Hoover Dam on the Arizona-Nevada border in 2008. But none of those exercises identified pot growers as the putative terrorists. According to bureau spokesperson Sheri Harral, the drill took 18 months of planning and cost the bureau $500,000. The other emergency and law enforcement agencies that participated paid their own expenses.

As of press time, Harral had not returned a Chronicle call asking why marijuana growers were selected as the terrorists. Northern California is home to thousands of pot growers, many of them doing it legally under the auspices of California’s medical marijuana law. There are no known incidents of pot farmer terrorist attacks on critical infrastructure.

Dale Gieringer, head of California NORML and an observer of the state marijuana scene for decades, told the Chronicle he was unaware of any California pot grower terrorist cells—ever. “No, never,” he said.

Nor was he impressed with the pot grower as terrorist scenario. “That was so stupid,” he sighed. “I don’t know what inspired it. I can see the need to do better pat downs for air travelers to make sure they’re not holding joints in their underpants, but this? It sounds like something some yahoo red county sheriff would dream up.”

Neither was the Marijuana Policy Project amused. “This is a classic example of law enforcement’s utterly inaccurate stereotype of who is involved with marijuana,” said the group’s communications director, Mike Meno. “For decades, they have villianized users and people involved in the industry to such an extent that they now equate them with terrorists. It might be laughable,” he said, “but it gives us real insight into the drug warrior mentality and what they think of marijuana people.”

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