Reason.tv: Will Medical Marijuana Dispensary Owner Charlie Lynch Go to Jail? Should he?

 

Morro Bay, California medical marijuana dispensary operator Charles Lynch finds himself caught between the old guard and the new guard. While the dispensary he ran was fully legal under state law, he was convicted under federal law last year and faces the prospect of decades in jail–all for helping sick people.

Lynch is waiting on his sentence. U.S. Attorney General Eric Holder recently signaled that the Obama administration would break with the Bush administration and prosecute medical marijuana dispensary owners only if they violated both federal and state law.

Lynch was convicted during the Bush years, but his sentencing will occur under the new regime. So where would that leave him on his sentencing day–a free man, a lifelong prisoner, something else?

It turns out that the man who hold Lynch's life in his hands isn't sure how the policy shift should affect sentencing. U.S. District Court Judge George H. Wu postponed his decision until he learns more about the Justice Department's policy regarding such cases.

In this press conference, Charles Lynch and Reuven Cohen, one of his public defenders, answer questions about the man who stands squarely in the middle of the nation's debate over medical marijuana. Will Lynch be punished for following the law? Or will he be set free from the drug war's long reach?

Produced by Ted Balaker and Alex Manning of Reason.tv. Approximately 5 minutes.

For more video and information on Lynch's case, go here.

Watch "Raiding California," which lays out the miscarriage of justice at the heart of this case.

For more Reason.tv, go here.

Comments

[Xeones]

Will Medical Marijuana Dispensary Owner Charlie Lynch Go to Jail?

Yes.

Should he?

No.

[Xeones]

That was too easy. Ask another one.

[R C Dean]

Wu is such a fucking pussy. The sentence is up to him, not to DOJ or Eric Holder or anyone else. He should man up and sentence Lynch to time served, rather than leaving Lynch to rot in jail waiting for Holder to issue a memo to cover Wu’s ass.

[Nick]

Will this lead to a Supreme Court case? Pretty sure the 10th applies here.

[Nick]

RC, remember that Wu is a minority federal judge. If he sucks Holder’s cock, he could be a Supreme Court Justice one day.

[Rhayader]

Good decision by Judge Wu. Now let’s hope it continues to move in the right direction and Charlie gets time served or probation or something.

Keep fighting Charlie!

[Rhayader]

@RC Dean: Yeah I know what you mean, but he also could have levied the maximum sentence and been done with it. At least he seems to be exercising some caution here, even if it is politically motivated.

[TofuSushi]

When the government is dispensing marijuana then these problems will go away.

[Mad Max]

Speaking of unjust imprisonment in California:

A man named Walter Hoye is serving a 30-day sentence for the “crime” of peaceful protest. He chose an active sentence instead of probation because one of the conditions of probation would have been to surrender even more of his rights to peaceful protest.

You’ll never guess what Mr. Hoye was protesting against!

As the linked article in the San Francisco Chronicle reports:

‘Hoye, executive elder of the Progressive Missionary Baptist Church in south Berkeley, hands out anti-abortion literature outside abortion clinics. He was arrested May 13 at the Oakland clinic, carrying a sign that read, “Jesus loves you and your baby. Let us help you!”

‘As women approached the door, he asked them, “May I talk to you about alternatives to the clinic?”‘

Mr. Hoye was convicted of violating 8.52.030(B) of Oakland Municipal Code:

‘Within one hundred (100) feet of the entrance of a reproductive health care facility, it shall be unlawful to willfully and knowingly approach within eight feet of any person seeking to enter such a facility, or any occupied motor vehicle seeking entry, without the consent of such person or vehicle occupant, for the purpose of *counseling,* harassing, or interfering with such person or vehicle occupant.’ [emphasis added]

[TofuSushi]

Mad Max,

Good. That bible thumper has no respect for the human rights of mothers trying to get invading cells removed from their bodies.

[Mad Max]

TofuSushi,

Remind me again what principle of liberty allows the government to send people to jail for “counseling”?

[TofuSushi]

Good. That bible thumper has no respect for the human rights of mothers womyn trying to get invading cells removed from their bodies.

Ooops. Fixed.

[TofuSushi]

Remind me again what principle of liberty allows the government to send people to jail for “counseling”?

You call it counseling. Normal people call it Fascism.

[Rhayader]

@Mad Max: But it sounds like he did violate that statute. The validity of the law may be up for debate, but if he was approaching women going to the clinic it seems clear that he broke the law.

[Mad Max]

Rhayader,

It also “seems clear” that Charles Lynch violated the federal marijuana statute.

But are these statutes constitutional? That’s kind of an important question, don’t you agree, when considering whether it’s appropriate to send people to prison for violating those statutes?

The statute under which Lynch was convicted violates the 10th Amendment. The law under which Hoye was convicted seems at the very least to violate Art. I, Sec, 2(a) of the California Constitution: ‘Every person may freely speak, write and publish his or
her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.’

[jtuf]

TofuSushi, “Fascism” means more than “disagrees with TofuSushi”. Fascism is having a centralized economy with nationalistic tendencies. By what stretch of the imagination does approaching a woman about her abortion have anything to do with Fascism?

[Mad Max]

Tofu,

It’s impressive how you can get from zero to Godwin in under five minutes.

[Mad Max]

‘You call it counseling.’

No, the Oakland City Council calls it ‘counseling.’

[Rhayader]

@Max: Oh I absolutely agree that the constitutionality should be considered. Like I said, the validity of the law can certainly be questioned.

I guess the gray area comes in when you consider the fact that he was approaching other people and trying to convince them to leave the clinic. One could make the argument that this violates the medical privacy of those women and therefore is not protected speech. Standing outside the building and holding a sign is one thing, but approaching individuals against their wishes is another.

In general I would tend to agree that protecting freedom of speech is paramount. In this case things get a little murky, but I would prefer to see someone like that get a civic citation instead of jail time.

[crimethink]

U.S. Attorney General Eric Holder recently signaled that the Obama administration would break with the Bush administration and prosecute medical marijuana dispensary owners only if they violated both federal and state law.

That’s not what he said. Rule #1 of journalism under Obama: quote, don’t paraphrase, the Hopey One and his minions. ‘Cause they only feel constrained to abide by the literal meaning of what they say, not your interpretation of it (if they feel constrained by anything at all, that is).

[Rhayader]

@crimethink: What is the difference between what was actually said and the quoted paraphrase?

[Mad Max]

‘approaching other people and trying to convince them to leave the clinic’

No, if they were ‘seeking to enter’ the clinic, then they would not be in a position to leave it. They hadn’t gone in.

The ordinance criminalizes approaching such a person ‘for the purpose of counseling . . . such person . . .’

In Hoye’s case, he asked the women, ‘may I talk to you about alternatives to the clinic?’ He didn’t thump them over the head with a Bible and call them Hell-bound Jezebels.

We are asked to believe that he intimidated these pregnant women by asking them if they wanted to know about their *choices.* Just thought I’d note the irony.

[Rhayader]

(Here’s the direct quote)

The policy is to go after those people who violate both federal and state law….Given the limited resources that we have, our focus will be on people, organizations that are growing, cultivating substantial amounts of marijuana and doing so in a way that’s inconsistent with federal and state law.

[Taktix?]

Hey lawyer types!

If he is sentenced, and the policy changes afterward to a more lenient stance, how does it affect his odds to be freed through appeal?

He shouldn’t serve one minute in jail, but a few months during an appeal is better than the full sentence…

[Rhayader]

@Max: OK well if I am about to enter a building, and then am convinced not to and walk away, I could be said to have “left” the building. That’s not exactly a huge leap.

Things just get a little sticky here because we’re talking about medical procedures, and all the attendant confidentiality and legal protection. Protesting a procedure is all well and good, but involving individuals is asking for trouble. “Intimidation” is subjective, and usually dependent upon the recipient’s perception (similar to sexual harassment).

Like I said, I am a free speech guy though. The guy should absolutely not have ended up in jail.

[Randolph Carter]

Wu’s request of a written statement from Holder’s office is actually very awesome – there are a bunch of states hearing medical cannabis bills this session, and now no state reps or senators can argue that “this medical bill puts patients at the risk of federal prosecution and breaks the LAW” (which to them is emphasized like the King James LORD).

[Mad Max]

‘One could make the argument that this violates the medical privacy of those women and therefore is not protected speech.’

The ordinance does not protect medical privacy. For one thing, it only applies to ‘reproductive health care facilit[ies].’

So it would be perfectly, OK, as far as the ordinance was concerned, for an acupuncturist or faith-healer to stand outside a hospital or doctor’s office and ask incoming patients, ‘may I talk to you about alternatives to Western medicine?’ Just so long as the facility deals with general health, as opposed to reproductive health, the ordinancy doesn’t apply.

‘Standing outside the building and holding a sign is one thing, but approaching individuals against their wishes is another.’

Suppose the following: The owner of a restaurant is known to have contributed in support of Proposition 8 (anti-gay-marriage). A gay person stands outside the restaurant, on a public sidewalk, and asks entering patrons, ‘may I talk to you about gay-friendly alternatives to this restaurant?’ This would not be covered by the ordinance, because a restaurant is not a reproductive health facility.

[R C Dean]

If he is sentenced, and the policy changes afterward to a more lenient stance, how does it affect his odds to be freed through appeal?

Not at all. An appeal will be decided on the basis of errors during trial.

Thank you, crimethink and Rhayader, for reminding us that we are dealing with minions of the Parsin’ President here.

Take a look at that Holder quote:

our focus will be on people, organizations that are growing, cultivating substantial amounts of marijuana and doing so in a way that’s inconsistent with federal and state law.

Not exactly a promise not to prosecute anyone complying with state law, is it? You can “focus” on defendants who violate state and federal law without declining to prosecute defendants who violate only federal law, no?

[James Ard]

I think Holder will set him free. Only because the administration is setting up the groundwork for state and local gun laws superceding Heller.

[R C Dean]

Wu’s request of a written statement from Holder’s office is actually very awesome – there are a bunch of states hearing medical cannabis bills this session, and now no state reps or senators can argue that “this medical bill puts patients at the risk of federal prosecution and breaks the LAW” (which to them is emphasized like the King James LORD).

Not really, Randolph. Aside from the squishiness of Holder’s statement, medical marijuana will still break the LAW even if Justice adopts a full-blown no-prosecution policy.

[Mad Max]

‘”Intimidation” is subjective, and usually dependent upon the recipient’s perception (similar to sexual harassment).’

The problem with subjective standards in the criminal law is that prison sentences and criminal records are very *objective.*

The sexual harassment law is an excellent example – indeed, laws against sex and other harassment have in fact been applied in ways which threaten free expression. See Eugene Volokh’s Web site on that subject

[Mad Max]

(disclaimer: harassment laws generally don’t punish with imprisonment, though injunctions based on such laws could lead to imprisonment of alleged violators)

[Rhayader]

Yeah I agree Max. Sending this man to jail is as much about punishing his stance as it is about punishing his methodology. It’s not right.

I still think Charlie Lynch’s case is more egregious, but yeah I get what you’re saying.

[TofuSushi]

But what about the Palistinians?

[SugarFree]

Would you rather live in Gaza or Oakland?

[Taktix?]

Not at all. An appeal will be decided on the basis of errors during trial.

Well, wouldn’t an “error” be convicting someone based on rules that no longer applied by the time of sentencing?

[crimethink]

What is the difference between what was actually said and the quoted paraphrase?

I’m not sure now. But Obama and/or Holder will tell us what the difference is when they decide to continue prosecuting in states where med MJ is legal.

[crimethink]

SugarFree,

That depends — will Al Davis be the owner of Gaza’s football team too?

[SugarFree]

crimethink,

Yes, and Jerry Brown would be the mayor of both as well. It’s a Hobson’s choice, really.

[SugarFree]

Sorry, I meant “Morton’s Fork.” Stupid failing memory.

[Rhayader]

@crimethink: Oh yeah I’m sure you’re right, there will be plenty of dancing around the issue and playing word games over the next few years.

Still though, at least a flimsy half-commitment to rationality is better than the old Bush/Walters constant war rhetoric.

[TofuSushi]

Would you rather live in Gaza or Oakland?

That is a tough one. Isn’t Ben Stein located near Oakland along with many others of his type?

[R C Dean]

What is the difference between what was actually said and the quoted paraphrase?

See, i.e., me @ 10:07 am.

a flimsy half-commitment to rationality is better than the old Bush/Walters constant war rhetoric.

Not necessarily.

Bush’s flimsy half-commitment to rationality smaller government is better than the old Bush/Walters Democrat constant war entitlement rhetoric.

[crimethink]

Not really…because it deludes normally intelligent people like Nick Gillespie into believing that things have actually changed.

[Rhayader]

I think things have changed on the drug war front. There is obviously a long way to go, and I am not expecting 8 years free from drug warrior abuses and lies. Still though, I’ll take Kerlikowske over Walters any day. The tide is turning, ever so slowly, toward something that makes marginally more sense.

And yeah, I still say that paying lip service to a good idea is preferable to vociferously defending a terrible one.

[R C Dean]

I think things have changed on the drug war front.

Still mostly press releases as far as I can tell, Rhayader. Sets your sights higher – demand actual results.

[MNG]

Max
Do you think labor laws that prohibit certain union picketing of establishments are similarly unconstitutional?

[MNG]

I’m not sure that the law you mention violates free speech. Speech can regulated as to time, place and manner. The guy is free to say anything he wants about abortion. He just is not free to stand near the facility and do that.

[Rhayader]

@RC Dean: Oh like I said, we have a long way to go. I realize this and I do have my sights set higher.

Still though, good news is good news, however politicized and timid it may be.

[MNG]

It’s stupid to let the perfect be the enemy of the good.

Less prosecutions for medical marijuana use is a good thing than more prosecutions.

And let’s now remember which administration is bringing you less convictions.

[Rhayader]

It’s stupid to let the perfect be the enemy of the good.

Well put. There is a lot more change needed, but a new direction is a positive development.

[hmm]

Big O hasn’t changed any other significant Bush policy. He has managed one hell of a superficial PR blitz though.

It would be nice to see this be the turning point and have the case thrown out.

[MNG]

Torture over.
Gitmo being closed.
CA medical marijuana raids stopped.
Pull out from Iraq under way.
Friendly overtures to Iran.
Stem cell research ban lifted.

I’d say that’s change I can believe in.,..

[MNG]

I mean, really, I don’t like everything he is doing (I want us out of Iraq now, I want Gitmo closed sooner, etc), but again, letting the perfect be the enemy of the good is silly.

[Mad Max]

‘I’m not sure that the law you mention violates free speech. Speech can regulated as to time, place and manner. The guy is free to say anything he wants about abortion. He just is not free to stand near the facility and do that.’

Laws are also supposed to be viewpoint-neutral (with very narrow exceptions). In other words, it can’t single out a particular point of view for special penalties.

As I have explained above, the ordinance doesn’t apply to protesters outside regular medical facilities, only to protesters outside ‘reproductive health’ facilities.

I’ve also explained that the ordinance doesn’t apply to someone who protests Prop 8 outside a restaurant owned by a prop 8 supporter.

Nor does it apply to someone who is outside a ‘reproductive health’ facility demonstrating in *favor* of abortion. It doesn’t apply to someone who comes up to a woman seeking an aboriton and saying – ‘you go, girl! Kill that clump of cells! Your body, your choice!’ That’s not ‘counsel[ing],’ you see, it’s simply affirmance of the woman’s choices.

The law applies to those who take the position that the activities of ‘reproductive health’ centers is wrong. There are no punishments for those who demonstrate in favor of the facility’s activities, or who engage in so-called harassment outside other types of businesses.

If Oakland singles out a particular viewpoint for discriminatory, and unfavorable treatment, then how does that *not* violate freedom of speech?

I would be more convinced of the Oakland City Council’s bona fides if they applied these penalties to demonstrations they supported – for example, the aforementioned gay-rights demonstrator who pickets a restaurant owned by a Prop 8 supporter, or an antimilitarist group who stands outside an Army recruiting center and tries to persuade young people not to enlist in the military.

If Oakland applies the ordinance to these situations, then you will be able to claim with a straight face that this is simply a neutral effort to punish certain allegedly harassing forms of picketing.

‘Do you think labor laws that prohibit certain union picketing of establishments are similarly unconstitutional?’

If it singled out labor picketers for special punishments, without applying penalties to other kinds of picketers, then it would be unconstitutional.

Don’t you agree?

[MNG]

I’m not sure it is not viewpoint neutral. People who want to cheer abortion as well as people against it cannot stand in front of the facility and do so.

I mean, if a legislature felt that people standing right outside of resteraunts “counseling” patrons to do this or that and said no one could that within x feet of the establishment I’m not sure there is any problem with that.

[Taktix?]

Stem cell research ban lifted.

Uhh, you might want to read more than headlines on occasion.

The ban was on federal funding of stem cell research, not the research itself. There was plenty of research going on, just now were paying for it…

[BakedPenguin]

MNG – torture isn’t over, it just has to be justified in a different way. The Obama administration left in that “Jack Bauer” exception that you know (or should know) will be abused like hell.

As for the MM raids, wait and see. It looks better so far, but Obama has proven plenty flexible with his promises so far. If there is any blowback from this, I could easily see his admin retreating rather than taking any heat.

[Mad Max]

‘People who want to cheer abortion as well as people against it cannot stand in front of the facility and do so.’

That’s not correct. Again, here is the text of the ordinance:

‘Within one hundred (100) feet of the entrance of a reproductive health care facility, it shall be unlawful to willfully and knowingly approach within eight feet of any person seeking to enter such a facility, or any occupied motor vehicle seeking entry, without the consent of such person or vehicle occupant, for the purpose of *counseling,* harassing, or interfering with such person or vehicle occupant.’ [emphasis added]

How can ‘cheer[ing] abortion’ be a violation of this ordinance? Even if a pro-abortion demonstrator comes up within eight feet of the women and shouts ‘Good for you! Kill that parasite!’ with the intention of affirming the woman’s choice, then they have complied with the ordinance. Their intention was not to counsel, much less to harass or interfere, but to *promote* the goals of the abortion clinic.

‘I mean, if a legislature felt that people standing right outside of resteraunts “counseling” patrons to do this or that and said no one could that within x feet of the establishment I’m not sure there is any problem with that.’

But the City Council didn’t do that, did they? The ordinance doesn’t cover the situation you mention. It only covers protests outside ‘reproductive health’ centers in opposition to what’s going on inside those centers.

There have been other kinds of protests in Oakland, but the ordinance doesn’t apply to these protests. For instance:

Anti-Prop 8 protesters have demonstrated outside the Mormon Temple in Oakland, but the ordinance doesn’t apply to these protesters. If one of the protesters came up to a Mormon going into the Temple and asked, ‘May I talk to you about alternatives to the Mormon Church?’ that would be fully in compliance with the ordinance.

The Marine recruiting center in Oakland has been vandalized, yet the City Council’s ordinance doesn’t apply to protesters outside the recruiting center. If a protester outside the center came up to a would-be military recruit and asked, ‘May I talk to you about alternatives to military service?’ that would have been perfectly legal as far as the ordinance is concerned.

[R C Dean]

Torture over.

It was not used after, AIRC, 2003, by Bush. The Obamanaut head of the CIA has reserved the right to use enhanced interrogation of conditions warrant.

Gitmo being closed.

Still open. SCOTUS approved due process for detainees suspended. Obama has reserved the right to continue indefinite detention of detainees without due process.

CA medical marijuana raids stopped.

Perhaps. No definitive policy statement or directive issued. Holder’s statement leaves the door open for federal raids on facilities that may not comply with state law.

Pull out from Iraq under way.

Per the Bush-negotiated SOFA.

Friendly overtures to Iran.

Friendly overtures by Iran would be preferred. Right now, Iran is rejecting our overtures in order to see what additional unilateral concessions they can make. This is certainly change the mullahs can believe in. Whether it will yield results in the best interests of the US remains, at best, to be seen.

Stem cell research ban lifted.

Stem cell research was never banned. Embryonic stem cell funding by the feds was banned unless certain pre-existing lines were used. All indications are that non-embryonic stem cells hold the most promise of real applications.

[R C Dean]

Make that:

Right now, Iran is rejecting our overtures in order to see what additional unilateral concessions they can make get.

[Mad Max]

And I would also note that MNG made a slight Freudian slip when he said that demonstrators in favor of these clinics would be ‘cheering] abortion.’ Of course, they would be cheering *choice.*

[Abdul]

Mad Max,

I’m sympathetic to your arguments on the clinic law in general, but I think this might be considered a “time, place, manner” restriction because “counseling” is probably considered vague enough to include both pro and anti-abortion protesters. Of course, the clinic owner or abortion-seeker would probably not choose to report violations by pro-abortion protesters.

I will grant that the law cuts it pretty close, given that it only singles out reproductive health centers.

[Mad Max]

Abdul,

I’m not sure the law’s supporters will actually try to defend their handiwork on the grounds that the law is “vague.” That would make the law more vulnerable to constitutional challenge, not less.

I still claim, in any event, that approaching a pregnant woman with the intent of *affirming her decision,* rather than counseling her about it, is in compliance with the ordinance, thereby privileging pro-abortion speech.

[Nick]

The protester’s free speech rights are being punished with jail time. Oakland is wrong to throw someone in jail for what was done. Whether you disagree with his advocacy or not is precisely the point of not imprisoning him for speaking. The whole point of Freedom of Speech is to argue in favor of your ideas, be they political or religious or whatever. It’s not just so you can say fuck in public.

[Michael]

I thought this was a discussion of Charlie Lynch…. why is the majority of these comments dealing in abortion rights????

Holder should request that the case be dismissed before they get to the appeal. By Judge Wu bringing up Holder’s statement regarding compliance with State AND Federal Law, doesn’t he open up the avenue for an appeal on the basis that nothing regarding State Law (and Charlie’s compliance with) was allowed to be brought up during the case?

It sounds like a major error to me to not allow discussion of California Law during the case, but then to bring it up during sentencing.

[John Galt]

Some have cited “the Constitution” as a rationale for condemning DEA-arrest and Fed-prosecution of Med Marijuana vendors. I would only add that the laws granting such authority violate the non-aggression principle.

As to CHANGE – I’d like to see Obama direct Justice to review drug-related federal cases – including for those imprisoned – to the end of granting clemency and release.

Now *there* is a cost-saving measure – potentially 25% of prisoners would be released – no to mention freeing up space for truly dangerous criminal.

I can’t dream, can’t I??

[John C. Randolph]

Obama can pardon this man, or he can go to hell.

-jcr

[John C. Randolph]

Will this lead to a Supreme Court case? Pretty sure the 10th applies here.

More to the point, there’s no constitutional authority for the feds to conduct a drug war at all. It took an amendment to ban alcohol, and that amendment was repealed.

-jcr

[MNG]

“it shall be unlawful to willfully and knowingly approach within eight feet of any person seeking to enter such a facility, or any occupied motor vehicle seeking entry, without the consent of such person or vehicle occupant, for the purpose of *counseling,* harassing, or interfering with such person or vehicle occupant”

Max
If a pro-choice person approaches “within eight feet” of “any person” seeking to enter such a facility without the consent of such person and counseled, harrassed or interfered with such person, then the law would apply.

The law is similar to a law that banned animal rights protesters from standing near the door of fast food chains and, without someone’s consent, approaching them and “counseling, harrassing and intimidating them” to not enter the establishment.

“It only covers protests outside ‘reproductive health’ centers in opposition to what’s going on inside those centers.”

I’m not sure what your point is on that. Resteraunts are a type of establishment just like health clinics are.

[MNG]

RC Dean
Cute RC, cute.
1. The Bush administration held torture to be something they could use, Obama held it cannot be. There’s the difference.
2. Obama has signed an order for Gitmo to be closed within the year. Bush was Prez for eight years, Gitmo open the whole time.
3. Bush administration held raids against ones in compliance with state law, Obama has stopped that.
4. Obama is certainly pulling more forces out faster than Bush’s agreement.
5. Before Obama, no fed $ on stem cells, after, fed $ on stem cells

[Mad Max]

‘If a pro-choice person approaches “within eight feet” of “any person” seeking to enter such a facility without the consent of such person and counseled, harrassed or interfered with such person, then the law would apply.’

Sure, and the law prohibits the rich from sleeping under bridges. What’s your point?
‘The law is similar to a law that banned animal rights protesters from standing near the door of fast food chains and, without someone’s consent, approaching them and “counseling, harrassing and intimidating them” to not enter the establishment.’

You’ve changed the ‘or’ to ‘and.’ But there would still be the problem of singling out animal-rights protestors for special punishment.

Allow me to repeat my earlier question – would you allow such a discriminatory law aimed at labor union picketers?