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Ohio Legalizes Medical Marijuana

Governor Jon Kasich signed the bill into law this week, making Ohio the 26th state to legalize marijuana for medicinal purposes. The law will require a physician’s recommendation to legally use the drug and, according to the New England Journal of Medicine, at least 76% of physicians surveyed approved of the use of medical marijuana, so it shouldn’t be too hard for an Ohioan to find a doctor that will sign off on their need for medical use.

Currently, there are no commercial cultivators within the state, which means patients will have to go out of state where it’s already legal until Ohio has time to catch up. Operations must be up and running within two years, but proponents of the bill believe it will happen much sooner. It will likely take the state at least a year before qualified patients can purchase the drug from the comfort of their home state.Ohio Pot

Ohio’s new law is relatively strict and will be heavily regulated, especially when compared to states like California where there are no specific conditions on the use of medical marijuana. Smoking marijuana will still be illegal in Ohio, but the change will allow patients to use vaporizers, edibles and oils. Despite the fact that patients will not be able to grow their own plants at home, the law will provide patients with a prescription a valid affirmative defense to possible possession charges.

Polls showed 90% of Ohioans support medical marijuana and, fearing a less restrictive constitutional amendment, lawmakers pushed the bill through, giving them the power to craft their own rules and regulations regarding growth, sale, and use of medical marijuana.

Qualifications to Obtain a Prescription Will Be Heavily Regulated

Growth, sale, and use will be heavily regulated by the Ohio State Pharmacy Board, the State Medical Board, and the Department of Commerce. Additionally, part of that regulation will include a board of 14 members that recommend rules to the foregoing regulatory agencies.

Despite giving a board regulatory and policymaking powers, all dispensaries must be licensed by the state and any physician wanting to write such a prescription will be required to complete some form of continuing education about marijuana before they register with the state. There will also be some sort of patient registration process likely put into effect.

Only certain medical conditions will qualify a patient to be allowed medical marijuana. The law, however, will not exempt users from employee regulated drug-free policies, meaning, even though you have a prescription, your company can still terminate for marijuana use if it violates their drug policy.

The list of conditions that qualify for medical marijuana in Ohio are:

  • Amyotrophic lateral sclerosis (ALS)
  • Alzheimer’s
  • Cancer
  • Chronic traumatic encephalopathy (CTE),
  • Crohn’s disease
  • Epilepsy or another seizure disorder
  • Fibromyalgia
  • Glaucoma
  • Hepatitis C
  • Inflammatory bowel disease
  • Multiple sclerosis
  • Pain that is either chronic and severe or intractable
  • Parkinson’s disease
  • Post-traumatic stress disorder
  • Sickle cell anemia
  • Spinal cord disease or injury
  • Tourette’s syndrome
  • Traumatic brain injury
  • Ulcerative colitis

The maximum prescription is 90-day supply. When the plan is eventually grown in the state, the marijuana flowers cannot contain more than 35% THC and extracts must be below at least 70%. Marijuana laced products that are especially attractive to children, like gummi bears, are strictly prohibited.

How Does Ohio’s Law CompareWith Other States?

Only 4 states have legalized marijuana for recreational use, but 25 other states have some form of medical marijuana laws on the books. Besides small nuances, Ohio’s policies won’t be much different than others. Most require a prescription and most with serious medical conditions can obtain that prescription.

Alaska, Hawaii, Montana, Nevada, and Oregon don’t currently allow in-state dispensaries. Ohio will eventually once the state can get its infrastructure up and running. Michigan doesn’t allow dispensaries on a state level, but does allow localities to create ordinances to both allow and regulate dispensaries. Every state but Washington allow patient registries or ID cards for those allowed to use the marijuana.

Among the stricter states that have laws regarding medicinal marijuana, use is limited. For example, Florida allows low levels of THC, below .8%, for cancer, seizure, and/or other medical conditions that produce chronic symptoms, but only 5 registered nurseries across the state can sell the product, making it less accessible than other states. Alabama allows the University of Alabama to conduct research using low-level THC products for treating seizure disorders for a period up to 5 years.

The law only allows the University to give the treatment to patients that have debilitating epileptic conditions or life-threatening seizures. Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Tennessee have similar University research policy laws in place.

Evidence of Musical Preference Used in Trial to Presume Gang Membership

What if you were found guilty of a crime simply on your taste in music? Washington Supreme Court just overturned the convictions of 3 men on the basis that their 5th Amendment rights were violated when tainted evidence was used to convict them in trial. However, the real hooker is that the State used evidence of the defendants’ musical preference to bolster their theory that the men were gang members.

The 3 men were pulled over on account of being suspects in a drive-by shooting. When the men were pulled over, police found 2 red bandanas, cans of beer, and marijuana paraphernalia, but no guns or shell casings as they had expected to find. Officers thought the men had thrown a weapon out of the car prior to being pulled over, but no firearm was ever found and the men were arrested and charged with 3 counts of first degree assault while armed with a firearm with an intent to benefit a criminal street gang. The 3 men were charged together—the prosecution’s theory was that the shooting was in retaliation of rival gang members.

The victim of the drive-by shooting was a member of a local gang, while the defendants were affiliated with a rival gang who generally wore red; hence the officer’s emphasis on the red bandanas found. The State’s theory was that the shooting for which the defendants were on trial was a result of gang rivalry and, as a result of that theory, the State used affirmative statements of gang involvement made by the 3 defendants during the jail booking process. Handcuffs

Further, the State found a song by Los Tigres Del Norte stored on one of the defendant’s phones and used that evidence at trial. What was the State’s theory on this that tied them to the shooting? That that musical preference alone was evidence of gang involvement. Now, it was ultimately the use of those statements made during the jail booking process that got the men’s case overturned on account of violating their 5th Amendment rights, but the Court’s opinion pointed out that it was unsettled by the fact that the State used the defendant’s musical preference against them.

Are Persons Associated With Gang Members Guilty By Association?

Definitely. Whether warranted or not, a stereotype exists. Is it unconstitutional? Is it the same as racial profiling? Maybe not, but it raises some questions about programs such as ones in California where guilt is prevalent simply by association with gang members.

California’s Street Terrorism Enforcement and Protection (STEP) Act makes it a crime simply to participate in a street gang and assist in any felony criminal conduct. Once associated with a gang, your name goes in a database used by state and local law enforcement officers and that information can be used to add a sentence enhancement on top of any sentence handed down for an underlying felony. The state will consider any criminal act as an act committed for and on behalf of the gang regardless of whether it was gang related or not. The minimum enhancement is 6 months, but some crimes can carry as much as a 15-year enhancement.

Some law enforcement officials typically defend these type of databases on account of “good detective work,” arguing that these type of databases are keeping tabs on gang members, not law abiding citizens, but since it’s up to officers to determine whether someone is in a gang based on a handful of criteria, it’s possible there are persons on the list that aren’t actually part of a gang and never have been.

Presumptions of Guilt Based on Cultural Preferences

Criteria used for these type of databases aren’t based on hard-lined rules—it varies from jurisdiction to jurisdiction. Although officers in California must go through training at a school for gang officers, the criteria and tools used to make these decisions aren’t precise and mistakes are made.

Officers will take note of how a person is dressed, any identifying marks and/or tattoos, where you live, who you hang out with, or who your family is and can decide based on one encounter whether or not to include a person into a gang database. Sound familiar? This time, musical preference was used for a presumption of guilt at trial. Although Washington doesn’t have the same STEP Act as California, it’s another example of how easily information about a person’s cultural associations, like music, can be twisted.

It’s a fact that gang members commit crimes and it’s not databases like ones under STEP that are unconstitutional in and of themselves, but there seems to be more of a constitutional issue with the methods in which the data is collected. Isn’t profiling someone as a gang member and based on their cultural preferences, like music choice, the same as racial profiling, which we know is unconstitutional?

Should Police Officers Be a Protected Class Under the Law?

Should police officers be given special protection under hate crime law? Louisiana thinks they should—on May 26th, Governor John Bel Edwards signed the so-called “Blue Lives Matter” bill into law. This legislation makes Louisiana the first state in the nation where police officers (along with firefighters and other first responders) are considered a protected class under the law.

The passing of “Blue Lives Matter” raises several important questions. First, what does it mean if a class of people are “protected” under the law? Also, what are the possible consequences of the passage of the “Blue Lives Matter” legislation?

What Does It Mean to be a Protected Class under the Law?

The landmark Civil Rights Act of 1964 laid the foundation for future anti-discrimination laws and defined the first protected classes. Under the Civil Rights Act, it became illegal to discriminate against people based on their race, color, religion, sex, national or ethnic origin. Before the passage of the Civil Rights Act, schools as well as workplaces were legally segregated along racial lines. Police 2

The subsequent Civil Rights Act of 1968 prohibits physical violence or intimidation towards those in protected classes. Federally protected activities include attending school, patronizing a public place, applying for employment, acting as a juror in a state court or voting. Penalties for violating this law with crimes resulting in bodily injury include up to 10 years in prison. Such crimes involving kidnapping, sexual assault, or murder can be punished by life in prison or the death penalty.

Federal hate crimes can also be prosecuted under the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009. This legislation expanded federal hate crime law to include protections for sexual orientation and gender identity. Also, unlike in 18 U.S.C. § 245 (b) (2), victims are not required to be engaged in a federally protected activity at the time of their crime.

What about State Hate Crime Laws?

Currently, 45 states and the District of Columbia have laws against hate crimes.

Louisiana is one of the states with anti-hate crime statutes. Louisiana makes it unlawful to victimize someone through crimes including “first or second degree murder, manslaughter and sexual battery” because of their “…actual or perceived race, gender, religion, color, creed, disability, sexual orientation, national origin.”

Even before the Blue Lives Matter bill passed, police officers could be seen as a kind of protected class in Louisiana, as it is one 37 states with enhanced penalties for assaulting a police officer.

Is the Blue Lives Matter Legislation Even Necessary?

Those in favor of Blue Lives Matter say that the law is essential because of what they perceive as increased hostility towards law enforcement. After all, Blue Lives Matter was named in response to Black Lives Matter, the activist group that has protested the deaths of young, unarmed African Americans at the hands of white police officers.

However, according to Seth Stoughton, an assistant law professor at the University of North Carolina, the perception that more officers are being murdered in the line of duty than ever before is actually false.

Stoughton says that instead of a steady uptick in officer killings in recent years, there have been only slight fluctuations, with 2013 the safest year for officers ever. In fact, only about half as many police are murdered every year now in comparison with the 1970s.

What Are Some Implications of the Passage of Blue Lives Matter?

In order for someone to be found guilty under hate crime law, it must be proven beyond a reasonable doubt that the defendant committed their crime because of bias toward a protected group. If the defendant does not admit to bias as a motive, the prosecution must find another way to prove their prejudice.

To prove bias, the prosecution can take into evidence information like the defendant’s membership to a group that is thought to espouse hatred for a protected class. It is not hard to imagine that those charged under the Blue Lives Matter law could argue that their First Amendment right to freedom of expression was violated by the law. After all, a defendant could argue that just because they belong to a certain group does not mean that they intended to commit a hate crime.

Additionally, the passage of Blue Lives Matter not only opens the door for other states to make police officers a protected class, it invites the possibility of other professions attempting to become protected under the law. While no one wants to feel that they are the victim of a hate crime, it seems disingenuous to state that just because someone has chosen to work a certain job, they are entitled to enhanced penalties under hate crime law.

The inclusion of more and more protected classes under the law could dilute what hate crime legislation was supposed to accomplish—protection of marginalized groups against historical indignities which prevented them from living their lives equal to those of other Americans.

Should the Parents of the Boy Who Fell Into a Gorilla Enclosure Have Been Held Liable?

What would you do if your child wandered away from you in public and you found yourself facing national scrutiny as well as possible criminal liability? That’s just what happened to Michelle Gregg and Deonne Dickerson after an incident with their three-year-old son at the Cincinnati Zoo over Memorial Day weekend.

On May 28th, the three-year-old boy climbed over a 3-foot barrier before falling 15 feet into a moat inside a gorilla enclosure. The boy was then confronted by Harambe, a 450- pound silverback gorilla. Harambe violently dragged and tossed the child around the enclosure before he was fatally shot by zookeepers.

Harambe’s death sparked international outrage. Critics lambasted the zookeepers for resorting to killing a member of an endangered species, as well as the boy’s parents for what they saw as their negligent behavior. In fact, a petition posted on calling for Michelle Gregg to be investigated by Child Protective Services has over 60,000 signatures.

The Cincinnati police announced that they would look into filing criminal charges against the boy’s parents. However, on June 6th Ohio prosecutors announced that they would not be pressing charges.

But exactly what sort of legal liability could the boy’s family have faced? And could a case against the parents be seen as anything but frivolous?

Could the Boys Parents Have Been Charged For Harambes Death?

The outrage directed at Michelle Gregg and Deonne Dickerson after Harambe’s death is reminiscent of the backlash against Minnesotan Walter James Palmer. In 2015, Palmer shot and killed Cecil the lion while on a hunting expedition in Zimbabwe.

Like Harambe, Cecil was a member of an endangered species. Also like Harambe, Cecil lived under human observation—he resided in a national park where he was popular with tourists. While zookeepers shot Harambe in order to protect a child, Palmer hired two guides to assist him in killing the lion. Once in Africa, Palmer allegedly assisted in tying an animal carcass to the back of a vehicle to lure Cecil out of the park. Palmer later shot and killed Cecil after 40 hours of stalking him through the wilderness. Gorilla

However, the most important difference is that Palmer potentially faced charges under the Lacey Act, which makes it a federal crime to trade in wildlife killed in violation of foreign law. Palmer’s accomplices faced $20,000 in fines and up to 10 years in jail on poaching charges. There isn’t a comparable statute in the Harambe case. Ultimately, however, Palmer was not charged with a crime in Cecil’s death.

In lieu of a law that could directly charge anyone with Harambe’s death, outraged animal lovers urged supporters to sign a petition to instate “Harambe’s Law.” The petition, which will be delivered to an Ohio representative and a senator, asks that in the event of an incident similar to Harambe’s death “…the negligent party and or party’s [sic] be held financially and criminally responsible for any harm and or loss to an animal, specifically when said animal is Critically Endangered.”

Could the Parents Actions be Considered Child Endangerment?

If the boy’s parents had been found criminally liable, they might have been charged with child endangerment. According to Ohio Revised Code (ORC 2919.22), a caregiver commits child endangerment when he or she creates a “substantial risk to the health or safety of the child, by violating a duty of care, protection or support.” In other words, a parent or guardian who puts the child under their care in a situation where it is likely that the child will be exposed to harm could be found guilty of child endangerment.

While it might seem that a prohibition against exposing a child to harmful situations could make allegations of child endangerment a slam dunk to prosecute, this is not always the case. For example, while leaving a toddler unattended in a bathtub for up to four minutes could possibly be a situation that poses a “substantial risk to the health or safety” of a child, an Ohio court ruled that the mother in the case was not guilty. Similarly, another Ohio mother was not charged after she left her child unsupervised in a car in a mall parking lot.

However, there is an example of a parent who was held legally liable for an incident at a zoo. In 2015, a woman was sentenced to probation and parenting classes after she dropped her young child into a Cleveland zoo’s cheetah pit. The two-year-old child lunged out of his mother’s arms after she dangled him over a railing. The woman was charged with child endangerment, but eventually pleaded no contest to aggravated trespassing.

Although some animal lovers have been critical of what they see as Michelle Gregg’s parenting failure that day at the zoo, the charge of child endangerment does not hold up so easily in her case. According to witnesses, Gregg lost track of her child for perhaps two minutes. Unlike the Cleveland Cheetah case, Hamilton County prosecutor Joe Deters stated that he did not believe she acted in a way that put her son in danger.

So Would Charging the Boys Parents Have Made Any Sense?

While the death of Harambe was a loss to the Cincinnati Zoo and animal lovers everywhere, the prosecution’s decision not to press charges against Michelle Gregg is correct. After all, Michelle Gregg did not poach Harambe, as was alleged in the case of Walter Palmer. Additionally, the couple of minutes Gregg lost of her son does not rise to the standard of child endangerment.

Man Held Hostage Demands Portion of Award Money for Aiding Capture of Jail Escapees

If you’ve been kidnapped and convince your kidnappers to turn themselves in, should you get a share of the reward for their capture? A 71-year old taxi driver was reportedly kidnapped by 3 escapees from a California jail and held hostage for at least a week. Lon Hoang Ma, the victim, has sued in a court of law for a share of the $200,000 reward that was posted for the capture of the 3 escaped men.

After escaping from jail, inmates Bac Duong, Hossein Nayeri, and Jonathan Tieu called for a taxi. The unsuspecting taxi driver happened to be Ma, who drove them, at their request, to a local Walmart and Target shopping center. All seemed normal until the men walked out of Target with a gun, threatened Ma, and forced him to drive to a hotel where he was held hostage. Tieu and Nayeri, according to Ma, would often argue about wanting to kill Ma, but Duong was against it. Even so, Ma feared for his safety, as all 3 men were violent felons.

Ma reported that Duong was often cordial to him, despite the fact his partners wanted to kill him. Eventually, while Nayeri and Tieu were out with a stolen van, Ma claims he was able to persuade Duong to flee. Ma convinced Duong that the other 2 men would eventually kill him and that Duong would be an accessory to that crime even if he didn’t take part. Presuming Duong didn’t want to be an accessory, the pair decided to flee and took off on roughly a 400-mile drive south. It was during that drive that Ma says he persuaded Duong to surrender himself to the police. Wanted Poster

Duong was arrested and Ma proceeded to give the Sheriff’s department more information about the events that took place during his kidnapping, which included information identifying Tieu and Nayeri’s known location and information regarding the stolen van that was in their possession. This information was then broadcast on local airways. A homeless man saw the broadcast and realized he had just spotted the missing men and flagged down a police officer. As a result, Tieu and Nayeri were ultimately caught.

The homeless man got $10,000 for reporting that he had spotted the men to a police officer, the owner of the stolen van received $20,000 for making a vehicle theft report, and 2 Target employees received $15,000 for recognizing that the men had purchased cell phones at their store. Ma received nothing even though he provided information leading to the capture of the escapees.

Who Qualifies For Reward Money?

In terms of contract law, a contract exists when there is offer, acceptance, and consideration. A reward offer is an offer for a unilateral contract, which is accepted by performance and that performance would be providing information leading to an arrest.

Ma isn’t the first to sue for reward money, but rewards will often not be issued to a victim while a case is pending because it can affect the outcome at trial when an eyewitness has to testify and disclose that they’ve received a reward. That doesn’t mean Ma shouldn’t be entitled to a portion of the reward, it just may need to be a delayed reward.

It’s Probably a Slippery Slope…

Consider a man commits a crime, decides to turn himself in, and then tries to claim the reward money for his own crime. Does the criminal have a legally valid claim to do so? No. The problem arises with the consideration portion of the equation. Consideration can come in the form of a promise (or performance) to do something that you’re not legally obligated to do or a promise not to do something you have the right to do (like file a lawsuit). A criminal can’t claim his own reward because he doesn’t have any consideration to give.

You obviously don’t want criminals claiming reward money for turning themselves in, but a hostage should be entitled to a portion of the reward if his information helped lead to the arrest of his captors. Ma accepted the offer when he provided information that ultimately led to the arrest of the jail escapees.

Ma wasn’t obligated to provide any of that information, so that’s his consideration. Whoever is paying out the reward has the ability to set the terms of eligibility for claiming the reward, but unless there is some missing information, the fact that Ma was a hostage shouldn’t hinder his ability to claim part of the reward.