Category Archives: defenses

CBD, Hemp & Law in Minnesota

Is CBD legal in Minnesota?

The law could be easier to follow, but the answers are here.  CBD sourced from hemp is legal under Minnesota law.  And a federal law prohibits spending on federal prosecution of people with state-legal hemp CBD.  Here is the breakdown, with the related Minnesota and Federal laws.

Cannabidiol, CBD, is trending strongly.  Why?

The main reasons are:

  1. CBD has desirable health and wellness benefits.
  2. CBD has no psychoactive effect, unlike psychoactive drugs such as alcohol, etc.
  3. It is not now, nor has it ever been, illegal. And, it’s unregulated.

Only the third reason listed — the laws — could change.  The biology of the plant and of humans will not change.

Green Light for Hemp

Green Light for Hemp

Despite the fact that CBD itself is not illegal, its federal legal status is still more complicated in 2018, than that statement seems to imply.  We’ll dig into it here.

First though, what is Cannabidiol, or CBD?  The second-most researched chemical in cannabis is Cannabidiol.  CBD relaxes muscles, has other therapeutic effects, and is non-psychoactive.

Commercially extracted from cannabis plant resin, CBD is then concentrated into an oil high in CBD, low in THC.

What is THC? 

Tetrahydrocannabinol (THC) is one of the other 113 cannabinoids found in cannabis plants.  THC is the principal psychoactive constituent of cannabis, giving adult-use users the desired marijuana “high.”  In marijuana, CBD and THC balance each other.  CBD counters and mitigates (reduces) the psychological effects of THC.

Cannabis with high CBD is specially bred, grown or both with the goal of producing a high CBD-yielding plant.  Medical marijuana can contain more than twenty percent CBD, while most adult-use marijuana has one percent CBD or less.

Science vs. Law – Two Worlds, Three Words

“Cannabis” has generally been a botanical, scientific name for the plant.  The word “marijuana” came into common usage mainly because it was used in laws.  The definition of marijuana was purely legal, defined by statute – not defined by science.  The word “hemp” was in usage apart from its legal definition, but it now has a legal definition embedded in statutes.

As a result, cannabis is primarily a scientific term for the plant. “Marijuana” and “hemp,” on the other hand, are primarily legal terms, defined by statute as two  separate categories of cannabis.

Currently under the law in Minnesota, “hemp” is not “marijuana,” and “marijuana” is not hemp.

The Resin

The cannabis plant has many varieties – high resin varieties as well as low resin varieties.

The resin contains most of the THC and CBD and other, entourage cannabinoids.

The older legal definition of “marijuana” focused on the resin as being problematic.  The 1970 Controlled Substance Act definition of “marijuana” demonstrates this.  The Minnesota version’s definition focuses on resin as well.  Minnesota Statutes §152.01, subd. 9 (2018):

“Marijuana.”Marijuana” means all parts of the plant of any species of the genus Cannabis, … whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin, but shall not include the mature stalks of such plant, fiber from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks, except the resin extracted therefrom, fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.”

(Despite this statutory definition language: “all parts of the plant of any species of the genus Cannabis,” another statute defining hemp provides that the hemp form of cannabis is not “marijuana.”  Discussion of the Minnesota hemp statute follows.)

The THC level dividing line — hemp is not marijuana

More recent developments in the law draw a THC-level line between “marijuana” and “hemp.”  Hemp has “no more than 0.3 percent THC by dry weight” under federal and now Minnesota law.  (Other states, however, have higher THC thresholds for hemp than Minnesota does –and for good reason.)

This historical, legal development over time has created unintended consequences and legal ambiguities.  Such as?

The Problem

Here is the big problem.  People want to be able use CBD products for health and wellness support.  No one seems to object to CBD itself, as CBD, after all, it has no intoxicating effects; has no euphoric effect.  But, the best CBD comes from “marijuana” not hemp, as legally defined under the federal and Minnesota legal definitions.

CBD from legal hemp is currently legal.  But CBD from illegal marijuana is currently illegal. 

It’s the source that makes it legal or not, in 2018.

Hemp as a Source of CBD

Though CBD can be extracted from a hemp source, hemp has little resin (compared to marijuana); and so has little CBD.  CBD, like its sister THC,  concentrates in the plants’ resin.

Absolute vs. Relative Levels of cannabinoids

Hemp is a less efficient source of cannabinoids, including CBD (two-to-four percent).  But the low-level of THC in hemp does not prevent the ratio of CBD-to-THC from being high, ten-to-one, or more.  In this relative sense, hemp varieties can be claimed to be “CBD rich.”

Cannabis plant varieties with higher absolute levels of CBD exist.  If a plant  contains more than twelve percent CBD in the flower buds, it will also normally contain more than three percent THC.  (Over the three percent level of THC would make the cannabis “marijuana,” not “hemp.”)

The extract from that sort of plant can be purified to produce crystalline CBD.  (Note the difference possible between the THC level of the plant vs that of the end product.)  Again, the current laws make CBD legal if from a legal source (i.e., hemp), but illegal if from an illegal source (i.e., illegal “marijuana”).

Manipulation of the plant to comply with the law

Plants can be genetically bred and crossbred, as well as specially cultivated to increase the CBD level while decreasing the THC level to less than the legal threshold for hemp.

hemp stHemp is a low-yield source of CBD.  Large amounts of hemp must be used to extract a relatively tiny amount of CBD, as compared to “marijuana.”  A side effect of that is that hemp-sourced CBD is at risk of containing high levels of environmental contaminants, because hemp is a bio-accumulator.  The quality of the soil should be tested, since large amounts of hemp are cultivated to produce small amounts of CBD, 

Marijuana-sourced CBD is not only more efficient, but results in a higher quality and safer end product.

Clear Legal Landmarks and Ambiguities

The plant vs. the end product

The legal status of CBD products, in Minnesota in 2018, depends upon the THC level in the source plant, not the end product.  In other words, a CBD-product with “no more than 0.3 percent THC by dry weight” would still be illegal if it was sourced from a “marijuana” plant (a cannabis plant with 0.3 percent THC by dry weight). This, even if the product has zero THC.  What sense does that make?

The current situation with CBD, hemp and the law in Minnesota:
  1. It’s not a crime if it’s not listed in the federal or state version of the Controlled Substances Act, CSA schedules.
  2. Both “marijuana” and THC are listed; in both Minnesota and federal CSAs.
  3. CBD is not listed in either the Minnesota or the federal CSA, and so is not illegal as CDB.
  4. The only commercially feasible sources for CBD are “marijuana,” and to a lesser extent “hemp” – both legally-defined categories of the cannabis plant.
  5. CBD sourced from “marijuana” plants, is a crime to possess.
  6. Hemp sourced CBD (or theoretically another non-“marijuana” source) is not a crime to possess. It is unregulated.
  7. Products marketed as CBD may be contaminated due in part to the lack of regulation and the legal push away from “marijuana” as a source.  Compared to marijuana, hemp is an inferior source of CBD.
Proposed solutions:
  1. Simple solution: Completely legalize marijuana.  Then legally source CBD from “marijuana” – a better source for safe, quality CBD.
  2. Baby step: Increase the THC threshold for hemp from .03 percent to 1.0 percent or more. (For example, West Virginia defines hemp as cannabis with a THC concentration of less than 1 percent.)  This would improve the quality of hemp sourced CBD.
  3. Baby step: Law authorizing and regulating the maximum THC-levels of CBD products, regardless of plant source.

The Legal Grey Areas

Historical development

As is often the case with the law, the law relevant to the legal status of CBD is the result of history.  Metaphorically, lawyers and judges are like archaeologists – digging down through the layers to discover how the past influenced later developments, to arrive at the current state of the law.

The development of laws relating to the cannabis plant strongly influence the legal status of CBD is a because it is a component of the cannabis plant.  Those laws have been buffeted by controversy since about the end of the U.S. Alcohol Prohibition era, when the marijuana Prohibition era began. 

Since then, the political back-and-forth on marijuana laws over time has resulted in a ragged edge in the laws – legal ambiguities.  It’s a bit messy, but lawyers are trained to sort out such messes.  So here we go.

Conflicts

First, a succinct topical description of the conflicting policies and laws, will be followed by explanation.  The following legal factors interact and often conflict with each other:

  1. Restrictive Federal Hemp Research law (“Farm Bills”), vs.
  2. federal statutory recognition of State authority, vs
  3. preemption of State laws by federal laws, vs
  4. federal comity or non-enforcement policies (“Appropriations Acts” – no money to enforce; plus local U.S. Attorney discretion).

In Minnesota, the ambiguity seems to come from the federal laws, not our state laws, so we’ll look at the federal laws first.

Federal Legal Timeline

1970, Federalism, Down for the Count

The 1970 Controlled Substances Act introduced the idea of five “schedules” ostensibly based upon social risk vs. benefit.   Schedule 1 drugs are those claimed to have a high potential for abuse; and no currently accepted medical treatment use.

Despite expert disagreement with claims that marijuana had “a high potential for abuse and no currently accepted medical treatment use,” “Marijuana” was included in Schedule 1 in 1972,  

In 2018, thirty-one states now have legal medical marijuana programs, and fifteen states (e.g., Wisconsin) allow marijuana-sourced “low THC, high cannabidiol (CBD)” products for health use.  The majority of the U.S. population now lives in a state where medical marijuana is legal.  How do these facts square with the claim that it has “no currently accepted medical treatment use?”

Note that Minnesota adopted its own state version of the federal CSA, with five schedules of listed drugs.  It is not identical to the federal version.

Minnesota state sovereignty

Many do not know that Minnesota can remove or re-schedule marijuana out of Schedule 1, without regard to the federal CSA Others states have.  The State of Oregon rescheduled marijuana to its Schedule 2 in 2010.

Schedule 1:  marijuana and THC are listed, CBD is not listed

The federal CSA schedule defines “marihuana,” as the cannabis plant except for the mature stalks and non-germinating seeds.  THC is separately scheduled under the federal CSA — the only natural cannabinoid specifically scheduled.

chlorophyll

chlorophyll

CBD is not a scheduled drug under the CSA.  Plant components chlorophyll and CBD share the same legal status.  When sourced from marihuana, both chlorophyll and CBD are “schedule 1 drugs.”   Nevertheless, CBD itself is not scheduled. You won’t find it listed on the CSA.  Go ahead and check.  It’s not there.

Despite this welcome clarity in the law, some remain confused about this easily verifiable law.  For example, the Wikipedia entry for “Cannabidiol” (as of this writing), incorrectly claimed that Schedule 1 of the federal Controlled Substances Act lists Cannabidiol (CBD).  A five-minute online fact-check of the statute proves that CBD is not in Schedule 1 of the federal Controlled Substances Act.

2008, the Dawn of the Federal Non-enforcement policy

By 2008, state after state had passed laws decriminalizing marijuana, and legalizing medical marijuana; and the trend was clearly accelerating.

Prosecutorial discretion era

2009: “the Ogden memo” in 2009, instructed all U.S. Attorneys to make federal prosecution of marijuana possession a low priority, especially for people complying with a state’s medical marijuana law.

By 2012 in Colorado’s November 2012 general election, marijuana legalization got more votes than the winning Presidential candidate, Barack Obama.  Clearly, legalization transcended partisan politics and politicians took note.

2013: “The Cole memo” in 2013, suggested that federal prosecutors rely on the states to enforce state law except “marijuana-related conduct” within one of eight limited federal “enforcement priorities.”

The memos identified Controlled Substance Act enforcement priorities.  They encouraged federal prosecutors to avoid enforcing federal drug laws against “seriously ill individuals” using marijuana consistent with state laws.

In January 2018, U.S. Attorney General Sessions issued a Marijuana Enforcement Memorandum that rescinding the Cole Memorandum, and asking federal prosecutors to decide how to prioritize enforcement of federal marijuana laws. The Sessions memorandum asks local U.S. Attorneys to “weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General … .”

These administrative directives encourage federal comity to the states, and non-enforcement of federal marijuana laws against people legally authorized under state law.

2014, The Rebirth of Federal Legal Hemp – Baby Steps

Federalism returns – the statutory era
Hemp growing legal

Hemp growing legal

2014 “Farm Bill,” the Agricultural Act of 2014, 7 U.S.C. § 5940:  While legal experts insist CBD is already legal under the 2014 Farm Bill, some government agencies claimed the contrary.

Much of this confusion is due to a lack of attention to the importance of the source of the CBD under current law.  CBD is not the subject of these laws; hemp is.

Section 7606 of the 2014 Farm Bill provided for the legal cultivation by states of “industrial hemp” without a permit from the federal DEA (“Hemp Pilot Programs”).  The 2014 Farm Bill protected cultivators registered under a state’s hemp research pilot program, who cultivate cannabis containing no more than 0.3% of THC, and who meet the requirements imposed by their state department of agriculture.

Lawyers for the hemp industry argued that 2014 Farm Bill’s language is broad enough to include market research, including sales of hemp-based CBD products.  The federal Drug Enforcement Administration (DEA) had emphasized their view that CBD remains illegal under the Controlled Substances Act, leading to lawsuits by the hemp industry.

Court interprets the Farm Bill

Regardless of the DEA’s prior position, courts have recently weighed in, and clarified the law:

“The Agricultural Act provides that “[n]otwithstanding the Controlled Substances Act . . . or any other Federal law, an institution of higher education . . . or a State department of agriculture may grow or cultivate industrial hemp,” provided it is done “for purposes of research conducted under an agricultural pilot program or other agricultural or academic research” and those activities are licit under the relevant State’s laws. 7 U.S.C. § 5940(a). The Agricultural Act contemplates potential conflict between the Controlled Substances Act and preempts it.” HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, Court of Appeals, 9th Circuit 2018

The court emphasized that the 2014 US Farm Bill federally legalizing hemp where legal under state law, overrides any conflicting language in the 1970 Controlled Substances Act (such as the definition of “marijuana”).  Section 7606 of the 2014 US Farm Bill (the “Farm Bill”) allows states to grow “Industrial Hemp” defined as having less than 0.3% THC on a dry weight basis in states that have implemented agricultural pilot hemp programs.  Minnesota has done so. 

The Court found that the Farm Bill “contemplates potential conflict between the Controlled Substances Act [CSA] and preempts it.”  HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, No. 17-70162, 9th Circuit Court of Appeals, 2018.

2015:  Federal Nonenforcement – the Sequel, this time with Congress

2015: Consolidated Appropriations Act of 2016, Pub. L. No. 114-113, § 763, 129 Stat. 2242, 2285 (2015), limits the Justice Department from spending federal dollars to intervene in, or prosecute state-sanctioned activities involving marijuana or industrial hemp.

The court removed any doubt about the plain language of the federal statute, mandating federal non-intervention in state legal marijuana and hemp rights.

“The Consolidated Appropriations Act forbids the use of federal funds from being used “in contravention of . . . the Agricultural Act” or “to prohibit the transportation, processing, sale, or use of industrial hemp that is grown or cultivated in accordance with subsection section 7606 of the Agricultural Act of 2014.” Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 763, 129 Stat. 2242, 2285 (2015).”  HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, No. 17-70162, 9th Circuit Court of Appeals, 2018.

In 2014 and 2015, Congress passed the landmark Rohrabacher-Farr amendment to the Commerce, Justice, Science and Related Agencies (CJS) Appropriations Act, which prevents the federal Department of Justice from using any funds to interfere in state medical cannabis programs and bars ongoing federal cases.  Subsequently, state medical marijuana programs increased from 20 states to 31 states.

2017: DEA Rule by Fiat Fizzles

The court lays it out

New DEA Drug Code (7350) for Marijuana Extract – “went into effect on January 13, 2017:”

“Petitioners Hemp Industries Association, … (collectively “Petitioners”) petition this Court to review a final Drug Enforcement Agency (“DEA”) rule that establishes a new drug code for marijuana extract. We … deny the petition. … The rule went into effect on January 13, 2017, and Petitioners timely filed the instant petition for review that same day.  A party may petition a Court of Appeal for review of a final DEA decision, 21 U.S.C. § 877, but if the party fails “to make an argument before the administrative agency in comments on a proposed rule,” they are barred “from raising that argument on judicial review.”… The Final Rule put this question to rest when it rephrased the definition to apply to an “extract containing one or more cannabinoids [.]” 81 Fed. Reg. 90195 (Dec. 14, 2016).” HEMP INDUSTRIES ASSOCIATION v. US DRUG ENFORCEMENT ADMINISTRATION, No. 17-70162, 9th Circuit Court of Appeals, 2018.

Then the DEA backtracks

The DEA’s Clarification of the New Drug Code (7350) for Marijuana Extract, concedes that the legal status of CBD is dependent upon the legal status of its source, though it fails to acknowledge the clear language of the law as quoted with approval by the court that the Farm Bill legalizing hemp overrides the federal Controlled Substances Act definition of “marihuana:”

“Because recent public inquiries that DEA has received following the publication of the Final Rule suggest there may be some misunderstanding about the source of cannabinoids in the cannabis plant, we also note the following botanical considerations.

As the scientific literature indicates, cannabinoids, such as tetrahydrocannabinols (THC), cannabinols (CBN) and cannabidiols (CBD), are found in the parts of the cannabis plant that fall within the CSA definition of marijuana, such as the flowering tops, resin, and leaves. 

According to the scientific literature, cannabinoids are not found in the parts of the cannabis plant that are excluded from the CSA definition of marijuana, except for trace amounts (typically, only parts per million) that may be found where small quantities of resin adhere to the surface of seeds and mature stalk.  …  

However, as indicated above, if a product, such as oil from cannabis seeds, consisted solely of parts of the cannabis plant excluded from the CSA definition of marijuana, such product would not be included in the new drug code (7350) or in the drug code for marijuana (7360), even if it contained trace amounts of cannabinoids.

Hemp CBD is effectively legal in Minnesota

After all of the above, the conclusion must be that CBD is effectively legal federally if sourced from federally-legal hemp.  Hemp is federal-legal if it complies with the federal “Farm Bill” which requires it be state-legal.  But CBD from “marijuana” sources remains, in 2018, illegal-federally.

Well, technically illegal.  “The Appropriations Act” language prohibits spending funds on federal prosecution where people are in compliance with State laws on marijuana and hemp.

So, though some state-legal hemp might arguably not be federally-legal (due to violating the Farm Bill’s restrictions), the Appropriations Act prohibits federal criminal enforcement.

In other words, CBD is legal if sourced from “Farm Bill”-complaint-hemp.

But even if not “federally legal,” the “Appropriations Act” language prohibits federal prosecution, provided it’s:

  • state legal-hemp sourced (even if not “Farm Bill” compliant); or
  • it is made from “marijuana” and state legal as part of the state’s medical marijuana program.

Non-cannabis sourced CBD products?

Beware claims that CBD is from a non-cannabis source and therefore legal.  Although theoretically possible, claims of commercially available, non-cannabis sourced CBD lack credibility, proof or factual support.  It’s just not commercially feasible, at least to date.  Beware claims made to the contrary.

2018:  Good Things Ahead?

These two key federal laws, often referred to as the “Farm Bill” and the “Appropriations Act,” have been renewed in subsequent laws with some variation in the intervening years since their first enactment.  A potential “Farm Bill” successor, the Hemp Farming Act of 2018 (the “2018 Farm Bill”) appears unlikely to pass in 2018.  It would have further improved the U.S. trade and economy from Hemp Agriculture, and included more protections for Hemp-sourced CBD.  Given its bipartisan support, it may yet be adopted in 2019.

IN MINNESOTA

Minnesota State Laws

General rule:
Minnesota flag

Minnesota law

Under Minnesota law, anything sourced from “marijuana,” is marijuana and as a result criminal to sell or possess in any amount.

Exceptions:

  1. Possession or gifting 42.5 grams or less plant-form marijuana, “a small amount,” has been decriminalized.
  2. Marijuana-CBD legally from the Minnesota Medical Marijuana program by a state authorized patient; or medically prescribed, pharmaceutical Epidiolex.
  3. Hemp-sourced-CBD. If from non-“marijuana” sources, it’s legal under Minnesota law.

There is no law that specifically addresses the legal status of CBD itself, in Minnesota.  Now, its legal status depends entirely upon its source.  If “marijuana” sourced, CBD is “marijuana” even if it contains zero THC.  Of course, that could change.

Of course, Minnesota could pass a law clarifying that CBD itself is legal regardless of source, perhaps also regulating production, content, and sale.

Non-“marijuana” sources of CBD:  Industrial hemp

Minnesota “Industrial Hemp Development Act.” Minnesota Statutes Chapter 18K (2018):

“18K.02 DEFINITIONS. Subd. 3. “Industrial hemp” means the plant Cannabis sativa L. and any part of the plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis. Industrial hemp is not marijuana as defined in section 152.01, subdivision 9.

Subd. 4. “Marijuana” has the meaning given in section 152.01, subdivision 9.

18K.03 AGRICULTURAL CROP; POSSESSION AUTHORIZED.

Industrial hemp is an agricultural crop in this state. A person may possess, transport, process, sell, or buy industrial hemp that is grown pursuant to this chapter.

Minnesota law is clear; federal laws are a mess

Minnesota law on hemp is cleaner than federal law in that it avoids the convoluted federal “notwithstanding …” layered definitions and non-enforcement laws.

Minnesota law simply draws a clean and clear line, saying above the 0.3 percent on a dry weight basis THC threshold – it’s “marijuana.”  Below that threshold it’s “industrial hemp” and that “industrial hemp is not marijuana.”

Though, as discussed above, Minnesota should consider increasing the THC threshold to one percent, as West Virginia has done.  This compromise would allow for safer, quality hemp-derived CBD, and help solve some of the problems we are seeing today with unregulated CBD products.

Recommendations.  What solutions make the most sense? 
  1. Minnesota:  Legalize marijuana for responsible adult use, including small batch home-production commensurate with home-production of beer and wine.

  2. Federal: Repeal all laws criminalizing marijuana, resume federalism by leaving it to the States.  Carve out federal recognition of legal hemp and hemp products, and their free trade in interstate commerce.

  3. Baby step solutions – detailed above.

Thomas C. Gallagher, Minneapolis Criminal Lawyer

Thomas C. Gallagher, Minneapolis Criminal Lawyer

DISCLAIMER:  Nothing in this article, comments, or this blog is legal advice.

COMMENTS are welcome below.

Author Thomas C. Gallagher is a Marijuana Lawyer with a criminal defense practice in Minneapolis; and is a Minnesota NORML Board Member.

Less Than One-Quarter Gram Possession Gross Misdemeanor Crime < Minnesota Laws 2016

One quarter gram marijuana wax threshold

Quarter gram marijuana wax:  The Minnesota Legislature made some changes to Minnesota “Controlled Substance” laws, effective August 1, 2016.  One created a Gross Misdemeanor level crime for certain “controlled substance” possession crimes, for less than 0.25 grams or one dosage unit or less.

Limitations

Limited to first-timers, this law applies to a person “who has not been previously convicted of a violation of this chapter …”  And the law applies to all “controlled substances” other than heroin.

Before this 2016 law, even these amounts of marijuana wax were charged as felonies.  A felony drug conviction can trigger lost jobs, lost of civil rights, immigration consequences.  The law steps in the right direction.

The statutory language:

Minn. Stat. §152.025, Subd. 4 (a)(1) “the amount of the controlled substance possessed, other than heroin, is less than 0.25 grams or one dosage unit or less if the controlled substance was possessed in dosage units …”

hash-quarter-gram-lighter

one-quarter gram of hash relative to the size of a lighter

Does this mean defense lawyers will no longer need to litigate trace amount issues and cases?

No.  A Gross Misdemeanor is still a serious crime.

Also, this new law does not apply to heroin or federal cases.

What about marijuana, including derivatives such as marijuana wax, dabs?

Small Amount Currently Plant-form Only

Minnesota law defines possession of a “small amount” of plant-form marijuana as a petty misdemeanor (not a crime, violation-fine only).  Minnesota Statutes §152.01, Subd. 16 defines Small amount: “‘Small amount’ as applied to marijuana means 42.5 grams or less. This provision shall not apply to the resinous form of marijuana.”

So, 0.24 grams or less of plant-form marijuana could be charged a petty misdemeanor violation, not a gross misdemeanor.

However, when it comes to the “resinous form of marijuana” exception (presumably marijuana wax, dabs, THC oil),  the “small amount” definition would not apply.  But the new trace amount Gross Misdemeanor possession law would apply – rather than a felony as before August 1, 2016.

Dosage units

When could quantity be charged in dosage units, rather than weight?

We can be divide these into two categories: prescription drugs and underground-economy drugs.  Most people possess prescription drugs in pill form.  A “dosage unit” could be one pill, or more than one, depending upon the recommendation of the drug maker, pharmacist, or prescribing physician.

For underground economy drugs, “one dosage unit” could be more than one pill, or more than one square of blotter paper with LSD on it.  For example, see State v. Palmer, 507 NW 2d 865 (Minn.App. 1993) (“four small squares on each sheet constituted a ‘hit’ or dosage unit”).  

A grey area:  What about edibles like THC gummies?  Is one a “dosage unit?”  What about a marijuana wax cartridge?

Medical marijuana produced by a legal-maker should be treated like prescription drugs.

Pre-trial Diversion & Statutory Stay of Adjudication

What about Minnesota Pretrial Diversion programs and statutory Stays of Adjudication under Minnesota Statutes §152.18?

They are still available for those charged with Minnesota Fifth Degree “Controlled Substance” Crime, Gross Misdemeanor, since the charge is a Fifth Degree charge against a person without prior drug convictions.

New Legislation Needed

Is it fair to charge a person with a Gross Misdemeanor or Felony crime for possession of a small amount of marijuana wax?  The “small amount of marijuana” definition statute, quoted above, should be amended to delete the words “This provision shall not apply to the resinous form of marijuana.” 

We, the People, should have our rights respected by government to marijuana and marijuana wax, equal to our rights to beer, wine and liquor.

Short of legalization, however, we should at least delete the “resinous form” exception to the definition of a “small amount of marijuana.”  If Minnesota did so, at least People with a small amount of marijuana wax (42.5 grams or less) would not be treated like criminals.

Gallagher-Defense-logo-gr-ps-sm

Thomas Gallagher is a Minneapolis Drug Defense Lawyer, since 1988.  He is also serves on the Board of Directors of Minnesota NORML, since 2011.

Disparity of Force and Self-Defense

When it comes to self-defense law, courts look to the totality of circumstances.   There is no bright line test.  But one important factor is disparity of force.

Yes, disparity of force means what it sounds like.  It means that you can lawfully use force in self-defense reasonably proportionate to the threat of force you face.

The stress of the moment

As a defender from criminal violence, you’ll be aware of the situation and make your best assessment in the moment. As you do, you will consciously or unconsciously note factors that will guide your mental attitude and response actions.

If you do use force in self- defense, you may later be required to justify your use of force, legally. A jury, judge, police officer, media, and the community will all consider the factors you face.  You should consider these factors at the moment of threat to your personal safety.

But the people judging you will not experience the stress of being under attack, or the time pressure.  They will have the benefit of hindsight – access to information you did not yet have at the time.

Legal self-defense, too

Sometimes it seems that no matter what choice a person makes, someone imagines they could have done better.

That gap between the ideal and the real may seem inevitable, but how can we reduce it?

Physical self-defense training is vital.  But it’s also important to consider these issues deeply.  That way, when they come up we’ll be ready to make the right choices.

Disparity of force changes everything.  What are the factors that help make up the totality of circumstances for lawful use of force in self-defense?

Situational awareness

The first foundation of personal safety is situational awareness. We strive for a high level of awareness of our situation at all times. But humans have a limited ability to pay attention. When we divide our attention across multiple objects, we degrade our awareness.

We should heighten our situational awareness depending upon time, place and immediate circumstances. For example, relaxing within the safety of our home, we may have no problem multitasking. But while driving our car, or walking – we may divide our attention.  We might do two things at once.  If we divide our attention between those tasks and say, attending to our smart phone, we degrade our awareness and safety. 

The good news?  We can avoid dividing our attention.

Stay frosty

Alcohol and other intoxicants also degrade our awareness. When police stop a driver on suspicion of DWI, they will generally ask the driver to perform roadside field exercises. These are divided attention tests.

Alcohol can impair a person’s ability to divide her attention and perform two tasks at the same time. We can avoid the alcohol or impairment by alcohol to maintain our ability for situational awareness.

When it comes to criminal violence, we need to be aware of other humans. We need to be aware of proximity, threat potential, and potential responses to any threat presented (plan B).

We can adjust to threats before the risk of violence grows.  For example if we are situationally aware and spidey-sense a possible threat, we can cross the street or move away.

Sometimes situational awareness will not help us avoid trouble. If a physical attack suddenly presents, situational awareness can help us respond in the best possible way under the circumstances.  When it happens, we must weigh disparity of force factors instantly.

Disparity of force or threat

Disparity of Force and Self-Defense. woman defeats man

Disparity of Force and Self-Defense

The core of self-defense law is the use of reasonable force under the circumstances.  That’s why the question of proportionality is key.

If you face a threat of attack, or an attack, the law expects you to act reasonably.

It expects you to use force reasonably proportionate to the threat or force used upon you.

Several common factors increase the threat to you.  These include the size of the attacker, number of attackers, and weapons.

Size and strength disparity

If you are a 100 pound, 65-year-old woman facing a 200 pound, 20-year-old man threatening rape or robbery, would that disparity in size and strength justify your use of greater force than if the situation were reversed? We know it would.

Relative size and strength is a disparity of force factor.

Single attacker vs. multiple attackers

It is more difficult for one person to defend against multiple attackers than a single assailant. As a result, a person defending against multiple attackers must use more aggressive and more lethal force.

Against a single unarmed attacker, forcing them to initiate not only has a tactical advantage but also a legal one. But against multiple attackers, it may be necessary for the self-defender to strike first, perhaps against the apparent leader.

Multiple attackers are a disparity of force factor.

Sobriety vs. intoxication

Alcohol (and other drugs) is a wild card. It can cut in multiple directions. We should consider it, since most assaultinvolve alcohol.

Assuming a two person conflict, either or both may have been drinking. Generally voluntary intoxication is not a defense to criminal liability.  But it can have a big effect on both intent and physical ability. And even those can vary with the person’s level of intoxication.

Intoxication could make the aggressor a greater threat than if sober. If so, the use of greater or more lethal force could be justified.

Intoxication is a disparity of force fact.

The use of force continuum

The force continuum is the range of levels of force. Implicit within the term, use of force continuum, is proportionality.

Depending upon the circumstances, calling 911 and the presence of a police officer; or a verbal warning and display of a weapon, might be on the lower end of the force continuum.

We calibrate our response to the disparity of force the attacker presents.

Perspective matters

The community would like us to use the lowest level of force possible to avoid or resolve a physical conflict. Yet we view self-defense from the perspective of the defender, what they knew then, and the pressures of the situation.

See our related article: Self-defense and the Other.

In a criminal case, we judge whether an act was criminal from the point-of-view of the defendant.  Even so, the defendant’s acts must have been reasonable under the circumstances at the time.  Therefore, we must view all events from the perspective of a reasonable person in the defendant’s shoes.  If you’re a self-defender, you are that potential defendant.

Verbal and nonverbal communication

To the extent possible, it’s a good idea to communication verbally and non-verbally with the criminal assailant.  Give clear verbal warnings.

Depending upon circumstances, you may be communicating de-escalation or escalation.  Communicate whichever is then most likely to stop the threat or the criminal act.

See our related article:  Self-defense: Dominance, Escalation and Deception

Escalation, where used, should avoid fighting words or provocation.  Instead, use verbal commands to stop the attack, disarm, and the like. You may also be communicating so that your intentions are clear to any witnesses or electronic observation.

Where possible, call 911 to request police help as well as to create an audio record of what is happening.

Empty-hand defense

It’s good to have options, and it’s nice to have a weapon if attacked. Having a weapon does not mean it must be used. Empty-hand defense can also vary in level of force. For example, we might disable an unarmed attacker with a snap kick to the knee to break their leg. But if we are capable of stopping the attacker effectively with a lower level of force or injury, we will.

We will try to use the lowest level of force to effectively stop the threat from the assailant.

Armed with weapon

What if either you or the criminal attackers have a weapon?  A weapon is a big disparity of force factor.  And it can be a great equalizer.

Usually a person with a weapon will try to conceal its presence. We use our situational awareness to detect whether they have a weapon.  The weapon could be either within reach, on their person, or in their hand.

Since a weapon in hand is the greatest threat, we try to see whether a weapon is in their hand. A common clue is that the person conceals one or both hands behind or otherwise out of sight. If it seems possible, a verbal command may be in order: “Drop the weapon! Now!”

If you have a weapon, depending upon circumstances, you may choose to keep it hidden. Most trainers advocate keeping a weapon out of sight until it is necessary to use it.

Exception to the general rule:  Displaying a weapon as part of a warning to avoid injury could be reasonable, self-defense.  The circumstances make the difference.  Be aware, however, that showing a weapon can lead to a “brandishing” assault charge.

Perceived disparity of force turns out to be wrong

Legally, afterwards, the issue may arise of whether the defendant reasonably believed the assailant had a weapon.  This is a big problem when police don’t find a weapon later.  You subjectively perceived a disparity of force.  But it turns out you were wrong.

To reduce this risk, try to be sure the criminal does have a weapon; verbalize the presence of a weapon; and if possible be sure police later are able to locate it.  (Point it out.)

Lethality of weapon

When it comes to weapons, some have lesser or greater levels of force – for example pepper spray vs. a handgun.  So, the lethality level of the weapon affects disparity of force.

It’s nice to have choices, when it comes to lethality of weapons. Police officers generally have more equipment than other folks do. But whether we are at home, in the car, or out and about, most adults have choices available to them. The factors limiting choice may be, on the one hand knowledge and training, and on the other hand convenience.

Range and distance; proximity

Distance is important when it comes to reasonable fear of imminent bodily harm or death. Some open-hand fighting styles are long-range or short-range. A kick can reach farther than a punch. Different weapons have different effective ranges. A baton has a shorter range than an arrow.

A closer threat creates a greater disparity of force.

The law of self-defense has no bright line, just a totality of circumstances test.  That test means discretion.

Life experience, personal or indirect

Discretion is rooted in the experience of the beholder. Rather than personal training, today the average person’s “experience” is indirect.  It’s from  stories they’ve read, seen or heard.   Most often it’s in entertainment media such as songs, books; especially movies and television.

These mythological “experiences” are problematic since they tend to be wrong more often than not. For example, in the movies when someone is shot with a gun, they drop dead immediately.  But in real life, that is rare.

An attacker with a knife twenty-one feet away who is shot by a lawful defender, can still kill the defender with the knife. See The Tueller Drill.

“Once engaged, don’t stop until the threat is stopped. Once the threat is stopped, disengage.”

After you’ve been attacked, continue the necessary, reasonable use of force in self-defense until the threat is over. Once the attacker is disarmed, disabled or otherwise no longer a threat, the use of force is no longer necessary.  It stops.

It may be a challenge to determine when this point has been reached, depending upon the situation. It’s often a good idea to leave the area as soon as it can be safely done.  It’s a good idea to get help for the injured criminal if possible, possibly via 911.  If it is clearly safe to do so, render First Aid.

We do not seek retribution

We do not take it upon ourselves to punish, or teach a lesson to the wrongdoer.  Nor do we stoop to revenge.  We do not express anger.

Once the threat is disabled or stopped, we stop using force.

What do you think?

Are there other factors we can weigh when considering whether a person’s use of force was in self-defense?  How does disparity of force influence what is reasonable self-defense?

Thomas Gallagher is a Minneapolis Criminal Lawyer whose practice includes asserting the defense of self-defense and defense of others on behalf of clients.

Comments are welcome below.

Self-defense: Dominance, Escalation and Deception

Whether you think little or a lot about self-defense, you can live a better life when you consider self-defense from two perspectives: the practical and the legal.  The different schools of self-defense training agree on many things.  Similarly, the law of self-defense agrees in many ways across jurisdictions, cultures, even history.   And though practical self-defense training (how to do it) and the law of self-defense seem to be quite different perspectives, they share much in common.

Whether a legal defense of self-defense is accepted will depend partly upon what people believe the defendant’s situation was at the time – a totality of the circumstances.  Inevitably jurors, judges, all of us will compare what we believe the person being judged did, with what we imagine we would have done in those hypothetical circumstances.

“Better judged by twelve than carried by six.”

A wise aphorism in the lore of self-defense is “better judged by twelve than carried by six.”  The person required to use force in self-defense faces a two-fold threat: first surviving the physical attack; and second surviving the potential legal threat of being wrongly accused of a crime.

Dominance, Escalation and Deception

Some physical attacks are part of a robbery, a rape, a riot, or planned.  Putting those to one side for now, let’s look at the other sort – attacks that spontaneously rise from anger, conflict or a sense of having been treated disrespectfully by someone.  What are some strategies and tactics that can be used to both good practical and legal effect?

The Social Reality

Humans are social animals.  We have always lived in groups, each with our roles within the group.  Like other social animals, we have orders of social dominance, and individual competitions for dominance ranking.  These can be in part based on coercion (such as laws and law enforcement) as well as the actual use of force – lawful and unlawful.  Generally we are unaware of our social dominance orders and roles.

But when it comes to self-defense, awareness can be a powerful tool to help us avoid trouble – to avoid both physical attacks as well as legal attacks.

A person may present to you their subjective belief that you have treated them unjustly or wronged them in some way.  How can you use dominance, escalation and deception to avoid trouble?

call-of-the-wild-image-excerptWhen animals compete for social dominance, they often will display an escalation of threatening physical posturing, sometimes followed by an attack and fight.  They know what they are competing for – social dominance, a recognition by the other of their superior position.

If at some point one of the competitors backs down and shows surrender, this submission will cause the winner to cease the attack.  The dominant animal will not normally hurt the submitting one.  One great story about this in literature is Jack London’s The Call of the Wild.

Your humility may not be as deep and sincere as you might like – but you can use some tactical deception and adopt an attitude of humility.  If backing down helps avoid a conflict, you win.  You can’t stop someone from baiting you.  But you can refuse to take the bait.

Though humans can’t necessarily be trusted to stop attacking a person who is clearly not competing for dominance, it is a strategy that may work in some situations.  If the conflict is about the person’s perception of honor, justice, having been wronged – it doesn’t matter if they are justified – this may be a situation where conceding dominance, and de-escalation of conflict tactics may resolve the situation enough so that you can leave the situation, and move on.

Asserting dominance, escalation of conflict, can be just the thing

When a person or group threatens attack or attacks as part of a plan, like robbery or rape; conceding dominance and de-escalation of conflict tactics are unlikely to work.  In these situations, the aggressor is a predator with a goal, acting with rational purpose not just emotion.

Here, asserting dominance authoritatively, escalation of threat displays and the use of force may be best.  Why?  Predatory behavior seeks an easy target.  To ward off predators, be a hard target.  Show strength, confidence, and dominance.  Lead the escalation of conflict.  To the extent that the predator is primarily opportunistic, they may be deterred. Where not discouraged, the predator may be effectively disabled by force.

Evade, Escape, Engage.

Where practical, it’s best to avoid a potential physical concentration.  No one wins a fight, when everyone gets hurt.  This could mean crossing the street, walking the other way, driving away – any way out of there, away from the threat.

Sometimes it’s not a reasonable option to retreat – for example if the threat is already close and would simply attack you from behind if you turned and ran.  But in unarmed combat especially, creating some distance can increase safety.  Even when the attacker is armed, creating distance can sometimes reduce risk of harm.

In many traditional martial arts disciplines, for example Wing Tzun, a general rule is that we do not initiate an attack.  This idea, dating back hundreds – perhaps thousands of years, is not based on any legal considerations.  It’s a fighting tactic to either avoid a fight by not initiating; or forcing the opponent to physically commit to an action that can then be exploited with various combative counter-techniques.  This practice of not initiating a fight will also be helpful in the event of legal trouble, and the assertion of a legal defense of self-defense.

Before and once an attack is underway, we assess the threat and seek to bring a proportionate, reasonable response.  We don’t want to respond disproportinately, but the perfect is the enemy of the good.

See our related article: Disparity of Force and Self-Defense.

Too little force to mount an effective defense could result in serious injury or death for ourselves or loved ones.  Too much could lead to legal trouble.  Those who judge us from outside the situation have the stress-free benefit of hindsight.  The arm-chair quarterbacks often think they could’ve done better, even though they weren’t there.

Stop the Threat

Once force is used, when should it stop?  Self-defense systems generally teach that you should use necessary force until the threat is no longer a threat.  Contrary to the impression created in many films and television shows, the lawful self-defender does not seek to hurt or to kill, but rather to disable the attacker or attackers – to stop the threat.

If an attacker is hurt or killed that is an unintended consequence of the focused goal of self-defense – to simply stop the threat.  Once the attacker is disabled from continuing the attack, the use of force against them should also stop.

After the use of force in defense of self or another

Once you have confirmed that the threat has been stopped or disabled, if it is safe to do so (being aware of third parties and weapons), it’s a good idea to render First Aid or whatever assistance can be rendered to the now disabled attacker, and contact the police if possible.

We’ll look at how to handle police contacts in the future (what to do, what to say and when).  But what you do, and knowing what to do, before police contact stemming from the use of force in self-defense is far more important.  Prepare yourself by learning and training in self-defense – not only for your sake but for the sake of your family, co-workers, and those around you.

Thomas Gallagher is a Minneapolis Criminal Lawyer whose practice includes asserting the defense of self-defense and defense of others on behalf of clients.

Comments are welcome below.

Self-defense and The Other

Self-defense is a legal defense to certain criminal charges in Minnesota.  The types of crimes alleged where a defense of self-defense might be asserted include: assault, murder, disorderly conduct and others.

It is not a bright-line sort of law.  If there were, the law would be easier to apply but justice and fairness would be sacrificed.  Instead, the law asks the finder-of-fact (the jury in the case of a jury trial) to look at the totality of circumstances to determine whether the accused person acted in self-defense.  A totality-of-the-circumstances test is more difficult to apply than a bright-line test, but can be more fair, more just.  Inevitably however, when a person judges another and their past choices under a totality-of-the-circumstances test (as with self-defense), that person must use their discretion; and in doing so will apply their own life experiences, biases, and point of view.

Who is The Other?

gran-torino-poster     Early in the popular Clint Eastwood film Gran Torino, the character Walt Kowalski leads a lonely existence but takes great pride in his lawn.  When gangbangers arrive to kidnap the young man next door, character Thao Vang Lor, causing a scuffle on his lawn, Walt appears with a rifle to defend the kid and his Hmong family, warning the gang members: “get off my lawn!”  Putting aside the application of self-defense law in this scenario, it is clear – in part by his use of racial slurs – that he views the kid he is defending and the kid’s family next door as The Other.

But by the end of the film, protagonist Walt Kowalski is fully connected with young Thao, who is like a son to him, and Thao’s family and Hmong culture.  Thao is no longer The Other, nor is his family or the Hmong culture.  Walt identifies with them completely.  This is one of the story arcs of the film, the movement from The Other to One of Us.

What difference does it make?

Whether we view another as The Other, or as One of Us, makes all the difference.  If another person is One of Us, then we are naturally empathetic.  We see each situation through their eyes, from their point-of-view.  But if someone is The Other, that means they are not like us, and we are naturally suspicious of their motives and behavior.

This may be hard-wired into our nature as humans.  Throughout human existence, until relatively recently, humans lived in small groups of ten to fifty people.  Each member of the group needed to help and be helped by other group members to survive.  But a person from outside the group was best viewed suspiciously, as a threat, at least until some reason came to light to assure otherwise.

You start out as The Other.

Imagine this scenario:  You have just left a bar downtown at closing time.  A few dozen people are standing around in the warm summer night chatting in small groups, before leaving for their next destination.  You are facing east, and notice three young men walking down the street towards the crowd that fills most of the sidewalk.  Suddenly you see one of the young men pull back his arm, form a fist, and strike a heavy blow into the side of the head of a man ten feet in front of you.  The man doesn’t see it coming, and is knocked to the ground.  Your jaw slackens in shock.  The man who was hit is on the ground, shaking it off, trying to comprehend what just happened.  The lone attacker squares off and goes after the man again, as he regains his feet.

The victim of the attack tries to defend himself, blocking and striking back with fists.   Then, you see other people in the crowd turning to look to see what the fuss is about.  They back away, to form a circle around the pair.  You overhear several people in different groups say: “why are those two guys fighting?” and “What the hell is wrong with them!”

Now, instead of being the bystander-witness, imagine you are the person who was attacked.  But 95% of the witnesses in the crowd did not see how it began or why.  They turned and noticed after that, to see “two guys fighting” – The Other.

Point-of-View matters.

Minnesota’s general self-defense statute is Section 609.06.  It includes the language:

“reasonable force may be used upon or toward the person of another without the other’s consent when the following circumstances exist or the actor reasonably believes them to exist: (3) when used by any person in resisting or aiding another to resist an offense against the person… .”

Two phrases in the quoted language are especially important: “reasonable force” and “circumstances exist or the actor reasonably believes them to exist.”

Point-of-view makes all the difference

Point-of-view makes all the difference

Whenever we see the word “reasonable” in the law, we have a totality-of-circumstances test, not a bright-line test.  All real crimes require proof of the element of criminal intent of the actor (the accused person).  This requires the fact-finder (the jury in the case of a jury trial) to evaluate the evidence from the point-of-view of the accused, not the point-of-view of anyone else, even a person claiming to be a victim of crime.  The statute emphasizes this point by saying the fact-finder must consider the circumstances that the actor (accused person) reasonably believed to exist at the time.  The law is curative – meaning that the law tries to fix a recognized bias endemic to our culture.  If that bias did not exist, we would not need legal language attempting to remedy it.

From this we can see some of the basic types of factors that are included in the totality-of-circumstances for self-defense:

  1. Was the force used reasonable?
  2. Was the force used reasonable under either the circumstances that actually existed, or the circumstances that the actor (defendant) reasonably believed existed?
  3. Was the force used proportionate to the circumstances, whether actual or reasonably believed to exist?

The reality is that when people in our culture see two people fighting they’ll generally view them both as The Other, with suspicion.  Similarly, when people hear about or think about people fighting they will tend to presume that the people are both guilty of something wrong.  This – despite their personal experience that many altercations involve an aggressor attacking or creating a fight with an unwilling, eventual participant, forced to defend herself.

See our related article: Disparity of Force and Self-Defense.

This cultural bias has manifested itself in the form of the current Duty to Retreat in Minnesota.  In certain cases, the prosecuting attorney can try to reverse the burden of proof by forcing the accused person to show evidence that she met “the duty to retreat” prior to being entitled to a legal defense of self-defense.  The Duty to Retreat jury instruction gives the prosecuting lawyer a second bite at the apple of “was the force used reasonable?”  After all, what juror would find the use of force in self-defense reasonable, if the accused could have easily retreated before the altercation?  But the main point here is that the Minnesota duty to retreat is a manifestation of the cultural bias of viewing the abstract self-defender as one of “The Other,” with initial suspicion.

Implications for the future, and for the past

Self-defense training EBMAS

Self-defense training

Every person should think about how they will defend against a future attack upon their person or upon another in their company, should it occur.  Ideally that will include self-defense training, whether it is one class or life-long learning and training practice.  As part of that preparation, we can consider: what can I do to better be perceived as a good guy (one of us) rather than The Other (a suspicious outsider)?  Our appearance can play a part in this, as can our words and conduct.

For those of us lawyers or defendants in criminal cases where in the past the defendant acted in self-defense, we can recognize one of the core issues will be “good guy vs. The Other.”  Here, not only the self-defender’s appearance, words and conduct will matter, but also the point-of view adopted by the fact-finder (jury) will be a key.  The law requires the fact-finder to look at what happened at the time, without the benefit of hindsight, from the point-of-view of the defendant.  But the defense lawyer, the judge and the other jurors will need to help the jurors overcome our initial cultural bias against The Other.  The defense lawyer will help the jurors get to know the person who is wrongly accused, is a good guy, acted in self-defense reasonably.

Thomas Gallagher is a Minneapolis criminal lawyer.  His practice includes cases where the accused person acted in self-defense.