Steve Kubby: ‘Tahoe Cultivation Ordinance Unconstitutional, Dangerous & Can Get the Family Dog Shot’

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by Steve Kubby

Although I have publicly commended the South Lake Tahoe City Council for their new cultivation ordinance, recent events have made me realize that this ordinance is clearly unconstitutional and represents a profound threat to the freedom and safety of city residents and their innocent family pets.

The reason for my about face on this ordinance is based upon the announcement last Friday by United States Attorney General Eric Holder that federal agents will continue to raid, arrest and prosecute growers, even if Prop. 19 passes.  In addition, Steve Cooley, who is currently in the lead to be elected as California Attorney General, has publicly stated his belief that most, if not all, dispensaries are breaking the law by accepting money in exchange for marijuana and he has publicly promised to undertake massive felony prosecutions. “It’s a target-rich environment,” he proclaimed.

Now that the federal government and Cooley have gone on record that they will aggressively prosecute marijuana growers, regardless of what voters decide on November 2nd, everything has changed. Such an openly hostile pronouncement, in the midst of an election, is an unprecedented attack on the very principles upon which this country was founded.

As a result of these policy pronouncements by Holder and Cooley, it is clear that police and drug agents at both the state and federal level will be targeting anyone who grows marijuana.  Thus, any public disclosure that one is growing, such as is required to obtain a building permit, would create a real and appreciable hazard of incrimination, home invasions and felony prosecutions against otherwise law-abiding citizens.  Such complete lack of respect for civil rights and state law by the United States Attorney General, as well as the likely California Attorney General elect, is not only deeply disturbing, it shows that the current SLT cultivation ordinance will expose our residents to severe and traumatic attacks by federal agents who refuse to recognize the will of California voters.

The legal consequences for those who are forced to incriminate themselves under the cultivation ordinance under consideration are extreme.  Under current federal law, growing just 101 plants could force a cannabis grower to face a ten year mandatory minimum in sentencing.  Furthermore, as was the case for Dr. Marion Fry in nearby Cool, California, the feds can add up how many plants one grows over several years and if that number exceeds 100, the feds will demand a ten year mandatory sentence.

There are other serious consequences for anyone who incriminates themselves by obeying the new cultivation ordinance.  That’s because drug agents are notorious for shooting family dogs, even if the dog shows no aggressive behavior or is actually fleeing.  Just ask Cheye Calvo, the mayor of Berwyn Heights, Maryland about how SWAT team members burst into his home without knocking and shot his two dogs to death, all because a pound of marijuana was accidentally delivered to his home a few minutes earlier.

In Leary v. United States, 395 U.S. 6 (1969), the U.S. Supreme Court ruled upon the constitutionality of the Marijuana Tax Act.  Dr. Timothy Leary, a professor and activist, was arrested for the possession of marijuana in violation of the Marijuana Tax Act.  Dr. Leary challenged the act on the ground that the act required self-incrimination, which violated the Fifth Amendment. The unanimous opinion of the court was penned by Justice John Marshall Harlan II and declared the Marijuana Tax Act unconstitutional: 

“Compliance with the transfer tax provisions would have required petitioner unmistakably to identify himself as a member of [a]…”selective” and “suspect” group, we can only decide that when read according to their terms these provisions created a “real and appreciable” hazard of incrimination.”

Even requiring growers to disclose their activity to landlords violates their Fifth Amendment rights.  If property owners don’t want marijuana grown in their homes, they can say so on their leases and evict anyone who violates those terms.  

Most legal medical marijuana growers want to comply with the law, but if that law requires disclosures of any kind, it is not constitutional and not legally binding.

Meanwhile, the City Council should seriously consider crafting a cultivation ordinance that makes it a crime for agents conducting a drug raid to shoot a family dog or discharge a weapon when children are present.  In fact, the City should demand that no marijuana raid can be conducted by any drug agents, unless a real victim (who is not an agent of the government) actually files a real police report and an investigation shows actual violations of state law taking place.

In closing, I dare you to watch this deeply disturbing video of a drug raid showing agents shooting the family dog with a seven-year-old boy present — even though no drugs were ever found.  This is exactly the kind of violent, dangerous, state-sponsored terrorism that the current SLT cultivation ordinance would unleash upon our otherwise peaceful and law-abiding community:  

4 thoughts on “Steve Kubby: ‘Tahoe Cultivation Ordinance Unconstitutional, Dangerous & Can Get the Family Dog Shot’

  1. paulie

    The unanimous opinion of the court was penned by Justice John Marshall Harlan II and declared the Marijuana Tax Act unconstitutional:

    “Compliance with the transfer tax provisions would have required petitioner unmistakably to identify himself as a member of [a]…”selective” and “suspect” group, we can only decide that when read according to their terms these provisions created a “real and appreciable” hazard of incrimination.”

    I’ve always wondered why this is not taken to apply to income tax reporting forms in general. What if you do something, anything, illegal for a living?

  2. J. Gravelle

    Conservatives should be (literally) “up in arms” when der Attorney General decides that the commerce clause allows him to declare war on California:
    http://gravelle.us/content/atty-gen-declares-war-california

    But who’s the bigger hypocrite in the marijuana issue:
    – a liberal who demands that the federal government stay out of their health issues; or
    – a conservative insistant that Washington impose its will upon the states?
    http://www.dailyscoff.com/?p=2847

    Legalization is a conservative position, and prohibition a progressive one.

    BOTH sides of the aisle are schizophrenic on the matter…

    -jjg

  3. Ted Brown

    @1 In regards to the income tax, you don’t have to say where your income comes from. The IRS doesn’t care.

  4. paulie

    Hmmm….I’m far from an expert. Cursory glance: http://www.irs.gov/pub/irs-pdf/f1040.pdf page 2:

    Wages and salaries says attach W-2. You wouldn’t have a W-2 if you work under the table, correct?

    Business income or loss. It says attach schedule C. haven’t checked to see if Schedule C asks what the type of business is.

    Ditto for other forms and pages referenced in other line items.

    But let’s say you are correct, and the IRS does not care how you got your money so long as they get their cut.

    Can’t your IRS self-reported income and forms be used by other government agencies to investigate you or as evidence at a trial?

    For example, suppose you run a 60 million dollar a year illegal business, but you fill out a 1040 form and any other forms they want you to fill out and pay the IRS their booty. Would, say, the FBI have access to that when they question you as to how you make your living? Can prosecutors bring it up when you are on the stand? Ask other witnesses about it, or present it to the jury?

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