Monthly Archives: January 2013

More Marijuana News, Federal Court Declines to Reclassify Marijuana

Wacky Tobacky

Wacky Tobacky

A Federal Court ruled today that they were not going to order reclassification of Marijuana from its current Class-1 status. The classification decision is handled by the DEA, not the courts, and the court can only overturn that decision if it is “arbitrary and capricious”. That’s a very low standard for the government, the basically only have to show some reasonable facts to support their decision: the decision does not have to be correct.

http://www.nbc-2.com/story/20647910/court-rejects-bid-to-have-marijuana-reclassified

Marijuana Criminal Law Story in This Week’s Florida Weekly

The Reefer

The Reefer

If you haven’t seen it yet, I recommend you check out the cover story in this week’s Florida Weekly, by Evan Williams. It talks about the ramifications of marijuana prosecution in Florida, and the status of legistlative efforts to legalize it. The take away I’d like everyone to appreciate is the harsh sanctions for possession of marijuana. The defendant in the primary case discussed is looking at a 3-year minimum mandatory sentence. His case is not merely possession, but possession with intent within 1000 feet of a school or church. He claims that there was no intent to distribute, but the facts against him are that he had 11 pounds of marijuana: which is an awful lot for personal use (plus scales and a lot of cash). But everyone should realize that even personal-use possession of 20 grams (that’s less than an ounce) is a felony in Florida. And any marijuana possession can lead to jail time plus a 2-year driver’s license suspension.

http://fortmyers.floridaweekly.com/news/2013-01-16/Top_News/JOINT_RESOLUTION.html

Sarah Jones, Former Bengal Cheerleader, Defemation Trial to Begin Today

Former Bengal Cheerleader Sarah Jones

Former Bengal Cheerleader Sarah Jones

Former Ben-Gal Sarah Jones, who earlier entered a guilty plea in her criminal case, is going to trial this week on a civil case: for defamation. Her earlier case was covered extensively by Crimcourts. The defamation case actually predates her criminal case, going back a few years to come things posted on website TheDirty.com. On that site, she was accused of several things she disputes, including sleeping with one or more Cincinnati Bengals, contracting STDs from her former boyfriend, and having sex with a man in her classroom.

The case is interesting from a defamation standpoint. She is suing the website, and its owner ‘Nik Richie’, for making statements that harmed her reputation. The legal twist is that most of the offending comments were not generated by Richie, but by commenters on the website. Generally, websites are not responsible for content posted by others. That’s why Facebook doesn’t get sued every time anybody posts something libelous. However, Jones is claiming that since TheDirty exercises editorial control over the comments, that they are more akin to a newspaper that publishes defamatory statements. Richie counters that the only thing he personally posted is that she is a ‘freak’ in bed, and is claiming truth as a defense. To back it up, the defense is prepared to share some of the steamy text messages from Jones’ criminal case.

As a blogger, I hope that Richie is not found liable for the comments of others. TheDirty is probably going to see a surge of hits thanks to publicity for this trial: Crimcourts has already seen a surge thanks to our coverage of the earlier case. I am not a fan of Richie’s site, but I don’t think he should take an 11 million dollar hit for outside commenters. Even if liable, Jones will have difficulty proving damages. She already hurt her reputation immensely due to the illegal relationship she had with her student. She’s claiming this caused her to resign her job, but she was teaching until charges were brought in her criminal case. She has indicated an interest in law school, so she may end up earning more there than she would have in her teaching job anyway. I wish her luck as she pursues her law degree, and she is not likely to win retirement money in this suit.

http://www.wcpo.com/dpp/news/local_news/ex-bengals-cheerleaders-lawsuit-trial-to-begin

http://nky.cincinnati.com/viewart/AB/20130121/NEWS010704/301210070/Ex-Bengals-cheerleader-s-lawsuit-trial-begin

Bengal Lineman Andrew Smith Arrested at Airport

Andre Smith

Andre Smith

Bengal Andre Smith was arrested, at the Atlanta Airport. He had a gun in his carry-on that he forgot to take out and carried it in with him. While it sounds shocking at first, it actually happens with some frequency. I had a client who didn’t realize his pistol was in his bag, and did the same thing a few years ago. I deposed the airport officer, who indicated it happens several times a year at our little airport. Local American Idol celebrity “Baby V” Vonzell Solomon was charged for it a few years ago. She had a carry permit, but that doesn’t let you take it to the airport! If you are an NFL player, carrying a gun is a recipe for trouble. Just ask Plaxico.

Enema Tampering Case Pleads : Only in Florida

Presented without comment. Thanks @btannebaum for sharing this one: http://www.thesmokinggun.com/documents/enema-tampering-plea-789462

Actually, one comment: Why is the Federal Government handling this? It seems to be something that the State could handle. Right, Right, FDA and all, but still… why is the whole country paying to prosecute one of Florida’s own? #onlyinflorida

Brian Bigelow Arrest Update

Earlier, Crimcourts reported on the arrest of former county commissioner Brian Bigelow, and speculated that improper police action may lead to him beating the charges. I was relying on the NBC-2 story that indicated the officers blocked-in his vehicle when they first made contact with him. I have obtained a of the booking report filed by Fort Myers police, and the arresting officer claims that his vehicle did not impede Mr. Bigelow’s vehicle from leaving. To do so would demonstrate a clear detention and certainly create an illegal seizure issue. It is convenient that the cop put the exact language in his report that sounds like his actions are following the law! (My BS detector is on alert.)

Brian Bigelow

Brian Bigelow

However, the cop then indicates that Mr. Bigelow entered the vehicle and “attempted” to leave, and officers ‘made contact’ with he and his passenger. If he attempted to leave, and was prohibited from doing so by officers, a detention still exists. That’s a stop, plain and simple, and it is clear from the language of the officer’s report. The officer tries to say that he was acting suspiciously… but leaving to avoid contact with officers is not suspicious activity. The courts have repeatedly upheld that citizens have a right to avoid officer contact. Mr. Bigelow immediately requested a supervisor because he felt he was being harassed, and he may have a good case.

The officers also charged him with Loitering and Prowling, which is frequently a catch-all charge cops use to justify arresting someone when they don’t have a real case. For an L&P to be sustained, there has to be some real prowling-type activity, and it simply is not present in this case. Mr. Bigelow was picking up his friend who lived in that complex. He was lawfully parked in an apparently marked stall. That is clearly not an L&P situation, and again, his harassment complaint seems to have merit. Cops can’t just go around stopping and detaining people and making up their justification. Imagine if you were in your friends driveway, and suddenly a bunch of cops came up and started ordering you around. Assuming they didn’t find drugs in your pocket and throw you in jail, you’d be marching down to the police station to complain about being harassed. Mr. Bigelow still holds a strong chance of beating these charges based on the unlawful search and seizure by Fort Myers police.

Don’t Walk with Open Containers Downtown at Music Walk

Don’t walk around with open containers any night, but the Fort Myers Police Department has recently decided to enforce the open container rule. It’s always been a rule for the city, but enforcement had been lax for such events as Art Walk and Music Walk. Not anymore, expect to receive a citation if you walk down the street with an open container. Several restaurants have outdoor/sidewalk patios. That’s fine as long as you keep it on the designated patio area.

This doesn’t affect major events that have the streets blocked off, such as the Fourth of July or New Year’s Eve or Zombiecon.

The police have also cited servers for letting people walk off with drinks, which is unfortunate. There is no legal requirement for the servers to tell patrons not to leave: it is up to the patrons to follow the law. I represent one of the servers, and it’s frustrating that my client is charged when the illegal act is an independent criminal act. It’s not her criminal liability. City ordinance requires that a sign be posted that beverages must be consumed in the designated area, that’s the legal requirement. The City will hurt businesses if they continue to misapply the law.

Everyone, be safe out there, and don’t try to take “To-Go Cups” around town with you tonight! Smokey will be watching. Art Walk and Music Walk are wonderful, family friendly events, and I encourage you to support local business, support the River District, and come out and hear some good music tonight.

http://www.news-press.com/article/20130118/ENT/301180032/Fort-Myers-open-container-laws-enforced-tonight-s-Music-Walk