Judge declines to block seizures of pot store cash from armored cars
February 6, 2022 5:19 PM Subscribe
A federal judge this week declined to issue a temporary restraining order (TRO) against a California sheriff who used civil forfeiture to rob armored cars carrying money earned by state-licensed marijuana businesses. [Reason]
In traffic stops of Empyreal vans in November and December, sheriff’s deputies seized more than $1 million in cash and turned the money over to the FBI for forfeiture. The FBI says it suspects the money comes from illegal drug sales and money laundering, but it has revealed no evidence to support the claim and no one has been charged with any crime. [Los Angeles Times]
In traffic stops of Empyreal vans in November and December, sheriff’s deputies seized more than $1 million in cash and turned the money over to the FBI for forfeiture. The FBI says it suspects the money comes from illegal drug sales and money laundering, but it has revealed no evidence to support the claim and no one has been charged with any crime. [Los Angeles Times]
California Republic. We've got the flag already.
posted by Heywood Mogroot III at 5:50 PM on February 6, 2022
posted by Heywood Mogroot III at 5:50 PM on February 6, 2022
Having an elected sheriff is bad enough, but “sheriff/coroner”?? How much imagination does it take to see this going completely off the rails?
posted by a box and a stick and a string and a bear at 5:58 PM on February 6, 2022 [9 favorites]
posted by a box and a stick and a string and a bear at 5:58 PM on February 6, 2022 [9 favorites]
Its never been clear to me how civil forfeiture isn't a clear violation of the the fifth amendment:
No person shall... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
posted by ockmockbock at 6:05 PM on February 6, 2022 [34 favorites]
No person shall... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
posted by ockmockbock at 6:05 PM on February 6, 2022 [34 favorites]
As I understand it — and I may be wrong — cannabis has been legal in California for several years. How is this any different from sheriff’s deputies robbing, I don’t know, the proceeds of an IKEA?
posted by ricochet biscuit at 6:09 PM on February 6, 2022 [9 favorites]
posted by ricochet biscuit at 6:09 PM on February 6, 2022 [9 favorites]
Cannabis is illegal under federal law.
posted by ryanrs at 6:21 PM on February 6, 2022 [4 favorites]
posted by ryanrs at 6:21 PM on February 6, 2022 [4 favorites]
Because cannabis is still illegal at the federal level. It's also why they have vans full of cash, as they can only take case payments. Bank and credit cards can't be used to pay for anything at a dispensary because once again, it's illegal at the federal level, so there's this huge amount of cash that needs to be transported.
posted by aspo at 6:23 PM on February 6, 2022 [9 favorites]
posted by aspo at 6:23 PM on February 6, 2022 [9 favorites]
Civil Asset Forfeiture is THE issue on which left, right and the vanishing middle can come together.
Cops who are pushing that envelope must have a kind of professional deathwish.
posted by jamjam at 7:20 PM on February 6, 2022 [25 favorites]
Cops who are pushing that envelope must have a kind of professional deathwish.
posted by jamjam at 7:20 PM on February 6, 2022 [25 favorites]
It’s important to note that SBSO turned the money over to the FBI under the expectation they would get a good percentage of it back. In other words San Bernardino sheriffs will end up keeping a large portion of the million dollars. This is literally highway robbery by law enforcement.
posted by jackbrown at 7:22 PM on February 6, 2022 [43 favorites]
posted by jackbrown at 7:22 PM on February 6, 2022 [43 favorites]
As I understand it — and I may be wrong — cannabis has been legal in California for several years. How is this any different from sheriff’s deputies robbing, I don’t know, the proceeds of an IKEA?
The sheriff's department, I think, is saying that the cash might be proceeds of a state crime, ie that the weed companies are breaking California drug regulations. Because they can't keep the proceeds of civil forfeiture under CA state law, they turned it over to the feds, who will pay them 80% of whatever they manage to keep.
posted by BungaDunga at 7:23 PM on February 6, 2022 [7 favorites]
The sheriff's department, I think, is saying that the cash might be proceeds of a state crime, ie that the weed companies are breaking California drug regulations. Because they can't keep the proceeds of civil forfeiture under CA state law, they turned it over to the feds, who will pay them 80% of whatever they manage to keep.
posted by BungaDunga at 7:23 PM on February 6, 2022 [7 favorites]
not cool.
posted by clavdivs at 7:39 PM on February 6, 2022 [7 favorites]
posted by clavdivs at 7:39 PM on February 6, 2022 [7 favorites]
Its never been clear to me how civil forfeiture isn't a clear violation of the the fifth amendment:
Because the Supreme Court decided that the property itself could be sued.
Sadly, this isn't anywhere near the worst abuse of civil asset forfeiture. They usually go after amounts small enough that it costs more to get your stuff back than it does to pay an attorney to litigate the case on your behalf. Then the cops use it as a slush fund to buy themselves daiquiri machines or take trips to some far away vacation destination for "training".
posted by wierdo at 8:04 PM on February 6, 2022 [19 favorites]
Because the Supreme Court decided that the property itself could be sued.
Sadly, this isn't anywhere near the worst abuse of civil asset forfeiture. They usually go after amounts small enough that it costs more to get your stuff back than it does to pay an attorney to litigate the case on your behalf. Then the cops use it as a slush fund to buy themselves daiquiri machines or take trips to some far away vacation destination for "training".
posted by wierdo at 8:04 PM on February 6, 2022 [19 favorites]
Steve Lehto did the most impassioned video I’ve ever seen from him on this today.
He completely eviscerates the opinion of the Federal judge who failed to issue the restraining order, among other things.
posted by jamjam at 8:08 PM on February 6, 2022 [9 favorites]
He completely eviscerates the opinion of the Federal judge who failed to issue the restraining order, among other things.
posted by jamjam at 8:08 PM on February 6, 2022 [9 favorites]
Cannabis is illegal under federal law.
posted by ryanrs
It is and let's start there. It's a TRO, I imagine civil but sheriff man cries criminal. So it's up to the Dispensary folk to present a immediate danger because of the forfeiture is depriving a legitimate business from it's profits. Odd way to conduct a criminal of investigation by robbing an armored car.
"When asked why he robbed banks, Sutton simply replied, “Because that’s where the money is.”"
-FBI website.
Willie never said it.
But Willie did rob an armored car and most likely with more verve.
So, sherrif man is taking proceeds from
legitimate business.
that pays taxes.
even the IRS has said as much
"Get to know the IRS, its people and the issues that affect taxpayers"
see, aren't they nice so why is sheriff man stealing from the IRS without providing enough evidence to the Prosecutor or has he. The amoured car Sheriff/coroner metaphor is dope.
posted by clavdivs at 8:34 PM on February 6, 2022 [5 favorites]
posted by ryanrs
It is and let's start there. It's a TRO, I imagine civil but sheriff man cries criminal. So it's up to the Dispensary folk to present a immediate danger because of the forfeiture is depriving a legitimate business from it's profits. Odd way to conduct a criminal of investigation by robbing an armored car.
"When asked why he robbed banks, Sutton simply replied, “Because that’s where the money is.”"
-FBI website.
Willie never said it.
But Willie did rob an armored car and most likely with more verve.
So, sherrif man is taking proceeds from
legitimate business.
even the IRS has said as much
"Get to know the IRS, its people and the issues that affect taxpayers"
see, aren't they nice so why is sheriff man stealing from the IRS without providing enough evidence to the Prosecutor or has he. The amoured car Sheriff/coroner metaphor is dope.
posted by clavdivs at 8:34 PM on February 6, 2022 [5 favorites]
The other-country-headline would read, "Multiple layers of corrupt state security forces rob legitimate businesses regularly"
posted by Slackermagee at 8:36 PM on February 6, 2022 [29 favorites]
posted by Slackermagee at 8:36 PM on February 6, 2022 [29 favorites]
"Empyreal bears the burden to show by a preponderance of evidence that it has strictly complied with state medical marijuana laws," Holcomb writes. "Empyreal has not come close to meeting that burden. Empyreal's only evidence with respect to the issue of strict compliance is self-serving declarations from its CEO, Deirdra O'Gorman. The value of those declarations is limited."
Didn't know we were living in the UK.
posted by Slackermagee at 8:38 PM on February 6, 2022 [1 favorite]
Didn't know we were living in the UK.
posted by Slackermagee at 8:38 PM on February 6, 2022 [1 favorite]
I've seen countless jars in WA state rec shops that have no tax seal nor safety seal. Or safety seals that are easily defeated.
I've seen the few persons with a lottery based right to open rec shops in WA partner with countless people so that the few become basically Daddy Pushermen for people that wouldn't be able to open rec shops in WA state.
I had an acquaintance that did bookkeeping for multiple shops in WA state notice that the hiring practices are all the same:
many minimum wage part timers no benefits no health care, a few overpaid "supervisors" with full benies and health care that are family and friends of the owners, and the moneybags owners/Daddy Pushermen.
They need unions. They need federal inspections. They need federal safety guidelines.
This is merely "legalization" of a blackmarket.
And we need a leader that is willing to not being a lying bag of dicks.
posted by NoThisIsPatrick at 8:50 PM on February 6, 2022 [14 favorites]
I've seen the few persons with a lottery based right to open rec shops in WA partner with countless people so that the few become basically Daddy Pushermen for people that wouldn't be able to open rec shops in WA state.
I had an acquaintance that did bookkeeping for multiple shops in WA state notice that the hiring practices are all the same:
many minimum wage part timers no benefits no health care, a few overpaid "supervisors" with full benies and health care that are family and friends of the owners, and the moneybags owners/Daddy Pushermen.
They need unions. They need federal inspections. They need federal safety guidelines.
This is merely "legalization" of a blackmarket.
And we need a leader that is willing to not being a lying bag of dicks.
posted by NoThisIsPatrick at 8:50 PM on February 6, 2022 [14 favorites]
civil asset forfeiture is an obscenity. but how does the business send their loads of cash away every day in armored cars without so meticulous a level of accounting as to overcome the preponderance of evidence standard? or, i guess the language Slackermagee provides is broader than proving they are the appropriate owner of all that cash: ... evidence that it has strictly complied with state medical marijuana laws. is all their california state regulatory regime paperwork properly filed? not sure how or whether "strictly complied" might call for more than mere, properly-papered compliance with the regulatory regime. (i do not have specific knowledge of the california regulatory regime nor the status of the company with respect to same).
posted by 20 year lurk at 8:56 PM on February 6, 2022 [1 favorite]
posted by 20 year lurk at 8:56 PM on February 6, 2022 [1 favorite]
Because the Supreme Court decided that the property itself could be sued.See United States vs. Forty-Three Gallons of Whiskey
posted by chrchr at 9:21 PM on February 6, 2022 [5 favorites]
Cannabis is illegal under federal law.
And IKEA is legal? Wow, there is still so much I do not understand about your country.
posted by ricochet biscuit at 9:21 PM on February 6, 2022 [11 favorites]
And IKEA is legal? Wow, there is still so much I do not understand about your country.
posted by ricochet biscuit at 9:21 PM on February 6, 2022 [11 favorites]
Its never been clear to me how civil forfeiture isn't a clear violation of the the fifth amendment:
Because the Supreme Court decided that the property itself could be sued.
The history of this is truly absurd... It's difficult to think of another set of decisions with more tangled and incoherent webs of capital L Lawyering than the ones that argue that forfeiture of property without the owner even being charged with a crime is not a violation of the Takings Clause, with the argument often boiling down to "well the police have been doing this for a while and it seems to be important to them to do it so it's fine".
This is a good overview and here's another one (a somewhat pro forfeiture essay) where you can see if the reasoning makes any sense in the end
posted by dis_integration at 9:27 PM on February 6, 2022 [13 favorites]
Because the Supreme Court decided that the property itself could be sued.
The history of this is truly absurd... It's difficult to think of another set of decisions with more tangled and incoherent webs of capital L Lawyering than the ones that argue that forfeiture of property without the owner even being charged with a crime is not a violation of the Takings Clause, with the argument often boiling down to "well the police have been doing this for a while and it seems to be important to them to do it so it's fine".
This is a good overview and here's another one (a somewhat pro forfeiture essay) where you can see if the reasoning makes any sense in the end
posted by dis_integration at 9:27 PM on February 6, 2022 [13 favorites]
so, after some fruitless efforts at finding the opinion at the judge's chambers, or the district court website or in other reporting i circuitously made my way around to tfa which hosts the opinion here. good work, reason; thanks riruro.
reading... but for the stain that is forfeiture, i don't see this particular denial of a TRO, in advance of a hearing on an injunction (in some skewed parallel to federal forfeiture proceedings against some portion of the seized cash), does not strike me as particularly troublesome. especially with empyreal's counsel's shenanigans, some contradictory (and some improperly filed) attestations -- empyreal's own filing says that 3 of the 4 cannabis businesses whose money was in one seized vehicle are compliant with regs, for chrissake -- and their failure, so far, to substantiate fulsome compliance with the regulatory regime.
on edit: hmm. and why aren't those righteous, compliant customers also parties to these proceedings? i think i'd like to see the cash management services contracts.
posted by 20 year lurk at 9:48 PM on February 6, 2022 [3 favorites]
reading... but for the stain that is forfeiture, i don't see this particular denial of a TRO, in advance of a hearing on an injunction (in some skewed parallel to federal forfeiture proceedings against some portion of the seized cash), does not strike me as particularly troublesome. especially with empyreal's counsel's shenanigans, some contradictory (and some improperly filed) attestations -- empyreal's own filing says that 3 of the 4 cannabis businesses whose money was in one seized vehicle are compliant with regs, for chrissake -- and their failure, so far, to substantiate fulsome compliance with the regulatory regime.
...the Court is compelled to express its concerns regarding Empyreal’s litigation tactics. Thus far, Empyreal has: (1) attempted to present new evidence along with its Replies—evidence to which Defendants would have no ability to respond; (2) filed an ex parte TRO application late on a Friday afternoon before a holiday weekend without first notifying opposing counsel; and (3) declined to follow the Court’s directive to file its next request for relief as a regularly noticed motion.it does sound like they better keep operations in san bernardino county suspended until after the injunction hearing, and maybe consider changing counsel (wonder whether same counsel will be litigating the forfeiture proceedings)... assuming they can meet the burden of showing they've confirmed their customers' compliance and prevail in court, 'cause sheriff dicus is after them.
on edit: hmm. and why aren't those righteous, compliant customers also parties to these proceedings? i think i'd like to see the cash management services contracts.
posted by 20 year lurk at 9:48 PM on February 6, 2022 [3 favorites]
self-serving declarations from its CEO
"I'm inncocent!"
"Meh. Prove it."
posted by Meatbomb at 11:01 PM on February 6, 2022 [4 favorites]
"I'm inncocent!"
"Meh. Prove it."
posted by Meatbomb at 11:01 PM on February 6, 2022 [4 favorites]
@jackbrown -- according to Steve Lehto, the legal commentator on his YT channel Lehto's Law, SBSO gets 80% back as reward for helping the Feds confiscate the money.
posted by kschang at 11:31 PM on February 6, 2022 [3 favorites]
posted by kschang at 11:31 PM on February 6, 2022 [3 favorites]
This is literally highway robbery by law enforcement.
The Police Department, it's like a crew/
It does whatever it wants to do
(cw: slurs)
posted by Ten Cold Hot Dogs at 3:19 AM on February 7, 2022 [4 favorites]
The Police Department, it's like a crew/
It does whatever it wants to do
(cw: slurs)
posted by Ten Cold Hot Dogs at 3:19 AM on February 7, 2022 [4 favorites]
See United States vs. Forty-Three Gallons of Whiskey
The practice predates that case by a couple of centuries. For instance, see United States v. 422 Casks of Wine from 50 years earlier. The modern asset fortified can be traced to the English Navigation Acts of 1660 to seize actual pirate and smuggler ships as the owner was often nebulous and the crew would flee if they thought the law was coming down on them leaving the ship and contraband cargo at the port with no way to deal with it. Suing the ship or cargo itself (In rem to use the legal term) solved that problem even if the actual pirates couldn’t be held into account.
The problem is this one solution to one particular problem has metastasized to just bring anything the cops want to take. Even stuff the cops know we’re the stolen goods and know who the rightful victimized owner was as most people don’t have the time and money to fight back and the cops can often keep the proceeds as a slush fund if they win.
posted by jmauro at 3:21 AM on February 7, 2022 [13 favorites]
The practice predates that case by a couple of centuries. For instance, see United States v. 422 Casks of Wine from 50 years earlier. The modern asset fortified can be traced to the English Navigation Acts of 1660 to seize actual pirate and smuggler ships as the owner was often nebulous and the crew would flee if they thought the law was coming down on them leaving the ship and contraband cargo at the port with no way to deal with it. Suing the ship or cargo itself (In rem to use the legal term) solved that problem even if the actual pirates couldn’t be held into account.
The problem is this one solution to one particular problem has metastasized to just bring anything the cops want to take. Even stuff the cops know we’re the stolen goods and know who the rightful victimized owner was as most people don’t have the time and money to fight back and the cops can often keep the proceeds as a slush fund if they win.
posted by jmauro at 3:21 AM on February 7, 2022 [13 favorites]
why aren't those righteous, compliant customers also parties to these proceedings? i think i'd like to see the cash management services contracts.
Empyreal apparently compensated them for the loss, so the money at issue isn't theirs.
posted by wierdo at 5:31 AM on February 7, 2022 [1 favorite]
Empyreal apparently compensated them for the loss, so the money at issue isn't theirs.
posted by wierdo at 5:31 AM on February 7, 2022 [1 favorite]
civil asset forfeiture is an obscenity. but how does the business send their loads of cash away every day in armored cars without so meticulous a level of accounting as to overcome the preponderance of evidence standard?
There's no amount of paperwork, even notarized and filled out in triplicate, that will stop an organized crime syndicate masquerading as law enforcement.
An ever-increasing part of me wants to see blue states lean into the legal madness that the Supreme Court is letting Texas get away with: weaponizing the completely-broken federal court system against people who do things that are federally protected but that the state legislature doesn't like. OK, mafia-cosplaying-as-law-enforcement, you want to use civil asset forfeiture to seize profits from legal marijuana sales? Fine, but you personally are liable for damages, and by the way the drivers of those armored trucks are also armed and we're indemnifying them if they use lethal force to stop a robbery.
posted by Mayor West at 5:46 AM on February 7, 2022 [14 favorites]
There's no amount of paperwork, even notarized and filled out in triplicate, that will stop an organized crime syndicate masquerading as law enforcement.
An ever-increasing part of me wants to see blue states lean into the legal madness that the Supreme Court is letting Texas get away with: weaponizing the completely-broken federal court system against people who do things that are federally protected but that the state legislature doesn't like. OK, mafia-cosplaying-as-law-enforcement, you want to use civil asset forfeiture to seize profits from legal marijuana sales? Fine, but you personally are liable for damages, and by the way the drivers of those armored trucks are also armed and we're indemnifying them if they use lethal force to stop a robbery.
posted by Mayor West at 5:46 AM on February 7, 2022 [14 favorites]
Mrs. Mosley's former boss is now a Treasurer for a Marijuana company, so I sent this article to him. He said he has to deal with a deposit seizure at least twice a month. He's... not fond of that sheriff.
posted by AlonzoMosleyFBI at 7:25 AM on February 7, 2022 [7 favorites]
posted by AlonzoMosleyFBI at 7:25 AM on February 7, 2022 [7 favorites]
In rem jurisdiction is supposed to be reserved for cases where the true owner is unknown or declines to defend themselves, as jmauro points out. It has no place in cases where the owner is both known and subject to the jurisdiction of the criminal courts.
Surely California can pass a law to bar the Sherriff from accepting his 80% cut of the robbery proceeds? Or to compel him to turn the money over to the state's general fund, thereby taking away any motivation to repeat this stunt in the future?
posted by 1adam12 at 8:02 AM on February 7, 2022 [3 favorites]
Surely California can pass a law to bar the Sherriff from accepting his 80% cut of the robbery proceeds? Or to compel him to turn the money over to the state's general fund, thereby taking away any motivation to repeat this stunt in the future?
posted by 1adam12 at 8:02 AM on February 7, 2022 [3 favorites]
Suing the ship or cargo itself (In rem to use the legal term) solved that problem even if the actual pirates couldn’t be held into account.
This seems weirdly reminiscent of the medieval/Renaissance legal proceedings where a donkey would be sued for breaking through a gate and eating some plants on a neighbouring farm, or a cardinal would excommunicate some mice who nibbled the edges of church documents.
posted by ricochet biscuit at 9:15 AM on February 7, 2022 [5 favorites]
This seems weirdly reminiscent of the medieval/Renaissance legal proceedings where a donkey would be sued for breaking through a gate and eating some plants on a neighbouring farm, or a cardinal would excommunicate some mice who nibbled the edges of church documents.
posted by ricochet biscuit at 9:15 AM on February 7, 2022 [5 favorites]
Not to Monday morning quarterback this, but have they tried not driving their cash to the location? There is another dimension that may be more of an interest in this situation.
posted by Sphinx at 11:50 AM on February 7, 2022
posted by Sphinx at 11:50 AM on February 7, 2022
ricochet biscuit: "Hour of the Pig"
Thanks; I have not seen this but will keep an eye out.
I was about to ask if anyone could help me recall a non-fiction book from the last couple of years about these sorts of cases but as I began typing, I realized I was thinking of Mary Roach’s book Fuzz, which is vaguely familiar because I own it.
posted by ricochet biscuit at 1:53 PM on February 7, 2022 [1 favorite]
Thanks; I have not seen this but will keep an eye out.
I was about to ask if anyone could help me recall a non-fiction book from the last couple of years about these sorts of cases but as I began typing, I realized I was thinking of Mary Roach’s book Fuzz, which is vaguely familiar because I own it.
posted by ricochet biscuit at 1:53 PM on February 7, 2022 [1 favorite]
Setting aside how the entire practice is an obvious shakedown, how did it come to be that the proceeds from civil forfeiture and ticketing remain with the police departments? Wouldn't it make more sense for this money to go directly to the local government in a separate fund?
Letting the cops keep their ill-gotten gains seems like such a clear conflict of interest it boggles my mind. I have a hard time imagining them being this enthusiastic about pillaging if the money then went to local schools or roads instead of their own department's pockets. They have a budget set by the locality they work for, what is gained by society when they are allowed to supplement it by harassing people?
posted by Feyala at 2:01 PM on February 7, 2022 [3 favorites]
Letting the cops keep their ill-gotten gains seems like such a clear conflict of interest it boggles my mind. I have a hard time imagining them being this enthusiastic about pillaging if the money then went to local schools or roads instead of their own department's pockets. They have a budget set by the locality they work for, what is gained by society when they are allowed to supplement it by harassing people?
posted by Feyala at 2:01 PM on February 7, 2022 [3 favorites]
Some states do limit the amount of money the police get to keep, with the rest going to the general fund. That's one of the reasons the "equitable sharing" program exists, in fact.
Many smaller cities intentionally use civil asset forfeiture and fines to supplement departmental (and sometimes overall city/county) budgets. That way they can be all anti-tax out of one side of their mouth while collecting enough money, usually but not always from people who don't live there, and usually but not always from a disproportionate number of nonwhite people, to provide services that wouldn't otherwise be possible with stupidly low tax rates. Usually it's just a cop slush fund, though.
It's pretty shocking how often people have cash seized without any fig leaf whatsoever. Often not just cash, but also prepaid debit cards. It's just "oh, you have some cash so it must be drug proceeds or you must be on the way to buy drugs." But since the average seizure is under $2000, people are almost always worse off financially if they fight it. Even when it is fought, the response is often to offer to give half back to make the person go away, which clearly demonstrates the bad faith involved in seizing the money in the first place. If they really thought it was a legitimate seizure and they had any kind of evidence, they wouldn't offer to give some of it back.
posted by wierdo at 3:01 PM on February 7, 2022 [5 favorites]
Many smaller cities intentionally use civil asset forfeiture and fines to supplement departmental (and sometimes overall city/county) budgets. That way they can be all anti-tax out of one side of their mouth while collecting enough money, usually but not always from people who don't live there, and usually but not always from a disproportionate number of nonwhite people, to provide services that wouldn't otherwise be possible with stupidly low tax rates. Usually it's just a cop slush fund, though.
It's pretty shocking how often people have cash seized without any fig leaf whatsoever. Often not just cash, but also prepaid debit cards. It's just "oh, you have some cash so it must be drug proceeds or you must be on the way to buy drugs." But since the average seizure is under $2000, people are almost always worse off financially if they fight it. Even when it is fought, the response is often to offer to give half back to make the person go away, which clearly demonstrates the bad faith involved in seizing the money in the first place. If they really thought it was a legitimate seizure and they had any kind of evidence, they wouldn't offer to give some of it back.
posted by wierdo at 3:01 PM on February 7, 2022 [5 favorites]
"Empyreal bears the burden to show by a preponderance of evidence that it has strictly complied with state medical marijuana laws," Holcomb writes. "Empyreal has not come close to meeting that burden. Empyreal's only evidence with respect to the issue of strict compliance is self-serving declarations from its CEO, Deirdra O'Gorman. The value of those declarations is limited."
But.. but... They conducted an internal investigation and found no evidence of wrongdoing!
posted by stet at 10:30 AM on February 8, 2022
But.. but... They conducted an internal investigation and found no evidence of wrongdoing!
posted by stet at 10:30 AM on February 8, 2022
That statement by the judge would have made a lot more sense if there had been any opposing evidence. An uncorroborated self serving statement isn't worth much on its own, but it's worth more than nothing at all.
posted by wierdo at 10:42 AM on February 8, 2022 [1 favorite]
posted by wierdo at 10:42 AM on February 8, 2022 [1 favorite]
Empyreal bears the burden to show by a preponderance of evidence that it has strictly complied with state medical marijuana lawsIANAL, but isn’t that not how any of this works? Pretextual or not, a traffic stop does not in any way lead to a reasonable presumption that the money in an armored car was obtained or handled illegally, does it?
posted by gelfin at 4:09 PM on February 8, 2022
Wait, why does it matter if Empyreal and/or their customers complied with state law? All cannabis business still straight illegal on the federal level, right?
posted by ryanrs at 5:12 PM on February 8, 2022
posted by ryanrs at 5:12 PM on February 8, 2022
mpyreal bears the burden to show by a preponderance of evidence that it has strictly complied with state medical marijuana laws
Yeah, this is the thing that has bugged the back of my mind for the past few days - I'm pretty sure this is completely arse-backwards. Taking this principle and applying it anywhere else would be nonsense and I've always understood the law to work as if there's a presumption of innocence unless the state can show 'by a high preponderance of evidence' (ie reasonable doubt or at least balance of probabilities) that a crime has been committed. Otherwise, you can be issued with a speeding ticket while asleep in your bed and you have the burden of proving beyond reasonable doubt that you were in bed, while the issuing officer sits back and has no obligation to provide evidence.
I mean, everything about this situation is incredibly fucked up, but this just blows my mind.
posted by dg at 5:28 PM on February 8, 2022 [1 favorite]
Yeah, this is the thing that has bugged the back of my mind for the past few days - I'm pretty sure this is completely arse-backwards. Taking this principle and applying it anywhere else would be nonsense and I've always understood the law to work as if there's a presumption of innocence unless the state can show 'by a high preponderance of evidence' (ie reasonable doubt or at least balance of probabilities) that a crime has been committed. Otherwise, you can be issued with a speeding ticket while asleep in your bed and you have the burden of proving beyond reasonable doubt that you were in bed, while the issuing officer sits back and has no obligation to provide evidence.
I mean, everything about this situation is incredibly fucked up, but this just blows my mind.
posted by dg at 5:28 PM on February 8, 2022 [1 favorite]
All cannabis business still straight illegal on the federal level, right?It’s more complicated than that for a few reasons I can think of:
First off, a county sheriff has no business enforcing federal laws on his own initiative (that are not also state laws, as, say, murder would be). It’s literally not his job. Like any of the rest of us, his role is to report suspected violations of federal law to those whose job it is (the FBI) and let them take the lead.
Second, my previous question about whether an armored car transporting money provides reasonable suspicion of a crime on the pretext of a traffic stop remains unanswered. That’s literally what armored cars do. In our system whether there was a crime has no bearing on whether it was reasonable for an officer to infer one.
Third, for the FBI to offer bounties on civil forfeitures provides a corrupt motive that undermines due process. If not for the sheriff’s financial incentive, neither the stop nor the seizure would have happened, and the audio recordings seem to support the primacy of that motive.
Fourth, the seizure and bounty are likely not justified because the DOJ’s well-publicized existing stance, surviving ten years and three presidencies so far, and which the sheriff had no excuse not to be aware of, is not to pursue charges under federal law for marijuana-based activities that are compliant with emerging state laws. A crime that prosecutors decline by blanket policy to prosecute, for whatever reason, is de facto not a crime. We are in the process of figuring out whether and how to change our national policy towards marijuana, and it’s a messy process.
Fifth, if the sheriff had reasonable suspicion that the company was violating state laws, then the appropriate action would be to refer them to state prosecutors, which would have been both a legitimate cause for action and within his wheelhouse, but would not let him collect 80% of the take from an armored car heist.
The thing to keep in mind is that we operate under a legal system where the legitimacy of the process is more important than the prosecution of individual crimes, and the process employed here was a legal shit show.
posted by gelfin at 6:42 PM on February 8, 2022 [5 favorites]
The DOJ policy isn't just administrative. Congress attached a rider on a spending bill some years back that doesn't allow them to "spend money" on enforcement actions against marijuana businesses that are operating legally under state law.
posted by wierdo at 8:26 PM on February 8, 2022 [1 favorite]
posted by wierdo at 8:26 PM on February 8, 2022 [1 favorite]
But isn't that exactly how they're getting away with this bullshit? The purported reason for the seizure is that the company didn't comprehensively prove they were in compliance with state laws, neatly sidestepping that policy.
posted by dg at 8:37 PM on February 8, 2022
posted by dg at 8:37 PM on February 8, 2022
They haven't really gotten away with anything yet. I think that the denial of the TRO is BS, but there's still a good chance they'll get most or all of the money back. They might even get a preliminary injunction now that they've got a copy of the plainly defective search warrant used to stop the vans in the first place.
Part of the reason for the denial seemed to be that they didn't have any hard evidence of bad faith. The judge was whining about evidence being entered too late for consideration. The reason for that is that the cops refused to turn it over until the last minute. That evidence can be used as the case continues.
I'd think they would have a better chance in state court where the funds should be presumed to be legal, but they might have to have another seizure since the previous ones are already being litigated in federal court.
posted by wierdo at 10:27 PM on February 8, 2022
Part of the reason for the denial seemed to be that they didn't have any hard evidence of bad faith. The judge was whining about evidence being entered too late for consideration. The reason for that is that the cops refused to turn it over until the last minute. That evidence can be used as the case continues.
I'd think they would have a better chance in state court where the funds should be presumed to be legal, but they might have to have another seizure since the previous ones are already being litigated in federal court.
posted by wierdo at 10:27 PM on February 8, 2022
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posted by dg at 5:43 PM on February 6, 2022 [8 favorites]