Fear of Flying: Void for Vagueness in Hawaii

By Mary Lou Smart © 2012 www.medicalcannabisart.com

When you pick up a prescription, what do you do with it? Wiggle your nose three times to be instantaneously transported back to bed? Have

you ever driven across town with a bottle of meds or taken them to work with you? Have you ever, God for-  bid, taken medicine aboard an airplane?

Patients carrying legal cannabis in Hawaii face any num- ber of risks, including confiscation of medicine, harass- ment, missed planes, arrests, fines and court cases. The law is vague, according to prosecutors, defense attorneys, judges, and just about anyone weighing in on the subject.

Hawaii decriminalized the medical use of marijuana in 2000. Its revised statutes (HRS) include HRS 329-121  and HRS 329-122, which state that “medical  use”  includes transportation (329-121), but that the same “medical use” is prohibited in any moving vehicle and in any other place open to the public (329-122). Prosecutors have won cases with the argument that HRS329-122 clearly prohibits any form of travel, which they define as medical use, with cannabis; however, many of these con- victions are appealed.

An amicus curiae (friend of the court) brief submitted by the ACLU of Hawaii in support of a patient appealing a conviction maintains that the state’s medical marijuana law contains significant conflicting sections. Prosecutors use these conflicting passages, it argues, to sidestep the obvious intent of the law.

“Prosecutors in Hawaii County appear to be the only prosecutors in the entire nation pursuing criminal charges against medical marijuana patients who do nothing more than transport lawful, personal quantities of marijuana in accordance with applicable state law.”

The ACLU’s argument is that the logic being used in con- victing patients is absurd. Taken literally, it maintains, the logic is a stretch that would make any conviction a viola- tion of due process. Even before the appeal that this brief was written for was heard, District Court Judge Barbara Takase had tossed out two similar cases, stating that the law’s passages about transportation are too vague to sup- port a conviction.

Transportation is not a simple affair in this archipelago of eight major islands in the North Pacific Ocean. Without ferries, inter-island travel is often via airplane where Transportation Security Administration (TSA) agents search passengers for weapons. In Hawaii, many patients travel to other islands, especially Honolulu, for medical care such as chemo.

Matt Rifkin is a patient. He has become an advocate for other patients, particularly those that get caught up in the muddy waters of the transportation issue.

Hawaii’s medical marijuana program is overseen by the Narcotics Enforcement Division (NED), which tends to treat the patients that the law was intended to protect like criminals. Hawaii’s medical marijuana program does not prohibit dispensaries, but it makes no provision for them. Without the protection of a mention in this law,  opening  a dispensary has proven to be a risky proposition. Without dispensaries, patients carry their legal cannabis when traveling from one island to the next.

Defense attorneys maintain that patients cannot be expected to fly to where they’ll be for several days of treatment, and then have to score marijuana on the black market upon arrival simply because the law is vague. Because of this legal quagmire, the sick face arrest if they fly with cannabis in much the same way that they face arrest if they leave their legal cannabis at home, and then try to buy it on the street after getting off of the plane.

Rifkin became aware of the state’s inter-island dilemma in

2007 when he learned that a friend suffering from leukemia was also coping with the fear of arrest while fly- ing to Honolulu for his chemo every two weeks. His wife worked for the airlines. While he did bring his legal cannabis onto the plane each time, he was worried about jeopardizing her career, her health insurance, and her income, all of which his family relied on, if he were to be arrested.

Rifkin started asking around. The TSA agents at Kona International Airport told him that he could bring his cannabis on the plane. They told him that if they searched his bags and found it, he would be fine as long as he had proof that he was a legitimate patient. After hearing that, he adopted a policy of putting his cannabis into a cloth pouch, and placing it on top of his clothes where it could easily be found in his suit case. The TSA did not have a written procedure, but Rifkin transported his medical cannabis three or four times with no problem.

On Christmas day in 2010, he was flying to visit a friend in Honolulu.

“The TSA staff looked like they had just gotten off an air- plane from the mainland,” he remembered. “They were very pale and white, and this time they didn’t like what they saw when they searched my bag.”

A TSA agent pulled him aside, and airport security was called.

“A rent-a-cop was threatening me, saying that they would be taking me away in handcuffs, calling the DEA, and letting the courts sort it out,” he said.

While the local police department was called, no one ever showed up to arrest him. After confiscating his medicine, they let him go. The next day he received a call from Hawaii County’s police department  asking  him to come in for questioning.

“They said, “Look, we just want to get your side of the story. We realize that you are not a dealer because you were very open, and you were not carrying much,”” he said. “I said that I was going away for a month  and that I’d call them when I returned. They said fine.”

As it turns out, the officer assigned to his case was reas- signed, and he never heard from them again.

“The whole inter-state transportation issue is interest- ing,” said Jeanne Ohta, executive director, Drug Policy Forum of Hawaii. “There have been varied responses when a patient’s marijuana is found in a bag by TSA.

Some are let go. Some are arrested. In the cases I know of where a patient is arrested, prosecuted and convicted of possession, the cases are appealed. It is especially urgent to clarify ambiguities that have caused these patients to be arrested.”

The amicus brief sited above was written in support of Geoff Woodhall, a legal patient who was carrying two grams of cannabis in his pants pocket that was found during a TSA pat down prior to a flight from Kona International Airport to Hilo International Airport. The legal limit for patients in Hawaii is three ounces, and Woodhall was carrying two grams. He was turned  over  to local law enforcement officers, but not arrested. They detained him, handcuffed him, brought him to their secu- rity shack, confiscated his medicine, and then let him go. By that point he had missed his inter-island flight. After being served with a summons more than three months after the incident, he learned that prosecutors had pur- sued a misdemeanor possession charge. District Court Judge Joseph Florendo said that the law is crystal clear, and patients cannot travel with cannabis. HRS 329-121 defines authorized medical use as “the acquisition, possession, cultivation, use, distribution, or transportation of marijuana” by qualified patients. HRS329-122 states that the medical use of marijuana is prohibited in any moving vehicle or in any other place open to the public. It is clear, therefore, that a patient is

permitted to transport cannabis (HRS329-121), but strict interpretation of transporting as being medical use, which is how Judge Florendo interpreted HRS329-122, makes moving the medicine just about anywhere illegal.

“None of these patients are walking through the airport smoking joints and waving their ounces of pot around,” said Rifkin. “The patient in Kona, his cannabis only came to public view when the TSA agent pulled it out of his pocket. If you follow this logic, then the only place where you can possess your marijuana is at the address on the medical card where you are registered. That is utter crazi- ness.”

A federal agency, the TSA was created as part of the Aviation and Transportation Security Act in 2001, and originally part of the U.S. Department of Transportation. The TSA was moved to the Department of Homeland Security in 2003. When questioned by a Hawaii Tribune Herald reporter in 2010 about its drug screening proce- dures, TSA spokesperson  NICO  Melendez  said  that  when drugs are found during a screening, the TSA would not have the authority to make an arrest. Local law enforcement would be contacted. “Our mission  is  to  keep explosives off planes,”  he said.  “Drug  enforcement is not our mission.”

While other medical marijuana states have statutes with conflicting passages, legislators and other government officials have set up clear policies to protect patients. Not in Hawaii, where NED uses its bizarre oversight of a medical program to profile and criminalize patients, and seems to influence the legislature as well.

The amicus brief points out that, “no other jurisdiction that has enacted a medical marijuana program is prose- cuting patients for transporting medical marijuana, nor is the federal government prosecuting medical marijuana patients who comply with local law.”

In Oakland, California, for instance, the Sheriff’s

Department administers security at Oakland International Airport where procedures are in place out- lining what to do if TSA finds cannabis on a legal med-  ical marijuana patient. The Airport Police Services Policy and Procedure states that if the patient possesses less than eight ounces, which is the legal medical marijuana amount in that state, they are free to go. Their  medicine is not confiscated.

In Oregon, the state law regarding medical marijuana is applied to passengers on airplanes. In 2009, Wendy Hain, assistant general counsel, Port of Portland, responded to an inquiry by stating that while the Port does not have an official written policy, the Port complies with applicable state and federal laws. Her letter added that, “Marijuana  is not seized from a passenger who holds a valid Oregon Medical Marijuana card when boarding aircraft at the Portland International Airport as long as the passenger is not carrying a quantity that exceeds an amount that he or she is lawfully authorized to possess.”

In the Aloha State, where a criminal model seems to con- trol a medical issue, advocates are finding that progress is slow.

A member of the Medical Cannabis Working Group  set  up by the state legislature; Matt Rifkin said that the num- ber of patients being arrested while boarding planes is not known but that all signs point to quite a few accepting their fate and paying fines to avoid the hassle of a court case. He said that since many of the few cases that actu- ally make their way to court are being appealed, the transportation issue will probably be heard by the state’s Supreme Court sooner than later.

“In Hawaii, their gig is to arrest you and let the courts sort it out,” said Rifkin. “From the start, the intent of the law was compassionate care. Many of us travel to differ- ent islands for care. People travel with their medicine. We should be protected under this law, and it really is that simple.

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