U.S. splits over marijuana, but Kansas says it's still illegal in Sunflower State

MGR Legal Analysis -
A defendant who found out he was not in Colorado anymore

Guadalajara -
As Mexico's brutal, 75 month old drug war continues on unabated, political leaders in this country always keep an eye on drug related legislation north of the border, where 90% of the product is shipped every month. The drug trafficking industry which is tearing this country apart exists because of U.S. demand, not Mexican. Former president Felipe Calderón Hinojosa correctly analyzed the problem when he remarked (quite frequently) that living next door to the U.S. is like living in the same apartment building with the biggest drug addict in town.

When the states of Colorado and Washington purported to legalize the possession of small amounts of marijuana for recreational use last November (notice the operative verb; federal law supersedes state law on drug matters, and only the U.S. Congress can legalize grass, thereby making the state amendments legally meaningless), MGR wrote, Mexico's incoming government pays little attention to marijuana legalization efforts in U.S. That was true then and it remains true today, in the sense that "little attention" means there's no chance Mexico is going to legalize the green weed or other drugs anytime soon. A 2012 survey showed that 79% of Mexicans are opposed to marijuana legalization, and believe it would lead to increased narco violence (an analysis with which MGR fully concurs). And although this country is exhausted by the daily diet of horrific violence it must endure so Americans (and yes, Canadians too) can get their daily fix, the vast majority here are only interested in debating strategies, not legalization. Mexicans divided on drug war effort of new government.

Which brings us to Kansas, the land of Dorothy and Toto, and a place I'm intimately familiar with.

It seems as though a gentleman named Troy James Cooper, a Colorado resident, traveled to Kansas to spend a few weeks visiting family members. He brought along "medical" marijuana which he had "legally" acquired in Colorado (whether to help him endure an undisclosed illness or his own relatives is not clear from the limited facts we have). A law enforcement officer chanced to pull Cooper over in Ellsworth County (a place rich in lack of charm, trust me), and arrested him for the misdemeanor possession of wacky weed. The case was tried to the bench without a jury, on stipulated facts. In other words, both sides agreed on the underlying events, and the sole issue for argument was the question of whether Kansas may criminalize that which Colorado (again, purportedly) has legalized.

The district court acquitted Cooper on the grounds the prosecution "contravened protections afforded him under the Privileges or Immunities Clause of the Fourteenth Amendment, and impermissibly interfered with his federal constitutional right to interstate travel."

That's a lot of big words, but the explanation is rather simple.

The United States Congress passed the 14th Amendment to the American constitution July 9, 1868, three years after the Civil War ended. It is one of three famous Reconstruction Amendments designed to secure the rights of recently freed slaves. Section 1 of the amendment states the following:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Although intended primarily for the legal benefit of Freedmen, as ex-slaves were quaintly called in that era, the 14th Amendment quickly became one of the most important legal tools relied upon by federal courts to limit the powers of states and local governments, and to protect individual citizens' rights. The 14th, as interpreted and applied for almost 150 years, is a storehouse of American civil liberties.

Our friend from Colorado and his attorney argued that the clause, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," meant that Kansas could not penalize what his own state had legalized. He won, and the judge found him not guilty. But the Kansas Attorney General appealed the ruling, and today the state Court of Appeals reversed the trial court's decision.

In accord with a large body of well established law, the Kansas Court of Appeals found that the "privileges or immunities" of the 14th Amendment are federal only, not state conferred ones. In other words, if the United States Congress gives a citizen permission to do something, no state may take away that right for any reason. Conversely, just because one state purportedly allows its citizens to do something - like possess marijuana for medical or recreational purposes - no other state (or the federal government, for that matter) is obliged to recognize, respect or enforce the claimed right.

Not in Kansas . . .

The Court of Appeals opinion is below. Worry not for Mr. Cooper, by the way. He was acquitted by the county judge, and no court anywhere can reverse a verdict of not guilty (because of another U.S. constitutional provision, called the Double Jeopardy Clause). Today's ruling was purely advisory, to make sure that judges statewide understand the law on the subject. But the next guy driving through Kansas with a stash of grass has been forewarned. He'll have to bring Excedrin to deal with family.

God bless Kansas and its Court of Appeals. There's no place like home.

Apr. 5 - For the first time, majority of Americans back legal pot

Mar. 14, 2013 - Drug war terror muzzles much of Mexican press
Feb. 28, 2012 - Drug "decriminalization" or legalization, it's all the same at the end of the day

© MGRR 2013. All rights reserved. This article may be cited or briefly quoted with proper attribution or a hyperlink, but not reproduced without permission.

State vs. Cooper - Mar. 15, 2013 by Edward V. Byrne

Jan. 16 - Two Canadian "gunmen" arrested in Playa del Carmen

CBC News report on Canadian drug traffickers in Puerto Vallarta, Mexico, May 2012