SMOKED OUT

Did The DEA Misuse A Controversial Statute To Silence Anti-Drug Law Activists?

When Montana State University student Adam Jones organized a benefit
concert for May 30 at the Fraternal Order of Eagles lodge in Billings, MT,
he intended to raise money for the fight to legalize marijuana for medical
use. The Drug Enforcement Administration, however, may not have approved.
On the eve of his first major foray into drug reform activism, Jones found
himself in jail and the lodge's board of trustees pulled the plug. Though
none of the show's three local bands had a chance to play a single chord,
critics and advocates of a controversial new law, the Illicit Drug
Anti-Proliferation Act, also known as the RAVE Act, heard the
reverberations loud and clear.

On May 29, Jones, who is serving three years probation for possession of
hallucinogenic mushrooms, was arrested by his parole officer after testing
positive for drugs (a second test came up negative, and he was later
released). The following day, a Special Agent with the Billings office of
the DEA approached the Eagles lodge manager, Kelly, with a copy of the Act
in hand.

"He ... explained that if we had the concert and somebody did some sort of
illegal activity, like smoke weed in the parking lot, that we could be
fined $250,000," said Kelly, who requested that her last name be withheld.
"He didn't come out and say we couldn't hold the concert, and he was polite."

As the bands were unloading their equipment and the stage was being set up
for a live TV simulcast, Kelly delivered the news to the lodge trustees.
After consulting their lawyer, they decided to cancel the show.

"The lawyer said that if [the DEA] went through the trouble of sending
someone down here to warn us, the chances of the police showing up, even
undercover, were pretty good. [The trustees] were very nervous about the
place being closed down ... Nobody wanted to be [made into] an example."

The Illicit Drug Anti-Proliferation Act, signed into law by President Bush
last April, passed quietly through both houses of Congress as an amendment
to the Child Abduction Prevention Act, or "Amber Alert" Bill. The law
targets venue owners who intentionally use their property for the
production, distribution or use of controlled substances. The mere presence
of drugs in the hands of a third party - for example, a concertgoer smoking
marijuana in a parking lot - is not sufficient grounds for prosecution.
Critics, however, accuse the act of being so loosely worded that the
government could use it to muzzle opposition.

"Without question, this was an attempt to silence political dissent," said
Keith Stroup, Executive Director of the National Organization for the
Reform of Marijuana Laws. "This venue has frequently held concerts every
few weeks; bands have played there in the past and had no problems
whatsoever. It was only when [Adam Jones] ran an ad in the local paper
advertising the concert as a fundraiser for [Students for Sensible Drug
Policy and MSU-Billings NORML] that the DEA decided it was their
responsibility to inform [the Eagles lodge] about the RAVE Act ... [The
Order of Eagles is] a mainstream, patriotic group - it's a service club.
This is not a case where there was even the slightest allegation that the
club owners were involved in drug dealing."

If the DEA intended its visit as a warning, then the Billings case may be
the first time that the Act has been used to preemptively shut down an event.

Chip Unruh, Deputy Press Secretary for Sen. Joseph Biden (D-DE), who
sponsored the Act, explained that the intent of the law was never to
threaten legal events. "The bill was crafted with very narrow and specific
language, and it should be interpreted that way," he said "We set the bar
high for a reason, to protect people's rights and prevent someone from
misapplying the law."

According to Unruh, Biden recently contacted representatives from the DEA,
including acting administrator William Simpkins, to ask them to explain
their actions in the Billings case. The agency's reply: "Regrettably, the
. Special Agent's incorrect interpretation of the statute contributed to
the decision of the Eagle's Lodge to cancel the event."

The senator and members of his staff also spoke with Karen Tandy, the DEA's
future Administrator. "We seem to be on the same page, so we don't
anticipate a situation [like the one in Billings] occurring again, " said
Unruh.

Despite the DEA's admittance that it's agents made an error and Biden's
office indicating that the DEA does not foresee such problems arising
again, back in Montana, members of the state chapter of NORML are not so
convinced.

"In light of the DEA's action in Billings, we are now carefully evaluating
future events, such as the Missoula Hempfest, which attracts over 5,000
people every year," said Montana NORML Director John Masterson. "Will the
DEA threaten the Missoula City Council with quarter-million dollar fines
this year?"

On the national level, a coalition consisting of NORML, Students for
Sensible Drug Policy, the Drug Policy Alliance and the American Civil
Liberties Union plan to file a lawsuit against the DEA seeking an
injunction and a declaration that the Illicit Drug Anti-Proliferation Act
violates the First Amendment.

"Frankly, the reason we are so committed to challenging this is that we
fear that if we don't, we will run into this over and over again every time
we try to run an event," said Stroup. "It would be very easy for the DEA to
scare the owners before an event. The purpose of this suit is to alert the
DEA nationwide that we're not going to stand for this, and we don't think
the federal courts will, either."