State & Local Executive Branches

(This article includes minor updates from the original version published 8/19/10.)

Andre Lagomarsino, the attorney representing the estate of Trevon Cole and his fiancé, Sequoia Pearce, said last Thursday he is considering a RICO (Racketeer Influenced and Corrupt Organizations Act) lawsuit against the Las Vegas Police Metropolitan Department in the shooting death of Cole in a June drug raid at the apartment shared by Cole and Pearce. In addition to a possible RICO claim, the lawsuit would assert wrongful death, assault and battery, and intentional infliction of emotional distress. It would also assert civil rights violations.

"We are considering a RICO claim," Lagomarsino told the Chronicle. "The claim would say there is a pattern of criminal conduct by this organization. A similar claim was brought against the LAPD. It only takes two events to constitute a pattern under RICO," he said.

There is already one other questionable police shooting that could be the second event. Last month, Las Vegas police shot and killed Erik Scott, 39, outside a Costco store in Summerlin. There have been five officer-involved shootings in the city so far this summer and 17 this year, though Cole and Scott were the only fatalities among them.

Though best known for its criminal provisions targeting certain criminal enterprises with asset forfeiture and up to 20-year sentences per racketeering count, the RICO statute also has a provision allowing for civil lawsuits by plaintiffs claiming to have been harmed by those enterprises. Successful plaintiffs can collect treble damages.

Cole was fatally wounded by Detective Brian Yant as he and other officers executed a search warrant alleging that Cole had sold 1.8 ounces of marijuana to undercover officers in three buys over a series of week. Cole was unarmed. Yant said he shot after Cole made "a furtive movement," but Pearce, who was present during the raid, said Cole was on his knees with his hands raised and complying with commands when he was shot.

Yant has been involved in two other questionable shootings, one of them fatal. In that incident, Yant said the victim was threatening him with a gun, but the gun was found 35 feet away from the victim's body.

Yant also misidentified Cole as another Trevon Cole from Houston, Texas, despite the two men having different dates of birth, middle initials, ages, and appearances. He also mischaracterized the record of the Houston Trevon Cole, portraying him in the search warrant affidavit as a major drug dealer when his only arrests were marijuana possession misdemeanors. (See more detailed coverage of the raid and its aftermath here.)

When there is a police-involved fatal shooting in Las Vegas, it goes before a coroner's inquest to determine whether the officer involved was criminally negligent. That happened on Friday and Saturday, with the coroner's jury coming back with a verdict of "justifiable" on the shooting. The finding was not unanticipated, especially given the history of coroner's inquests there (only one police officer has been found criminally negligent in about 200 inquests since 1976, and that verdict was later overturned) and the one-sided nature of the inquest process (only the district attorney can present evidence and ask questions), it is considered unlikely that Yant will be found criminally negligent.

"I would guess they will find it justified, but I'm hopeful they will look at the fact that [Cole] had nothing in his hands," Lagomarsino said the day before the inquest began.

While Lagomarsino also cited Yant's history of shootings "under suspicious circumstances," he pointed a finger at the police department too. "This is cleared at higher levels," he said. "It is the policy and procedure of the Metro police to conduct these raids the way they do."

The Las Vegas attorney told the Chronicle last week that once the inquest was over he would file a lawsuit "within two or three weeks." He told local media Monday the lawsuit will now move forward, although he did not outline its precise shape.

Asthmatic medical marijuana patient Chris Diaz sits in jail in Brownwood, Texas, facing up to life in prison for a half ounce of marijuana and three grams of hash. Quadraplegic medical marijuana patient Chris Cain may be joining Diaz behind bars in Beaumont, Texas, after he goes to trial next week. When it comes to medical marijuana, Texas isn't California (or even Rhode Island), and don't you forget it, boy!

Chris Diaz is learning that the hard way. He was supposedly pulled over for an expired license tag (his defenders say the tag was not expired) while en route from Amarillo to Austin, and according to the DPS trooper's report, would not produce a drivers' license or proof of insurance. He was then arrested for failure to identify, and during a subsequent search, police found a small amount of hashish on his person. A search of the vehicle then turned up additional hash and marijuana in a pill bottle from a California medical marijuana provider. Now, Diaz is facing up to life in prison after being indicted by a Brown County grand jury. He is charged with possession of a controlled substance with intent to deliver, a first-degree felony in the Lone Star State.

Under Texas law, possession of less than two ounces of marijuana is a Class B misdemeanor punishable by up to six months in jail, while possession of hashish is either a state jail felony punishable by up to two years for less than a gram, or a second-class felony punishable by up to 20 years if less than four grams, although probation is also possible.

But because police allegedly read a text message on Diaz's seized cell phone advising a friend that he had some great hash and asking if he wanted any, he was instead indicted on the trafficking charge, punishable by up to life in prison. He remains behind bars -- without his medicine -- on a $40,000 cash bond.

Diaz was diagnosed with asthma just before he turned three, his mother, Rhonda Martin said. "He was on medications ever since. He used a nebulizer, all kinds of inhalers, Albuteral, Advair. He stopped taking them when he was 14 because he didn't like the effects," she recalled. "He said the steroids made him feel agitated and wouldn't take those chemical medications anymore."

While the family was aware of medical marijuana, it was only when Diaz fell ill during a family vacation in California and was hospitalized in intensive care that they first learned about medical marijuana for the treatment of asthma. "We were put in touch with a doctor there, and he recommended it. It was his recommendation Chris was carrying," said Martin.

Neither Brown County prosecutors nor Diaz's court-appointed public defender had responded to Chronicle requests for comment by press time.

Diaz and some of his strongest supporters, including his mother, consider themselves "sovereign citizens," and have a web site, I Am Sovereign, in which they argue their case and attempt to win support for Diaz. But that set of beliefs, which precludes carrying government-issued identification, is also complicating things for Diaz. "Failure to identify" was the first charge he faced, and he was searched and the cannabis was found subsequent to being charged with that. Similarly, the authorities' lack of any records or ID for Diaz played a role in the setting of the high bail.

He's not having an easy time of it in jail, said Martin. "He is not receiving any medical attention. He eats only organic food, but he's not getting that. He was assaulted last Sunday by a jailer when he asked for medication. The jailer got in his face and started screaming and pushing him. Chris didn't react. He is a peaceful man."

"The reality is that this kid is in jail for having medical marijuana and is looking at life in prison," said Stephen Betzen, director of the Texas Coalition for Compassionate Care, which is lobbying for a medical marijuana bill next year in the state legislature. "You've got to be kidding me. You don't give drug addicts life in prison, so why would you do that to a patient with a legitimate recommendation from another state?"

Betzen also had real issues with Diaz being stopped in the first place. "The fact of the matter is that Chris was driving home to Austin with legal plates," he said. "The cops lied and said they were expired. Not only did they lie to pull him over, they took a kid with no record and charged him with a life sentence offense for three grams of hash. The people who are perpetrating this need to be brought to justice and their victims need to be released from jail," said Betzen. "You can't just pull people over because they're brown or from California and begin to search them. There's a whole amendment about that."

"I'm surprised somebody is facing a life sentence for basically half an ounce," said Kris Hermes, spokesman for the medical marijuana support group Americans for Safe Access. "But in states that don't have medical marijuana laws, authorities are free to arrest and prosecute regardless of whether it is being used medicinally."

Meanwhile, over in Hardin County in East Texas, Chris Cain, 39, will be rolling his wheelchair to court next week, where the quadriplegic faces a jail sentence for possessing less than two ounces of medical marijuana. Cain, who was paralyzed in a diving accident as a teenager, has been an outspoken medical marijuana advocate for a decade.

He was arrested in 2005 when the Hardin County Sheriff's Office raided his home with the assistance of two helicopters, seized three joints, and threw him in jail. He wound up on probation, but could not use his medicine.

"Within six weeks, the spasticity was so bad he was developing bed sores," said Betzen, so he started using again. "The cops would come by every two weeks to see if he was healthy enough to go to jail."

Now, he faces trial again for possession. "They actually want to put him in jail," exclaimed Betzen. "The sheriff there really has a vendetta against him."

While Texas certainly needs to enter the 21st Century when it comes to medical marijuana, the problem is larger than the Lone Star State, said Hermes. "It's critical that we develop a federal medical marijuana law so that people are not treated differently in Texas than in California, and patients who need this medicine in Texas should be allowed to use it with fear of arrest and prosecution. Americans for Safe Access is committed not only to encouraging states to pass medical marijuana laws irrespective of federal policy, but also to push the federal government to develop a policy that will treat patients equitably no matter where in the US they live."

The Coalition for a Safer Detroit, sponsors of a municipal initiative that would legalize the possession of up to an ounce of pot for adults 21 or over in the Motor City, has appealed a surprise decision Monday by the city's Election Commission that knocked the initiative off the ballot.

"If you're on the cutting edge of social change, litigation is just a cost of doing business," coalition leader Tim Beck told the Detroit Free Press yesterday after the group filed an appeal with Wayne County Circuit Court.

The court Friday agreed to hold an expedited hearing on the case. That will occur on August 26.

The coalition handed in more than 6,000 voter signatures earlier this year, and the initiative was approved by the same Detroit Election Commission that killed it Monday. After it was approved, in accordance with city law, the initiative went before the Detroit City Council, which could have voted to make the initiative law. By failing to vote on the initiative, the Council cleared the way for the voters to make their preferences known in November -- or so everyone thought.

But on Monday, the Election Commission voted 3-0 to remove the measure from the ballot. The surprise move came after Detroit Corporation Counsel and commission member Krystal Crittenden told the commission that in the opinion of the city's law department, which she oversees, state law forbidding marijuana possession preempted the measure.

Now, it will be up to the courts to determine whether Detroiters will have the right to vote on the initiative. Stay tuned.