This is what I get for not perusing the Arcata Eye for the last few weeks. This story is a couple of weeks old, but it may represent a first. It pertains to an indoor grow bust in Arcata for which the electrical work was done so badly that the woman is being charged with endangerment of her . Only the woman involved is facing the endangerment charge, presumably because she and the kids were occupying the premises (the man charged is identified as a resident of Garberville).
Maybe Ed can tell us if there have been similar charges filed in the past. From all appearances, these are special factual circumstances, but I wonder if a successful prosecution of this case will establish a precedent. Are children endangered if certain dealers are brought to the house, or the grow project invites break-ins by criminal elements? Are they endangered if the grow is big enough to draw a federal raid?
I’m not opposed to such charges if the danger to the children is real and significant. In fact, the marijuana itself seems incidental to such concerns. Would the charges be made against someone living a cabin with poor electrical wiring in which no other illegal activity was involved? I do remember once reading about a similar charge for a woman who drove a vehicle which needed serious brakes repairs, but I don’t know how the case went. Usually the charge is applied where someone drinks and drives with a child in the vehicle – along those lines. This case does seem like a trek into new territory with no real bright lines in place.
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May 9, 2011 at 8:00 am
Kevin Hoover
At a grow house raid a year ago, there was a particularly slapdash electrical hookup in a garage above which two children resided. I asked the officers if they ever forward child endangerment charges, and he said no, they are hard to make stick.
But in this most recent case, the police said there was a huge installation in the crawlspace, basically baking the foundation of the house with tens of thousands of watts. I didn’t see the pictures, but they said it was a ridiculously sloppy installation.
APD has tended to charge conservatively, so they apparently had confidence that the child endangerment allegations were justified.
May 9, 2011 at 8:22 am
Jim
Under previous DA regimes women were routinely charged with endangerment if there were children in the home at a pot bust, especially if they were receiving aid.
May 9, 2011 at 8:48 am
Ernie's Place
There is an old South Fork canyon expression that goes. “poor people got poor ways”. The Okies in the logging camps were accused of endangering their children with poor living conditions, but they were doing the best that they could to survive and support their children. Maybe these sloppy growers are the same, they simply can’t afford better accommodations.
I just saw a documentary by a U.C. Berkley student about Chinese families that rent a room for $700.00 per month in San Francisco. The rooms have a hot plate and a sink. The toilet and showers are communal, and down the hall. As many as three generations live in these rooms, and as many as twelve people are crammed into them. Some work in the restaurant trade, and some are unemployed. The fire and health departments go nuts about living and fire conditions. So…. What do you do?
May 9, 2011 at 9:21 am
Plain Jane
It isn’t just the Chinese, Ernie. That has been common in the newly arrived from anywhere and even worse situations where beds are rented by the shift with total strangers sleeping in them, one after another. One half-step above homelessness.
May 9, 2011 at 1:39 pm
ED Denson
I have seen several marijuana cases with child endangerment charges thrown in for good measure. Usually they involve pre-teenage kids, and the endangerment perceived by the authorities is proximity to marijuana. Not, as you might expect, a second-hand smoke theory, however. They seem to fear that the children will eat raw marijuana and become injured by so doing. I don’t think any science supports that idea, and often the county’s child welfare agency will allow the kids to stay with the mother, or parents, despite the charges. Most marijuana cases are either dismissed or settle so I dont have any sense of whether the child endangerment charges could be sustained at a trial. Mostly the charges are a way to seriously increase the pressure on the parents to accept a plea bargain on the marijuana charges, because they raise the stakes so much. In theory the mother could lose custody of the kids if found guilty, which is a powerful incentive to take any settlement which allows her to keep the kids, regardless of the justice of the charges.
In the case described in the article, it is hard to say whether it is the wiring or the proximity to pot which underlies the charges. If the wiring had caused a fire the endangerment charges might be supported, but the idea that a fire was inevitable, which the article suggests the authoities are pushing, is a bit insubstantial as a basis for charges. As for the proximity, the idea is intuitively valid but scientifically, I don’t think it will hold up.
As a defense attorney I am inclined to think child endangerment charges, just like seizure of bank accounts, are normally just an unjust way to prevent the person charged from being able to defend themselves. I don’t mean that circumstances might not exist which would justify such charges, but those circumstances should be entirely divorced from the fact that marijuana is being grown or processed, in my opinion. When the law threatens basic human rights such as the right to raise your own children, it is entering territory which is very dangerous to liberty, and such threats should not be made lightly.
May 9, 2011 at 2:24 pm
Eric Kirk
Thanks Ed, and I agree. The place would probably have to be proven right on the verge of a fire for the charges to stick.
May 9, 2011 at 2:47 pm
Perry Mason
2 great legal minds opining about the appropriateness of a criminal charge yet neither can be bothered to check the penal code. Seems to be a fairly low standard for the cops to meet the elements of the crime, with good documentation and statements from code enforcement and the fire department. Especially on the misdemeanor section.
273a. (a) Any person who, under circumstances or conditions likely
to produce great bodily harm or death, willfully causes or permits
any child to suffer, or inflicts thereon unjustifiable physical pain
or mental suffering, or having the care or custody of any child,
willfully causes or permits the person or health of that child to be
injured, or willfully causes or permits that child to be placed in a
situation where his or her person or health is endangered, shall be
punished by imprisonment in a county jail not exceeding one year, or
in the state prison for two, four, or six years.
(b) Any person who, under circumstances or conditions other than
those likely to produce great bodily harm or death, willfully causes
or permits any child to suffer, or inflicts thereon unjustifiable
physical pain or mental suffering, or having the care or custody of
any child, willfully causes or permits the person or health of that
child to be injured, or willfully causes or permits that child to be
placed in a situation where his or her person or health may be
endangered, is guilty of a misdemeanor.
May 9, 2011 at 3:38 pm
Joe Blow
The commentary on this thread meets section 273b. So that doesn’t leave much doubt for people deliberately growing, selling AND buying (using) pot does it? Just to make it universal lets throw in all those (nameless) business people that involve their families and neighbors with these criminals.
May 9, 2011 at 4:16 pm
Joe Blow
“RobinHoodNYC Robin Hood
by DylanRatigan
FACT: More than 38,000 New Yorkers will sleep in shelters tonight. 14,000 of those will be children.”
What happens when this comes to Humboldt County? Going to arrest all of those parents for child endangerment too?
May 9, 2011 at 4:20 pm
ED Denson
Well, Perry and Joe, the question is this: What situation meets the requirement of possibly endangering a child’s health? Sending them to school without vaccinations? Speeding while the child is in the car? Living close to a freeway where there is higher air pollution? Letting them eat junk food? Letting them play outside without adult supervision? Telling a child to fight back against bullying? Not using sunscreen? Letting them in the kitchen while knives are in use, or hot things are on the stove? Parental smoking? Frilly clothing in the winter while portable heaters are in use? Failure to take them to church (and thus exposing them to the risk of hellfire)? Not taking them to a doctor when they develop a cold? Not putting a bandaid on a cut or scratch? Failing to supervise them so they do not get a cut or scratch?
The law, which is certainly poorly written, usually is interpreted to require some immediate and serious endangerment, for reasons which I hope I have just made clear. Growing or using marijuana per se does not meet the requirements, and doing so for medical reasons especially does not meet the requirements.
May 9, 2011 at 4:47 pm
Not A Native
Well, the law(below) sees parental illegal drug use as at least an indication that the scene is detrimental to a child. My opinion is that continual, open, and notorious illegal activity by a parent is detrimental to their child.
3041.5. (a) In any custody…proceeding brought under
this part…. the court may order any
person who is seeking custody… to undergo testing for the illegal use
of controlled substances and the use of alcohol if there is a
judicial determination based upon a preponderance of evidence that
there is the habitual, frequent, or continual illegal use of
controlled substances or the habitual or continual abuse of alcohol
by the parent…This evidence may include, but may not be limited to, a conviction within the last five years for the illegal use or possession of a controlled substance…A positive test result…shall not, by itself, constitute grounds for an adverse custody or guardianship decision. Determining the best interests of the child requires weighing all relevant factors.
May 9, 2011 at 4:48 pm
Eric Kirk
Yeah, I’m not even sure the word “may” meets the requirements of the due process clause. But it’s all about what you can get from a jury, and the law certainly gives them plenty of wiggle room.
I mean, should I let my kids play soccer? After all, they mayget hurt.
May 9, 2011 at 5:09 pm
tra
And should we drive our kids anywhere in a car? That certainly provides a much more opportunity for serious injury than a soccer game, and probably more than most pot growing situations.
May 9, 2011 at 5:11 pm
tra
Of course most parents drive their kids around in a car all the time, and as Mark Twain said, “nothing so needs reforming as other people’s habits.”
May 9, 2011 at 5:36 pm
ED Denson
NAN -detrimental does not = danger to person or health, necessarily.
Thanks for quoting the law go to both you and Perry. It clarifies the discussion and lets us get to the point quicker.
May 9, 2011 at 5:39 pm
Anonymous
Only a Personal Injury lawyer could correlate; should I let my kids play soccer, after all, they may get hurt, to Child Endangerment Laws? Maybe you Lawyers could change the law?
May 9, 2011 at 6:54 pm
ED Denson
Anon 5:39. I’d love to change the law, but only the legislature gets to do that and despite many of the legislators being lawyers, they don’t always do a great job in writing or rewriting the laws. I don’t know if it is politics, or simply a case of too much to do to take time to do it well, but I do know that the burden of their bad writing falls upon the people, one case at a time.
May 9, 2011 at 7:45 pm
Anonymous
Mr. Denson,
“People are always blaming their circumstances for what they are. I don’t believe in circumstances. The people who get on in their world are the people who get up and look for the circumstances they want, and, if they can’t find them, make them” ~ George Bernard Shaw.
After Thomas Edison’s seven-hundredth unsuccessful attempt to invent electric light, he was asked by a New York Times reporter, “How does it feel to have failed seven hundred times?” The great inventor responded “I have not failed seven hundred times. I have not failed once. I have succeeded in proving that those seven hundred ways will not work. When I have eliminated the ways that will not work, I will find the way that will work.” Several thousand more of these successes followed, but Edison finally found the one that would work, and invented the electric light. Failure is an attitude, not an outcome.
May 9, 2011 at 11:16 pm
Not A Native
Ed, the law specifies the criterion of ‘detrimental to the child’ as a means to determine the proper custodian. Of course health and safety are components of a wholesome environment, but the law recognizes other environmental factors are important to a child’s well being. Included in those factors are parental use and involvement with illegal controlled substances.
Fundamentally, I think the law holds that a parent involved in criminality as a lifestyle isn’t providing their child an appropriate life. I’d say that a parent who chooses criminality and justifies it as necessary for their parental role had better chose their crime of choice carefully. Clearly a parent who steals baby food is different from a parent armed robber taking money for food.
May 10, 2011 at 6:32 am
Kevin Hoover
Ed and Eric, you surely have a better grasp of the law than I.
It seems counterintuitive to me though, that wiring up the crawlspace and house foundation with tens of thousands of watts of lamps and non-permitted wiring wouldn’t heighten the fire hazard to some extent.
Who, having that information, would send their child over for say, a sleepover in the house without some thought about the potential danger?
May 10, 2011 at 6:48 am
Eric Kirk
Good point Kevin. I wouldn’t.. And I’m not saying that the charges aren’t warranted in this case. I don’t know enough about the danger. I would want to hear what the expert witnesses have to say.
May 10, 2011 at 9:02 am
ED Denson
NAN, I think we might separate controlled substances from illegality in looking at lifestyles and their effects on children. The difficulty with the controlled subtances issue is that there are basic assumptions involved which are not universally correct. Since CS range from prescription meds to crack, the behavioral effects of their long-term use vary widely also. They vary not only from drug to drug but from person to person. Most people can use marijuana with no ill effects but very few or none can use speed or crack without serious behavioral changes that endanger anyone dependent on them. I would like the custodial issue not to be CS use, but behavior that actually affects the child, whatever the cause, because it is the effect on the child that is the real concern.
As for living as criminals, I don’t think we can make blind adherence to the policies current government, whatever they may be, the touchstone of good parenting. Again I would argue that it is the actual effect of criminality in the particular case that matters.
What do you think?
May 10, 2011 at 9:16 am
Joe Blow
All this crap I read here used to be called Communism. Talk about being caught in your own trap. (Or is it crap?) Young people all over the world are putting their lives on the line daily trying to fight people like you. I “think” the “proof is in the pudding.” Open your damned eyes. The “actual effects” speak for themselves. See anyone actually stop at a stop sign anymore?
May 10, 2011 at 10:03 am
Eric Kirk
Communism?
May 10, 2011 at 3:25 pm
ED Denson
stop signs?
May 10, 2011 at 3:40 pm
Ernie's Place
Pudding?
May 10, 2011 at 4:36 pm
Anonymous
If you missed it, Ed, Eric and Ernie were emailed and asked 3 different questions:
Eric was asked what Government model should be proposed for the Emerald City idea?
Ed was asked, Traffic lights or stop signs for Emerald City?
Ernie was asked who is the current Prime Minister of the Russian Federation?
Answers are posted above @ 10:03 am, 3:25 and 3:40 pm.
Thank you for playing WTF.
May 10, 2011 at 5:39 pm
Anon
Heed the stop signs Comrades. Don’t endanger the children with 100 proof in the pudding.
May 11, 2011 at 9:06 am
Joe Blow
Still stuck on stupid I see. Ernie has no shame, otherwise he’d keep his mouth shut. The hypocrisy of those exploiting and sustaining the social corruption of the so-call pot industry while at the same time piously and self-righteously trying to tell people how to raise their children is disgusting, to say the least.
I forgot Eric, that while you claim to be an expert on communism, you didn’t grow up with the same kind of propaganda Ernie and I were subject to. We were supposed to fight against that EVIL system of government that told EVERYONE how and what to think, because they were the only one’s that knew what was good, and right and beneficial for everyone. How things change in 50 years.
The moral breakdown demonstrates itself in the supposedly insignificant things, like the law that says “STOP” at stop signs. The end result is what you see happening in Mexico. In either instance, LIFE and SAFETY means nothing because the LAW means NOTHING. When the violence that racks Mexico reaches Humboldt County everyone will know who is responsible.
May 15, 2011 at 12:10 pm
dawn i
well your kids playing soccer and adults heeding stop signs seems a far cry from growing weed indoors using lights where you are raising your kids. Safe or not, because it is still considered an illegal event the kids are learning habits that won’t always be a big asset for them in this society by having to live in a hush hush manner.
Always the threat of local law enforcement, the Feds, or a rip-offs intruding SWAT style are also real causes for concern. Sure the place can burn down too.
All those events are traumatic for kids and an endangerment on some level. Of course the cops don’t see their brand of busting terror as the same endangerment to the kids but I think it is too.
Suffice it to say I think a few plants outside are much better. The kids don’t need to be breathing all the stuff 24/7 either.