K2 continues to vex prosecutors, legal landscape still hazy

By JONATHAN EDWARDS

Lincoln Journal Star

LINCOLN, Neb. (AP) - It seems no one’s on the same page when it comes to K2 in Nebraska.

Lancaster County prosecutors aren’t going after people who have or sell K2, because they say the law doesn’t give them the legal ammunition they need to prosecute. Meanwhile, Douglas County police and prosecutors are arresting, trying and getting convictions against defendants using those same laws, the Lincoln Journal Star (http://bit.ly/1HP7tdn ) reported.

Deputy Lancaster County Attorney Pat Condon said two-thirds of the suspected K2 samples they have tested at the Nebraska State Patrol’s lab during the past four years don’t contain specific chemicals banned by the state Legislature. So, unless an officer can prove someone was smoking an otherwise legal product _ the same way they have to prove that someone was inhaling, say, spray-paint _ they can’t prosecute.

But Christine Gabig, head of Douglas County’s crime lab, said state law applies to nearly all of the K2 that flows through her lab, and that updates since the first anti-K2 law in 2011 have allowed law enforcement to stay a step ahead of overseas chemists.

“We’ve been keeping ahead,” Gabig said. ``Just barely ahead.”

Synthetic marijuana, commonly known as K2 or spice, cropped up in Nebraska in 2010. The next year, lawmakers took their first crack at outlawing it and other designer drugs, which retailers legally sold by marketing them as potpourri or incense and labeling them “not fit for human consumption.”

But after the Legislature banned specific chemicals, drug makers tweaked their chemical formulas slightly to stay just a hair on the right side of legal.

In 2013, Nebraska senators passed a law banning a new set of formulas, and chemists quickly made changes to skirt the new laws.

Lancaster County prosecutors and law enforcement have repeatedly described the process as a never-ending game of chemistry “whack-a-mole.”

But Gabig, who helped write all three anti-K2 bills since 2011, said they work and keep her lab and Omaha metro law enforcement ahead of synthetic marijuana manufacturers. That’s already changing, she said, because state lawmakers killed the most recent update, so she’s starting to see samples that would’ve been covered by state law, but aren’t.

The most recent K2 law came last year from Sen. Ken Schilz of Ogallala, who added so-called “catch-all” language designed to envelop any future iterations drug makers could churn out by focusing not on specific chemicals that make up a certain compound but on the effects a given substance has on the brain.

“They should’ve been using it, and there’s no reason why there’s any K2 out on the street today,” he said. “Shame on the law enforcement in the state of Nebraska. We’ve been allowing people to get hurt.”

Lancaster County Attorney Joe Kelly said it’s not that simple. Proving a specific strain of K2 has those effects - or even figuring out what the strain is - requires testing and scientific study, which takes years. That gives overseas drug makers plenty of time to tweak their formulas, thereby creating new chemicals that require new rounds of tests and study.

While K2 contains a wide variety of chemicals, marijuana contains THC, or delta-9-tetrahydrocannabinol. Always. Scientists have studied THC for decades and know how it affects the brain. Lab techs know what to look for and how.

In February, a Lancaster County prosecutor charged a 22-year-old Lincoln man with possessing synthetic marijuana, drug paraphernalia and contributing to the delinquency of a minor.

The man’s lawyer, Omaha-based Ryan Thomas, asked a judge to dismiss the charges, saying prosecutors hadn’t shown what substance his client had and if it was one of the 11 chemical categories banned under state law and, if so, which one.

“It is vague and unclear what the defendant has violated in this case,” Thomas wrote in his motion.

Because the man had the drug near his daughter, prosecutors decided to test the substance, even though the charge is an infraction and they’ll have to wait four to six months for results. And if the test doesn’t place the substance in one of 11 classes specifically banned by state law, the newer law with its catch-all language won’t give them the horses they need to continue going after the man, Condon said.

“The catch-all phrase is good, but virtually impossible to enforce,” he said. “We’re playing catch-up all the time.”

So the new law leaves police and prosecutors where they were before, he said: one step behind overseas drug makers.

“It doesn’t solve the problem,’’ Kelly said. “Unfortunately, it’s not gonna work.

“Bottom line: We aren’t much better off than we were.”

Drive 50 miles north and east, and Douglas County officials say the new law - and the ones before it that banned certain classes of K2 - give them what they need. For years, they say, they’ve been arresting people, testing suspected K2 and citing defendants if tests come back positive.

The Nebraska Attorney General’s office was unequivocal about the 2014 law after 129 people overdosed on K2 last month in Lincoln. In its interpretation, the law made buying, selling or using synthetic marijuana illegal.

Earlier this month, Deputy Attorney General Corey O’Brien backpedaled. He said the new law does not ban K2 in the same way it prohibits cocaine, meth and marijuana and that pharmacologists haven’t studied synthetic marijuana enough to provide the scientific basis prosecutors need to prove a particular substance affects certain brain receptors.

O’Brien led an ad hoc team of 30 lawyers and chemists to create the bill Schilz introduced. They knew outlawing precise chemicals wouldn’t work, but they couldn’t get too broad, either, and risk passing a law that was unconstitutional. For example, they couldn’t ban “leafy substances that could be smoked” because that would include products like actual potpourri that people buy legally, and not to get high.

“We knew it was going to be extremely difficult to successfully prosecute cases under the language of the umbrella catch-all. We figured, `Hey, let’s give this a shot.’

“It’s better than nothing. It’s not a silver bullet. We all had hopes it would become a silver bullet, but we realized it wasn’t without its limitations.”

Meanwhile, Lincoln officials think they’ve figured out how to get K2 off smoke shop shelves and cut off users’ supply even if they can’t prosecute people for simply having the stuff.

Lincoln police raided two shops and seized 1,200 packets of K2 amid a crisis in which 130 people overdosed in the last two weeks of April. At the end of the month, City Attorney Jeff Kirkpatrick said the spate of ODs gave him the evidence he needed to sue the smoke shops if they restocked, and convince a judge to declare K2 a public nuisance before ordering them to stop selling the stuff.

The number of ODs plummeted after the raids. Paramedics and doctors saw 12 in the first two weeks of May, less than 10 percent what they had to tackle in the second half of April, according to data from the Lincoln-Lancaster County Health Department.

No smoke shop owners have signed an agreement with the city promising not to sell K2, but police haven’t found evidence any of them are openly selling it either, Kirkpatrick said Thursday. If they do, he said, he’s ready to take them to court.

“We’ve got a game plan now, and if someone starts, we’re going to go after them,” he said.

Another wrinkle in an already wrinkled K2 landscape: Officials in Lancaster and Douglas counties could be seeing vastly different drugs made in very different ways that happen to fall under the umbrella terms of K2 and synthetic marijuana.

K2 in Lincoln seems to come from sophisticated labs in India and China. In fact, O’Brien said he once got a call from one of the chemists trying to get a bead on which chemicals lawmakers were banning so he could modify his concoction and keep his product legal. O’Brien said he didn’t tell him.

“These labs are good, so two-thirds (of our K2 samples are) not going to fit one of the defined K2 substances,” Condon said.

In Omaha, Deputy Douglas County Attorney George Thompson said most of the samples he’s seen come from small-time cottage industries using whatever chemicals are available.

Every one of the 31 suspected K2 samples tested at the Douglas County crime lab so far this year are illegal under state law because of the bans on specific chemical classes, Gabig said. Last year, all 25 tested as illegal.

Lab access also plays a role in how willing prosecutors are to test K2 samples to see if they’re specifically outlawed by state statute.

Prosecutors in Douglas County have their own crime lab, so Omaha police or Douglas County sheriff’s deputies can get results on suspected K2 samples in about a month, Gabig said. Those in Lancaster, like everyone else outside the Omaha metro area, have to send suspected drugs to the State Patrol’s crime lab, where the wait times for routine drug tests are four months, spokeswoman Deb Collins said in an email.

Those wait times can stretch to six months, Kelly said.

Condon said he fears that submitting every suspected K2 sample will bog down the state lab, pushing back wait times to nine months or even a year and delaying results on cases including homicides and rapes.

And because possessing K2 is an infraction, not even a misdemeanor, it’s often not worth the time and money to prosecute.

Nebraska law treats synthetic marijuana the same as regular marijuana: Anyone caught with an ounce or less faces a $300 fine and drug counseling the first time, as many as five days in jail and a $400 fine the second time; and as many as seven days in jail and a $500 fine for any subsequent offense.

But with marijuana, the state Supreme Court allows prosecutors to establish not only the probable cause needed to issue citations, but to prove possession beyond a reasonable doubt based on an officer’s expertise.

Defendants usually pay the fine instead of hiring lawyers and going to trial.

O’Brien said he’s got more strategies for waging war on K2, although he declined to share specifics.

“I have yet to find the magic bullet,” O’Brien said. “It doesn’t mean we’re not going to try.”

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