NJ Weedman says he will give prosecutors a ‘legal a--whooping,’ and a First Amendment expert says he’s right.
An activist and entrepreneur who styles himself “NJ Weedman” says authorities made a big mistake charging him with cyber harassment for calling a New Jersey policeman a “pedophile” – and some legal experts say he’s right. Edward Forchion operates a restaurant called NJ Weedman's Joint across the street from City Hall in Trenton, New Jersey's capital.
Next door is his “temple,” where state-legal medical marijuana patients and other congregants use cannabis. Forchion says business boomed after he opened shop last year, but that cops scared off customers when a fight over whether the temple could stay open late at night snowballed.
On May 10, he walked out of his restaurant with a sign saying “We-R-Open F--k the Police.” Cops arrived, including Trenton Police Department Officer Herbert Flowers. “We got pedophile police officers interfering with free speech – this is protected, if it wasn’t protected he would have arrested me,” Forchion said as he heckled Flowers, asking at one point if the policeman used a condom with "that little girl." "It might be rude, whatever you want to say, but it's all legal," he says in a phone interview. "They ruined me, that's why I was out there."
Forchion believes Flowers was upset by the encounter and video and sought a way to charge him. Three days later, Forchion was arrested and charged with cyber harassment for the posting online of footage showing him call Flowers a pedophile, disorderly conduct for using “offensive language towards and against law enforcement officers in public and social media forum,” and possession of less than 50 grams of pot.
He says he used no vulgar language during the encounter other than “f--k," which the state court system in 1985 protected saying in public. He says another man posted the video.
“I was sitting at my restaurant and six police officers came in from the major crimes unit,” he says. “The whole time I kept telling them, 'Someone messed up, you guys are going to regret this, this is an instant lawsuit,' and they didn’t care. ... Someone should just walk me over to the city bank account and hand me some money."
UCLA law professor Eugene Volokh, a prominent First Amendment expert who maintains the Volokh Conspiracy blog on The Washington Post's website, says Forchion is right.
“Jeez, this is really appalling,” he says.
“The harassment law probably doesn’t apply because this is not 'lewd, indecent or obscene material,'” as required by New Jersey's cyber harassment law, Volokh says. “The disorderly conduct law is bad and overbroad, but it’s been struck down as unconstitutional.”
Volokh says the marijuana charge stemming from Forchion's arrest on the two speech-related charges also could be dismissed because of the unconstitutional impetus.
Watch the encounter:
Attorney Alex Shalom of the New Jersey chapter of the American Civil Liberties Union offered a similar take to 101.5 - WKXW-FM, which reported on the arrest last week. “It seems like the Trenton police is correct in saying that Mr. Forchion is involved in harassment, except it seems that the victim of that harassment is Mr. Forchion and not the police,” he said.
Despite mounting controversy, the Mercer County Prosecutor’s Office reviewed the criminal complaint and is sending the charges to a grand jury for review, spokeswoman Casey DeBlasio says. The county prosecutor’s office reviews criminal charges and sends them either to a low-level municipal court or to a grand jury before possible proceedings in the county’s superior court. The grand jury generally hears cases within a few months, and there’s no indication prosecutors will back off.
Volokh speculates that the prosecutor’s office may want to maintain a good relationship with the police department. "I don’t understand how the prosecutors are going forward with this," he says. “Maybe what he’s hoping is the grand jury won’t indict. But if the grand jury does indict, it will get thrown out. There’s no way a conviction on this will be upheld, even if it’s gotten.”
Edward Heyburn, Forchion's attorney, says he's not concerned about his client facing a defamation lawsuit from Flowers.
The Trenton Police Department did not respond to requests for comment for this story.
There’s a long backstory when it comes to the Weedman’s poor relationship with local authorities.
He was jailed in 2002 for violating probation after, among other things, he produced a pro-marijuana ads that he sought to air on local TV programs. A federal judge ordered his release months later.
Twice he has won jury nullification after a 2010 arrest for transporting 1 pound of marijuana. He says he was guilty, but juries twice refused to convict him of intent to distribute, with a first trial resulting in a hung jury and a second yielding 12 votes that he was not guilty.
In addition to the trio of dubious charges he faces, Forchion currently confronts a laundry list of charges for pot possession, distribution and possession with the intent to distribute relating to a late April raid by Trenton-area law enforcement.
That raid and the more recent charges stem, he says, from a February dispute with the Trenton Police Department over whether his temple could remain open past 11 p.m., when businesses including his restaurant must close under local rules.
Forchion told the officers his temple could not be forced to close and after a second warning, he filed a federal lawsuit to affirm he could keep his temple open late. As part of that lawsuit, he says police lied and said there had been a disturbance before they visited, something he says he proved was an outright lie with surveillance footage.
After he made that accusation, Forchion says, he received a demand for full security camera tapes from an attorney. He refused, and says shortly after his business was raided for reasons still not made clear in legal papers to him. He says police took surveillance cameras, a hard drive and a jar full of marijuana.
A statement on the April raid from the Mercer County Prosecutor’s Office says a law enforcement task force had received information on unlawful marijuana distribution and that marijuana had been found at several locations on the premises. The statement announced 11 arrests “and the seizure of more than $19,000 in marijuana.” "I call myself 'Weedman.' I would be embarrassed if they didn't find any marijuana," Forchion says. But he disputes the amount found. Most of the marijuana was in a jar police took, he says, containing about 6 ounces of pot. The prosecutor’s office press release said 37 ounces were found in an office. Forchion says he uses marijuana to treat symptoms of bone cancer, from which he's suffered for more than a decade. He says he plans to argue in court the First Amendment protects his congregation's religious use of cannabis.
That argument generally is unsuccessful when considered by a federal judge, but he believes it will convince jurors. "I think I'm conviction-proof, so long as it's just marijuana," he says. "On a jury of 12 people, I'll get one."