Proposition 19 Dreams of Legal Weed
In Amsterdam, The Kid would have dropped off his delivery of 10 2-inch pot seedlings and pedaled his bike along the Oudezijds Voorburgwal canal and into the sunset.
But this is the tiny town of San Fernando.
Barely on the legal side of 21, The Kid was facing down a felony conviction, four months in jail, thousands of dollars in fines, expulsion from his upscale university, severely teed-off parental units and a pouty girlfriend. And The Kid's lawyer wasn't just anybody. His name is synonymous with fighting weed busts in California: Bruce Margolin. All this for selling a 10-pack of marijuana sprouts to an undercover LAPD officer.
The Kid wasn't looking to make money on the deal. He'd been part of a pot collective when he lived in San Jose after high school, freelancing as a computer-repair tech who made house calls to the Silicon Valley's army of telecommuters. In his free time, he grew plants for cancer patients at a San Jose marijuana collective. When he moved down to Southern California to get his life on track, go to college and make something of himself, he had a couple dozen leftover marijuana plants — barely sprouts, really — in Styrofoam cups.
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So he did what came naturally to a 20-something geek: He logged on to craigslist.org and offered 10 of them to the first person who would pay $6 a plant. A deal, considering that most marijuana dispensaries price their seedlings around $20 apiece.
"I was just trying to get rid of them, adopt these babies out," The Kid says. "I thought I was going to help people."
The Kid went to the Northridge Big Boy parking lot to hand off the plants to their new owner, the first to respond to the Craigslist posting.
Turned out the first responder was a posse of five undercover narcotics agents. And one of them was pointing a gun at The Kid's head.
Dumb kid, you're probably thinking. Yeah. But there's no doubt The Kid was also slammed with bad timing, getting busted in July for something that, just months later, could turn out to be perfectly legal.
On November 2, California will vote on Proposition 19, a measure intended to make it lawful for adults 21 and older to possess up to an ounce of marijuana, as well as the freedom to grow the weed in a 25-square-foot plot.
Experts on either side of the marijuana issue don't agree on much — including whether legalization will lead the state into chaos and ruin — but they do agree that there's a real chance the people will vote to toke.
It's generally accepted among people who track pot's popularity that California has between 2.5 million and 3 million regular — read daily — pot smokers. That's 6 percent to 8 percent of the state's population. And that doesn't count the occasional tokers — another million or so — like the hipster who takes a turn when a pipe is passed around at a party or the aging baby boomer who might partake for the first time in a long time at a reunion rock concert.
In June, a statewide Field Poll of adults showed Proposition 19 losing, 48 percent to 42 percent. A Field Poll in late September put the measure in the lead, 49 percent to 42 percent. A September 30 Public Policy Institute of California poll showed Proposition 19 leading 52 percent to 41 percent among adult voters.
"This is really good news," says Richard Lee, president of Oaksterdam University, a school for would-be pot gardeners. "L.A. is a good sign, with 56 percent approval, and San Francisco is at 59, and if we carry both, we should win."
But what would the passage of Proposition 19 really mean?
Would the financially tattered Golden State finally move into the black, with tax revenues from a multibillion–a-year industry? Would California become the Amsterdam of North America, with a green-light district and the free-spending tourists to fill pot-combo coffee shops? Or would legalization merely embolden the subculture of long-illegal distributors to continue their underground ways, dreaming up vast tax-avoidance schemes?
The usual suspects, i.e., the pundits quoted in all the standard media, say it's going to be one big mess.
For one thing, Proposition 19 might indeed legalize pot statewide, but only for personal use. It allows local governments to set the rules on the business side. The locals can decide if commercial cultivation and distribution are allowed within their borders and how that can be done, almost guaranteeing a statewide crazy quilt of enforcement and taxation.
And the feds oppose it, with Attorney General Eric Holder vowing earlier this week to "vigorously enforce" federal law in California that bans the possession or growth of pot.
"Running a state by referendum is a bad idea," says Mark A.R. Kleiman, the UCLA public policy professor who edits the Journal of Drug Policy Analysis and wants marijuana legalized — but not commercialized. He envisions a law that lets you grow your own, or allows you to join a co-op that grows for you, hence no marijuana industry.
"Proposition 19 was drafted by activists and pollsters rather than by people who know the laws involved. Proposition 19 can't tax marijuana," Kleiman explains. "It says that every locality has to decide, so localities will compete with each other to get the lowest taxes. It's a race to the bottom."
It's a legal morass, says Erwin Chemerinsky, dean of the University of California at Irvine School of Law. Proposition 19 "in no way changes federal law or the federal government's ability to enforce federal law. And California can't stop the federal government."
That means, he says, local district attorneys can still provide incriminating weed evidence to federal prosecutors: "To the extent that local prosecutors can't prosecute and can't punish people for possession, it doesn't stop local prosecutors from sharing information with the federal government."
Then there's the whole fight over money to consider, Chemerinsky says. "If local governments impose taxes [on marijuana sales], you can expect lawsuits about collecting those taxes and disputes over how much tax would be collected. Proposition 19 will create civil litigations. How many other lawsuits and prosecutions pop up is . . . unsure."
It probably depends on how much moola is at stake. And don't let anybody try to fool you. Nobody — not the analysts at Rand Corp., not the growers in Humboldt, not the lawyers in City Hall and certainly not the guys with the adding machines in Sacramento — knows how to count that incoming and outgoing cash.
By law, the California Department of Finance is supposed to crunch the numbers for every single measure on the state ballot in order to give voters a picture of just how much their vote could cost them. They've missed a few before because of the complicated nature of a particular measure. Proposition 19 presents dozens of scenarios.
"It's tough to tell how many cities and counties will participate" in allowing pot to be grown or sold commercially, says H.D. Palmer, the longtime Department of Finance spokesman and external-affairs deputy director. "I wouldn't say we whiffed on this one. We just don't know what 19 will generate. There are no hard numbers," he adds, or even a "range of numbers. There are so many variables."
The pro-19 side doesn't believe that. According to Yes on 19 activist Dale Sky Jones, pot is a $14 billion–a-year industry in California, and the state and local governments could get a windfall of up to $1.4 billion annually.
That figure doesn't take into account spin-off industries and revenue, Oaksterdam's Lee says. "If 19 should pass, the Central Valley doesn't have to approve psychotropic marijuana [containing THC that gets people high], but they could grow industrial hemp that can be used to make hundreds of items, from hemp plastic and components for cars to clothes."
The California pot scape could take years to develop, says Stephen Gutwillig, director of the Drug Policy Alliance in L.A., which wants to dismantle all laws against drugs. After all, more than 400 cities and towns and 58 county governments in California must decide if they want to legalize sales.
"Implementation will be relatively slow because the decision is up to the locals," Gutwillig says.
One recent parallel: Most California city councils — including liberal bastion Santa Monica — chose to ban the sale of medical marijuana. Cities often took years to decide to allow it, including, famously, Los Angeles.
So handing flat-out legalization powers to 400 cities and towns will "be a complicated regulatory process," Gutwillig says. "Cities first have to decide which way to go, then they have to designate a regulatory agency in each city" to take on the unusual job of running the fiscal weed scene.
A better way, according to Gutwillig, would have been to have the state of California oversee pot sales in cities and counties, in much the same way it keeps an eye on bars, and liquor and convenience stores. But that's not what the ballot measure says.
As for The Kid, his future was being decided this day in a San Fernando Valley courthouse by Superior Court Judge Lloyd Nash, who has a reputation for meting out serious jail time for the same offense that might get you probation on L.A.'s Westside.
The Kid was scared. His parents were terrified. So they asked around, which is how they came to write a check for $5,000 to hire Southern California's undisputed champ of marijuana defense.
Bruce Martin Margolin, State Bar of California membership No. 39755, was born in Cleveland in the midst of World War II. By war's end, Margolin's dad, a U.S. Marines drill instructor, moved the family to California and started an ice plant and later a paint business in the San Fernando Valley.
Margolin, 69, looks like a slimmer, shorter version of Mr. French, the quintessential 1960s sitcom butler. But back in 1967, when then–LAPD Chief Ed Davis vowed to preserve law and order from the throngs of pot-smoking hippies roaming and ruling Sunset Boulevard, Margolin was a 27-year-old graduate of Southwestern School of Law. He was selling shoes at the Leeds store on the weekends — until he could get enough law clients.
That's when pot changed his life.
People were being busted by the dozens for smoking marijuana. They needed lawyers and Margolin needed clients. Margolin today has a doctor's medical-marijuana recommendation — "probably had the first one" — but he never touched the stuff back in '67. It was clear to him, though, that 20-somethings were facing hard prison time for blowing weed. And they seemed to trust Margolin.
His first reefer client paid him $25 and, as the case turned out, never had to go to trial. Margolin got him off on illegal search and seizure.
Margolin, working in a converted 1920s-era house just off Sunset Boulevard — squeezed between Mirabelle restaurant and another house from the same era — today estimates he has represented 25,000 pot smokers. Among them: Timothy Leary, the late Harvard professor–turned–psychedelic guru, who was busted in Santa Ana in 1973 for possessing 2 ounces of pot. Leary thought his sentence was unfair and jail wasn't to his liking. So he decided to escape.
He climbed a fence, shimmied over power lines, shaved his head and, with the help of the radical Weathermen, flew to Algeria to join Black Panther Eldridge Cleaver in exile. Leary still felt like a prisoner. He was captured in Kabul, Afghanistan, and extradited to California to face trial.
Margolin took the Leary escape case. In a novel defense, he set about trying to convince the jury that, if an unconscious prisoner were unable to understand he was committing a criminal act and therefore was innocent of committing that act, the same should hold true for Leary.
Leary was not guilty of fleeing jail, Margolin explained, because he was in the grip of a "superconscious" state brought on by LSD flashbacks.
The jury didn't buy it and found Leary guilty. The judge gave him six months, a gift under the circumstances. And Margolin went on to defend hundreds just like The Kid he's defending today, eventually becoming the oft-quoted L.A. director of NORML, the National Organization for the Reform of Marijuana Laws.
"Many cases I defend are chicken shit," Margolin says, "and I've defended thousands of people.
"This case is chicken shit. I'm not trying to trash the San Fernando court. They probably just want people to know when they walk in here, they're fucked. Unfortunately, this kid is not holding good cards. He sold pot to a cop. I don't think he deserves shit. I just want to get him in and out of here and get his life going. I'm still fighting the fight. It's so stupid."
In California circa 2009, 1,639 state prison inmates — less than 1 percent of the prison population — were behind bars primarily for pot possession for sale, possessing hashish, selling pot or other marijuana-related offenses, according to the California Department of Corrections and Rehabilitation.
The yearly cost to taxpayers: $85 million, mostly for room and board. The cost to those inmates, of course, is much higher. Eighty-five million dollars isn't a ton of money in Governmentland, which is not what bothers Margolin. The life stories get to him. Why should this kid have a felony conviction for selling 10 pot seedlings? Let The Kid go back to college and grow up.
Out in the real world — beyond this crowded San Fernando courthouse — most Southern Californians consider pot on par with alcohol: fine to take a few hits. Just don't overdo, and for heaven's sake, don't drive when you partake.
But Margolin says justice is holding the line even as social attitudes about pot become more permissive. "There's not much difference in the [marijuana] laws now" compared with the 1970s, he says. "They haven't gotten softer. They've gotten tougher.
"Over the years, I have been vindicated and I've shown that marijuana is not dangerous. Pursuing these cases is a burden on the system, people's lives are ruined. In some cases, California's third-strike rule has sent people to jail for life for felony possession of marijuana," says the lawyer — whose shingle is topped with a rendering of a marijuana leaf.
Margolin adds: "Let people come out of the closet and deal with their drug problems in a sensible way. Treatment, for example. There seems to be no money for treatment but plenty for incarceration."
While The Kid waits his turn in the courtroom, Margolin pays a visit to Assistant D.A. Jeff Boxer, who's prosecuting a case two floors up. Margolin strides into the courtroom, past the rail, and sits on the edge of a chair next to Boxer at the prosecutor's table. Margolin does most of the whispering, Boxer most of the nodding.
A couple minutes, tops, and Margolin is huddling with The Kid, his parents and The Kid's girlfriend, advising The Kid to plead no contest.
That way, he'll dodge jail and a felony conviction. He'll have to do 45 days of community service, probably picking up roadside litter while wearing an orange vest. He'll be on probation for three years, but if he passes all his drug tests and stays out of trouble for 18 months, he can have his record expunged. He'll have to pay the state for the cost of his probation — about $3,000.
When Judge Nash's clerk calls The Kid's name, everything goes pretty much the way Margolin had outlined. And then Margolin makes his move.
"One final thing, your honor," Margolin says. Then he asks for a judicial allowance to let The Kid continue to smoke marijuana, due to a medical condition.
"What kind of condition?" Nash asks, sitting straight up, leaning forward and looking flushed.
Nash's voice rises by at least 10 decibels. "If you can produce a doctor who will testify to your client's condition, I will think about it."
Outside in the hallway, The Kid shakes Margolin's hand. "This is the best that could be expected," The Kid says. "Thanks."
"It's still not a deal," his girlfriend sneers.
"Young lady," Margolin says, "this was not easy. You should be celebrating. I should be celebrating. Unfortunately, I have to go right back into battle."
Margolin is punching numbers into his BlackBerry while he rushes to get to his car and his next client. "He got very lucky," Margolin says of The Kid. "I didn't know if the D.A. was going to fuck me and this guy."
In a culture with no shortage of made-for-TV political analysts and with an issue as hot as legalizing pot on the ballot, you'd think this thing would be everywhere. Smoke-ins in the park. Just Say No rallies in front of the sleek new Police Administration Building next to Los Angeles City Hall. Politicians lining up, eager to take sides.
But whichever side wins, it's unlikely it will ever be cited or taught in political-science classes as a spectacular example of a genius campaign.
For one thing — what campaign?
At press time, there were no radio ads. No TV. Yes on 19 has T-shirts for sale, but has anyone seen so much as a campaign button?
A few big checks drifted in, including $100,000 each from Napster founder Sean Parker and sex toys website chief Philip Harvey. Insurance magnate Peter Lewis gave $159,000 and David Bronner (Dr. Bronner's Magic Soaps) wrote a check for $75,000 to Students for Sensible Drug Policy.
Lee, president of Oaksterdam U., based in Oakland and L.A., spent $1.4 million of the school's money to get Proposition 19 on the November ballot: $950,000 to gather signatures and $450,000 on consultants.
But Yes on 19 has been tight-lipped about its ad campaign. "We're not taking anything off the table during the last two weeks," spokesman Tom Angell says, but refuses to comment further.
Lee says TV ads are in production, adding, "Anyway, we still think we have a real good chance of winning."
Endorsements are picking up, too. NAACP chief Alice Huffman has thrown in her group's support, saying weed laws discriminate against blacks and Latinos. And Antonio Gonzalez, Latino Voters League coordinator in L.A., says his group will reach 100,000 young Latinos, urging them to vote. He describes Proposition 19 as a way "to punch government in the nose."
But Margolin notes so far, "I don't see a lot of people on the ground trying to convince people to vote for 19."
At press time, singer Melissa Etheridge, actor Danny Glover, producer Jim Ladd and others were planning a press conference in Hollywood to explain why they think pot should be legalized.
Nobody has called for Margolin's input, but in mid-September he spoke in favor of Proposition 19 at Hempcon, a marijuana trade show at the Los Angeles Convention Center.
Dale Sky Jones, of Yes on 19, says her group hasn't reached out to Margolin even though they understand that he's been the lifelong warhorse on the medical-marijuana front. "Bruce is a supporter," Jones says. "But it's been difficult to figure out how to use his talent."
Those on the other side, such as Sen. Dianne Feinstein and L.A. County Sheriff Lee Baca, who co-chair No on 19, claim the measure's passage won't bring anything but heartache to California. "It will cause harm to Californians on our roadways, and in our schools, workplaces and communities," Feinstein said in a press release.
Yet most big names behind No on 19 — LAPD Chief Charlie Beck, Feinstein, gubernatorial candidates Jerry Brown and Meg Whitman, U.S. Senate candidates Carly Fiorina and Barbara Boxer, attorney general contenders Steve Cooley and Kamala Harris — didn't return L.A. Weekly's calls or e-mails asking for an interview.
Repeated calls and e-mails to all of them netted only the following reply, from an LAPD representative: "Unfortunately Chief Beck is not speaking on this proposition, nor is anyone else within the department. We are referring all of the questions related to it to the City Attorney's Office, [which] has done a great deal of research on it."
L.A. City Attorney Carmen Trutanich finally responded to repeated interview requests. Trutanich is the guy who has followed Los Angeles District Attorney Cooley's lead, launching a crackdown on Los Angeles marijuana dispensaries.
He has sued longtime and politically active owners of L.A. medical-pot dispensaries simply for breaking a city rule against hiring new managers or changing ownership. He's asked a judge to shut down dozens of dispensaries, most of which opened without licenses after the Los Angeles City Council enacted a moratorium in late 2007.
"We'll be without any rules at all" if voters back Proposition 19, Trutanich says. "Right now we have the [Alcohol Beverage Control Boards] to regulate alcohol but nothing to regulate marijuana. Some of the predictable things you're going to see . . . an increase in driving under the influence, an increase in addictions, anyone under 18 will be able to get it easier."
So Proposition 19 could bring bedlam? Trutanich hedges, perhaps worried he'll anger taxpaying voters who enjoy the occasional spleef: "Bedlam is a strong word. We just need to have rules that people can follow. If people say they're OK with no laws, that's what I'll enforce."
So much for a blood-and-guts campaign, making it tough for even veteran campaign consultants to predict the outcome on November 2.
Many say Californians should brace themselves for the Bradley Effect. That's what happened in 1982, when California had its first black gubernatorial candidate, late L.A. Mayor Tom Bradley. Polls showed him winning by a mile the day before the election.
But when white voters pulled the curtain on the booth, they voted for the white Republican, George Deukmejian, who won.
Which way could the Bradley Effect tilt? Would upper-middle-class secret smokers hold the key? Or would voters who like to sound modern when answering poll questions become prohibitionists in the privacy of the voting booth?
In Sacramento, a high-ranking official with the Legislative Analyst's Office says it almost doesn't matter if marijuana wins or loses.
If the vote is as close as polls suggest, count on change — chaos, even.
"Something like this would be a huge change in this state and eventually the country," says the official, who asked to remain anonymous. "At the very least, it will be interesting to see if this deals some death blow to the drug cartels. There are a lot of problems with the current laws and drug policy, and this would solve one of them. If Proposition 19 fails, and it's close, it will change the conversation toward changing current laws."
On the other hand, "If it gets 40 percent and does poorly," he says, "and Steve Cooley is elected attorney general and Meg Whitman becomes governor, you'll see a major crackdown on dispensaries in California. The anti-19 crowd will be emboldened."
Margolin's realistic about what the California landscape will look like should Proposition 19 pass. He notes the measure is limited in application because it allows possession of just 1 ounce per person and 25 square feet of growing space (that's 5 feet by 5 feet for those wondering about their side yards). And he opposes the measure's taxes because "there are enough taxes in the form of income tax and sales tax."
But, "It's the beginning of the end of the drug war," Margolin says. "To get the term legalization in a state law will affect the rest of the country and the world. Marijuana was outlawed in many countries in the '30s and '40s in what was called 'single convention.' The U.S. forced their hand. Countries had to agree to pot prohibition or they'd get no pharmaceuticals."
If Proposition 19 passes, the most visible market is sure to be cannabis tourism, where people vacation at reefer resorts and sensimilla spas.
"We haven't seen cannabis tourism like in the Netherlands," the anonymous state official says, "but we will."
In the Netherlands, possession of cannabis is not a crime. You can buy it but only in small quantities — no more than 5 grams per transaction — and only at certain coffee shops approved by the government. If you try dealing, and you're caught, the penalties can be harsh.
According to the Trimbos Institute/Netherlands Institute of Mental Health and Addiction, the aim of allowing controlled marijuana sales is to ensure that cannabis users don't have to deal with a criminal subculture when making their purchases.
The Dutch extend their tolerance to heroin and cocaine addicts. When they're busted, they receive treatment in methadone clinics and free needles in a government-supported exchange program designed to prevent AIDS and hepatitis.
This could be why the Dutch have one of the lowest addiction rates in Europe. In a country of about 11 million people, some 363,000, or 3.3 percent, smoke marijuana.
According to the federal Substance Abuse and Mental Health Services Administration, nearly 6.5 percent (2.47 million) of California's 38 million people smoke pot at least once a month. Almost 4 million people toke ganja at least once a year.
But marijuana is an everyday concern to Margolin. He'll see three more clients and call a dozen others before the day is done.
Right now, though, the attorney is taking a break from watching other people's backs. It's almost noon when he orders breakfast at Dolores Restaurant on Santa Monica Boulevard. Eggs over-easy, whole-wheat toast, a single cup of coffee.
In 1999, Margolin received the Criminal Defense Attorney of the Year Award from the Century City Bar Association. In 2003, he joined the field of 134 other candidates, including former child actors, strippers and a muscleman in the free-for-all that passed for a California gubernatorial election. (The muscleman won.)
Margolin's platform: He pledged to legalize marijuana and free all 1,600-plus prisoners incarcerated on marijuana-possession charges in California.
It would be easy to dismiss Margolin as a fading hippie, spending the last 40-some years hammering away at drug laws that won't budge. But if Proposition 19 passes, pot will be legalized under freewheeling rules that are even looser than what's allowed in Amsterdam.
UCLA's Kleiman finds the wording of Proposition 19 deplorable. "We have two choices," he says. "Vote no and ratify [anti-]cannabis laws around the country and say to the other states that we're not legalizing marijuana.
"Or we can vote for a law that's gibberish. Because Proposition 19 is so badly drafted, no one knows what a post-19 California will look like."
Many people argue that the smart thing to do to reduce drug consumption and crimes associated with drug use is to follow Hawaii's lead: Identify drug addicts among felony probationers, drug-test them, and send them to jail for a few days every time they test dirty.
"Works like a charm," Kleiman says. "It cuts down on drug-use crime and jail time."
But on the other side are supporters who, while conceding that Proposition 19 is plainly flawed, think its passage will force the courts to bring forth the big societal changes Margolin has been fighting for.
David Bearman, M.D., is a member of the American Academy of Cannabinoid Medicine and was medical director for 14 years at the Santa Barbara Regional Health Authority, now called CenCal Health, in Goleta. He's been practicing for 42 years, currently performs pain management and thinks marijuana, like any pharmaceutical drug, should be considered a therapeutic option.
Bearman says he seethes when he thinks about the harm caused by absurd marijuana laws and attitudes, specifically to the rights promised in the Constitution. He thinks Proposition 19 would solve many ills.
"Should 19 prevail in lawsuits that are sure to follow, we'll have a new day, because drug laws have been used in a policy of fear. Implementation of 19 will pull back the curtains on the fearmongers who use fear as a mechanism to infringe on our constitutional rights. Because of a politics of fear, we have ceded our constitutional rights and privileges to the police. People are afraid. My favorite bumper sticker reads, 'I love my country. It's my government I fear.'
"While Proposition 19 is not perfect, people should vote for it because enough is enough in terms of crumbling the Constitution and putting people in jail for something that's innocuous. Thomas Jefferson said, 'If people let government decide which food and medicine to take, their bodies will soon be in as sorry a state as the souls of those who live under tyranny.' "
Back in the 1970s, after he'd been defending pot smokers for a couple of years, Margolin was burned out. Following a soul-searching conversation with Baba Ram Dass — the former Harvard professor Richard Alpert, who wrote the seminal book Be Here Now — Margolin left L.A. law to study Hinduism in India.
He came back committed to the pot wars.
"My Indian experience proved that representing people is valuable, moral and true service. If you want to experience God, serve people. It's what I have to offer."
Lunch is over. Margolin is returning to his office to see his next client, who is upset that the cops who busted his West Los Angeles grow house won't return his plants.
Margolin rushes through his office's front door, next to a window decorated with a custom-made stained-glass panel depicting the pot-leafed logo for NORML.
He gives a quick introduction to his daughter Allison, who began billing herself on her website as "L.A.'s Dopest Lawyer" after graduating from Harvard Law. She's following in her father's footsteps. But how will things work out for them if Proposition 19 passes, and there's a dearth of weed-bust clients to defend?
"I could make a lot more money doing other kinds of legal work," Margolin says.
Not to mention, legalizing personal marijuana use surely will cause another legal specialty to flower: ganja law.
And Margolin and his daughter are poised to rule that niche. He can see problems erupting between cities and citizens, between growers and distributors, between governmental agencies.
"Defending people against ridiculous pot laws is an opportunity to serve my brother," he says. "I'll retire when the drug war is over."
Margolin heads into his office, passing by a metal sculpture of Sancho Panza. Panza is trailing his master, Don Quixote, and hanging his common-sense head while Quixote rushes on to tilt at windmills.
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