Two days ago, the Michigan court of Appeals heard oral arguments for several cases involving registered caregivers who allegedly sold marijuana to undercover police agents posing as certified patients. These highly anticipated cases stem from a 2010 operation which shut down Ferndale dispensary, Clinical Relief.
Tonight on Green Trees Radio we will speak with Stuart Friedman, one of the defense attorneys for People V Clinical Relief. We will discuss the relevance and context of this particular case and how it may effect future litigation.
The defendants, who were accused of running an illegal dispensary, filed a motion to dismiss all charges based on the common law rule of lenity. They argued that at the time of arrest, the Michigan Medical Marijuana Act (MMMA) was ambiguous in regards to patient-to-patient sales of marijuana. The circuit court agreed with the defendants’ claim and dismissed all of the charges. Their case was challenged by the prosecutor and now has made it’s way to the Michigan Court of Appeals.
The Ypsilanti City Council has taken its stance on medical marijuana in the community.
At an Aug. 6 meeting, the council approved 4-1 the second reading of an ordinance that caps the number of medical marijuana dispensaries and growing facilities allowed in the city.
The ordinance caps the number of licenses issued and renewed at six for dispensaries, and three for growing facilities. If any operation stops for 90 days at any of these sites (i.e. the facility is closed for 90 days), the license becomes void.
The cap in licenses comes after public concern about the high number of dispensaries opening up throughout the city, but according to one member, the licenses won’t affect things much, “The way you want to tackle this issue, the way to do it is through zoning. Not through licensing.” “This is not going to solve the problem. It will only delay the ultimate end result by a couple of months.”
Ypsilanti’s zoning allows for up to 9 dispensaries and up to 5 growing facilities. It will be interesting to see how this issue develops and we’ll keep you up to date as the story unfolds
In April of 2013, Representative Jeff Irwin introduced House Bill 4623 that would decriminalize the use and possession of up to one ounce of marijuana for all adult residents of Michigan. The bill was introduced in the wake of other decriminalization initiatives which passed in the cities of Detroit, Grand Rapids, Kalamazoo, Flint, and Ypsilanti. Representative Irwin, along with the majority of Americans, cites numerous studies showing that prohibition is not working, and that arresting, prosecuting, and incarcerating marijuana offenders comes at a huge cost to American tax payers.
Irwin believes that there is also a philosophical reason to decriminalize marijuana for adults, saying that, “America is a free country, individuals making personal lifestyle choices, if they are engaging in activities that are harming no one but themselves, that should be allowed.”
THE PROPOSAL
The punishment for possessing up to an ounce of marijuana would be a civil infraction and a fine, rather than the prospect of prison. First offenders would be fined $25, second offenders $50, with the cap of a $100 fine for individuals with three or more offenses. Michigan alone spends $325 million a year arresting, prosecuting, and incarcerating marijuana offenders, yet Marijuana is more readily available today than ever. By fining an individual, the state avoids these costs, and has a system in place to make a few easy bucks.
OVER ZEALOUS LAW ENFORCEMENT.
Coupled with the waste of money, and the philosophical debate on what freedom really stands for in America, we must think about the cost to the individual who uses marijuana in today’s prohibition society. Derek Cop was one such individual. When Derek was 20 years old, he was a student at Grand Valley State University. Derek sold small amounts of Marijuana from his apartment, and the police knew about this after several months of surveillance. One night, 12 officers stormed the apartment and shot Derek in the chest, leaving him in critical care. When he was loaded into the ambulance, an officer accompanied him to ensure that Derek, with a bullet hole in his chest, didn’t try anything. When he arrived at the hospital, an officer was in his room to greet him. Derek’s parents were unaware of what had happened to their son until they got a call at 2 AM from Derek, who explained that he had been shot by the police for selling marijuana. Derek laid in bed fearing that he would either die or go to prison.
MICHIGAN SHOULD JOIN THE MOVEMENT
What Representative Irwin has proposed is nothing radical; already, 16 states have passed decriminalization either through legislative action or ballot initiatives. These states include:
1) Alaska
2) California
3) Colorado
4) Connecticut
5) Maine
6) Massachusetts
7) Minnesota
8) Mississippi
9) Nebraska
10) Nevada
11) New York
12) Ohio
13) Oregon
14) Washington
15) North Carolina
16) Rhode Island
It has been repeatedly shown that voters are overwhelmingly in support of decriminalization.
A BIPARTISAN EFFORT
Republican Mike Shirkey agrees with Representative Irwin that it is “The right time to have this in Michigan.” The data is clear that prohibition efforts waste a lot of money, energy, resources to accomplish something that has completely, utterly failed. Shirkey believes that Government should protect people’s freedoms. In Shirkey’s eyes, the best government by and large, is a smaller less restraining government.
Further, keeping marijuana illegal has created a cash crop for the black market and violent, organized crime. Prohibition of alcohol in the 1930’s showed us what happens when you push a substance so popular with the public into the unregulated criminal world. Gang violence, organized crime, and murder rates soared as a result of prohibition. History has shown us that regulation, not prohibition, is the best way to deal with substances like alcohol and marijuana. It is high time that we decriminalized marijuana for adults in Michigan.
Two bills targeting the most under privileged citizens of Michigan passed the legislature on Wednesday, and now only need approval in the House to take effect. The bills, one of which sponsored by Republican Senator Joe Hune, require those in need of public assistance to submit to drug testing and to perform unpaid work in their communities.
Similar laws have gone into effect in places like Utah, for example, where a total of 12 people failed their drug screening. The idea for such programs has been around for a long time, with proponents saying that they feel those people collecting public assistance money should at least give something back to the community. Others have estimated the cost of implementing drug testing programs, with results ranging from $92,487 for drug testing 20% of recipients and treating 2% of those tested in Louisiana, to $20 million for the testing of all public assistance applicants and recipients in New York.
Though many in the public would like to see such bills passed, they forget who the people are that are collecting welfare, including single mothers who would have the added burden of community service hours to caring for their children. Many individuals on welfare currently possess a medical marijuana card, and the burden of sorting out who should and should not be allowed to use cannabis will get even more complicated.
Drug testing seems outright unconstitutional. When society decides that we should drug test people without suspicion, we may as well be drug testing all of our elected officials, who technically are collecting money from the state as well. In fact, such an amendment was proposed, though, obviously, was shot down.
While we continue to punish, humiliate, alienate, and blame those most in need in our society, the very wealthy continue to pass legislation that further disenfranchises those most in need in our society while their wages increase exponentially.
This causes one to wonder that perhaps the reason so many Americans collect welfare is not because they are drug addicts, but because we keep minimum wage below what an individual, much less a family, can support themselves on. To quote Noam Chomsky, “minimum wage ought to be indexed to the cost of living and high enough to prevent falling below the poverty line. Eighty percent of the public support that and forty percent of the wealthy. What’s the minimum wage? Going down, way below these levels.” The sad truth is that the very wealthy shape policy in this country, while the most disenfranchised Americans undergo the humiliation of having to pee in a cup before they can afford to eat.
People v. King may be regarded as the most significant ruling for the Michigan Medical Cannabis Community. To fully understand the impact of this decision one must first consider what was taking place in Courts throughout the State of Michigan regarding the Michigan Medical Marijuana Act (MMMA) at the time the decision was reached.
Judges and prosecutors across the state had developed a theory that if a patient or caregiver violated any aspect of the MMMA, specifically Section 4, the accused patient or caregiver was precluded from arguing a medical marihuana defense. Opinions and Orders signed by Judges were being issued with disturbing regularity specifically stating that no mention of a card or medical cannabis would be allowed before the jury, nor could it be argued that marihuana is a recognized treatment for a defendant’s medical condition.
In other words, the accused patient or caregiver was treated as if the MMMA did not exist. Nineteen cases that went before the Court of Appeals unanimously affirmed this practice. I have spent countless hours over the last Four and half years reading and analyzing the MMMA. I have spoken with all the major medical marijuana lawyers and activists in the state as well as those who were involved with authoring the Act, and never did this interpretation ever come out of anyone’s mouth. Yet here we were in June 2012 and this was the law. Worse yet, the language from the ballot initiative seemed to be in direct conflict with this interpretation. How could such rulings be reconciled with the ballot language 63% of the voters approved? To wit: “Permit registered and unregistered patients and primary caregivers to assert medical reasons for using marijuana as a defense to any prosecution involving marijuana”.
Throughout this time, calls continued to come in to my office from patients and caregivers seeking representation. They were being arrested for a variety of alleged violations: not securing the “master lock” on the door to their grow room, having too many plants or too much “usable” marijuana. Dead and un-rooted plants were often used to create higher plant counts, as well as unusable and un-dried plant matter being weighed as “usable material”. Arrests were being made simply because they could be, and I noticed an alarming statewide policy of “arrest first, ask questions second”. These arrests were executed with the understanding that there would be no defense for the patients and caregivers. I strongly believed that in many of these cases, the evidence that led to the arrests would not hold up in a jury trial, but my clients were repeatedly being stripped of their right to a fair trial.
The King ruling has enabled a way to change social policy, via jury trials. The citizens who voted for this law in overwhelming numbers will now be the deciders, not the police, the prosecutors and the judges. The most sacred of rights outlined in the U.S and Michigan constitutions, the right to present a defense, had been identified as a critical component of the MMMA. To me this is what the Act was really all about, an opportunity for a patient or caregiver to give a presentation, based upon their own specific medical condition and the specific way they use cannabis as medicine. King provided clarity of the interpretation of the act, and ultimately determined that questions of facts of medical use would be questions for the jury.
The ongoing, relentless government pushback cannot stop the will of the majority voter. The extreme opposition by prosecutors to have cases heard by juries reveals their well-founded fear that people on a jury will not convict for the technical violations people were getting arrested for. Statistics from across the country have continuously shown that people on juries are sick of the resources wasted on prosecuting cases involving marihuana. Now, with an actual defense of medical use, juries could hear the entire case and decide themselves whether they want to make criminals out of people who have been arrested for silly violations. I believe they will not, and King is the catalyst that will allow juries to return not guilty verdicts and force prosecutors to decide if they want to keep prosecuting cases that the juries don’t see as crimes.
After years of struggle, and court battles making one step forward of progress while getting slapped three steps backward by improper interpretation, I now see hope. In light of the King holding, medical marihuana may not be the Sisyphus the community once feared it was. It is unfortunate that it took three and a half years to get here, but I would like to believe within another three and a half, the cases that are being prosecuted today will be looked at as the beginning of the end of the fear that prevails today in the medical cannabis community. King is the start of the peace of mind the community has been asking for, and the beginning of a more rational approach to thinking of medical cannabis in Michigan.
The city of Wyoming argues that it can reject the voter-approved MMMA because it violates federal law. This week, attorneys will argue before the State Supreme Court whether the city, and thereby any Michigan city, can reject the act.
The whole ordeal began in 2010 when attorney John Ter Beek filed a lawsuit in the Kent County Circuit Court against the city because of its decision to ban medical marijuana distribution by anyone other than a licensed pharmacist. Ter Beek was supported by the ACLU to defend the MMMA which was passed by 63% of the voters in Michigan, and 59% of the voters in Wyoming, MI.
“The (federal drug law) provisions do not preempt the MMMA’s grant of immunity as found in (the Medical Marijuana Act) because it is well established that Congress cannot require the states to enforce federal law,” the court wrote.
On Thursday, Oct. 10, the Michigan Supreme Court will hear arguments by Detroit-based ACLU attorney Daniel Korobkin representing Ter Beek and Wyoming City Attorney Jack Sluiter.
Briefs have been filed in support of the city by the Prosecuting Attorney’s Association of Michigan, the Michigan State Bar Association-Corporate Section, the city of Livonia and the Michigan Municipal League.
Briefs in support of Ter Beek have been filed by libertarian think tank The Cato Institute and Cannabis Attorneys of Mid-Michigan.
In agreeing to hear the case, the State Supreme Court has asked attorneys to focus on whether the state law is preempted by federal law and whether the city ordinance violates the state law.
Oral arguments are scheduled to begin at 9:30 a.m. Thursday and can be seen streaming online on at the Michigan Courts website: courts.mi.gov.
Ter Beek V. City of Wyoming is among the first cases that will be considered by the court in its new term and it has until July 31, 2014, to issue its decision.
