DETROIT, Mich. — A judge on Wednesday heard arguments in a federal class action lawsuit filed by medical marijuana patients and caregivers against several Michigan law enforcement and crime lab officials.
The suit, filed in June, claims that because of false lab reports, prosecutors are charging people with felonies without proof, illegally arresting them and seizing assets. Four patients and caregivers are suing the directors of the Michigan State Police, their crime labs and the publicly-operated Oakland County lab and that county’s sheriff.
Chief Judge Denise Page Hood of the U.S. District Court for the Eastern District of Michigan in Detroit said she will issue an opinion and decide whether the labs’ marijuana reporting policies violate the Fourth Amendment and due process rights of the medical marijuana patients and caregivers.
“The problem is, the way that the Oakland County lab and the Michigan State Forensic Science Division is reporting still would allow for arrests, still would allow for these patients and caregivers to not have immunity because they’re reporting it as something other than marijuana,” said Michael Komorn, the plaintiffs’ attorney. “And the law enforcement community, as far as we know, is still arresting people for possessing these substances.”
In court Wednesday, Defense Attorney Rock Wood with the Michigan Attorney General’s office representing the state police and crime labs’ directors, along with Defense Attorney Nicole Tabin representing the Oakland County lab’s director and sheriff, declined requests for comment. Wood argued this is not a case involving altered, hidden or destroyed evidence. Instead, the defense writes in their motion to dismiss the case:
“The MSP policy is consistent with the current national standard for testing of seized drugs and avoids speculation as to the source of chemical components unless there is zero qualitative uncertainty.”
Ultimately, the labs’ policy states that unless there is marijuana plant matter seen along with THC, scientists label it “Schedule 1 THC, origin unknown,” instead of marijuana. This is the difference between a felony, or a marijuana possession misdemeanor which patients and caregivers can be immune for under the Michigan Medical Marijuana Act.
The plaintiffs’ attorneys and their experts say that 100 percent certainty for any evidence, even DNA is not possible.
“You know that nobody’s going to go through the trouble of synthesizing THC, along with other cannabinoids,” said Timothy Daniels, another attorney representing the plaintiffs. “And therefore you know to almost a 100 percent, and I won’t say 100 percent, let’s say 99 percent certainty, that is marijuana, not synthetic.”
Overall, the Michigan Medical Marijuana Act protects licensed patients and caregivers from charges and prosecution for having limited amounts of usable marijuana, not THC with an unknown origin. It’s this lab policy the suit is working to stop.
“It’s a little troubling that the defense is still suggesting their reporting practices are honorable,” said Komorn.
Statewide, as crime labs continue to report THC and marijuana in ways that many call controversial, the decision now rests in the judge’s hands. It’s a decision that could potentially reopen hundreds of cases across Michigan.
Meanwhile, recently passed legislation now legalizes medical marijuana patients and caregivers use of marijuana extracts like oils and edibles. The defense argued the lawsuit is moot in part due to this, however the plaintiffs’ attorneys stand firm that people continue to be unlawfully arrested, charged, and prosecuted for possession of extracts due to the labs’ reporting policy.
SAN FRANCISCO — A federal ban on the sale of guns to medical marijuana card holders does not violate the Second Amendment, a federal appeals court said Wednesday.
The ruling by the 9th U.S. Circuit Court of Appeals applies to the nine Western states that fall under the court’s jurisdiction, including California, Washington and Oregon.
It came in a lawsuit filed by S. Rowan Wilson, a Nevada woman who said she tried to buy a firearm for self-defense in 2011 after obtaining a medical marijuana card. The gun store refused, citing the federal rule banning the sale of firearms to illegal drug users.
Marijuana remains illegal under federal law.
Wilson said she was not a marijuana user, but obtained the card in part as an expression of support for marijuana legalization.
She challenged guidance issued by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives in 2011 that said gun sellers should assume people with medical marijuana cards use the drug and not sell them firearms.
It’s illegal for a licensed firearm dealer to sell a gun to an Oregon medical or recreational marijuana consumer, said Portland lawyer Leland Berger. He noted that the ruling is focused on sales and doesn’t affect medical marijuana consumers who already have guns.
The 9th Circuit in its 3-0 decision said it was reasonable for federal regulators to assume a medical marijuana card holder was more likely to use the drug.
The court also said Congress had reasonably concluded that marijuana and other drug use “raises the risk of irrational or unpredictable behavior with which gun use should not be associated.”
“The notion that cannabis consumers are violent people is absurd,” Berger said, calling the notion that classifying medical card holders who use marijuana to treat debilitating medical conditions as violent people is “even more absurd.”
Paul Armentano, deputy director of NORML, a nonprofit that works to reform marijuana laws, called on Congress to “amend cannabis’ criminal status in a way that comports with both public and scientific opinion, as well as its rapidly changing legal status under state laws.”
“Responsible adults who use cannabis in a manner that is compliant with the laws of their states ought to receive the same legal rights and protections as do other citizens,” he said in a statement published on the nonprofit’s website.
Wilson’s attorney, Chaz Rainey, said there needs to be more consistency in the application of the Second Amendment. He planned to appeal the decision and his options include submitting the appeal to the same panel of judges that issued the ruling, a larger panel of the circuit court or the U.S. Supreme Court.
“We live in a world where having a medical marijuana card is enough to say you don’t get a gun, but if you’re on the no fly list your constitutional right is still protected,” he said.
The 9th Circuit also rejected other constitutional challenges to the ban that were raised by Wilson, including her argument that her gun rights were being stripped without due process.
Armentano said the idea that marijuana users were more prone to violence is a fallacy.
“Responsible adults who use cannabis in a manner that is compliant with the laws of their states ought to receive the same legal rights and protections as other citizens,” he said.
Alex Kreit, a marijuana law expert at Thomas Jefferson School of Law in San Diego, said the ruling was significant — but may not be the last time the 9th Circuit addresses medical marijuana and gun rights.
“It seems like the court did not foreclose the possibility of a challenge by actual medical marijuana users that they shouldn’t be lumped with other drug users in terms of concerns about violence,” he said.
Last night’s episode of VICELAND’s Weediquette focused on how police forces in Michigan are using civil asset forfeiture to target legally run medicinal marijuana businesses in the state.
Weediquette host Krishna Andavolu – about his reflections after filming the episode; an edited and condensed version of his comments are below.
In Michigan, medical marijuana is legal—but last year, arrest rates were on the rise. Why? It seems like marijuana legalization is meant to at least take the drug out of the realm of the criminal justice system, but while doing research for this season of Weediquette, we found out that there’s still a strong incentive for police officers to go after legal marijuana growers in Michigan. The doctrine that the incentive is based off of is called civil asset forfeiture—which means that if a cop busts you, he or she can take your stuff in addition to throwing you in jail and charging you.
Even though medical marijuana growers have cards that say that they’re legally allowed to grow, civil asset forfeiture incentivizes police departments in Michigan to pursue really small technical violations
—For instance, if there’s a lock on a door that isn’t secure enough, or a key to a room in your grow house or dispensary is left on a counter when it should’ve been in a safe space. So law enforcement targets medical marijuana growers, finds enough evidence to justify a raid, takes all the growers’ stuff, and then makes an excuse for it after the fact.
It’s tough for Michigan cops. The state’s economy is pretty bad, and a lot of their police departments aren’t funded particularly well—so the police are using the doctrine of civil asset forfeiture to target mom-and-pop businesses. One of those businesses was run by the Shattucks, a family we visited who decided to go into the medical marijuana business because they saw people using it and thought it would be a good business to try for a couple of years to raise some capital to go into real estate. They were after the American dream, small business ownership.
However, the St. Clair County drug task force got wind of what they were doing, raided their grow facility, dispensary, and home, and took more than $80,000 worth of their goods. Losing the money and goods was bad enough—but their kids were also at home when the SWAT team came through the door, so their nine-year-old daughter is the one who saw the door broken down and men with guns rushing in.
You could look at the Shattucks and say, “I’m sure they were doing something wrong.” But a SWAT team seems like a disproportionate reaction. It’s an issue of how you implement medical marijuana legalization, but also of what we ask for in our community policing. What’s the relationship between those who are being policed and the police themselves? How do you balance making sure that the marketplace is legitimate while also respecting the people who are already operating legitimately in the marketplace? The Shattucks did everything they could to show the cops that they were doing the right thing—they met with the police department and showed the cops all their paperwork—but that didn’t stop the police from going after them two months later.
Another family we talked to, the Fishers, were in a hearing about a similar criminal case against them, and under cross-examination, the police officer who conducted the raid was asked if he questioned the family about whether they had medical marijuana cards—and he said no. There aren’t lawmakers who are trying to crack down on this stuff, so in a lot of cases drug task forces have no legislative oversight, meaning it’s up to individual cases in court to set any sort of precedent.
On Weediquette, we cover a lot of different stories—stories about medicine and recreational drug use—and this story is about how pot has always made it easy for law enforcement to go after vulnerable communities. We’re on a trajectory where medical marijuana and marijuana in general is going to become legal—it feels inevitable and that the war on drugs will also inevitable fade away—but stories like this bring to light that there’s a lot to still fight for.
S. ROWAN WILSON, Plaintiff-Appellant,
v. LORETTA E. LYNCH, Attorney General; BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES; B. TODD JONES, as Acting Director of U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives; ARTHUR HERBERT, as Assistant Director of U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives; and UNITED STATES OF AMERICA,Defendants-Appellees
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief District Judge, Presiding
Argued and Submitted July 21, 2016
San Francisco, California
Summary
The panel affirmed the district court’s dismissal of a
complaint challenging the federal statutes, regulations, and
guidance that prevented plaintiff from buying a gun because
she possesses a Nevada medical marijuana registry card…
A person who smokes marihuana in his or her own car while parked in the parking lot of a private business that is open to the general public is not entitled to assert the immunity or defense provisions of the Michigan Medical Marihuana Act
In People v. Carlton, security personnel monitoring live feed cameras of a casino parking lot observed Carlton smoking what appeared to be marihuana inside his car. Police officers responded to the parking lot to investigate. Carlton, a qualifying patient under the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 through MCL 333.26430, admitted to the officers that he had been smoking marihuana. The officers observed a marihuana roach on the dashboard and found four bags of marihuana during a subsequent search of Carlton’s car. Carlton was the only person in the car at the time.
In People v. Rea, officers were dispatched to Rea’s house to investigate a noise complaint. Upon arrival, an officer observed the door to Rea’s detached garage open and watched as Rea backed his vehicle “about 25 feet” before stopping at a point in his private driveway in line with his house. Rea then pulled the vehicle back into the garage. At all times Rea’s vehicle was either in his side yard or backyard. (See pictures in the Court’s opinion.) Rea was arrested and charged with operating while intoxicated pursuant to MCL 257.625(1).
MCL 257.625(1) provides in relevant part:
A person . . . shall not operate a vehicle upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles . . . if the person is operating while intoxicated.
Before trial, the circuit court granted the defendant’s motion to dismiss the case, ruling that “the upper portion of [Rea’s] private residential driveway” does not constitute an area “generally accessible to motor vehicles” as required by MCL 257.625(1) and the prosecution appealed.
Read much more on the Michigan State Police Legal Update link below
