Panel shows one thing is certain about '08 medical marijuana law: Everyone's confused

By Frank Weir

Legal News

One of the most contentious pieces of legislation approved by voters in years was examined last Friday.

The 2008 Michigan Medical Marihuana Act (MMMA) was the subject of a panel discussion at a meeting of the Washtenaw County Bar Association's Solo and Small Firm Practice Section.

The event showed that there are multiple differences of opinion about the law and its implementation, but there is one belief in common. The law's ambiguities make it difficult for everyone to work with it.

Last fall, Cooley Law School Professor Gerald Fisher authored a "white paper" entitled, "A Local Government View of the Michigan Medical Marihuana Act" which was prepared at the request of the Michigan Municipal League and Michigan Townships Association.

Fisher's analysis of the MMMA is that it has created "parallel universes" operating side by side.

"The Act allows the cultivation, distribution, and use for certain individuals with cards while under the general applicable law, the same activities are criminal violations for all others without cards."

And he added that on top of the co-existing universes, "we have an act that is extremely ambiguous in many important respects."

He noted that currently it is difficult to distinguish between "those people who are operating permissibly and those who are criminal violators because of the ambiguities, omissions, or intentional provisions in the act."

In completing his portion of the discussion, Fisher said that in the absence of legislation to better define the Act, "over 100" communities have declared "moratoria" on allowing the implementation of the Act in their communities.

He said that some communities are using a licensing and zoning approach similar to that used in past battles against "adult bookstores" and federal authorities have been sending signals that they may be taking a more aggressive approach to enforcement of federal law.

But criminal defense attorney Matt Abel, who vigorously defended the Act at the discussion, feels that all the hue and cry is just the same old anti-drug hysteria that has been wrongly aimed at marijuana for decades.

"Don't let anyone tell you there are no medical uses. There's plenty of evidence, thousands of studies. The bottom line is that we just don't want people smoking pot."

Abel acknowledged that caregivers' locations, the "patient to patient" shops and "compassionate apothecaries" should be located off the main streets but "this is medicine and it is safer than alcohol. Its purpose is to help patients."

Local defense attorney Denny Hayes also felt there has been a gross resistance against the Act by law enforcement and governmental representatives.

"They are trying to figure out how to thwart the Act, to garrote it, slice it, and dice it," Hayes said. "This is a useful medicinal product that brings aid to people who have debilitating conditions. Every week there are more anecdotal stories that suggest governmental people are operating with their heads in the sand."

Hayes added that everyone needs to remember that 63 percent of the voters approved the Act in 2008.

Michigan State Police Lt. Jerry Cooley brought the law enforcement perspective to the panel.

"If someday I had cancer and I needed it, I would hope I could have it," Cooley said of medicinal marijuana. "If it is used the correct way, then we have no problem with it."

Cooley recited a number of "dangers" that are occurring with the Act's implementation including a recent robbery of a caregiver dispensary in downtown Ann Arbor.

"The dispensary was robbed by three masked men. People were tied up and guns held to their heads. Criminals know there are drugs and money there."

He cited recent Detroit-area news reports about a robbery-murder in a suspected growing operation. "Maybe the operation was completely legal, but problems can come out of that."

One large difference of opinion between Act proponents and law enforcement is the creation of a database of growers and card holders.

Currently, there is no way for officers to check to see if an individual holds a card allowing use legitimately at the time of, say, a traffic stop. And police have little idea when a legitimate dispensary has set up shop.

Police say there is risk to officers and to card holders when police come in contact with potential illegal marijuana use since they have no idea if they are dealing with medical users and growers or an illegal drug operation with the potential for violent resistance.

There is even confusion as to what constitutes the "reasonably necessary amount" of the drug that is allowed to be possessed by legitimate card holders.

Further, law enforcement and municipalities are concerned that they have next to no information about card holders and caregiver growers making it difficult, they say according to Fisher, to enforce plumbing and electrical codes.

"I'm not saying that this can't be a good thing but there a lot of issues that law enforcement is running into," Cooley said. "We aren't trying to get rid of it but it needs to be looked at and straightened out."

Cooley was adamant that "it would be a lot easier" if law enforcement had information about growers "otherwise we have to bang the door down and people are put at risk. If I can just see that you are a caregiver grower, then I can go and talk you. We can go in once a year for instance and make sure you are complying with the state statute.

Caregivers respond that the last thing they need is to have their locations made a matter of public record for all to see thereby attracting robbery and violent crime. And Abel feels any list of caregiver growers and a database of card holders "violates privacy provisions."

Cooley had the last word by saying, "It isn't that government doesn't care. We are just trying to get it right."

Published: Thu, May 26, 2011

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