High Stakes

Now three years old, Michigan's medical marijuana law is still getting sorted out

Nov 2, 2011 at 12:00 am

Marijuana has twice played a role in bringing significant changes to the life of Barb Agro.

The first time was a blessing.

A former police dispatcher, the 71-year-old great-grandmother from Lake Orion suffers from arthritis in both of her knees. 

"It's really bad," she says.

Because she's allergic to aspirin, she used Tylenol to ease the pain for years. "But the amount I had to take was so much," she says. "I worried about it damaging my kidneys."

Then her son Nick gave her a brownie made with marijuana when she visited him at his home in Colorado several years ago. And her life immediately changed for the better.

"It was like a godsend," is how she describes the effect the controversial medicine had on her. "It was amazing. I could sleep without any problem because I wasn't in any pain."

So she persuaded her husband Sal to give it a try. A retired GM worker, he'd also spent four decades coaching youth sports. 

"That gruff Italian guy who's really a big marshmallow," is the way he's described in one newspaper article.

But all those years of throwing footballs and baseballs took their toll. He had bone spurs on his neck and shoulders. "He couldn't lift his arms over his head," says Barb.

The pot worked for him too. 

So the views of this hard-nosed coach and his wife, who had spent years working around cops, changed.

"Talk about doing a complete turnaround," Barb says. 

Like most parents, they had taken a tough stance regarding drugs when their three sons were in their teens. "We told them we better not find any of that stuff in the house," recalls Barb, talking with the Metro Times from her winter home in Wildwood, Fla.

Now she's a convicted felon, and her husband of 45 years is dead from a heart attack suffered a week after Oakland County narcotics officers wearing masks and wielding weapons raided their home and confiscated 17 plants the Agros believed were being grown legally under the medical marijuana law voters approved in November 2008.

As the third anniversary of that ballot measure's passage is being marked this week, medical marijuana proponents are trying to figure out how to deal with a series of setbacks, as municipalities, police, prosecutors and the courts do their best to put a chokehold on the law.

Leading the way is state Attorney General Bill Schuette.

While still serving as an appellate court judge, Schuette helped create the group Citizens Protecting Michigan's Kids to spearhead the campaign to defeat that act, known as Proposal 1 on the ballot. That effort proved to be a spectacular failure, with 63 percent of the state's voters disregarding the dire warnings being sounded by Schuette and others opposed to allowing patients access to pot.

Since being elected Michigan's chief law enforcement officer one year ago, he's acquired newfound power to continue waging the battle against medical marijuana, the patients who use it, the caregivers who grow it, and the dispensaries where it is sold. 

As attorney general, Schuette is able to set the tone for cops and prosecutors across the state. And the legal opinions that he writes, though lacking the force of law, are given careful consideration by the state's judges and help inform their decisions.

What Schuette's critics say is that he construes the law in the narrowest possible terms, with his opposition to marijuana bordering on an obsession. As a result, patient access to medicine is being curtailed and there is a growing sense among some that, rather than providing them with protection, the law has become a kind of trap for those who adhere to the spirit of the measure but don't follow it to the letter.

"It's gotten really scary for a lot of people," says Brandy Zink, who is with the group Americans for Safe Access. "For some, the feeling is that having a medical marijuana card is like having a target on your back. Because of what the state is doing, they are considering going back underground."

Others, she says, are looking for ways to fight back.

The Agros can be counted among them.


House of cards

After the state's medical marijuana law took effect, Sal and Barb Agro became certified patients. Rather than smoke it, they preferred to ingest their medicine in baked goods made with marijuana butter. They also used topical marijuana oil, rubbing it on sore joints to help alleviate the pain.

One problem with the law is there is no explicit provision allowing for these types of products. It is one of many so-called gray areas that have thrown a cloud of confusion over the whole issue.

In fact, few things about the law seem indisputable. But this much is certain: Patients who receive a recommendation from a doctor and register with the state are allowed to grow as many as 12 plants and possess as much as 2.5 ounces of smokable marijuana.

Those unable to grow their own pot can designate someone else to be their "caregiver." Caregivers, like patients, must be certified by the state. Each caregiver can have as many as five patients. Because caregivers can also be patients, it is possible that a single caregiver with the maximum number of patients can have has many as 72 plants growing at any one time.

According to those involved in drafting what is officially known as Michigan's Medical Marihuana Act, the limits were put in place in order to keep grow operations small enough to avoid attracting the interest of the federal Drug Enforcement Administration.

That is an important point because of this crucial factor: Even though medical marijuana laws have been passed in 16 states and the District of Columbia, pot remains illegal under federal law. In fact, it is still classified as a Schedule 1 controlled substance along with drugs such as heroin. Ironically, one of the distinguishing features of a Schedule 1 drug is that it is considered by the U.S. government to have no accepted medical use.

For its part, the Obama administration has done a good job of making an uncertain situation even more unsettled by sending decidedly mixed signals.

As Zink points out, following eight years of open hostility from the George W. Bush administration, people "got high on hope" when the more liberal Obama moved into the White House. 

And, in the beginning, that hope proved to be justified.

In an October 2009 memo, David Ogden, then the deputy attorney general, told U.S. attorneys around the country that, "as a general matter" they "should not focus federal resources" on "individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana."

But, as the Los Angeles Times reported this October, "... the Obama administration has been steadily ratcheting up enforcement efforts. Also last month, a federal firearms official sent a letter to gun dealers warning them against selling to medical marijuana users. The last bank in Colorado willing to handle money from dispensaries closed those accounts last week, concerned about federal prosecution. And the Internal Revenue Service has begun to order some dispensaries to pay millions of dollars in back taxes and penalties, ruling that they can't deduct expenses because their business is illegal."

"It is disingenuous of the Obama Administration to say it is not attacking patients while obstructing the implementation of local and state medical marijuana laws," Steph Sherer, executive director of Americans for Safe Access, told reporters earlier this year. "The president is using intimidation tactics to stop elected officials from serving their constituents, thereby pushing patients into the illicit market."

As a result, it can't be said that any use of marijuana in Michigan — even by certified patients — is strictly legal. Instead, the state's law is designed to protect qualified patients and caregivers from arrest and prosecution by state and local authorities.

At least that is what the advocates who drafted it intended.

But, as the Agros and others have discovered, police, prosecutors and now the courts — by interpreting the law in the narrowest of ways — have made any involvement with medical marijuana a potentially precarious venture.

That's especially true for those who set up dispensaries such as Clinical Relief, which was located in Ferndale until narcotics officers from the Oakland County Sheriff's Department raided it last year.

Nick and Tony Agro — the sons of Sal and Barb — were two of the people running the clinic, which was modeled on similar operations that Nick co-owned in Colorado.

Although the Michigan law approved by voters didn't explicitly allow for dispensaries, it didn't say they were prohibited either. 

It is easy to see why an entrepreneur like Nick Agro would think a place such as Clinical Relief would be legal. After all, it was Schuette himself, while still an appellate court judge campaigning against the measure, who declared, "There is not a single paragraph, sentence or word within Proposal 1 that prohibits pot shops from opening in Michigan. ..."

From the patient point of view, that's a good thing. 

For one thing, as Zink of ASA says, there are not nearly enough certified caregivers to grow the medicine needed for the nearly 119,000 patients currently approved by the state.

Complicating matters is the fact that patients who don't own their own homes are at the mercy of landlords. (Zink herself says she had to mount a fight to stay in an apartment owned by a landlord who objected to her simply "medicating.")

Obtaining the material to get started can be difficult. One acknowledged shortcoming of the law is that it contains no specific provisions saying that anyone can legally sell the seeds or clones needed for a patient to begin growing. Also, the equipment is costly — and that expense can be an impediment for patients who are too sick to work and living on disability payments. It can also take four months or more to go from seed to the point where a plant becomes medicine.

There are other factors as well, such as crop failures. Add it all together, advocates say, and it only makes sense that patients have a stable, independent source that can provide them with medicine when they are in need.

"People need to have access to their medicine," says Zink. A viable network of dispensaries appears to be the only way to guarantee that access.

And so, the Agros say, they were careful to make sure everything was done "by the book" when setting up Clinical Relief. They worked with the city hall in Ferndale. They had the mayor come by for a visit. The chief of police did a walk-through.

When it opened for business, dozens of patients a day began rolling in — sometimes literally, using wheelchairs.

Among those seeking medicine were cancer victims, some of them terminally ill. There were also MS patients and people suffering from migraines or ruptured discs in their backs. Others appeared to be perfectly healthy, but Barb Agro, who worked as the clinic's receptionist, learned that looks can be deceiving.

She tells the story of two young men who came in. One of them, a good-looking guy she figured to be about 25, showed his card and went to obtain his meds. The other took a seat. They ended up talking, and he said that he was the other guy's driver; the fellow getting meds couldn't obtain a license because he suffered from epilepsy. 

"And here I was thinking, 'He doesn't really need this.'"

Although it is impossible to say with certainty how many recreational users obtain cards as a way of avoiding arrest, there is no doubt they are out there, as are doctors who will write a recommendation for anyone who walks through their door and has the money to pay. 

"There's crooks in every business," Barb Agro says.

For the most part, though, she saw the clinic as a place that provided a legitimate service to people who very much needed it.

Then, on Aug. 26 last year, Oakland County narcs came storming in, wearing ski masks and holding guns. They forced her to the floor and handcuffed her and the others who were there. Records and equipment were confiscated. Cash and pot that Nick Agro estimates together amounted to about $80,000 or $90,000 were taken as well.

Such seizures are a big part of the motivation for such raids, asserts Nick Agro. With the money getting divvied up between the Oakland County Sheriff's Office and the Prosecutor's Office, it amounts to nothing more than "policing for profit," he says.

The law enforcement side, not surprisingly, presents a much different view. The way they see it, large numbers of people are attempting to take advantage of the law, looking to make a profit by slipping through every loophole they can find.

"Across Michigan, our communities are struggling with an invasion of pot shops near their schools, homes and churches," Schuette said last week to explain why his office was joining in a civil suit brought by Chesterfield Township against Big Daddy's dispensary. "Local governments have the right to protect their communities from illegal marijuana dispensaries."

(Unlike Clinical Relief, which authorities claim was operating illegally, Chesterfield Township — and now the AG's office — are trying to force Big Daddy's closure by seeking a court ruling that the facility is a "public nuisance.")

At the same time Clinical Relief was being raided, members of Oakland County's Narcotics Enforcement Team also hit Everybody's Café dispensary in Waterford Township and some private residences associated with the businesses — including the home of Barb and Sal Agro, and the homes of their sons Nick and Tony.

As with other dispensaries in the state — by some estimates there were as many as 200 to 300 in operation before authorities began cracking down on them — they operated under the premise that, as long as the transactions were occurring between certified patients on both ends of the deal, the sales were legal under the law.

Oakland Sheriff Mike Bouchard painted a much different picture. After the raids, he did his best to depict the dispensaries and the grow operations that supplied them as truly nefarious. 

According to news reports, Bouchard claimed that undercover officers "observed the clinics selling marijuana to customers without state-issued ID cards and that associated caregivers were growing more plants and had more patients than allowed under state law."

(Among other things, it has since come to light that, in the case of Clinical Relief, undercover narcotics officers made purchases using realistic-looking state medical marijuana ID cards that they had created themselves.)

Bouchard also claimed that the businesses were being operated like an "organized crime" ring.

At least 15 people were charged as a result of those raids conducted in August of 2010. Among them were Barb, Nick and Tony Agro.

That was before any so-called test cases began working their way through the courts. Since then, a three-judge panel on the Michigan Court of Appeals overturned a lower court ruling, declaring in August of this year that the "medical use of marijuana, as defined by the Michigan Medical Marihuana Act, does not include patient-to-patient sales of marijuana, and no other provision of the MMMA can be read to permit such sales." 

Not all dispensaries have closed as a result of that ruling, however. Part of the reason for that, it appears, is that it is up to individual county prosecutors to determine if they want to take a hard line or not. 

For the time being, at least, dispensaries in Wayne and Washtenaw counties appear to be operating without problem. In Oakland County, on the other hand, it is beyond risky business. 

As for the Agros, their problems didn't end with the raid on Clinical Relief.

Stacked deck

Just as she believed the dispensary was operating well within the law, Barb Agro felt confident there were no problems with the small grow operation she and Sal had going at their home in Lake Orion.

Which is why, when one of the deputies asked if there were plants growing at her home, she had no qualms about answering truthfully. She gave a statement saying that both she and her husband were certified as patients and caregivers. That allowed them to grow legally. She said there were about 17 plants in their basement.

As the clinic was being raided, the cops were also searching the homes belonging to sons Nick and Tony. A neighbor of one jumped in her car and drove to tell Sal what was happening. Sal rushed out of the house and sped over to make sure his family members — including his grandkids — were safe. In his rush, says Barbara, he left his wallet on the table and the door to their house unlocked.

When he returned home, police were there searching the place. They ripped out the plants and seized $11,270 in cash. Barb Agro says that $11,000 was kept in a lock box in anticipation of putting a down payment on a car they were planning to purchase. The $270, she says, was taken from the wallet Sal had left behind.

Because their house was unlocked at the time, the couple was charged with growing illegally. The law states that marijuana being grown by patients or caregivers needs to be kept in a locked enclosure.

Sal never lived to have his day in court. He died of a heart attack about a week after the raid. His family blames the stress of the bust for his death.

As for Barb, she went on trial this past June. One of the significant aspects of the proceedings was the Oakland County Prosecutor's Office's argument that the jury shouldn't be allowed to hear that Barb was a patient and caregiver. The contention was that, because the plants weren't in a locked enclosure, Barbara Agro wasn't in compliance with the medical marijuana law. And because she wasn't in compliance, she could not use the fact that she was a patient when attempting to mount a defense.

The judge agreed with the prosecution. When some members of the jury sent notes to the judge asking if Agro was indeed a patient, the judge informed them that the question couldn't be answered.

The verdict came back "guilty."

Agro was sentenced to 90 days of probation and ordered to perform 20 hours of community service. 

An appeal of the conviction is planned. The argument will be that the jury should have been allowed to hear that Agro was growing pot as a patient.

Attorney Neil Rockind, who represents one of the other owner-operators of Clinical Relief, says the notion that someone on trial can't tell a jury the circumstances behind their case is particularly troubling.

You don't need to be a lawyer to see the unfairness inherent in that.

Rockind is also troubled by the cops and prosecutors who bring the full force of the law down to bear on people who are attempting to comply with the act, but fail to follow every aspect of it completely.

There is such a thing as discretion, he says. You don't have to try to lock up everyone who does something that puts them out of compliance.

There is a case in Shiawassee County where a certified patient was growing the proper number of plants in a dog kennel that was fenced, the gate locked. The problem was the enclosure lacked a roof. After the trial court dismissed the charges, the Court of Appeals ordered them reinstated. The state Supreme Court has agreed to hear the case.

As Rockind points out, the authorities, instead of prosecuting, could just as easily have told the guy his growing situation didn't meet the standards laid out in the law and given him a week to correct it.

The case of Barb Agro, he says, represents the "epitome" of that kind of prosecutorial abuse.

Despite the hardships, Agro remains cheerful, her spirits buoyed by the fact "our consciences are clear."

"We were following the law," she asserts. "And we were helping people who need help."

The only real pain, she says, is the heartache of losing the man who shared his life with her for 45 years.

"Compared to that," she says, "Everything else is a piece of cake."

Her legal problems don't end with the appeal, however. She and her sons Nick and Tony, along with others arrested following the raid on the Clinical Relief dispensary, are scheduled to go on trial in January.

Attorney Rockind, looking at the bigger picture, thinks part of the problem is that public officials aren't used to seeing the public rise up and take power away from them.

"Government doesn't like the idea of something that's long been illegal, all of a sudden they can't get to it. And that's what the medical marijuana act did — it took power away from government and gave it to individuals."

The mistake some made was believing the struggle ended in 2008, when the measure passed. 

"People were thinking the war was over," Rockind says. "But for it to really be over, the other side has to agree that it is over. But that hasn't happened yet."

Wild cards

As it stands now, most of the court rulings having been against those who want the state's medical marijuana law viewed in a way that gives patients easy access to medicine and offers broad protection from prosecution.

Gerald Fisher is an attorney and professor at the Thomas M. Cooley Law School in Auburn Hills. Last year, working as a consultant for the Michigan Municipal League and the Michigan Townships Association, Fisher studied the issue. 

Fisher tells Metro Times that at least part of the problem is that those who drafted the Michigan Medical Marihuana Act created intentional ambiguities in an attempt to "go as far toward legalization as possible."

Fisher doubts that any form of medical marijuana legalization at the state level is valid because federal law is pre-eminent. That view was bolstered recently when a Wayne County judge sided with the city of Livonia, which had instituted a far-reaching anti-medical marijuana ordinance that has as its centerpiece the prohibition of any "enterprises or purposes that are contrary to federal, state or local laws or ordinances ..." 

The ACLU, representing two patients who own property in the city, sought to have the ordinance declared illegal.

"The ACLU readily admitted that the federal Controlled Substances Act prohibits all of the activity authorized by the Michigan Medical Marihuana Act," said Livonia City Attorney Don Knapp following the ruling by Wayne County Circuit Court Judge Wendy Baxter. "Nevertheless, they wanted the courts to ignore that obvious fact and strike down Livonia's zoning ordinance which prohibits violations of federal law. Judge Baxter recognized this conflict of laws and held that state law is pre-empted by federal law."

The ruling is being appealed by the ACLU. It is likely that, whatever the Court of Appeals decides, the issue will remain unresolved until the state's high court hears the case.

At this point though, Fisher's view is that those who drafted the law "did no one any favors by putting so many ambiguities in there."

Attorney Karen O'Keefe is with the nonprofit activist group Marijuana Policy Project based in Washington, D.C. A Michigan native, she played a key role in drafting the language of Michigan's medical marijuana law.

At the time it was written, she says, no state had a law on the books regulating dispensaries. (That situation has changed since then: Colorado, for one, now regulates and taxes dispensaries. Although California has long had storefront shops, they have yet to be directly authorized under that state's laws.) 

She says that, lacking any model for state-approved dispensaries when Michigan's law was being prepared to go before voters, ambiguity regarding distribution was necessary to put the measure in the best position to be passed.

"There's no question that explicitly allowing dispensaries at that stage would have complicated the issue," she says.

The way she sees it, though, the main problem with the law isn't the way it is written, but rather the refusal of opponents to accept the will of Michigan's voters. As for claims that the public was duped, she points out that, three years after the law passed, with voters having had plenty of opportunity to see how it is working, the level of support remains virtually unchanged. A poll conducted by Marketing Resource Group, Inc., earlier this year found that 59 percent of voters would approve the law, while 35 percent would not. Two percent leaned toward approving, while 2 percent leaned against.

Which means that the real backlash is coming from politicians and law enforcement, not the general public. There doesn't seem to have been any picketing being done by outraged citizens trying to drive dispensaries out of business. Instead, it is law enforcement that is clamping down, and local municipalities that are passing laws that attempt to stop not just dispensaries but also cultivation.

"It doesn't look like voters have changed their minds," O'Keefe says. "That's what makes the backlash we're seeing particularly surprising."

Surprising, maybe. But it is intense nonetheless.

According to the MPP, "no less than 16" bills that attempt to rein in the state's medical marijuana law have been introduced in the Michigan Legislature. According to the group, the "most alarming" of these bills "would essentially nullify the law's core protections in some or all of the state. ..."

Fortunately for those who want to see patients and caregivers protected, any bill that seeks to change the voter-approved measure would have to obtain a super-majority of 75 percent in both houses of the Legislature.

The state attorney general, however, doesn't face that kind of constraint. And Schuette, regardless of what opinion polls might say in terms of public support of the law, continues to keep sounding the alarm. In an opinion piece published in the Detroit Free Press earlier this year, the state's attorney general wrote:

"As a result of the way the law was written, Michigan's law enforcement community is rightly concerned about the sales and use of marijuana getting out of control, which puts everyone's safety at risk. That is why I will continue working with prosecutors, police, the Legislature and the courts to ensure the law is used as the voters intended, not as a vehicle for criminal behavior that endangers our families and communities."

It is that sort of characterization that infuriates those on the other side of the issue.

 Winning hand?

Jamie Lowell is one of the founders of the Third Coast Compassion Center in Ypsilanti. Despite the crackdown going on in some other parts of the state, his Washtenaw County facility remains open, providing patients with a choice of medicines.

It is not exactly a comfortable spot to be in these days. But he and others continue to remain open for business, hoping that, despite the adverse court rulings that have determined that at least some forms of dispensaries are illegal, the approach being taken at Third Coast will hold up if ever tested. 

The way Lowell sees it, the only real problem with dispensaries are the ones being caused by the authorities.

"In places where they are being left alone, we are seeing lots of positive results," he says. "The problems are all coming from those in opposition. Health and safety aren't a problem. The problem is raids and criminal charges and civil suits. It is this opposition that wants to keep presenting the facade that there are serious problems going on, but that's not really true."

The question being raised by Lowell and others in the same camp is, "What do we do now?"

There's little disagreement that the answer to that question is political action. What makes things complicated is trying to figure out the exact form that action should take.

Lowell thinks that members of the "community" need to organize politically and campaign either for or against specific candidates based on what their position is regarding the MMMA. "We need better lawmakers," he says. "And we need better judges."

(There is currently a campaign to recall Schuette under way. But, given that a much-higher-profile effort to recall Gov. Rick Snyder failed to collect the more than 800,000 signatures to get the recall on the ballot, the campaign to collect the same number of names to get a Schuette recall on the ballot seems an extreme long-shot at best.)

Although Lowell's allies in the movement don't disagree with the idea that patients and caregivers should be looking to reward supportive politicians with donations, campaign help and votes, not everyone agrees that is where the primary focus of political efforts should be at this point.

This is a movement where there are different competing interests, sometimes directly at odds with each other. What's good for those who want to use recreationally isn't necessarily good for patients. While some advocates may think a proposal to regulate and tax operations is a sure way to gain public support at a time when public coffers at every level are painfully thin, those in it strictly to make money may not be all that eager to start turning over a share of their profits to the taxman.

Both Americans for Safe Access and the Marijuana Policy Project are working on draft legislation intended to strengthen the rights of patients and ensure they have easy access to medicine.

"There is a lot of infighting that goes on," says Greg Francisco, founder of the Michigan Medical Marijuana Association.

Complicating matters even more is the fact that, if you look at the history of this movement, politicians tend to follow the public's lead rather than getting out in front and setting the agenda. That's why advocates had to go through the expense and tremendous effort of gathering signatures to get the MMMA in front of voters.

Brandy Zink, of ASA, notes that she worked for a decade as a lobbyist in Ohio without having any legislative success there. She thinks the same is likely to be true of Michigan.

Which is why she is among a group of people who meet weekly at the Detroit offices of attorney Matt Abel, who heads a practice that focuses exclusively on marijuana issues.

Abel says that he is mystified by many of the rulings he's seeing handed down. And, although he remains hopeful that the state Supreme Court will reverse the exceptionally narrow interpretation being displayed by the Court of Appeals, he's also not taking any chances. 

At this point, he says, much consideration is being given to the idea of going back to the state's voters with another ballot measure. There is a possibility that something could be ready in time for the November 2012 presidential election.

It won't be easy. Such efforts are expensive, usually costing upward of $1 million. And those participating in the discussions have yet to reach a consensus on the best tack to take.

Should voters be asked to support a measure that explicitly calls for the legalization of dispensaries? Or a measure that calls for decriminalization for everyone? Or should they go all the way and seek to completely end prohibition in Michigan?

In some respects, that approach, he says, helps both recreational users and patients. Certainly, the sort of attacks on patient and caregiver rights that is currently being mounted by Attorney General Schuette would be derailed.

And even if it didn't contain language calling for taxation (the Legislature could always pursue that if it wanted to after the measure passed), a fair number of voters who have no desire to ever fire up a joint might be won over by the savings that would be realized by locking up far fewer people and having law enforcement freed up to spend more time trying to catch murderers and robbers and rapists instead of spending precious resources pursuing people like Barb and Sal Agro.

As complicated as it all can be, one thing remains clear: If there is not concerted political action by those who believe that marijuana is a legitimate and useful treatment for a wide variety of afflictions, then the forces of opposition are going to continue whittling away at the progress represented by the passage of the Medical Marihuana Act three years ago.

Standing by and relying on the courts and politicians isn't really a viable option.

"People on our side have no choice but to fight," Abel says.

What remains to be seen is whether the disparate fingers of this movement will remain separate, or if they can be clenched into a fist.