A provision of the Michigan medical marijuana law that prohibits police from seizing pot possessed by licensed medical marijuana patients is invalid because it conflicts with federal law, Attorney General Bill Schuette said in an opinion released Thursday, one in which he warns officers who return marijuana to patients that they could be prosecuted as dope dealers.
“It is ‘impossible’ for state law enforcement officers to comply with their state law duty not to forfeit medical marijuana, and their federal law duty not to distribute or aid in the distribution of marijuana,” Schuette’s opinion said.
In such circumstances, the state law, approved by Michigan voters in 2008, must defer to the federal law, Schuette said.
Tim Beck, a medical marijuana advocate who helped draft the state law, said Schuette’s opinion is “an appalling fantasy,” an attempt by the attorney general to “subvert the (state) law any way he can.”
But in his opinion, Schuette said, “The people of this State, even in the exercise of their constitutional right to initiate legislation, cannot require law enforcement to violate federal law by mandating the return of marihuana to registered patients or caregivers.”
Schuette was responding to a request from state Rep. Kevin Cotter, R-Mt. Pleasant, who asked whether police were required to return marijuana to medical marijuana patients who had been arrested or detained upon their release.
Medical marijuana advocates said police in Michigan have routinely returned marijuana to patients who have been temporarily detained since the state law went into effect. In fact, the medical marijuana statute explicitly bars the seizure of marijuana and marijuana paraphernalia from a licensed patient.
Michigan has about 100,000 people registered to use marijuana for medical reasons. Schuette’s opinion does not authorize police to prosecute patients for marijuana possession.
Schuette said that provision is not enforceable because of the conflict with the federal Controlled Substance Act.
“Up until this time, it has been unclear how to handle these situations,” said John Sellek, the attorney general’s spokesman. “We clarified for the law enforcement community that works so hard to protect our safety that federal law simply cannot be ignored.”
An opinion from the attorney general is generally considered binding legal opinion, especially on state agencies such as the Michigan State Police, unless and until it is rejected by a judge.
The opinion is the latest in a series of moves by the attorney general to narrow the scope and application of the law, which he has said was poorly drafted and virtually impossible to enforce. Schuette, then a recently retired state appeals court judge, led the 2008 campaign opposing to the initiative.
Beck said Schuette “has an obsession with marijuana” that has clouded his legal judgment.
The legal question addressed by the attorney general in Thursday’s opinion was answered by California courts in 2007 in a case the U.S. Supreme Court declined to review, Beck said.
In that case, a medical marijuana patient successfully sued police in Garden Grove, Calif., for the return of marijuana that had been taken from him during a traffic stop.
In his opinion, Schuette cited a 2010 decision by the Oregon Supreme Court, upholding the right of an employer to refuse to hire a medical marijuana patient on the grounds that using the drug was a violation of federal law.
This article was written by Dawson Bell and Todd Spangler, Detroit Free Press Staff Writers. Article appeared in the November 11, 2011 issue of the Free Press.
In regards to the above actions by the Michigan Attorney General it is my opinion that there is and must be a separation between state and federal government. The Attorney general represents the people of the state of Michigan not the Federal Government. I suggest that you get out and vote next election for Michigan State Attorney General.
Mount Pleasant Michigan Student Lawyer Todd Levitt has represented individuals charged with drug crimes for more than 17 years. Todd Levitt practiced for 12 years in Detroit, Oakland County, Macomb and throughout Southeastern Michigan. Todd Levitt can be reached for a free consultation at 989-772-6000