The DEA Searches for Ambiguity in Michigan

The Associated Press reports that the Drug Enforcement Administration is demanding medical marijuana records from Michigan's Department of Community Health "as part of an investigation in the Lansing area." The department is resisting, citing a state law that makes it a misdemeanor to release information about patients who use medical marijuana or the caregivers who are authorized to supply them. Assistant U.S. Attorney John Bruha has asked a judge to order the department's compliance, saying that notwithstanding Michigan's medical marijuana law, which was approved by voters in 2008, "the cultivation, possession and distribution of marijuana remains illegal under federal law," so the "state-created confidentiality provision…must yield to the enforcement power of the federal agency."

The DEA wants "copies of any and all documents, records, applications, [and] payment method of any application for Medical Marijuana Patient Cards and Medical Marijuana Caregiver cards and copies of front and back for any cards located" for seven individuals. Although the targets' names are redacted in the public versions of the court documents, the record request may be connected to a raid a few weeks ago on a medical marijuana garden operated by two caregivers in Okemos, which is near Lansing. The Drug War Chronicle reports that the two caregivers were growing a total of 40 plants, which seems to be well within the limits set by state law, since "caregivers can grow up to 12 plants each for up to five patients, as well as growing 12 plants for themselves if they are patients."

So how does this raid jibe with the Justice Department's official policy of leaving medical marijuana suppliers alone when they are in "clear and unambiguous compliance with existing state laws"? The Chronicle speculates that the DEA may be relying on the garden's joint operation, which is not explicitly permitted or forbidden by state law, for the requisite ambiguity. But DEA agents do not seem all that concerned about complying with the Justice Department's policy, which was announced by Attorney General Eric Holder in October 2009:

When asked about the Holder memo, the agents acted as if they were above the law. "Obama is not our president," [medical marijuana activist Ryan] Basore [who rented the Okemos grow space to the caregivers] reported the agents saying. "The people wanted change," Basore overheard another agent say as they effectively laughed in the face of their own superiors.

A DEA spokesman in Detroit was more circumspect:

"All I can tell you is that this is an ongoing investigation in which we procured the search warrant," said Detroit DEA spokesman Special Agent Rich Isaacson. "Just because someone makes a claim that it is medical marijuana doesn't make it so."

When asked about the October 2009 Justice Department memo urging the DEA to quit going after medical marijuana patients and providers in states where it is legal, Isaacson appeared to agree with the memo, but then suggested Capital Caregivers was somehow outside the state law. "If it's unambiguous that they're following state law, there would be better ways for the department to spend its resources," he said.

"Our mission is to target large-scale drug trafficking groups," Isaacson said, but [he] clammed up when confronted with the fact that the raids had seized only 40 plants. "That number may or may not be accurate," was all he would say.

A.P. reports that Isaacson, when asked about the records that the DEA is seeking, "said agents generally are 'not targeting people that are unambiguously following the state medical marijuana law….The DEA targets large-scale drug trafficking organizations and does not expend its resources on individuals possessing "user amount" quantities of illegal drugs.'" That generally is not reassuring. Neither is Isaacson's conflation of the Justice Department's forbearance regarding medical marijuana suppliers, which was supposed to represent a new policy, and the DEA's longstanding preference for cases involving large quantities of drugs.

I discuss medical marijuana in Michigan here and here. For more on the continuation of the DEA's medical marijuana raids under a president who promised to end them, start here.