Judge: Michigan must turn over medical marijuana records related to a federal drug investigation
June 03, 2011
John Agar, Grand Rapids PressA federal magistrate judge has ordered the state turn over medical marijuana records related to a federal drug investigation.
U.S. District Magistrate Judge Hugh Brenneman Jr. said the state law allowing medical use has no impact on federal laws that criminalize the use of marijuana.
He said the Michigan Department of Community Health must comply with an administrative subpoena issued by the U.S. Drug Enforcement Administration agents investigating suspects in the Lansing area.
The judge ordered that the DEA has to list names of seven named in the subpoena. The judge also denied requests to intervene or file friend-of-court briefs as requested by those supporting Michigan’s medical marijuana law.
Michigan Association of Compassion Clubs, Cannabis Patients United and Americans for Safe Access argued that the state would violate privacy rights of medical marijuana patients by complying with the order.
Michigan Department of Community Health balked at providing the records, but state Attorney General Bill Schuette, an opponent of medical marijuana, said the state would comply if ordered to do so by a judge.
The subpoena seeks copies of patient and caregiver registration cards, or the applications, for seven people.
Brenneman said the initiative approved by voters in 2008 “provides an affirmative defense in a few instances to arrest or prosecution, or other adverse action by state authorities enforcing the state prohibition against marijuana.”
But, he said that “while the Michigan Legislature declared its intent not to penalize the medical use of marijuana under state law, it had to acknowledge its action did not alter the existing federal prohibition against marijuana: Although federal law currently prohibits any use of marijuana except under very limited circumstances, states are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law.”
He added: “The use of marijuana remains a federal felony.”
Under the medical marijuana law, the applications and information about caregivers and physicians are confidential. The state is supposed to only verify to law enforcement whether a registration card is valid, with criminal penalties in place for those who disclose confidential information.
“It is this last provision that has caused (the state) to hesitate,” Brenneman wrote.
He said that “would-be intervenors,” who claimed those on the registry had a right to privacy, simply refuse to confront the elephant in the middle of the room; they try to tip-toe around it, or close their eyes to it. The elephant, of course, is the fact that federal law made use of marijuana a felony years ago, long before Michigan voted to not prosecute people who use it for medical purposes. Michigan also made the use of marijuana a crime (and it still does); even medical marijuana, although the (medical marijuana law) now provides an affirmative defense so that certain medical marijuana users cannot be prosecuted for violating Michigan’s criminal law against marijuana.
Prior to the passage of the MMMA, no one would have dreamt that an investigation by the Drug Enforcement Administration, or by the Michigan State Police, into the use or distribution of marijuana would have violated any ‘privacy rights to use marijuana.’”
He noted that the text of the law recognizes that federal law prohibits use of marijuana.
“Thus, anyone who is not deluding himself or trying to push an agenda knows that the confidentiality provisions are only binding on the State of Michigan and its agents, not the federal government and its agencies.”
Beyond that, he said, police are seeking identity cards of seven people, whose names are redacted in court documents, already known to investigators. The cards are designed to be shown to police.
“Only the truly naive or the disingenuous would try to argue that the (medical marijuana law) will not be abused by others seeking a cover for illicitly using or distributing marijuana.”
While the Obama administration has said it won’t target those legally using medical marijuana, Brenneman wrote that “this Administration or the next may simply pull the plug and prosecute anyone using or distributing marijuana, which it unquestionably may do under existing federal law.”