We are always watching for new lawsuits involving state-legal marijuana. Even to the casual observer these cases can be compelling: the issues are often novel, the plaintiffs can be quite sympathetic, and even a highly local dispute can have implications across the country as judges grapple with fast-changing and often inconsistent or conflicting laws and look for guidance wherever they can get it. The rise of litigation is just one more sign of the mainstreaming of marijuana and it serves to raise awareness about cannabis issues.
Not every lawsuit, however, advances the cause. A lawsuit filed recently in a Macomb County, Michigan, circuit court is an unfortunate example of the “throw the spaghetti at the wall and see what sticks” style of advocacy.
The plaintiffs in the Warren case are twenty-three registered medical marijuana patients, several of whom are also caregivers under Michigan’s Medical Marihuana Act (“MMMA”), as well as Michigan Safe Transfer Center, LLC (“MSTC”) and Legal Real Estate, LLC. The defendants are the City of Warren and its mayor, chief zoning inspector, zoning inspector, police commissioner, and a police detective, whom the plaintiffs allege “created a climate of hostility and fear” towards medical marijuana patients in Warren, preventing them from obtaining their medicine. The complaint goes on to assert that plaintiffs were the victims of a systematic effort to close down MSTC, perpetrated through illegal searches and seizures and suspicionless roadblocks. If taken as true, the plaintiffs’ allegations suggest that Warren city officials overstepped the bounds of permissible policing activity and may have unjustly harassed MSTC patients. But, as we’ve seen in case after case, that bad behavior probably won’t be enough to secure a victory where the plaintiffs’ own actions are of questionable legality.
In a 2013 decision, State v. McQueen, the Supreme Court of Michigan deemed medical marijuana dispensaries illegal under the MMMA. Noting that the MMMA is silent on the topic of “dispensing,” the Court determined that § 4’s immunity provision applies only to patients’ own use of medical marijuana, and therefore does not allow one qualifying patient to transfer marijuana to another qualifying patient. It is against this backdrop, and the ever-present federal prohibition, that the Warren case must be evaluated.
The Warren plaintiffs allege seven distinct causes of action, but we don’t view any of them as particularly viable. They are:
42 USC § 1983: Section 1983 creates civil liability for transgressions of federal (usually civil rights) law committed under “color of law.” These are usually the kinds of cases filed against police departments for brutality (think Ferguson, MO). Importantly, Section 1983 is a procedural mechanism; the claim must be based on some other substantive law. Here, plaintiffs contend they were unlawfully detained and subjected to search and seizure, and deprived of equal protection. Liberty, as guaranteed by the constitution, is a proven and powerful right, and the plaintiffs here may have a decent argument if they were truly stopped for no reason or were simply on their way to Walgreens. The problem, however, is that the entire case is tainted by the fact that the plaintiffs were attempting to access MSTC, which will in all likelihood be viewed as an illegal medical marijuana dispensary.
Plaintiff Bryan Mazurkiewicz (who is a patient as well as business partner in MSTC with the plaintiffs’ attorney Michael Greiner) asserts that MSTC is not a dispensary because it is not a “walk-in clinic,” but we doubt the court will find that distinction very persuasive. The McQueen case also involved a members-only facility. Mazurkiewicz is quoted as saying MSTC has four grow rooms and that “everything’s locked, the paperwork is all there — stating whose plants they are — and no one has more marijuana than they’re allowed to have.” It sounds to us like MSTC is likely pooling resources and plants, particularly since Mazurkiewicz claimed MSTC had, at one time, 100 caregivers operating there, who could serve other 500 qualifying patients in what appears to be a relatively small building. If that is true, MSTC and its members should be defeated by MMMA’s provision that immunity may be rebutted by a showing of possession of allowable limits.
Even if MSTC were operating in perfect compliance with Michigan law, Raich v. Gonzales clearly held that federal law recognizes no right to obtain or use medical marijuana, so these plaintiffs will have a difficult time convincing a court that any substantive federal law supports their § 1983 claim. Such was the case in a 2014 Colorado case, Young v. Larimer County Sheriff’s Office. In that case, Young successfully asserted the affirmative defense of medical use of marijuana under Colorado’s Medical Marijuana Amendment. After that acquittal, Young’s seized plants were returned to him dead and Young sued for damages on the basis of § 1983. Like the Warren plaintiffs, Young argued that he was deprived of property, liberty, and just compensation. The Colorado Court of Appeals, drawing on a similar California case, Barrios v. County of Tulare, held that the destruction of Young’s plants did not impair a federal right, and the municipality was entitled to summary judgment. There are no facts present in the Warren case to suggest a different result.
Ultra Vires Activity: Ultra vires activity is simply activity taken outside one’s authority. Here, the Warren plaintiffs contend the traffic stops, seizure of plaintiffs’ property, and the issuance and prosecution of zoning violation citations are unfounded and unauthorized by law. Again, our sense is that the court will likely focus on plaintiffs’ operation of what is probably an illegal grow/dispensary rather than procedural misdeeds by law enforcement. In the wake of McQueen, Michigan attorney general Bill Schuette explicitly told prosecutors they are empowered to shut down dispensaries; in that political climate, the court is unlikely to take a negative view of Warren’s issuance of zoning infractions. Plaintiffs complain that the City of Warren “has not adopted any ordinance that directly regulates the cultivation and transfer of medical marihuana.” But that may be precisely the problem – by plaintiffs’ own admission, the MSTC building is zoned for a medical office, so it does not seem unreasonable that a dispensary or “transfer center” might violate local ordinances. At the very least, the lack of local law on the matter doesn’t mean anything goes, especially after McQueen. And if MSTC’s activities are suspected to be illegal, stopping its patrons is also probably not ultra vires.
Americans with Disabilities Act: Another claim with a failing track record. Title II of the ADA prohibits public entities from denying public services to individuals with a disability. The Warren plaintiffs contend they are qualified individuals with a disability under the ADA, and that the “climate of hostility and fear” perpetrated by the defendants has prevented them from receiving needed medication. This argument must fail for two reasons. First, Section 12210(a) of the ADA specifically excludes from its protections those “engaging in the illegal use of drugs when the covered entity acts on the basis of such use.” Second, the Warren plaintiffs haven’t connected their allegation that Warren officials prevented them from obtaining medicine to the denial of any “public services,” a strict requirement of an ADA claim.
Fraudulent Misrepresentation: This claim is probably the most bizarre. Plaintiffs contend that Warren officials called qualifying patients, claimed to be Bryan Mazurkiewicz, and told those patients that MSTC had been closed. As a result, plaintiffs contend they have suffered “embarrassment, humiliation, stress, fear, nightmares, loss of income and physical pain.” First off, police do not have to be completely honest when conducting investigations and interviews; some amount of deception is allowed. If Warren officials are investigating MSTC as a criminal matter, the alleged phone calls are probably within the realm of the permissible. If we had to guess, this claim is really about the “loss of income” that MSTC has suffered as a result of investigations into its operations. Again, if MSTC’s operations are of questionable legality, the court is not going to award MSTC damages for the loss of illicit income. In any event, fraud is notoriously difficult to prove, and this claim too is likely to go nowhere.
Taking of Real Property Without Due Process and Compensation: Yet another claim where the facts just don’t fit. Takings claims generally challenge some government (federal, state, or local) regulation that effectively deprives an owner of all or nearly all economically viable use of that land. A takings claim may also lie where the government has physically invaded the owner’s property. Here, MSTC makes the former claim; that the hostile environment has led to a decrease in patient traffic, which has cost MSTC profits, rendering it unable to pay rent to plaintiff Michigan Real Estate, LLC. But landowners are not entitled to compensation where only their favored use has been regulated or prevented; in other words, just because MSTC can’t pay rent doesn’t mean Michigan Real Estate cannot find another suitable (paying) tenant — i.e., another “economically viable” use. The court will certainly be asking whether Michigan Real Estate has made efforts to find a new renter. If the the answer is no, the takings claim has no chance.
Malicious Prosecution and Abuse of Process: Both of these claims are premised on the allegedly improper issuance of zoning citations by Warren city officials. Plaintiffs cite Ter Beek v. City of Wyoming, in which the Michigan Supreme Court held that a city ordinance penalizing patients for engaging in lawful, MMMA-compliant medical marijuana use was preempted by the MMMA. Unlike the Warren plaintiffs, however, Ter Beek simply wanted to home grow his medicine, and there was no question his use would be lawful. As we’ve preached throughout this post, where the Warren plaintiffs’ activities are questionable, Ter Beek probably won’t help them. Moreover, malicious prosecution and abuse of process claims require the plaintiffs to demonstrate that they prevailed in an earlier proceeding that was brought for an improper purpose. The Warren plaintiffs have not alleged that they have prevailed in the zoning matter or been the subject of a criminal action, and there is no valid claim for merely “investigating” MSTC – these claims must be based on an earlier proceeding. Without more, these claims amount to nothing more than complaining, without any chance at real legal recourse.
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This post is not intended to bash the Warren plaintiffs. Our point is simply that causes like safe access for patients, or even full legalization, are of paramount importance and they are not promoted by lawsuits lodging legally insufficient claims (and a multitude of claims at that). The real injustice here is that patients in Warren may be suffering, but the way to really fix the problem for good is to ensure that Michigan’s medical marijuana program is revamped to provide for safe, regulated dispensaries. Like Washington state after Kent, McQueen blew a huge hole in the MMMA, resulting in a dysfunctional and unfair medical marijuana regime.
More than 60% of Warren voters reportedly favored the MMMA. These plaintiffs’ time, effort, and money could almost certainly have been much better spent working towards legislative amendments giving effect to that public sentiment than bringing this sort of lawsuit.