Monthly Archives: June 2011

Medical marijuana ordinance may bring city legal challenges

Until Monday, Brant Johnson had supported a version of Lansing’s medical marijuana regulations that would have allowed existing dispensaries to keep their storefronts.

His support has since wavered. By adopting a policy that instead would force some businesses to move in a year, Johnson, an advocate for dispensary owners, said City Council members have invited a host of unwanted legal issues from owners operating under multiyear leases.

“There will be arguments on both sides but there are for sure going to be some lawsuits,” said Johnson, secretary of the Greater Lansing Medical Marijuana Association. “Let’s be real: A grandfather with a year move is not a grandfather.”

The potential for litigation has been an underlying facet of council’s efforts to write an ordinance that addresses Michigan’s voter-approved 2008 medical marijuana law.

City Attorney Brig Smith advised a council committee multiple times in recent months. He continues to assert the ordinance’s validity in the wake of council’s adoption.

But, Smith said, that doesn’t mean people won’t challenge it.

“If there were any dealbreakers in there, I wouldn’t have approved it,” Smith said. “The city is on solid ground and I’m prepared to defend it.”

A moratorium on business licenses ends Friday. None will be granted until City Council members approve fees and decide how many dispensaries can operate within city limits.

When they do, those businesses will have to stay 1,000 feet from schools, churches and other dispensaries. They also will have to stay within industrial and commercial zones.

2 main questions

Many dispensary owners still have two main questions: How will it be determined which business owners have to move and what happens if the 48 dispensaries in operation before the moratorium took effect exceed the city’s forthcoming cap?

The problem stems, in part, from dispensaries operating in a sort of political limbo since 2008, said at-large Councilman Brian Jeffries. He joined council President A’Lynne Robinson and at-large Councilwoman Carol Wood in opposing the ordinance.

“There is absolutely no guarantee” of future property rights, he said. “Whether people ignored that or chose to run the risk that ‘I’m still going to sign a long-term lease,’ then that’s a decision that they have to make.”

Another issue concerning dispensary owners is whether they will be compensated for having to move.

Neil Rockind, a Southfield attorney representing medical marijuana patients in Bloomfield Township and Royal Oak lawsuits, argues that forced relocation without compensation violates eminent domain and a property clause in the Fifth Amendment.

“They can’t take your property without compensation, and they can’t pass ordinances or laws that, in effect, take your property,” said Rockind, who is fighting registration requirements and grow restrictions in Oakland County.

Often, he said, places that operated before ordinances were passed are grandfathered in as nonconforming uses, allowed to exist until the business ceases to operate.

Rockind believes dispensary owners could have grounds to sue, but would have to consider the possibility that doing so might invalidate the very policy that allows them to exist.

The American Civil Liberties Union’s Lansing branch has not taken an official position. But attorney and board member Mary Chartier said the organization recognizes dispensaries’ concerns.

“It really takes a legitimate business and tries to hide it in a corner,” Chartier said. “These are businesses that are actually bringing revenue to the city.”

A constitutional challenge will depend on whether the city issued operating permits and whether policy changes appear in a city’s zoning ordinance, said Gerald Fisher, a Cooley Law School professor in Auburn Hills.

Fisher studied the law’s effect on local governments for the Michigan Municipal League and the Michigan Townships Association.

Secondary problems

Separately, Fisher said, distance buffers such as Lansing’s 1,000 feet can be justified if evidence proves clustering leads to secondary problems such as burglaries, illegal drug use and fights.

That was a main argument from eastside neighborhood associations and business owners leading up to council’s vote.

One of Danny Trevino’s HydroWorld dispensaries is located next to a church and he has thought about reopening an Old Town site shut down this year for electrical code violations. But first he wants to know how the policy will affect him.

“I knew that there had to be some type of regulations on it,” Trevino said. “There’s still a lot of questions.”

Additional Facts
What’s next
Lansing City Council’s public safety committee will meet at 4 p.m. today on the 10th floor of City Hall, 124 W. Michigan Ave., to discuss license fees and a cap on the number of medical marijuana dispensaries to allow within city limits.

Council’s next meeting will be at 1:30 p.m. July 7 at City Hall.

A proposed Bill in the Michigan Senate Judiciary Committee seems to acknowledge the legality of Dispensaries

There is no doubt that people in the State of Michigan are confused by the recent rulings in state courts regarding medical marijuana.

And things are about to get imminently more confusing after two recent developments. Yesterday Attorney General Bill Schuette released an advisory opinion holding that it is illegal for patients and caregivers to all grow or house medical marijuana in one facility. In essence, this opinion, if utilized by the Michigan Court’s would effectively make dispensaries illegal in Michigan.

ON THE OTHER HAND, yesterday a Bill was introduced in the Senate Judiciary Committee that would make it illegal to operate a dispensary within 1,000 feet of a school or place of worship. This Bill immediately begs the question: If, according to Schuette, dispensaries are per se illegal, then why would we need a Bill to tell us that they are illegal within 1,000 feet of schools and places of worship? Doesn’t the mere existence of this Bill necessarily imply that dispensaries are legal?

Check out the competing stories here:

Michigan bill overrides Lansing’s marijuana plans

and

Michigan Attorney General Targets Medical Marijuana Law

Colin A. Daniels

Great Editorial Today in the Freep

Editorial: Medical marijuana law needs clarifying, not excessive policing

State Attorney General Bill Schuette’s decision to endorse the most restrictive conceivable interpretation of Michigan’s new medical marijuana law may tempt police and prosecutors to pursue licensed caregivers for niggling procedural violations. That would be a mistake, and a waste of law enforcement resources at a time when the parameters of the new law are still being debated in both the courts and the Legislature.

Michigan voters authorized the use of marijuana for certain medical conditions and symptoms in a November 2008 referendum. Schuette was one of the most vocal opponents of the new law, which makes him a dubious choice to direct enforcement efforts consistent with the voters’ druthers.

But until either state Supreme Court justices or state lawmakers provide some urgently needed guidance, Schuette’s status as the state’s top law enforcement official gives him an outsized role, and he has exploited it aggressively in the prevailing vacuum. In an advisory opinion issued Tuesday, for instance, the AG said county prosecutors could bring criminal charges against licensed caregivers who use a single secured facility to cultivate medical marijuana for more than one patient.

The medical marijuana law authorizes such caregivers to grow up to 12 plants for each of their qualifying patients. Since each caregiver can be licensed to assist as many as five such patients, one caregiver can theoretically cultivate as many as 60 plants at a time.

Under the terms of Schuette’s advisory opinion, however, caregivers have to maintain a separate, secure growing facility for each patient, or face the possibility of criminal charges.

Schuette’s advisory opinion, which seems conspicuously hostile to the intent voters expressed overwhelmingly in 2008, is virtually certain to trigger a legal challenge by champions of medical marijuana. State Supreme Court justices have already agreed to hear a case in which a licensed patient from Shiawassee County was arrested because the locked enclosure in which he was growing his marijuana had no roof.

Common sense dictates that prosecutors should hesitate to bring new cases until justices have established the legitimacy of those already in the pipeline.

In the meantime, state lawmakers should make it clearer exactly how those authorized to use medical marijuana can lawfully obtain it, where it can be lawfully consumed, and what restrictions health providers, employers and landlords can impose on users.

That the new law requires fine-tuning is increasingly obvious. But that is too important a task to be left in the hands of those who opposed it in the first place.

via Freep

A Little Information on the Casey Anthony Murder Trial

On October 14, 2008, Casey Anthony was indicted by a grand jury on charges of first-degree murder, aggravated child abuse, aggravated manslaughter of a child and four counts of providing false information to police.

She is charged in Florida with the following:

520. Murder With Malice Aforethought

The defendant is charged [in Count ______] with murder.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant committed an act that caused the death of (another person/ [or] a fetus);

[AND]

2. When the defendant acted, (he/she) had a state of mind called malice aforethought(;/.)

<Give element 3 when instructing on justifiable or excusable homicide>

[AND

3. (he/she) killed without lawful (excuse/[or] justification).]

There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.

The defendant acted with express malice if (he/she) unlawfully intended to kill.

The defendant acted with implied malice if:

1. (he/she) intentionally committed an act;

2. The natural consequences of the act were dangerous to human life;

3. At the time (he/she) acted, (he/she) knew (his/her) act was dangerous to human life;

AND

4. (he/she) deliberately acted with conscious disregard for (human/ [or] fetal) life.

Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.

[A fetus is an unborn human being that has progressed beyond the embryonic stage after major structures have been outlined, which occurs at seven to eight weeks of development.]

[An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.]

[There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.]

[(A/An) <insert description of person owing duty> has a legal duty to (help/care for/rescue/warn/maintain the property of/ <insert other required action[s]>) <insert description of decedent/person to whom duty is owed>.

If you conclude that the defendant owed a duty to <insert name of decedent>, and the defendant failed to perform that duty, (his/her) failure to act is the same as doing a negligent or injurious act.]

820. Assault Causing Death of Child

820. Assault Causing Death of Child

The defendant is charged [in Count ______] with killing a child under the age of 8 by assaulting the child with force likely to produce great bodily injury.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant had care or custody of a child who was under the age of 8;

2. The defendant did an act that by its nature would directly and probably result in the application of force to the child;

3. The defendant did that act willfully;

4. The force used was likely to produce great bodily injury;

5. When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/ her) act by its nature would directly and probably result in great bodily injury to the child;

6. When the defendant acted, (he/she) had the present ability to apply force likely to produce great bodily injury to the child;

[AND]

7. The defendant’s act caused the child’s death(;/.)

<Give element 8 when instructing on parental right to discipline>

[AND

8. When the defendant acted, (he/she) was not reasonably disciplining a child.]

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

An act causes death if:

1. The death was the natural and probable consequence of the act;

2. The act was a direct and substantial factor in causing the death;

AND

3. The death would not have happened without the act.

A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.

A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that caused the death.

[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]

570. Voluntary Manslaughter: Heat of Passion – Lesser Included Offense

A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.

The defendant killed someone because of a sudden quarrel or in the heat of passion if:

1. The defendant was provoked;

2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured (his/her) reasoning or judgment;

AND

3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.

Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.

In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.

It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.

[If enough time passed between the provocation and the killing for a person of average disposition to “cool off” and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.]

The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.

“Every person who displays or causes or permits to be displayed or has in his possession any driver’s license or identification card of the type enumerated in Section 470a with the intent that such driver’s license or identification card be used to facilitate the commission of any forgery, is punishable by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year.”2

Colin Daniels gets a DISMISSAL of a Felonious Fleeing and Eluding in Wayne County!

Imagine you are driving home from a friend’s house. You were hanging out with friends, having a good time. Nothing too crazy. It is about three o’clock in the morning and on the way home you stop off at White Castle to pick up some sliders. After getting your take-out order, you turn onto a road and stop at a red light. While stopped at this red light a vehicle, with similar qualities to your own, speeds past you – going well over 100 mph and blowing right through the red light that you are stopped at.

You look in your rear-view mirror and you spot a police officer with his overhead lights on. But the officer has stopped – he isn’t chasing the speeding vehicle. Instead, the officer is a block away, parked on the side of the road – not approaching, just sitting there with his lights on. You don’t think much of it and when the light turns green you step on the gas and proceed home.

At the next red light you stop again. And as you look in your rear-view mirror, you see that the officer still has his overhead lights on and is shadowing you. The officer isn’t getting any closer – but isn’t getting any further away either. At this point you are no doubt confused. “That guy just sped past me and went though a red light, but the police aren’t chasing him? Are they following me? What did I do wrong?”

You drive cautiously for the next few blocks. Not speeding, stopping at every light, never accelerating quickly. Yet, the officer continues to shadow you for miles – although never actually approaching. Finally, three police cars speed up behind you with lights and sirens blazing. You know that you didn’t do anything wrong. They must be chasing the other guy. So you pull over to the side of the road. But the police maintain a safe distance, even after you have stopped. Now you are extremely confused. You don’t know what to do. But its three o’clock in the morning and you are tired and just want to go home. So instead of sitting on the side of the road trying to figure out what is happening, you apply the gas and start moving again – going maybe 15 mph. And that’s when it happens: 2 police cars smash you on the left and right sides of your vehicle. You immediately hit the brakes and come to a stop. And before you can get out of your car and ask “what the hell is going on?” you are dragged from your vehicle and a half-a-dozen police officers have their handguns aimed at your head.

These are the facts of a case that I will be wrapping up early next week. A Dearborn Heights police officer was chasing a vehicle for miles and lost sight of the vehicle. Instead of just admitting that he had lost sight of the vehicle, he happened upon my client, who was driving a car similar to the one that he was chasing. And in that instant, that officer decided that my client was the one he had been chasing.

The prosecutor at the examination refused to view the facts objectively, instead choosing to take the officer’s word that he had not lost sight of the vehicle.

Luckily, once down in Circuit Court, I was able to spend some quality time discussing the case with the trial prosecutor. Upon a review of the facts, the video and my client’s polygraph results, she looked at me and said “this makes no sense. Your client  has no priors, has a good job, was driving a different vehicle than the one originally witnessed leaving the scene of a crime and led police on an 8 mile chase before stopping at White Castle and then stopping at a random red light?” I responded that such was the contention of the police officer. Later that same day, the prosecutor emailed me offering a dismissal of the felony. Our client couldn’t have been happier. Chalk up another dismissal for Neil Rockind, P.C.

Neil Rockind, P.C. is a criminal defense and medical marijuana defense trial firm.  Our lawyers, Neil Rockind and Colin Daniels, are acknowledged as two (2) of the most aggressive and determined criminal defense trial lawyers in Michigan.  Visit us at www.rockindlaw.com,  www.michiganmedicalmarijuanalawyers.com and www.neilrockindpcblog.com.

Oakland County police taser mentally ill man; charge him with multiple felonies

More than a year ago our firm was approached by a family to represent their father in a criminal case in Oak Park, MI. The circumstances surrounding their father’s arrest was a true tragedy and we agreed to take on the case.

It was apparent from our first meeting with this individual that he was severely mentally ill. His family believed that his mental illness was the source and cause of his arrest and subsequent prosecution. After receiving the discovery from the prosecutor’s office, we also believed this to be the case.

Our client’s case was not complicated. A police officer was parked in a parking lot in Oak Park, about to start his daily routine. Without provocation, our client approached this officer and began shouting and screaming at the officer to leave his family alone. This officer had done nothing to his family. Our client began swearing and issuing threats at the officer. Again, the officer had done nothing to our client. It would have been obvious to anyone watching this scene that our client was mentally ill.

Eventually our client walked away from the officer and attempted to go back into his home. But the officer had already made up his mind: he was going to arrest this individual no matter what. Over the next 10-15 minutes our client, a 60 year old mentally ill man, was tasered no less than half-a-dozen times, tackled by 3-4 police officers and ultimately arrested.

The Oakland County Prosecutor’s Office charged him with sault with a Dangerous Weapon (at one point he had picked up a stick and “waived it threateningly”), Interfering with a Police Officer, and Resisting Arrest.

At the preliminary examination it was apparent to District Court Judge Gubow that our client was mentally ill and that the situation should have been handled pursuant to the Mental Health Code. Therefore, he dismissed all of the charges against our client. The Oakland County Prosecutor’s Office appealed. Our office contacted the Oakland County Circuit Court and requested a court appointed appellate attorney to handle the appeal. Unfortunately, the Court did NOT appoint him an appellate attorney and Judge Gubow’s dismissal of the charges was reversed.

A year has passed and now we are handling the case in Circuit Court. The first thing we did was refer our client to the forensic center for a psychological evaluation to determine whether or not he is competent to stand trial and to determine whether or not he was mentally ill at the time of the offense.

Just for reference, the vast majority of the people referred to the forensic center are declared sane and competent to stand trial. Yet, earlier this week our office was informed that they were finding our client incompetent to stand trial, due to his mental illness.

Despite the fact that we told the Prosecutor’s Office that he was mentally ill, and despite the fact that a district court judge heard the facts and determined that he was mentally ill – the Oakland County Prosecutor’s Office wasted time, energy, and money to appeal and proceed on a case against a 60 year old mentally ill man who had been unnecessarily tasered half-a-dozen times by police. And in the end, due to the mental illness that everyone else acknowledged, they won’t even be able to take him to trial.

In this case, the only thing more sad than our client’s mental illness, is a prosecutor’s office that is unwilling to admit when they have made a mistake.