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Lorincz v. Etue

United States District Court, E.D. Michigan, Southern Division

February 23, 2017

MAXWELL LORINCZ, et al., Plaintiffs,
v.
COLONEL KRISTE KIBBEY ETUE, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [#9] AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [#10]

          DENISE PAGE HOOD CHIEF JUDGE.

         I. BACKGROUND/FACTS

         On June 21, 2016, Plaintiffs Maxwell Lorincz (“Lorincz”), Jason Poe (“Poe”), Earl Cantrell Carruthers (“Carruthers”), and Brandon Shobe (“Shobe”), individually and on behalf of a class of all others similarly situated, filed a Complaint against Defendants Colonel Kriste Kibbey Etue in her official capacity as the Director of the Michigan State Police, and Inspector Scott Marier in his official capacity as the Interim Director of the Michigan State Police Forensic Science Division (collectively “State Defendants”); and against Captain Joe Quisenberry in his official capacity as Commanding Officer of the Forensic Services Laboratory for Oakland County, and Michael Bouchard in his official capacity as Sheriff of Oakland County (collectively “County Defendants”). (Doc # 1) The class action Complaint alleges Due Process and Fourth Amendment violations pursuant to 42 U.S.C. §§ 1983 and 1988, and seeks only declaratory and injunctive relief. Id. Plaintiffs do not seek damages. Specifically, Plaintiffs seek: (a) class certification; (b) a declaratory judgment that Defendants' policy of reporting oils and edibles containing THC as “Scheduled 1 THC” when two or more naturally occurring cannabinoids other than THC are also found in the sample violates Plaintiffs' and class members' constitutional rights; (c) a declaratory judgment that Defendants' failure to note in laboratory reports analyzing oils and edibles that naturally occurring cannabinoids other than THC were found violates Plaintiffs' and class members' constitutional rights; (d) an injunction enjoining Defendants from issuing laboratory reports in the future contrary to the declaratory relief sought; (e) an order requiring Defendants to amend existing laboratory reports in pending criminal cases to conform with the declaratory relief sought; (f) the appointment of a crime lab monitor to assure compliance with the injunctive relief sought; and (g) attorney's fees and costs. Id. at 23-24.

         On August 5, 2016, County Defendants filed a Motion to Dismiss. (Doc # 9) Also on August 5, 2016, State Defendants filed a Motion to Dismiss. (Doc # 10) Plaintiffs filed a Response on September 2, 2016. (Doc # 15) State Defendants and County Defendants each filed a Reply on September 30, 2016. (Doc # 17; Doc # 18) On October 13, 2016, State Defendants filed an Errata. (Doc # 19) Plaintiffs filed a Supplemental Response on October 27, 2016. (Doc # 21) The Court held a Motion Hearing on November 2, 2016. On November 15, 2016, the parties filed a Joint Clarification on House Bill No. 5649. (Doc # 22) For the reasons set forth below, the Court grants County Defendants' Motion to Dismiss as well as State Defendants' Motion to Dismiss.

         Plaintiffs and the proposed class are all licensed medical marijuana patients and/or caregivers in Michigan who use marijuana oils and edibles, and allegedly possess such items at almost all times. There are approximately 180, 000 registered medical marijuana patients, and approximately 33, 000 registered medical marijuana caregivers in Michigan. (Doc # 1, Pg ID 21) State Defendants and County Defendants comprise all public forensic law enforcement laboratories in Michigan handling the analysis of marijuana-based oils and edibles. Plaintiffs allege a serious risk of violation of their substantive and procedural due process rights, as well as their Fourth Amendment rights arising out of State and County Defendants' policies and practices of identifying marijuana-based oils and edibles as Schedule 1 THC, instead of as marijuana, whenever the samples do not contain visible plant matter. Plaintiffs claim that State and County Defendants intentionally misrepresent test results regarding marijuana-based oils and edibles, at the behest of the Prosecuting Attorneys Association of Michigan and other law enforcement agencies, to manufacture probable cause to charge felonies when no felonies occur.

         The marijuana plant contains various naturally occurring cannabinoids, which are also present in marijuana-based oils and edibles. Delta-9-Tetrahydrocannabinol, known as “THC, ” is one such cannabinoid, and is the chemical primarily responsible for the psychoactive effects of marijuana. Under the Michigan Controlled Substances Act (“MCSA”), THC (whether synthetic or plant-based) is a Schedule 1 controlled substance. See MCL § 333.7212. Schedule 1 includes synthetic THC and “Marihuana, including pharmaceutical-grade cannabis, ” except that “Marihuana, including pharmaceutical-grade cannabis, is a schedule 2 controlled substance if it is manufactured, obtained, stored, dispensed, possessed, grown, or disposed of in compliance with this act and as authorized by federal authority.” Id. At the time of the filing of the Complaint, under Michigan law, possession of synthetic THC could be punishable as a felony, while possession of plant-based THC could be charged as a misdemeanor. However, following a recent change in Michigan law, the felony distinction between plant-based THC and synthetic THC has been eliminated. See House Bill No. 5649 (amending MCL § 333.7403(2)(d)) (Doc # 19-2, Pg ID 358-60); House Bill No. 5650 (amending MCL § 333.7404(2)(d)) (Doc # 19-2, Pg ID 361-62). Under House Bills No. 5649 and 5650, signed into law on October 6, 2016, possession of either plant-based THC or synthetic THC could be charged as a misdemeanor.

         Plaintiffs maintain that the recent change in Michigan law does not render their request for declaratory and injunctive relief moot. Plaintiffs argue that, regardless of the new amendments, an injustice continues to be caused by Defendants' reporting policies and practices because medical marijuana patients and caregivers can be deprived of their immunity under the Michigan Medical Marihuana Act (“MMMA”) when marijuana-based oils or edibles are identified as Schedule 1 THC, rather than as marijuana, since the MMMA protects possession of marijuana but does not protect possession of synthetic THC. Whereas if Defendants more specifically identified a sample as “marijuana, ” no probable cause for a crime would exist, and immunity under the MMMA would be protected.

         “[T]he MMMA's protections are limited to individuals suffering from serious or debilitating medical conditions or symptoms, to the extent that the individuals' marijuana use is carried out in accordance with the provisions of the MMMA.” People v. Carruthers, 301 Mich.App. 590, 597 (2013) (internal quotations omitted). The MMMA defines “marihuana” by reference to the public health code, which in turn defines “marihuana” as:

all parts of the plant Cannabis sativa L., growing or not; the seeds of that plant; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. Marihuana does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted from those stalks, fiber, oil, or cake, or any sterilized seed of the plant that is incapable of germination. Marihuana does not include industrial hemp grown or cultivated, or both, for research purposes under the industrial hemp research act.

MCL § 333.7106. House Bill No. 4210, approved by the Governor on September 21, 2016, amends the MMMA definition of “usable marihuana” to mean “the dried leaves, flowers, plant resin, or extract of the marihuana plant, but does not include the seeds, stalks, and roots of the plant.” See House Bill No. 4210 (amending MCL §§ 333.26423, 333.26424) (Doc # 21-1, Pg ID 372). The amended MMMA makes clear that medical marijuana patients and caregivers who use marijuana-based oils and edibles in accordance with the MMMA have immunity from arrest and prosecution, not just an affirmative defense to a charge of possession. The MMMA also provides that:

(e) There is a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana in accordance with this act if the qualifying patient or primary caregiver complies with both of the following:
(1) Is in possession of a registry identification card.
(2) Is in possession of an amount of marihuana that does not exceed the amount allowed under this act. The presumption may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with debilitating medical conditions, in accordance with this act.

Id. at 373.

         Where there is no visible plant matter, County Defendants currently report that a sample of an oil or edible that contains THC contains “delta-9-tetrahydrocannabinol (Δ-9-THC), Schedule 1.” (Doc # 9-2) Where there is no visible plant matter, State Defendants currently report that a sample of an oil or edible that contains THC contains “delta-1-tetrahydrocannabinol (origin unknown)” or “delta-1-tetrahydrocannabinol . . . from a plant (marihuana) or a synthetic source.” (Doc # 1-1, Pg ID 27; Doc # 10-5, Pg ID 196-98) Plaintiffs do not dispute that the samples tested in connection with their cases contained THC. Plaintiffs concede that “THC has the same chemical composition whether synthetic or naturally occurring in a marijuana plant.” (Doc # 1, Pg ID 3) Plaintiffs acknowledge that naturally occurring ...


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