When the Solution Is the Problem

Police in a democratic society exercise great discretion in what they get involved in.  That’s how it must be.  Even carefully made laws sanction much more behavior than they intend.

When we passed speed limits no one intended to slow down ambulances or stop dad from rushing mom to the labor delivery room.  Where we do not make formal exceptions, as with emergency vehicles, we expect the police to exercise balanced judgement, as with dad.  That’s with the thoughtful enactment of law, something that does not happen frequently in a democracy.  When we use the ballot question route to make public policy we usually get what we should expect: ordure on the order of the current medical marijuana law.

I like some of the outcomes from recent plebiscites.  The recent questions that conferred full civil rights on many of my loved ones and countrymen and women who are not heterosexual WASP males are occasions for celebration.  But the California gay marriage question is a case in point.  Champions of civil rights had to get voters to OVERTURN a ballot question law that denied civil rights.  The ballot route is the path of least resistance for bad public policy making as well as for the exercise of tyranny of the majority.  This brings us to MA.

I believe we should criminalize pot and regulate it thoughtfully.  If research says it helps with illness and pain, then make it a controlled therapeutic substance and sell it by prescription in pharmacies.  Don’t peddle it out of Uncle Bill’s Real Neighborly Pot Shoppe in the Back Bay.

The medical marijuana law made unbaked public policy in a number of areas.  We made medical, criminal justice, youth development and commercial law with a single coloring-in of an oval on our ballots.  With, I believe, a tincture of cynicism, the drafters lodged regulatory authority with the Department of Public Health.  This state agency is known most recently for mishandling the chemistry and the Constitutional law involved in thousands of criminal drug cases, followed by shipping meningitis to hundreds of unsuspecting people nationwide.  Based on personal observation, I believe that DPH people do not like regulating stuff and their indifference to this aspect of their mission has become painfully, even lethally, obvious to millions.

The process of granting licenses to medical pot shops reads like a bad novel about insider string-pulling in the Bay State.  Now, police are faced with enforcing rules and a law that could not possibly be more vague.  Police have had to insert their best judgements in place of that of the DPH and other competent medical and health bodies.  Where are the medical associations, for example, as “doctors letters” emerge from wallets and glove compartments?  Have they no pride in what a genuine MD’s (or NP’s) signature means?

Perhaps, just perhaps, if a legislature made this law, as full of fatuousness and hypocrisy as that process can be, the MDs, NPs and RNs might have weighed in.  Saying pithy things about the inadequacies of the legislative process is a comfortable pose for those looking to sound smart but lack will and an imagination.

So, let’s start paying attention.  Work with the police on this fuzzy mission we have given them.

_______________

Police cite vagueness in regulations, uncertainty over letters from doctors

By Kay Lazar and Shelley Murphy | GLOBE STAFF MAY 20, 2014

Nathan Marrin was stunned when West Springfield police seized his marijuana during a traffic stop last month and slapped him with a $100 citation. After all, he had shown them a doctor’s letter indicating that he needed the drug to treat his anxiety.

In Spencer, Andrzej Conner is still furious about his arrest last May for growing 37 marijuana plants in a locked basement utility room. The 27-year-old tractor salesman had a similar letter from his doctor certifying he was approved to cultivate and use cannabis to relieve “debilitating” anxiety.

Persistent confusion surrounding Massachusetts’ 18-month-old medical marijuana law has led to criminal charges or civil citations against people who thought they were playing by the rules. While no state agency is tracking the numbers, more than a dozen cases have been described to the Globe by people who have been charged or cited or by the lawyers who represented them.

The medical marijuana law authorizes doctors to give letters to patients certifying them to use, possess, and grow up to a 60-day supply of the drug, defined by state regulators as 10 ounces. But police are in some cases disregarding these doctors’ letters, because the state hasn’t issued a standard physician certification form and the letters can’t be easily authenticated.

“They said your certificate is no good,” Conner said. “They said those are bogus.”

Attorneys and law enforcement officials also complain that regulations issued last May by the state Department of Public Health do not make clear how much marijuana a patient is allowed to grow.

“Most people are saying it’s a messed-up situation,” said Jack Collins, general counsel for the Massachusetts Chiefs of Police Association. The association is advising police to “walk away” from marijuana arrests if the suspect has less than 10 ounces and a doctor’s letter, he said, unless authorities have what they believe to be a “clear case” of illegality.

“Right now, it’s a guessing game, and that’s an unfair place to put a police officer in,” Collins added.

Valerio Romano, a Boston lawyer who has represented about a dozen medical marijuana clients in the past year who were cited or arrested, said more training and information is needed for law enforcement, patients, and even the judges he has encountered who did not realize that the law allowed patients to grow their own marijuana.

The health department said it intends to launch an online database later this year for law enforcement to check at any hour whether patients are approved to use medical marijuana. In the meantime, “law enforcement can, at any time, ask to see a physician’s written certification and take action if an individual is not complying with the law,” the agency said in a statement.

Department officials said they are slated to meet with the police chiefs’ group this week.

The 2012 medical marijuana law is silent on how many plants constitute a 60-day supply, and a March memo from the state health department has done little to clear up the confusion.

The department “has not defined a maximum number of plants that may be grown,” health officials wrote to law enforcement groups, “but there should be no more than what is necessary to meet the patient’s individual needs.”

Spencer Police Chief David Darrin decided that Conner’s 37 plants were excessive and the date on his doctor’s letter, indicating it was issued just a week before the police raid, suggested that Conner was growing before he was approved. That was reasonable grounds for an arrest, Darrin said.

“That was our assumption and we are making assumptions because it is such a poorly crafted law,” Darrin said.

They arrested Conner, his younger brother, and their roommate on multiple drug charges. All charges were dropped last month against the roommate and Conner’s brother, but a single possession charge was continued against Conner for six months, when it will be dismissed if he has no other legal entanglements.

“I couldn’t drag them through court for another two years,” said Conner, who said he agreed to the plea only because the pending charges were hurting his brother’s military career.

A specific limit on the number of plants patients are allowed to grow would be difficult to enforce, the health department said in a statement to the Globe.

“Counting the number of plants is not an effective method of limiting amount, as some well-cultivated plants can produce significantly higher yields than others,” it said. “A 60-day supply is measured by ounces of actual marijuana and generally not to exceed 10 ounces.”

Authenticating physicians’ letters has also been a challenge for law enforcement. Police sometimes try to verify the letters by calling doctors, but often they are told patient confidentiality laws prohibit health care workers from confirming whether the letters are legitimate, Collins said.

State Police Colonel Timothy Alben said it is not practical for state health officials to expect police to call doctors to verify the authenticity of letters.

“Does anybody really think that a police officer is going to start calling one of these people at 10 at night or 2 a.m and say, “Did you really give Johnny Jones a prescription for marijuana?’ ” Alben said. “That’s ridiculous.”

Alben said sometimes police have to use their discretion when deciding whether to issue a citation or bring charges.

“I think police are going to err on the side of caution and probably issue a criminal complaint if there is some conflict or question in their mind of whether this is legitimate or not,” said Alben, adding that they will let the courts decide if someone stopped with marijuana is a legally recognized patient. “Police were not meant to be judges on the side of the road.”

Marrin, a 32-year-old Wilbraham resident, was issued a $100 citation by West Springfield police last month for possessing under an ounce of marijuana, though he had a doctor’s letter. “It’s not fair,” he said. “The law was passed so they have to abide by it. The gray areas have to be worked out.”

West Springfield Police Chief Ronald Campurciani said officers cited Marrin because he told them he obtained the marijuana from a friend and they didn’t know whether the doctor’s letter he provided was legitimate.

After reviewing the citation at the request of Marrin’s lawyer, Campurciani said Monday that police confirmed that Marrin was a patient and plan to return his marijuana and dismiss the citation.

Marrin said his father was driving him home from work the night of April 26 when police stopped the car and an officer said, “I smell marijuana. Give it to me.”

He said he gave the officer a half-ounce of marijuana and handed him a letter from his Springfield doctor indicating that he recommended marijuana for Marrin to treat several conditions.

Marrin said the officer took the letter, and said, “These really don’t mean anything in West Springfield.”

Campurciani said the officer was concerned that the doctor had described the letter as a “medical marijuana recommendation” and he couldn’t immediately verify its validity.

The language used by doctors varies, with some calling the letters certifications and others recommendations. Doctors can’t prescribe marijuana because it isn’t approved by the Food and Drug Administration; so doctors’ letters do not use the word “prescription.”

“Unless we have some sort of standard letter to go by I think this is going to be a continual problem,” Campurciani said. The health department said it intends later this year to issue standardized cards for patients who are approved to use medical marijuana.

Kay Lazar can be reached at Kay.Lazar@globe.com Follow her on Twitter @GlobeKayLazar. Shelley Murphy can be reached at Shelley.Murphy@globe.com Follow her on Twitter @ShelleyMurph.

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About stephenomeara

My name is Jim Jordan. I have had the privilege of working with the Boston Police Department and hundreds more departments over my nearly 30-year career in police administration and city government. I am now teaching and consulting independently at www.sergeantsleadership.org. I have learned the best of what I know from the thousands of smart, dedicated and ethical police personnel and scholars who have guided me along the way. My address is named for the great Reform commissioner of the Boston Police at the turn of the 20th century. Commissioner O'Meara died just a short while before the Strike in 1919. He was replaced by a vicious puppet (of Gov. Coolidge) named Edwin U. Curtis. Had O'Meara lived events may have turned out quite differently.
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