Does FANG Have The Authority To Raid Medical Marijuana Dispensaries?
A trio of medical marijuana distribution centers in Genesee County have recently been raided- some places, more than once- by the Flint Area Narcotics Group, or FANG, but did the multi-jurisdictional task force have the authority to perform the raids?
That’s the question raised by Komorn Law in defense of their client, the owners of Clio Caregiver Connection. Their day in court is April 25, at 3pm before the Hon. Judge Archie Hayman in 7th Circuit Court, Flint. As one of the three raided facilities, the C3 is being sued as a nuisance by FANG via the Genesee County Prosecutor’s Office, led by David Leyton.
The issue: an Attorney General Opinion from 2003 requires a county which participates in an interlocal agreement to have approved that participation by a vote of the Commissioners, and that vote never took place. Komorn Law’s argument in their counterclaim to the nuisance suit, filed on April 18, is that Prosecutor Leyton overstepped his authority when his office acted as FANG’s agent on behalf of the County, and that the warrants and charges issued under those false pretenses should be nullified.
The “Interlocal Agreement for the Flint Area Narcotics Group” signed by David Leyton on December 15, 2015 lists seven cities, nine townships, three villages and the Michigan State Police as participating entities. To be a participating entity a community must budget a monetary contribution to FANG or dedicate one full-time officer to work exclusively with FANG. Genesee County does not appear in the listing, and they have not voted on membership.
That failure to have a supporting vote and listing on the Agreement is at the heart of the Komorn counterclaim. In 2003, then-Attorney General Mike Cox was asked about the legitimacy of a regional transportation agreement involving several entities and elected officials. Cox authored AG Opinion 7137 and concluded that the Chair of the Macomb County Board of Commissioners did not “have the authority to enter into an interlocal agreement that binds a county to that agreement, without the approval of the board of commissioners of that county.”
The counterclaim cites sections of the FANG Agreement where the Genesee County Prosecutor is delegated to process all FANG forfeitures and other tasks, commitments which constitute the binding of the county to the agreement, per Komorn Law. Linden’s Jeff Frazier of Komorn Law says all FANG legal actions should be performed by the state Attorney General’s office, not the County Prosecutor, and it was a critical error for FANG agents to use Assistant Prosecuting Attorney Pat McCombs to issue their warrants and nuisance charges- and their forfeiture proceeds.
Komorn Law says, stop everything.
“All such forfeitures were illegal, ultra viers and void and counterclaimant asks that such participation be enjoined… For the same reason, any participation of the Genesee County Prosecutor’s Office with FANG in the investigation, search seizure or prosecution of crimes, including procurement of search warrants, is illegal and must be enjoined.”
The counterclaim also cites the concept of entrapment by estoppel as a defense to the nuisance charge. In the C3 estoppel defense, the defendant “reasonably relied on representations made by Clio authorities that the business was authorized and would not be shut down as a nuisance,” per the counter-claim. The document cites the business operator’s numerous interactions with Clio police that did not result in a stoppage or a shutdown order. Without a change in law or ordinance, the raid actions taken by FANG were spontaneous and contradictory to existing policy- and that embodies the heart of an estoppel defense.
All three of the dispensaries raided are faced with the same circumstance- all face nuisance charges, all were raided without warning, and all actions were executed by FANG with warrants written by the Genesee County Prosecutor’s office, and that means all three cases have a vested interest in the outcome of this counterclaim. Given the fact that narcotics raid teams like SANE and KANET do the majority of the marijuana business raids, perhaps other defendants in other cases from across the state should watch this one, too.
The counterclaim filed in Genesee County seems to already have had an impact: a scheduled presentation by FANG officers at the Thetford Township Council meeting on April 25 has been canceled. It was at that meeting that Eric Gunnels and the Township Council was hoping to get the answers they need to decide once and for all the issue of their roughly $7500 donation.
In the case of the FANG proposal made to Thetford Township earlier in 2016, the contribution equaled one dollar per person living in the municipality. Thetford, just east of Clio and the C3 facility, has been lobbied hard to become a contributing member of FANG. The head of the Township Council was voted down once on her effort to approve the funding, and instead tried to slide the contribution into the annual budget.
When Trustees like Eric Gunnels raised an issue with the allocation, Council President called in backup from the Genesee County Prosecutor. She arranged for Pat McCombs and a colleague to attend a Committee meeting, where he took questions from the audience. His answers left many in attendance feeling like there was more to the story, including Jeff Frazier.
The presentation scheduled for April 25 was a follow-up to the McCombs meeting, and uniformed FANG officers were expected to deliver information to the Township residents. As of yet the Township has not rescheduled the presentation.
Source: The Compassion Chronicles