Bullies in Ludington Blue

[XLFD]

Preliminary Investigation:  Salt and Spice and Everything Not Nice

 

The April 7, 2012 issue of the Ludington Daily News had an interesting article on the sale of items at two local establishments, one that just so happens to be in Downtown Ludington.  The business, which was never mentioned, received a letter from Barnett on April 4 about 'spice' and 'bath salts'.  This is not cinnamon and the latest from Calgon.  Spice is an incense that produces a narcotic effect, and the bath salts that have similar effects, when not used as directed.  Both are legal, and both are labelled "not for human consumption".

 

The article says: 

1)  "Unfortunately, the product’s use has also increased traffic at another local business: Memorial Medical Center. Medical officials have observed several people having bad experiences with the drug."

2)  "The letter spells out the civil penalties the store owners could face if customers under the influence of something purchased at their stores have either medical or legal issues."

3)  "The Ludington business has instructed people how to smoke the substance, even though it’s labeled not for human consumption, according to Barnett."

4)  "Barnett said the substance is currently legal but he would like to see it disappear from the community.  “Maybe someone would have to go someplace else to get their spice,” Barnett said. “That would be OK by me.”"

5)  "The mother of a Ludington man who used one of the products contacted the Ludington Daily News early this year to report that he had been hospitalized and was undergoing mental health treatment after just one use of a bath salt that was purchased in the area."

And many other quotes from officials without the use of too many specifics.  It looked to me as if Chief Barnett had an objective, and like most of his objectives, he wasn't too discriminating in the attainment of them, using the LDN as a tool, much like most local government officials do.  That was my hypothesis.

 

Information Development:  FOIA Coordinating Time

 

The letter and other statements by public officials were available through the power of the FOIA, and so I sent two out to Ludington and the Mason County Prosecutor.  Referencing the article, I asked John Shay, Ludington FOIA Coordinator for:

"1) the letter LPD Chief Mark Barnett sent to a Ludington-area store on Wednesday 4-4-2012 about the potential civil penalties, etc. of dealing these substances
2) any police reports, statements, memos, etc. allegedly showing that the Ludington-based business has instructed people on how to smoke the substance even though its labeled "not for human consumption".

By all means, edit out any material that may be exempt due to privacy or other law enforcement exemptions, but please note the reasons why if it is not entirely obvious."

 

I received the letter and a police report, and the only exempt material was private information on the police report.  My FOIA request to the prosecutor (shown fully here) asked for:

I received two E-mails between the prosecutor and Chief Barnett.

 

The Evidentiary Material

  A.  The E-mails Between the Officials

 

I thought this E-mail was promising, and it looked as if Chief Barnett may be engaged in a service that is to be commended, educating the public about the dangers of these designer drugs.  His intent seemed honorable.  Prosecutor Paul Spaniola's reply looked well-meaning as well:

Missing in the Prosecutor's remarks were the FOIA-requested precedents and references that he used to draft his response.  Absent was also any hint of any such type of problem in Mason County that he was aware of. 

 

B.  The Letter and the Police Report

 

The letter was drafted to Mr. Garth Lemere of the AGS Store and hand delivered to him by the Chief and his faithful Captain Michael Harrie (as stated in the police report.  The letter reads thusly:

 

 

 

The following incident report 12-001362 was written up detailing the actions took by law enforcement that day between 11:05 AM and 11:15 AM.

This was the full extent of the FOIA response, and the reader will once again notice the lack of any other police report detailing any incident beyond the LPD's contact with these store owners who just moved downtown within the last year.

 

Analysis

 

The prosecutor's material illustrated that Chief Barnett's concerns were commendable and done with the best intentions.  But I was somewhat confused by the police report and the letter.  The "staff member" seems to refer to a member of the District 10 Health Dept  which covers ten counties in West Michigan.  Not to any "staff member" at the AGS Store, who are referred to as salespeople in the report. 

With that information they go to a store that sells materials that could be used in an unhealthful way.  There is no indication that it has been used in such a way, from previous incidents, nor do the substances fall in the illegal category.  They hand the letter to the owner who reads it. 

The letter states that the AGS store staff has gave advice on how to smoke it, but there is no evidence of that, as there were no further records in the possession of LPD that indicated such (as they were not included in the FOIA response or exempted by the FOIA Coordinator).  As such, it is hearsay information and should have been documented thusly.  I sensed the letter also strayed from the purely informative and educational aspect Barnett originally envisioned into being a bit accusatory and intimidatory to the business.  I admire Mr. Lemere's noncommittal reaction to this strange event.

What really struck me as prejudicial in the report, however was the last line:  "Investigation may be re-opened if further illegal activiity occurs".  This effectively states that some illegal activity has already occurred, but even if a salesperson had given advice, the illegality of doing so is suspect, as that would be protected speech. 

 

Crime Victim Notification

 

The AGS Store is the victim here.  They have been accused of doing illegal activity and of having their staff giving advice on how to smoke incense, when such activity has not been documented or legitimately investigated and sanctioned.  The LDN article was spoon-fed to that paper by the Chief and contained inaccuracies, prejudicial material, and half-truths. 

Does Chief Barnett and Capt. Harrie visit other stores that sell turpentine, paint thinner, ammonia, etc. and other potentially-abused substances and allege those merchants have violated the law by doing so?  Is this a proper way to treat a new merchant who comes to the town and offers unique products?  Was the visit by Chief Barnett perhaps encouraged by a competitor who may view the AGS Store as a threat to their business?  Or by a group of businesses who don't like this new upstart and their downtown fit?

Or was the Chief's motivation due solely or primarily by a desire to remove a perceived threat to the quietude of his city?  Time and future events will tell, but I see threatening and intimidating behavior behind the actions.

 

[AQUAMAN]

I think the letter Barnett composed and signed was alright, legal, and perhaps a sound idea for information and possible liability to the store owner. However, the intimidating visit in person, with employees present, perhaps customers too, was overstepping the bounds of legal necessity, and perhaps legal authority. The store owner has definitely NOT broken the law in selling the "spice", otherwise he would be so notified by the prosecutor's very own letter, and an arrest following that. The "heresay" evidence of an employee giving instructions to smoke it are unfounded, unless, and until, some witness makes a correlating statement to the LPD in a written affidavit that is notarized. That would follow with the possible arrest of that particular employee. The same could be said for the alleged victims that were hospitalized, until, and unless they make a formal written complaint, there is no illegal act. While we all want our community safe and youngsters/adults not at risk for a medical mishap, we also don't want our liberties and freedoms squashed this way. Sadly, in this case, I believe the LPD overstepped their legal authority, as has been seen in many other incidences of likeness over a period of about a decade. Perhaps Mr. Lemere needs to have his attorney address this issue to the LPD asap, so that this doesn't occur again in the future. I would also suggest Mr. Lemere put a sign up at this "spice" counter, that discourages the smoking or internal ingestion of that material, just for information and safety to his customers. Personally, I think the LPD overreacted, as they continue to do all too often, esp. when they don't have that authority, nor the evidence to back up such "visits". If they do indeed have this evidence, then they should have made the visit, and/or arrest as warranted, but that simply did not happen in this case. This and other incidences of like, are the sort that I hear visitors from out of town say that Ludington is a "police state" town. And who can blame them, as this scenario of events repeat themselves now, and into the future. It puts people off to return to our fair city.

[XLFD]

I agree with all of your analysis, Aquaman.  I hope Mr. Lemere follows through with your suggestions, and I hope the LPD leadership can make sure that their own conduct is more tempered in the future.

[Lisa O'Brien]

I don't know - maybe the visit was meant to be intimidating or maybe the Chief's motives were meant to be Mayberryish - and was imitating Sheriff Andy Taylor and trying to be more personable with the business owners. I commend his attempt at trying to rid the town of a dangerous yet legal product. But the sad fact is even if the local area business'es do take this product off the shelves. Something is going to come along and take it's place. It never ceases to amaze me what people are willing to smoke, snort or inject if someone tells them it will get them high.

[XLFD]

Sheriff Andy Taylor would have handled it a bit differently; it reminded me more of some heavy-handed proselytizing of Dragnet's Jack Webb, but a bit less humorous:

[Smile]

And who are they to harass just one business! Shame on them, alcohol has been around so much longer and I don't find them harassing everyone of them with illegal threats, the Mitten Bar just opened last year downtown too are they going to fulfull their threats to Meg Payment and her staff or Sportsmans for doing that? Where does it stop? Do they sit outside the Mitten Bar and wait to do breathalizers when their patron's come out? Man, this stuff is like out of the 30's prohabition age! 

[XLFD]

I totally overlooked the Kuster konnection,but you are probably right in your piecing together of the known facts, John.  You also get the bonus for pointing out the GGW similarities (back in June 2010), which I was hoping someone would bring up before I did.

Being proactive instead of reactive is generally a good thing in law enforcement-- crime prevention is good.  But in this case and the GGW case, the proactive enforcement the Chief is instituting cuts into the freedom to engage in legal commerce and freedom of legitimate expression granted to us by US law.  Being proactive in theses cases can subject the City to further liabilities than they may care to have. 

Next thing you know, Chief Barnett will draft revisions of "Letters of Trespass" for public facilities to those that request 'too much' information. 

Policemen are not only sworn to uphold the laws of the land, but they are also sworn to uphold the Bill of Rights and the Constitutions.

[Smile]

Well said John. Thank you for the reminder.

[Willy]

First of all AGS knows exactly what they are selling and what the dangers are so it's their choice to stock this particular product knowing it is being abused, especially by kids. If the police did nothing and kids started dying, what would be said then. A responsible store would not sell this type of junk knowing what it was being used for. If AGS continues to carry and sell this product and someone sues them, then they only have themselves to blame. On the other hand if an adult wants to smoke this junk and wash it down with anti freeze then be my guest, only don't use any of my tax dollars for your medical care. Kids are going to do foolish things but there is no excuse for adults stuffing themselves with these  bath salts. We've had the same problem with many household products and we can only hope that people get smarter instead of dumber but that's not going to happen. As long as it is legal, AGS has a right to sell it and the police must keep their distance so I hope both parties practice common sense.

[XLFD]

That's why I like Aquaman's answer.  It gives a common sense solution to the AGS store and some good advice on how to conduct this from a law enforcement angle.  Making a police report regarding "Violation of Controlled Substances" and insinuating there have been violations by this business is not professional.  Having it a front page story in the local paper, even without naming the business, is on the verge of being defamatory.

[easymoney]

Aren't you guys having an election for a new gulag chief?

[AQUAMAN]

Yes we are easy, that's why we have elections for office of the Sheriff, as opposed to a hand picked Mayoral appointee for the LPD Chief. These two men both are hired to enforce the laws, but they have very dissimilar ways of performing that job imho. And Barnett is no Andy of Mayberry, not even close, nor a Marshall Dillon. When performing the job of law enforcement, it's important Not to let your personal emotions rule the performance aspects. And as usual, the LDN participates in it's shallow and collusive way to endorse the act, same as their programmed editors respond to Shay's stories about citizens banned from city hall.

[XLFD]

Fiers is like Sheriff Andy Taylor, Barnett is like Deputy Barney Fife, and not just because of the elected/appointed angle.