One Man's Dope War
Gersh Avery shot a teenager who wanted to steal his marijuana.
From the April, 2008 issue
Gershom Avery spent last summer and fall tirelessly gathering signatures to get an initiative to legalize medical marijuana on the Michigan ballot. And during those same months, Avery, fifty-three, says he was waging a secret war with thieves targeting the dope growing in the crawl space under his country home in Lima Township.
Just after midnight last November 11, the battle over his coveted green plants took a bloody turn. Avery fired eight shots at three young men, apparently unarmed, who were entering his backyard. One nine-millimeter bullet hit eighteen-year-old Skyler Galloway of Dexter in the chest.
Though badly injured, Galloway manged to call 911. As an ambulance took him to the hospital, authorities swarmed over Avery's place as if it were a Taliban safe house. When his wife, Judy, revealed there were explosives in the house, Chelsea police and county sheriff's deputies were joined by the state police's aviation unit, bomb squad, and SWAT team. They found bomb-making materials, the remains of a bomb that had detonated, and a dummy bomb. And officers from LAWNET (the Livingston and Washtenaw Narcotics Enforcement Team) found a marijuana crop growing under lights beneath Avery's home.
"The cops claimed they pulled out seventy-four plants," he says. "Obviously that was the reason I was arrested that night. If you say the word marijuana around a policeman, they get focused real quickly."
Avery claims that he was treated rough ly by one officer and suffered a shoulder separation. He also says he was held in chains for ten hours after being arrested.
Prosecutors threw the book at him. He was arraigned on six felony counts: assault with intent to murder, assault with intent to do great bodily harm, assault with a dangerous weapon, felony firearms possession, setting explosives with intent to frighten, and manufacture and possession of marijuana. His bond was set at $250,000. Unable to raise that much money, he spent forty days in jail.
Meanwhile, Galloway and his two twenty-year-old companions, Daniel Buckenberger and Bradley
Tyler, were charged with attempted home invasion and conspiracy to commit home invasion. Their bonds were set at $25,000-a tenth of Avery's amount-and they spent no time in jail.
At a hearing a few days before Christmas, a handful of supporters, including Judy Avery and Scio Township trustee Chuck Ream, picketed outside the district court on Hogback Road. They carried signs saying "Jail the attackers-free Gersh" and "Defend self-defense." Judge J. Cedric Simpson reduced the bond to $7,500, and Gersh went home.
At the end of their driveway along Dexter-Chelsea Road, Gersh and Judy Avery have fashioned a huge makeshift sign that proclaims, "Ron Paul is liberty." And indeed, Avery's case is a lightning rod for libertarians like the supporters of the maverick Republican presidential candidate. Many of them see the charges against Avery as a dangerous erosion of a citizen's right to self-defense. And advocates of legalized medical marijuana see him as the poster boy for the injustice of government drug policies.
"One in every three houses has pot in it," claims Ream, a longtime leader of local pro-pot campaigns. "And one in every hundred houses has gray lights"-the kind of lighting under which marijuana is typically grown indoors. It doesn't make sense, Ream says, to consider all these people criminals and to arrest them if they defend themselves when someone tries to break in.
"Some people say it's all my fault because I had those [plants] there," says Avery. "But would it have made a difference if they were trying to steal my coin collection? Would they be justified in coming in?"
In fact, it would have made a big difference-not to their legal rights, but to his. Not only was marijuana the motivation for the confrontation that night, it is the linchpin of the charges against Avery. In Michigan and other states, recently passed "castle laws" give citizens the right to use deadly force in legitimate self-defense on their property. But Washtenaw County assistant prosecutor Steve Hiller explains that the castle doctrine has an exception: it does not apply to people who are committing a crime at the time they acted in self-defense. And possession and manufacture of marijuana are crimes in Michigan. Hiller won't comment on Avery's case specifically, but from the charges the prosecutors brought, it's clear they don't believe he can claim protection under the castle law.
If he can't, it would be a real bummer for Avery, who's been drowning in bad karma. He says he has recurring dreams that people are reaching up through the floors of his home and grabbing him by the legs. A friend has told him it sounds as if he has symptoms of post-traumatic stress disorder.
"It's a nightmare, a living hell, and it has been for the last eight months," said Avery in a January phone interview. He says that for many months before the incident last November, and even after that, people have been calling him, leaving bizarre messages, and hanging up. He sees cars sitting outside his home on Dexter-Chelsea Road.
Paranoia strikes deep.
"I'm afraid to stay in the house, and I'm afraid to leave the house," he says. "I'm afraid to go to work. I'm afraid they'll put a gun to my wife's head."
Avery says his home was broken into on many occasions last summer and fall before his arrest. One time, he says, someone took a safe out of his bedroom closet, dragged it into the backyard, and smashed it open-but found no money in it.
November 11 wasn't even the first time he'd fired a gun when he suspected people were out to rob him. Another time, he says, a Dexter man's home was broken into at gunpoint, but when the assailants didn't find much money, "they came straight to my house, and they saw me popping up with my rifle. I fired seven or eight rounds into the ground. I figured that would be enough to get the message across."
Avery doesn't look much like a gun-toting vigilante. With spark ling blue eyes, pink cheeks, and curly dark hair streaked with gray, he resembles the actor Hal Holbrook in middle age, and in this drama he casts himself as the victim. He says he didn't report the prior break-ins to the police, for obvious reasons.
"People who target homes with marijuana for theft-a part of their escape-hatch plan is that the victims are unable to call the police to report the crime," Avery says. "And in the worst-case event, they can always rely on demonizing the victim. In fact, many people perceive them as performing a community service."
Avery is still concerned that he might be robbed again, but he adds, "Hopefully people will realize there's nothing left to steal. The police took care of that."
And he thinks he's taken care of some troublesome criminals. He says he used to read about break-ins all the time but hasn't seen anything about them in the local paper lately. "The crime rate in this area has gone down to virtually zero," he claims, and he credits that decrease to his aggressive self-defense. "I got people to think," he says.
But he didn't think much about how shooting an intruder might screw up his own life. Besides the heavy-duty legal charges, he says that a multitude of health problems have gotten worse since he was forcibly severed from his favorite medication. "My pee tests clean nowadays," he says. "They test it every week." But without marijuana, he says, his high blood pressure returned while he was in jail, and his diabetes has come back too. He says he'd stopped taking prescription medications for both those conditions a year or so ago because "there's much better medicine for me. Unfortunately, they put you in jail for it." Avery says he's also used pot successfully to treat hepatitis C and glaucoma.
Even though it's gotten him in deep trouble, Avery can't stop touting the benefits of marijuana. Standing in an unheated breezeway at his unpretentious ranch home, near an old kitchen table on which sits an ashtray full of cigarette butts, he delivers a lengthy monologue on which chemicals in various parts of the plant produce which specific medical benefits.
Avery thinks anyone should be able to enjoy the medicinal benefits of marijuana-that's why he got involved in the petition campaign. The campaign succeeded. On March 3, the Michigan Board of Canvassers certified petitions containing nearly 378,000 signatures-74,000 more than needed. So Michigan voters should have a chance to legalize marijuana for medical purposes this November. That could make Avery's life much simpler-if he isn't in jail.
But even his petitioning, with the hope of changing the laws that now have him in their grip, got Avery in trouble. Last October in Clinton he was collecting signatures during the Fall Festival when, he says, a policeman informed him that the town has an ordinance prohibiting petitioning. Avery was ticketed. Characteristically, he then went back out on the street and resumed seeking signatures, standing on the far side of a "Welcome to Clinton" sign that he says he mistook for the city limits. After a verbal altercation with police, Avery was arrested again and charged a second time.
In late January, the Lenawee County prosecutor dismissed those charges. "In our view Gersh was wrongfully arrested," says Matthew Abel, a Detroit criminal defense attorney who specializes in drug charges. "The police knew better." Abel says the law Avery was charged under was one that prohibits solicitation, not petitioning. "There is no such law, and if there were it would be unconstitutional," the attorney says. Avery's carrying a large sign that identified his cause as "medical marijuana" precipitated the arrest, Abel believes: "We feel that had a lot to do with it. I think they still owe him an apology."
On February 6, Skyler Galloway and Gershom Avery both arrived in judge Donald Shelton's courtroom wearing blue ties. Gersh's complemented a powder-blue suit, while Galloway's accented a light shirt and pants. The kid Gersh shot looked nervous, small, and very young.
Neither of the other defendants wore a tie to court. Buckenberger had the square jaw and buzz cut of a football linebacker. Tyler arrived with a girlfriend who seemed to be dressed for a party, and his shirt was hanging out in back.
The three young men were offered a plea bargain. In exchange for dropping the lesser charge of attempted home invasion, they pleaded guilty to conspiracy home invasion. That conviction can carry penalties of up to twenty years in jail plus a $15,000 fine-but the discussion in court suggested a much lighter penalty is likely. Because all three were under twenty-one at the time of the offense, they're eligible to be sentenced under the state's Holmes Youthful Trainee Act. The Holmes Act allows young offenders who plead guilty to be put on probation, with the promise that if they stay out of trouble, their criminal records will be expunged.
Tyler's case is complicated by his problem with a legal drug: alcohol. He was placed on a court-ordered tether in November-just a few weeks after his encounter with Gersh Avery-after being charged with being a drunken and dis orderly person in a Dexter-area subdivision. He pleaded guilty to the charge.
Tyler also has a 2006 traffic conviction, for operating a vehicle with a minor passenger who was in possession of tobacco. Buckenberger also has previous traffic citations, and at the time of the home invasion charge he had an outstanding warrant in Ishpeming for driving with a suspended license in 2005. Ordered by the Washtenaw County authorities to resolve the warrant, he pleaded guilty to that charge in December.
At the February 6 hearing, Galloway and Buckenberger told Judge Shelton that they went to Avery's house the night of November 11 because they heard "rumors" he had pot and they intended to steal it. Galloway says he took trash bags to haul away the plants. They insisted they carried no weapons. They couldn't explain why they first made a cell phone call to the house and, when Judy Avery answered, pretended they'd gotten a wrong number and went ahead with their plan. Buckenberger said he couldn't remember making the call, but Galloway said Buckenberger made the call on Galloway's phone.
The trio's sentencing is scheduled for March 18, two weeks after Tyler's twenty-first birthday and two weeks before Buckenberger's. Still, they are expected to be sentenced under the youth trainee act and receive no jail time at all.
Unless he's acquitted on every charge, Gersh Avery almost certainly will be sent to prison. On the same afternoon the three conspirators reached their plea bargain, Avery was also offered a deal by the prosecutor: in exchange for dropping the attempted-murder and weapons charges, he would plead guilty to the remaining three charges (explosives, marijuana, and attempt to commit great bodily harm). All told, those three remaining charges could result in sentences up to nineteen years and fines up to $26,750, but Shelton could sentence him to much less. However, Avery refused the deal, and Shelton set April 7 as a trial date.
Outside the courtroom, Chuck Ream, who had come to court to support Avery, explained, "He can't plead guilty to assault because he was the one assaulted!" Ream added that he is "trying to get NRA types" motivated to support Avery's case because "everyone can identify with the concept of defending your family."
Avery is represented in this case by attorney Michael Le Gris, who didn't return the Community Observer's calls. Avery says Le Gris wants him to keep quiet, too-but he is eager to talk about the case. "It's been an interesting few months," he comments. "I've done a lot of tilting at windmills."
Avery says he wants to make a victim-impact statement March 18 to explain his version of what happened that night last November. He contends that Skyler Galloway didn't just conspire to invade his home but actually entered it earlier that night.
Galloway told police he had come around the house and unscrewed the lightbulb near the back door earlier in the night. He'd also said he'd observed Avery drinking. Avery agrees that he had taken a bottle of vodka out of his refrigerator and had a drink at the kitchen table earlier that night, at a time matching Galloway's account. Afterward, he says, he went into the living room, sat down on the couch, and then, after a couple of minutes, heard the door to the kitchen open. He says he thought it was his son quietly coming home: "I heard someone take a couple steps, and I heard the kitchen door open and close." He says he now believes that it was Galloway, who after he disabled the light entered the kitchen through the unlocked back door.
"This wasn't an attempted home invasion," Avery contends. "He actually walked into my house."
Avery also is convinced the trio who came back to his house a few hours later must have had weapons with them. "I disrupted an armed robbery in progress," he says. Why else, he asks, would they keep coming after learning from their cell phone call that people were home?
"They wanted somebody to be home because they wanted to put a gun to someone's head and order them to open the crawl space," Avery argues. He had installed a heavy locked door at the entrance to the crawl space where police found the plants, and he says he believes the young men knew about it. (He won't talk about the bombs.)
Avery says he fired when he saw the three men coming around the corner of his house. "Given another sixty seconds, they would have put a gun to my wife's head," he contends. No weapon was found on Galloway, but Tyler and Buckenberger fled down the road. "They had ample time to dispose of a weapon," Avery argues.
Avery also says it was more than "rumor" that brought the three young men to his home. He says he used to work with Buckenberger's girlfriend, Amanda, at Jet's Pizza; the two men had spoken, and Amanda had been to his home several times, he says, while Avery's son had worked on her car. He says he thinks, but isn't sure, that Galloway, too, may have once been at his home "on the pretense of being interested in collecting signatures" on the marijuana petition drive.
These contacts occurred during the six months or so before the November break-in. During that time, Avery says, "my house got broken into four or five times." Each time, he says, the intruders "used the same MO," unscrewing the lightbulbs first.
But why hadn't the intruders taken anything on the previous attempts? "They did," says Avery-and then quickly adds that he shouldn't be talking about that.
However, Avery can't long stifle his frustration-the frustration of a man who believes he's done nothing wrong by growing and using an illegal substance because it has curative powers, and who believes he was defending his property.
"I wanted to send a message" with his gunshots, he says. "I wanted these guys to recalculate. This is not a game. People can and do get shot conducting home invasions. People get confused. People get traumatized.
"It's a tragic situation. When people's homes are being invaded like that, people die."
Skyler Galloway's attorney, John Shea, says Avery's case raises intriguing questions: "At what point does a home owner's right to defend his castle evaporate? At what point do we require people to call the police rather than engage in self-help? It's a debate we have to have if we're not going to go back to the Wild West days."
Told that Avery rejected the plea bargain, Shea shakes his head. He speculates that Judge Shelton "doesn't want to have this case" because he "wouldn't want to put someone like Avery on trial." Still, says the defense attorney, "Avery needs to get some perspective. He's got this victim complex. He has to understand that he did something wrong, and there has to be some penalties for what he did."
Asked how his client is doing, Shea says that Galloway has fully recovered from his wound. But the young man, he adds, was incredibly lucky.
Pointing to his shirt pocket, Shea says, "Do you know the bullet came within a quarter inch to a half inch of his heart?"
Originally published in the Spring 2008 Community Observer, Ann Arbor, Michigan
[Originally published in April, 2008.]
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