NORML Attorneys file multiple constitutional challenges to federal medical marijuana crackdown

  • by Russ Belville, NORML Outreach Coordinator November 7, 2011

    NORML Attorneys Matt Kumin, David Michael, and Alan Silber, have filed suit (read here) in the four federal districts in California to challenge the Obama Administration’s recent crackdown on medical marijuana operations in the Golden State. Aided by expert testimony from NORML Deputy Director Paul Armentano and research from California NORML Director Dale Gieringer, the suits seek an injunction against the recent federal intrusion into state medical marijuana laws at least and at most a declaration of the unconstitutionality of the Controlled Substances Act with respect to state regulation of medical marijuana.

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    The NORML attorneys allege the federal government has engaged in entrapment of California patients and their caregivers.  They point to the courts’ dismissal of County of Santa Cruz, WAMM et al. v. Eric Holder et al. where the Department of Justice (DOJ) “promised a federal judge that it had changed its policy toward the enforcement of its federal drug laws relative to California medical cannabis patients.”  So after 2009, California providers had reason to believe that the federal government had changed its policy.  The legal argument is called ‘judicial estoppel’, which basically means that courts can’t hold true to a fact in one case and then disregard it in another.

    Kumin, Michael, and Silber also argue the government has engaged in ‘equitable estoppel’, which most people commonly think of as ‘entrapment’.  That is to say, you can’t bust a person for committing a crime when the authorities told him it wasn’t a crime to do it!

    Under established principles of estoppel and particularly in the context of the defense of estoppel by entrapment, defendants to a criminal action are protected and should not be prosecuted if they have reasonably relied on statements from the government indicating that their conduct is not unlawful. That principle should be applied to potential defendants as well, the plaintiffs in this action.  Such parties, courts have noted, are “person[s] sincerely desirous of obeying the law”. They “accepted the information as true and [were]…not on notice to make further inquiries.” U.S. v. Weitzenhoff, 1 F. 3d 1523, 1534 (9th Cir. 1993).

    The US Constitution figures prominently in the legal challenge as well.  The 9th Amendment says that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The NORML attorneys argue that threatening seizure of property and criminal sanctions violates the rights of the people to “consult with their doctors about their bodies and health.”

    The 10th Amendment provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  The NORML attorneys argue that the States have the “primary plenary power to protect the health of its citizens” and since the government has recognized and not attempted to stop Colorado’s state-run medical marijuana dispensary program, it cannot suggest Colorado has a state’s right that California does not.

    The 14th Amendment says that all citizens have equal protection under the law.  The NORML attorneys argue that the federal government:

    1. Actively provides cannabis for medical purposes to individuals through its own IND program.
    2. Actively allows patients in Colorado to access medical cannabis through a state-licensing system that allows individuals to make profit from the sales of medical cannabis.
    3. Actively restricts scientific research into the medical value and use of cannabis to alleviate human suffering and pain.

    Thus, according to Kumin, Michael, and Silber, the government can’t be allowing Colorado medical marijuana commerce, engaging it its own IND program that mails 300 joints a month to four federal medical marijuana patients yet squelching all attempts to study medical value of marijuana, then have a rational basis for shutting down medical marijuana dispensaries in California.  Under the 14th Amendment, the feds can’t treat Californians differently than Coloradoans and differently than four US citizens who get legal federal medical marijuana.

    Finally, while acknowledging that Raich v. Gonzales 545 US 1 (2005) set the precedent that the Constitution’s Interstate Commerce Clause does allow the feds to prosecute California’s medical marijuana, the NORML attorneys argue:

    …it is still difficult to imagine that marijuana grown only in California, pursuant to California State law, and distributed only within California, only to California residents holding state-issued cards, and only for medical purposes, can be subject to federal regulation pursuant to the Commerce Clause. For that reason, Plaintiffs preserve the issue for further Supreme Court review, if necessary and deemed appropriate.

    We will keep you posted on all updates related to this groundbreaking lawsuit.  Archive of our interview with the lead attorneys in this case is available in our “Audio/Video” section on The NORML Network.

    Click here to join NORML today and help us in the fight to legalize marijuana.

    93 responses to “NORML Attorneys file multiple constitutional challenges to federal medical marijuana crackdown”

    1. Danny G says:

      Hell yeah ! thanks !

    2. Ned says:

      This is where judicial appointments matter. Why Presidential elections matter. There are more Republican nominated Federal judges than Democratic ones. Normally for a personal liberty, states rights, free market issue, that would be good. However, neither patients nor suppliers are large corporations (representing and controlling vast wealth) so Republican judges are less interested in protecting or expanding their rights. Add to the that, the culture war baggage that marijuana carries as being the favored drug of minorities and hippie/liberals and you have more headwinds in garnering judicial favor.

      If for example a group of multinational pharmaceutical companies were filing these suits, represented by top corporate law firms, that alone would affect how many of the judges would view these suits. In law, those factors aren’t supposed to matter, except they do.

    3. RT says:

      wow, this is a great argument! It’s about time, let’s just hope the courts agree. But this is pretty solid.

    4. Alex says:

      Let’s givem hell. We are tax payers not criminals. We the people are behind this fight 100%.

    5. john williamson says:

      its gonna take alot of people stepping up to the plate and completly smuthering and shutting up the ratty few that are still keeping this prohibition thing alive. and i saw and angel on top of a cloud with the seals in his hands and he came down and laid hold on the serpent….

    6. […] challenges to federal medical marijuana crackdown November 7th, 2011 / Russ Belville / NORML NORML Attorneys Matt Kumin, David Michael, and Alan Silber, have filed suit (read here) in the […]

    7. luke s says:

      if marijuana is illegal on a federal level how come 4 ppl are immune to the law?

    8. […] Stankie's Organics NORML Attorneys file multiple constitutional challenges to federal medical marijuana crackdown | NOR… News! News! Hopefully this is a big deal! Don't be surprised if this doesn't make mainstream news, […]

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