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LITIGATION

  • by Paul Armentano, NORML Deputy Director April 15, 2015

    Federal Judge Upholds Schedule I Classification Of Cannabis - See more at: http://blog.norml.org/2015/04/15/federal-judge-upholds-schedule-i-classification-of-cannabis/#sthash.YJ6g3dcS.dpufA federal judge today denied a motion challenging the constitutionality of cannabis’ classification as a Schedule I prohibited substance without any accepted medical utility.

    Judge Kimberly J. Mueller of the Federal District Court in Sacramento, California issued her oral ruling during a 15-minute court hearing today. Judge Mueller heard closing arguments in the case in early February but had postponed her decision on several occasions. Her written opinion is not yet available but is expected to be posted publicly by week’s end.

    “At some point in time, a court may decide this status to be unconstitutional,” Judge Mueller said from the bench. “But this is not the court and not the time.”

    Defense counsel intends to appeal the ruling.

    In October, defense counsel and experts presented evidence over a five-day period arguing that the scientific literature is not supportive of the plant’s present categorization. Lawyers for the federal government countered that it is rational for the government to maintain the plant’s prohibitive status as long as there remains any dispute among experts in regard to its safety and efficacy. Defense counsel — attorneys Zenia Gilg and Heather Burke of the NORML Legal Committee — further contended that the federal law prohibiting Justice Department officials from interfering with the facilitation of the regulated distribution of cannabis in over 20 US states can not be reconciled with the government’s continued insistence that the plant is deserving of its Schedule I status under federal law.

    Paul Armentano, NORML’s deputy director who served as the principal investigator for defense counsel in this case said: “We applaud Judge Mueller for having the courage to hear this issue and provide it the careful consideration it deserves. While we are disappointed with this ruling, it changes little. We always felt this had to ultimately be decided by the Ninth Circuit and we have an unprecedented record for the court to consider.

    “In the interim, it is our hope that lawmakers move expeditiously to change public policy. Presently, bipartisan legislation is before the House and Senate to recognize cannabis’ therapeutic utility and to reschedule it accordingly and we encourage members of Congress to move forward expeditiously to enact this measure.”

    In a brief filed with the court by the federal government, it contended: “Congress’ decision to treat marijuana as a controlled substance was and remains well within the broad range of permissible legislative choices. Defendants appear to argue that Congress was wrong or incorrectly weighed the evidence. Although they failed to prove even that much, it would be insufficient. Rational basis review does not permit the Court’s to ‘second guess’ Congress’ conclusions, but only to enjoin decisions that are totally irrational or without an ‘imaginable’ basis.”

    They added: “Congress is not required to be ‘right,’ nor does it matter if the basis on which Congress made its decision turns out to be ‘wrong.’ All that is required is that Congress could rationally have believed that its action — banning the production and distribution of marijuana — would advance its indisputably legitimate interests in promoting public health and welfare. Because qualified experts disagree, it is not for the Courts to decide the issue and the statute must be upheld.”

    Said Armentano, “The continued Schedule I classification of cannabis, in 2015, in self-evidently ridiculous. But unfortunately, the law may be ridiculous and still pass constitutional muster.”

    He added, “The judge in this case missed a golden opportunity to demand that federal law comport with available science, public opinion, and common sense.”


    Legal briefs in the case, United States v. Schweder, et. al., No. 2:11-CR-0449-KJM, are available online here.

  • by Paul Armentano, NORML Deputy Director April 8, 2015

    Kansas: Wichita Voters Approve Municipal Initiative Reducing Marijuana Possession Penalties - See more at: http://blog.norml.org/2015/04/08/kansas-wichita-voters-approve-municipal-initiative-reducing-marijuana-possession-penalties/#sthash.GXSJnz56.dpufVoters in Wichita Kansas approved a municipal measure yesterday that seeks to reduce first-time marijuana possession penalties within the city.

    Fifty four percent of local voters approved the initiative, which reduces penalties for first-time marijuana possession offenses (up to one ounce) to a civil infraction punishable by a $50.00 fine. Under state law, marijuana possession is classified as a criminal misdemeanor, punishable by up to one year in jail and a $2,500 fine.

    Despite majority support for the measure, state Attorney General Derek Schmidt has called the language unlawful and has threatened to sue the city if the provision goes into effect. The city is seeking a declaratory judgment from the courts in regard to whether they can move forward with enacting the new, voter-approved law.

  • by Paul Armentano, NORML Deputy Director February 25, 2015

    NORML Legislative Fly-InDistrict of Columbia officials are moving forward with implementing a voter-approved initiative depenalizing offenses involving the personal possession and/or cultivation of cannabis by adults.

    The new law is set to take effect Thursday, February 26, at 12:01am. In a press release issued Tuesday, District officials — including Mayor Muriel Bowser and Police Chief Cathy Lanier — reaffirmed their intent to recognize the will of District voters, 70 percent of whom voted in favor of the municipal measure (I-71).

    “In November, residents of the District of Columbia voted to legalize small amounts of marijuana by adults for personal, in-home use in the District,” said Mayor Bowser. “We will uphold the letter and the spirit of the initiative that was passed last year, and we will establish the Initiative 71 Task Force to coordinate our enforcement, awareness and engagement efforts and address policy questions as they arise.”

    Initiative 71 permits adults to possess up to two ounces of marijuana and to cultivate up to six marijuana plants (no more than three mature at any one time) in one’s primary residence without facing any criminal or civil penalty. Not-for-profit transactions involving small amounts of the substance are also permitted; however, for-profit sales are prohibited as is the retail production or distribution of the plant.

    The consumption of cannabis in public or on federal property also remains prohibited.

    District officials contend that they possess the legal authority to depenalize minor marijuana offenses despite the passage of a federal spending provision in December prohibiting the District from spending any tax dollars to implement the new law. They argue that the municipal measure took effect upon passage in November and that Congress failed to take any explicit action to overturn the law during its requisite 30-day review period. (This Congressional review period is mandated law before any new District legislation may be imposed.)

    District officials’ stance is not without some vocal critics. Earlier this week, two Republican members of Congress sent a letter to DC’s Mayor warning that Congress may take action if I-71 is enforced.

    “If you decide to move forward … with the legalization of marijuana in the District, you will be doing so in knowing and willful violation of the law,” reads the letter signed by Rep. Jason Chaffetz (R-UT) and Rep. Mark Meadows (R-NC), chairman of the subcommittee that handles DC affairs.

    In an interview with The Washington Post, Rep. Chaffetz threatened Mayor Bowser and city officials, stating, “[If District officials are] under any illusion that this would be legal, they are wrong. And there are very severe consequences for violating this provision. You can go to prison for this. We’re not playing a little game here.”

    To date, neither spokespersons for the Mayor’s office and/or the DC City Council have responded directly to the Congressmen nor have they indicated that they intend to reconsider their decision to implement I-71 as voters intended.

  • by Paul Armentano, NORML Deputy Director February 12, 2015

    Federal Judge Hears Closing Arguments In Constitutional Challenge To Cannabis’ Schedule I StatusYesterday in Sacramento a federal judge heard closing arguments in a motion challenging the constitutionality of cannabis’ Schedule I classification.

    At issue is whether a rational basis exists for the government’s contention that cannabis is properly designated as a schedule I substance — defined as possessing a “high potential for abuse,” “no currently accepted medical use in treatment,” and “a lack of accepted safety … under medical supervision.” A federal court has not heard evidence on the matter since the early 1970s.

    Lawyers for the federal government argue that it is rational for the government to maintain the plant’s prohibitive status as long as there remains any dispute among experts in regard to its safety and efficacy. Defense counsel — attorneys Zenia Gilg and Heather Burke of the NORML Legal Committee — contend that the federal law prohibiting Justice Department officials from interfering with the facilitation of the regulated distribution of cannabis in over 20 US states can not be reconciled with the government’s continued insistence that the plant is deserving of its Schedule I status under federal law.

    In October, defense counsel and experts presented evidence over a five-day period arguing that the scientific literature is not supportive of the plant’s present categorization. “Numerous clinical trials have been conducted using whole plant marijuana and have concluded the evidence strongly suggests therapeutic value,” defense counsel affirmed in a written brief filed with the court last month. “Physicians in 23 states and the District of Columbia have been recommending whole plant cannabis for treatment of a myriad of medical conditions. The United States, through SAMHSA (Substance Abuse Mental Health Services Administration, a branch of HHS), holds a patent [on the therapeutic utility of the plant.]”

    “… It is unimaginable to believe that if heroin, cocaine, methamphetamine, or even over-the-counter medications were being distributed in 23 states and the District of Columbia, Congress and the President would abdicate all regulatory authority to those jurisdictions, and then cut off all funds … to intervene in related distribution activities. … Even the most vivid imagination would be hard pressed to reconcile such action with a ‘rational belief’ that marijuana is one of the most dangerous drugs in the nation.”

    In a brief filed with the court by the federal government, it contends: “Congress’ decision to treat marijuana as a controlled substance was and remains well within the broad range of permissible legislative choices. Defendants appear to argue that Congress was wrong or incorrectly weighed the evidence. Although they failed to prove even that much, it would be insufficient. Rational basis review does not permit the Court’s to ‘second guess’ Congress’ conclusions, but only to enjoin decisions that are totally irrational or without an ‘imaginable’ basis.”

    They add: “Congress is not required to be ‘right,’ nor does it matter if the basis on which Congress made its decision turns out to be ‘wrong.’ All that is required is that Congress could rationally have believed that its action — banning the production and distribution of marijuana — would advance its indisputably legitimate interests in promoting public health and welfare. Because qualified experts disagree, it is not for the Courts to decide the issue and the statute must be upheld.”

    The Judge is anticipated to rule on defense’s motion within 30 days.

    Legal briefs in the case, United States v. Pickard, et. al., No. 2:11-CR-0449-KJM, are available online here.

  • by Paul Armentano, NORML Deputy Director February 4, 2015

    US Surgeon General: Marijuana Can Be HelpfulNewly appointed US Surgeon General Vivek Murthy believes that cannabis possesses therapeutic utility — an acknowledgment that contradicts the plant’s present placement as a Schedule I controlled substance under federal law.

    Speaking to CBS News, Murthy said: “We have some preliminary data showing that for certain medical conditions and symptoms that marijuana can be helpful.” He added, “I think we have to use that data to drive policy making and I’m very interested to see where that data takes us.”

    Dr. Murthy was confirmed as US Surgeon General late last year.

    His statements appear to be inconsistent with the Schedule I classification of marijuana under federal law — a scheduling that defines the plant and its organic compounds as possessing “no currently accepted medical use …. in the United States” and lacking “accepted safety … under medical supervision.”

    Next week in Sacramento, a federal judge will hear final arguments in a motion challenging the constitutionality of cannabis’ Schedule I classification. In October, defense counsel and experts presented evidence over a five day period arguing that the scientific literature is not supportive of the plant’s present categorization.

    Briefs in this ongoing federal case are available online here.

    [Update: Perhaps predictably, the Surgeon General has dialed back his initial comments to CBS News. Late last night, The Department of Health and Human Services issued a statement attributed to Murthy stating: “Marijuana policy — and all public health policies — should be driven by science. I believe that marijuana should be subjected to the same, rigorous clinical trials and scientific scrutiny that the Food and Drug Administration (FDA) applies to all new medications. The Federal Government has and continues to fund research on possible health benefits of marijuana and its components. While clinical trials for certain components of marijuana appear promising for some medical conditions, neither the FDA nor the Institute of Medicine have found smoked marijuana to meet the standards for safe and effective medicine for any condition to date.”

    Interesting that Dr. Murthy cites the IOM which hasn’t formally commented on the issue of medical marijuana since releasing its report some 15 years ago, long before the results of FDA-approved clinical trials like this had been completed. Also notable that he leans on the FDA for guidance when the agency largely does not review the safety and efficacy of botanical products.]

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