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LITIGATION

  • by Paul Armentano, NORML Deputy Director May 2, 2018

    A three judge panel for the Ninth Circuit Court of Appeals has denied a petition filed by the Hemp Industries Association challenging the DEA’s authority to establish a new administrative drug code specifically for marijuana extracts. The DEA first announced the proposed rule change in 2011, but did not enact the new policy until January 13, 2017.

    In a decision filed on April 30, the Court rejected petitioners’ arguments – opining the DEA’s classification of marijuana extracts does not conflict with the provisions of either the Agricultural Act of 2014 (aka the ‘Farm Bill) or the Consolidated Appropriations Act, which limits the Justice Department from spending federal dollars to intervene in state-sanctioned activities involving marijuana or industrial hemp. The Court also dismissed petitioners’ argument that the rule substantively amended the federal Controlled Substances Act. Justices opined that such extract products, including those containing primarily CBD, were already classified under federal law as schedule I controlled substances.

    The DEA has long contended that it possesses broad regulatory authority over “all parts of the plant Cannabis sativa L.,” including “the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.” The agency includes among this definition products containing cannabidiol or any other non-THC cannabinoids derived from the marijuana plant. It further states, “[T]he Agricultural Act of 2014 does not permit entities [who are not registered with the DEA] … to produce non-FDA-approved drug products made from cannabis.”

    Over a dozen states have enacted legislation in recent years exempting certain persons who possess extracts high in cannabinoid from criminal prosecution. Legislation to approve the retail sale of CBD extracts to adults in Kansas is awaiting gubernatorial action. Indiana lawmakers approved a similar law in April. Several pieces of legislation seeking to exclude CBD from the federal definition of marijuana are pending in Congress. In 2015, Nora Volkow, the Director of the US National Institute on Drug Abuse, publicly acknowledged that CBD is “a safe drug with no addictive effects.”

    Petitioners say that they intend to appeal the ruling.

    The case is Hemp Industries Association et al., v. US Drug Enforcement Administration et al., (No. 17-70162).

  • by Paul Armentano, NORML Deputy Director February 26, 2018

    Marijuana and the LawA federal district court judge in Manhattan today granted the government’s motion to dismiss a lawsuit that sought to challenge the constitutionality of cannabis’ prohibited status under federal law.

    [2/27/18 update: Plaintiffs have stated their intent to appeal the court’s ruling.]

    The 98-page complaint, filed in July 2017 by a legal team that includes New York attorney Michael Hiller, NORML Legal Committee member Joseph Bondy and Empire State NORML Director David Holland, contended that the federal government “does not believe, and upon information and belief never has believed” that cannabis meets the requirements for a Schedule I designation under the Controlled Substances Act. It further argued that current administrative mechanisms in place to allow for the reconsideration of cannabis Schedule I classification are “illusory.” Lawyers for the Justice Department argued for a dismissal of the suit, arguing: “There is no fundamental right to use marijuana, for medical purposes or otherwise.”

    Presiding Judge Alvin K. Hellerstein sided with the federal government, opining in a 20-page ruling: “No such fundamental right (to possess or use cannabis) exists. Every court to consider the specific, carefully framed right at issue here has held that there is no substantive due process right to use medical marijuana.” The judge further ruled that plaintiffs had not yet exhausted all of the potential administrative remedies available to them — such as filing an administrative petition to reschedule cannabis with the US Drug Enforcement Administration — and therefore, it was inappropriate for the court to intervene. “There can be no complaint of constitutional error when such a process is designed to provide a safety valve of this kind,” he opined. “Judicial economy is not served through a collateral proceeding of this kind that seeks to undercut the regulatory machinery on the Executive Branch and the process of judicial review in the Court of Appeals.”

    Judge Hellerstein also rejected plaintiffs’ claim that the federal law is unconstitutional because “it was passed with racial animus.” He held that plaintiffs lacked the standing to argue such a claim because they “have failed to demonstrate that a favorable decision is likely to redress plaintiffs’ alleged injuries,” such as a dismissal of their past criminal convictions.

    With regard to the question of whether the plaintiffs legitimately benefited from cannabis as a medicinal agent, the judge argued that the merits of this claim was beyond the scope of the court. “Plaintiffs’ amended complaint, which I must accept as true for the purpose of this motion, claims that the use of medical marijuana has, quite literally, saved their lives,” he wrote. “I highlight plaintiffs’ experience to emphasize that this decision should not be understood as a factual finding that marijuana lacks any medical use in the United States, for the authority to make that determination is vested in the administrative process.” He added, “Even if marijuana has current medical uses, I cannot say that Congress acted irrationally in placing marijuana in Schedule I.”

    Legal counsel for the plaintiffs have yet to publicly announce whether or not they intend to appeal Judge Hellerstein’s ruling.

    A judge for the Federal District Court in Sacramento considered similar arguments in a 2014 legal challenge, also spearheaded by members of the NORML Legal Committee, but ultimately rejected them — ruling that plaintiffs failed to show that Congress acted irrationally when classifying cannabis as a schedule I controlled substance. “At some point in time, a court may decide this status to be unconstitutional,” the judge determined. “But this is not the court and not the time.”

    Text of Judge Hellerstein’s decision in Washington et al. v. Sessions et al is online here.

  • by Justin Strekal, NORML Political Director February 14, 2018

    Today, Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York heard oral arguments on the motion to dismiss Washington, et.al v. Sessions, et.al, a federal lawsuit challenging the constitutionality of the Schedule I classification of cannabis under the Controlled Substances Act. The federal government argued to have the case dismissed. Judge Alvin K. Hellerstein of the U.S. District Court Southern District of New York reserved the decision.

    The lead attorney for the case, Michael Hiller released the following statement:

    First, we would like to thank Judge Alvin K. Hellerstein for taking the time to hear the important oral argument made today. We appreciate the time he took to hear from the plaintiffs we represent —  all whom have heartbreaking stories about how their everyday lives continue to be negatively impacted by the prohibition of cannabis.  

     

    Protecting our American values, way of life and civil and constitutional rights are who we are as Americans. To many, it is obvious, we are living in an era where we must remain vigilant and ask hard questions. If we look back at our collective history, this is not the first time we have seen some in the US government shamefully argue out-dated ideologies under a legal mask that is inevitably on the wrong side of history. We saw this with slavery, segregation, women’s right to vote, the Civil Rights Act, the Americans with Disabilities Act, gay marriage, and sadly, countless other times.  

     

    We’ve seen civil rights trampled on before, but we have also seen everyday Americans and leaders rise to the occasion and have our judicial branch recognize when an interpretation of the law is obviously tragically flawed and wrong.  

     

    The stated basis for the Controlled Substances Act was to help Americans’ lives. However, today, the federal government came to court to preserve the right to put Americans in jail, who use cannabis — even when it used as an alternative medicinal treatment to addictive opioids and powerful prescription drugs. Tragically, what the federal government has done is taken the Controlled Substances Act and turned it on its head. Sadly, the government is now using the ‘Act’ to hurt and oppress US citizens, rather to liberate, deliberate and help them treat their illnesses and diseases.  

     

    We firmly believe the federal government is prostituting and perverting the Controlled Substances Act as well as blatantly criminalizing behavior that they themselves are inducing. We look forward to standing on the right side of history and ensuring that cannabis is descheduled once and for all as well as to receiving Judge Hellerstein’s decision, and moving the case forward.

    Lawyers for the plaintiffs in the case include Michael Hiller and Lauren Rudick of Hiller, PC, NORML Legal Committee member Joseph Bondy, and Empire State NORML Director David Holland.

    A judge for the Federal District Court in Sacramento heard similar arguments in a 2014 legal challenge, also spearheaded by members of the NORML Legal Committee, but ultimately rejected them – opining: “At some point in time, a court may decide this status to be unconstitutional. But this is not the court and not the time.”

    Plaintiffs in the current lawsuit include a former NFL football player, a disabled military veterans, two children with severe movement disorders, and the non-profit group, the Cannabis Cultural Association. Plaintiffs argue that federal prohibition violates their civil and constitutional liberties, including their right to freely travel within the United States. They also argue that the federal prohibition of cannabis is “grounded in discrimination and [is] applied in a discriminatory manner.”

    Lawyers for the Justice Department argued today for a dismissal of the suit, opining: “There is no fundamental right to use marijuana, for medical purposes or otherwise. Because such a right is not ‘implicit in the concept of ordered liberty’ or ‘deeply rooted in this Nation’s history,’ the Court should reject such a claim.”

    The judge asked how anyone could say that the plaintiffs’ lives “have not been saved by marijuana.”

  • by Keith Stroup, NORML Legal Counsel July 31, 2017

    The test should be, “Is it better than Prohibition.” Does the proposal stop the arrest of smokers and establish a legal market where consumers can obtain their marijuana?

    The Supreme Court of Illinois recently handed down a decision which found that some of the drug courier profile traffic stops in their state were illegal, and agreed with the lower courts that the drugs confiscated in five cases that had been combined for the court’s consideration, should be suppressed. The case was People v. Ringland, et al.

    The criminal defense attorney bringing this legal challenge was NORML Legal Committee (NLC) Life Member Stephen M. Komie from Chicago.

    The somewhat unique fact in all five of these cases, which arose in 2012 and 2013, was that the drivers were all stopped and searched by a “special investigator” of the La Salle County prosecutor’s office; not by state or local police. After carefully considering the statute that establishes and defines the powers of state prosecutors, the high court found that the prosecutor did not have the legal authority to hire their own people to drive up and down the highways, making traffic stops and searching vehicles for drugs.

    Congratulations to attorney Stephen Komie for ending these illegal traffic stops in Illinois with a creative legal challenge.

     
  • by Paul Armentano, NORML Deputy Director July 6, 2017

    cannabis_pillsRepresentatives of Florida for Care filed litigation today challenging a statewide ban on medical cannabis smoking. The suit was expected after lawmakers approved legislation (SB 8A) in June amending Amendment 2 — a voter initiated constitutional amendment permitting the use and distribution of medical cannabis. Seventy-one percent of voters approved the amendment in November.

    Senate Bill 8A amends the definition of medical cannabis in a manner that prohibits “marijuana in a form for smoking” and that bars the personal possession of herbal cannabis flowers, except in instances where they are contained “in a sealed, tamper-proof receptacle for vaping.” The Florida for Care suit argues that these changes inconsistent with the constitutional definition of marijuana, as passed by voters, and therefore should not be implemented.

    The lawsuit argues, “Inhalation is a medically effective and efficient way to deliver tetrahydrocannabinol (THC), and other cannabinoids, to the bloodstream. … By redefining the constitutionally defined term ‘medical use’ to exclude smoking, the Legislature substitutes its medical judgment for that of ‘a licensed Florida physician’ and is in direct conflict with the specifically articulated Constitutional process.”

    Under the revised law, patients diagnosed with cancer, epilepsy, glaucoma, HIV/AIDS, PTSD, ALS, Crohn’s disease, Parkinson’s disease, or multiple sclerosis — or who suffer from chronic pain related to any of these diseases — are eligible to receive a 70-day supply of cannabis-infused oils or edible products from a limited number of state-licensed dispensing facilities.

    NORML has long argued against regulations that limit or prohibit patients’ access to whole-plant cannabis in lieu of cannabis-derived extracts or pills. Cannabis inhalation is not associated with increased instances of lung cancer, COPD, or other tobacco-related adverse effects on pulmonary function. Inhaled cannabis is fast acting and permits patients to accurately self-regulate their dose. By contrast, non-herbal forms of cannabis possess delayed onset and their effects can often be far less predictable than those of herbal cannabis. Many patients seeking rapid relief of symptoms do not benefit from pills, tinctures, or edibles, and such restrictions unnecessarily limit patients’ choices.

    If the court invalidates SB 8A, the task of writing the rules for implementing the initiative — which must be operational by October — will fall to the Florida Department of Health.

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