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LITIGATION

  • by Keith Stroup, NORML Legal Director February 28, 2013

    The 2013 NORML Aspen Legal Seminar registration site is now live on the NORML website, and we urge you to register now for what will surely be another exceptional legal seminar and wonderful long-weekend with friends and colleagues in the Rocky Mountains. The dates for the seminar this year are Thursday, May 30 through Saturday, June 1 at The Gant, our usual venue in Aspen.

    The program this year will include such timely topics as the legal and ethical obligations of attorneys who represent cannabusinesses; the latest science and law regarding DUID cases; blocking the government from getting your client’s email; avoiding deportation for your non-citizen clients; the changes in probable cause in those states that have some form of legal marijuana; child custody issues for marijuana smokers; various ways to effectively conduct voir dire; all you need to know about cellular telephone tracking; and using your iPhone and iPad for the defense.

    We will also be holding our annual benefit dinner at the lovely home of Chris and Gerry Goldstein on Friday evening, and we have been invited back to Owl Farm, Hunter S. Thomspon’s old homestead, for a cookout and live country music on Saturday afternoon, as guests of Hunter’s widow, Anita Thompson.

    Please plan to join us in Aspen this spring, and experience first hand what it feels like to live in a state that has fully legalized marijuana.

    Those wishing to make your hotel reservations early can call The Gant (970-925-5000), and let them know you are attending the NORML legal seminar to qualify for our block of reduced-rate rooms.

    We hope to see you in Aspen in late May.

    Regards,
    Keith Stroup, Esq.
    NORML Legal Counsel

  • by Erik Altieri, NORML Communications Director January 22, 2013

    In a 28-page decision, the US Court of Appeals for the District of Columbia Circuit has denied petitioners request to overturn the July 2011 denial by the Drug Enforcement Administration to initiate proceedings to reschedule marijuana under federal law.

    In October 2002, the Coalition to Reschedule Cannabis, a coalition of reform organizations including NORML, ASA, Patients Out of Time and High Times, among others, petitioned the DEA to reschedule marijuana as a Schedule III, IV, or V drug. Following years of administrative delay, on July 8, 2011, the DEA denied the petition, finding that “[t]here is no currently accepted medical use for marijuana in the United States,” and that “[t]he limited existing clinical evidence is not adequate to warrant rescheduling of marijuana under the CSA.”

    Petitioners then sought review in the federal Court of Appeals, alleging the decision by the DEA was arbitrary and capricious when it concluded that marijuana lacks a “currently accepted medical use” and has a “high potential for abuse.” They ask this court to remand the case to the DEA for reconsideration of its decision.

    Written by Senior Circuit Judge Edwards, the decision ruled “On the record before us, we hold that the DEA’s denial of the rescheduling petition survives review under the deferential arbitrary and capricious standard. The petition asks the DEA to reclassify marijuana as a Schedule III, IV, or V drug, which, under the terms of the CSA, requires a ‘currently accepted medical use.’ The DEA’s regulations, which we approved in Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994), define ‘currently accepted medical use’ to require, inter alia, ‘adequate and well-controlled studies proving efficacy.’ Id. at1135. We defer to the agency’s interpretation of these regulations and find that substantial evidence supports its determination that such studies do not exist.

    “In its scientific and medical evaluation,” the court held, “DHHS concluded that marijuana lacks a currently accepted medical use in the United States. In reaching this conclusion, DHHS applied the DEA’s established five-prong test, which requires a known and reproducible drug chemistry, adequate safety studies, adequate and well-controlled studies demonstrating efficacy, acceptance of the drug by qualified experts, and widely available scientific evidence.”

    “We will not disturb the decision of an agency that has ‘examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.’”

    In this case, we need only look at one factor, the existence of “adequate and well-controlled studies proving efficacy,” to resolve Petitioners’ claim.

    At bottom, the parties’ dispute in this case turns on the agency’s interpretation of its own regulations. Petitioners construe “adequate and well-controlled studies” to mean peer-reviewed, published studies suggesting marijuana’s medical efficacy. The DEA, in contrast, interprets that factor to require something more scientifically rigorous.

    In making this assessment, we must “remind ourselves that our role in the Congressional scheme is not to give an independent judgment of our own, but rather to determine whether the expert agency entrusted with regulatory responsibility has taken an irrational or arbitrary view of the evidence assembled before it.

    The DEA’s construction of its regulation is eminently reasonable. Therefore, we are obliged to defer to the agency’s interpretation of “adequate and well-controlled studies.” Judged against the DEA’s standard, we find nothing in the record that could move us to conclude that the agency failed to prove by substantial evidence that such studies confirming marijuana’s medical efficacy do not exist.”

    Petitioners are considering their legal options at this time.

  • by Paul Armentano, NORML Deputy Director December 18, 2012

    A 2010 voter-approved Arizona state law authorizing “the local cultivation, sale, and use, of medical marijuana” is not preempted by the federal Controlled Substances Act, according to the Superior Court of Arizona, Maricopa County.

    The ruling, issued earlier this month by Superior Court Judge Michael Gordon, allows for the establishment of state-licensed medicinal cannabis dispensaries within Arizona — the first of which opened its doors last week. State-licensed medical marijuana facilities now operate in several states, including Colorado, New Jersey, New Mexico, and Maine.

    A majority of Arizona voters approved the AMMA in 2010. Under the law, qualified patients may possess and, depending on where they reside, cultivate cannabis. The program also mandates the state to license citizens to form not-for-profit dispensaries to grow and dispense cannabis. AMMA requires that each of the state’s 126 Community Health Care Analysis Areas permit at least one dispensary operator. Maricopa County’s prosecutor sought to block the establishment of local dispensaries by claiming that AMMA was preempted by federal anti-drug laws.

    Writing for the Court in White Mountain Health Center, Inc. v. Maricopa County, Judge Gordon declared that nothing in the Arizona Medical Marijuana Act circumvents federal law since Justice Department officials, if they wished to do so, could still continue to locally enforce the Controlled Substances Act. “No one can argue that the federal government’s ability to enforce the CSA is impaired to the slightest degree [by Arizona’s medical marijuana law],” Gordon opined, adding that the new law “affirmatively provides a roadmap for federal enforcement of the CSA, if they so wished to” since the statute requires patients and proprietors to register their activities with the state.

    Judge Gordon further suggested that Arizona’s law did not conflict with the federal lawmakers’ intentions when they enacted the federal Controlled Substances Act. He declared, “Instead of frustrating the CSA’s purpose, it is sensible to argue that the AMMA furthers the CSA’s objectives in combating drug abuse and the illegitimate trafficking of controlled substances.”

    He concluded: “The Court rejects … arguments that the [law] violates public policy simply because marijuana use and possession violate federal law. Eighteen states and the District of Columbia have passed legislation permitting the use of marijuana in whole or in part. The Court will not rule that Arizona, having sided with the ever-growing minority of States, and having limited it to medical use, has violated public policy.”

    Maricopa County Attorney Bill Montgomery is appealing Judge Gordon’s ruling.

    Arizona regulations regarding patient access and dispensary operations is available from the Arizona Department of Health Services here.

  • by Allen St. Pierre, NORML Executive Director December 14, 2012

    [Editor's note: Along with signing the below White House petition encouraging the president to grant clemency to these federal prisoners with life sentences for cannabis-only related offenses, please take a moment to do something even more important and write letters of support to the clemency petition to both the President (1600 Pennsylvania, NW, Washington, DC, 20500-0004) and the Office of Pardon Attorney (1425 New York Ave., NW, Suite 1100, Washington, DC 20530) asking for immediate commutation of these prisoners' sentences.

    Additionally, please mention each man by name: John Knock, Paul Free, William Dekle, Larry Duke and Charles Cundiff.]

    Cannabis Prohibition is ending in America (and likely soon around the world too). It is not going to end without prolonged legal, political and regulatory battles. This is well known and anticipated by reformers.

    Social justice movements take decades to build up credibility, social impetus and political saliency. There are, necessarily, many angles by which cannabis prohibition laws can be assaulted: legislation, binding voter initiatives and impact litigation.

    Recently, the law office of Michael Kennedy (the principle behind Trans High Corporation, publishers of High Times Magazine; lifetime member of NORML Legal member) filed an historic legal petition with the federal government seeking clemency for five elderly prisoners serving lifetime sentences for cannabis-only related crimes. In the many hundreds of debates and discussions I’ve had with law enforcement officials and elected policymakers about the need to replace cannabis prohibition laws with logical alternatives, I’m vexed to no end when they make the ridiculous claim: ‘no one gets arrested for marijuana anymore and certainly no one is incarcerated for the stuff!’

    To wit, 1) there are over 750,000 annual cannabis arrests (90% for possession-only) that generate many tens of thousands of cannabis-only offenders sent to jail or prison, and 2) these five men are serving lifetime sentences, for a product that is no longer contraband in two states, decriminalized in fourteen states and eighteen states (and the District of Columbia) now have medical cannabis laws (with six states allowing commercial retail access to the herb with a physician’s recommendation).

    This federal petition to release these men back to their loving families and to get off the tax roll is born out of the non-profit organization called Life For Pot (where the groups is tracking at least twenty prisoners serving life sentences for cannabis-only related offenses), the heart felt project of volunteer Beth Curtis.

    Mr. Obama indicated to ABC News that ‘he has bigger fish to fry’ when asked about what if anything the feds are going to regarding Colorado and Washington voters recently approving cannabis legalization measures. Whether the president is going to expend any political capital at all in actually advancing cannabis law reforms in his last four years remains to be seen, but, the man should act post haste, giving a nod to the new legal era America has entered regarding cannabis prohibition, on this well researched and written petition by granting clemency to these former and now elderly pot cultivators and smugglers.

    We can all help place greater public focus and attention on this federal petition by letting the White House know that President Obama should ‘do the right thing’ and pardon these lifetime prisoners for growing and supplying cannabis to a willing and wonting population of cannabis consumers while unpopular (and largely unenforceable) prohibition laws were still in place.

    Please help Mr. Kennedy’s petition for clemency, Beth’s life’s work and these five cannabis prisoners by signing the White House petition to act favorably upon it. You can review the petition here.

     

  • by Sabrina Fendrick, Director of Women's Outreach December 12, 2012

    Defense Attorney Lauren K. Johnson won a major court victory for parents who legally use marijuana for medical purposes last week in Los Angeles.  In the case of Drake A. (case # B236769), Division Three of the Second Appellate District, California Court of Appeal ruled on December 5, 2012 that there was no evidence showing that the defendant, a father, is a substance ab­user for simply being a legal medical marijuana patient. The court confirmed that while parents who abuse drugs can lose custody of their children, a parent who uses marijuana for medical reasons, with a doctor’s approval, isn’t necessarily a drug abuser.

    The father, “Paul M.” was placed under DCFS (Department of Children and Family Services) supervision after he testified in an October 2011 hearing that he used medical marijuana about four times a week for knee pain.  During that same hearing, he also stated that he never medicates in front of his children, nor is he under the influence while they are in his care.  DCFS supervision requires drug counseling, parenting classes and random drug testing.  During subsequent drug screenings the father tested positive for marijuana, and negative for all other drugs.  As a result, the Superior Court of Los Angeles ruled that the child was to become a “dependent of the court based on the trial court’s finding that [the] father’s usage of medical marijuana placed the child at substantial risk of serious physical harm or illness…”.

    “Paul M.” appealed the former court’s ruling, which was challenged in the Second Appellate District of California.  The Appellate court subsequently ruled in favor of reversing the Superior court’s judgment.  The official ruling stated “[that the] DCFS failed to show that [the] father was unable to provide regular care for Drake [the minor child at issue] due to father’s substance abuse.  Both DCFS and the trial court apparently confused the meanings of the terms ‘substance use’ and ‘substance abuse’.”

    Johnson issued a press release noting that this is the first case to distinguish between marijuana use and abuse with regards to child protection laws. “In overturning a Los Angeles Superior Court ruling against the plaintiff, Los Angeles County Department of Children and Family Services, the Appellate Court said the ‘mere usage of drugs,’ including marijuana, is not the same as substance abuse that can affect child custody, as alleged in this case by the lower court.”  She went on to say, “The ruling illustrates a growing recognition of the legitimate use of medical marijuana in this state and other states. We want kids to be safe, but we also want parents to be able to use legally prescribed medications when children appear not to be at demonstrated risk of harm.”

    This has been a pervasive issue in California, as well as other medical marijuana states. Legal patients have lost custody of their children and been forced to turn their children over to a juvenile protection agency.  The NORML Women’s Alliance has been working hard to bring this issue to the forefront.  NORML Women’s Alliance Director Sabrina Fendrick issued the following statement; “This ruling is a small victory in our fight for legal marijuana patients’ parental rights.  We hope that future judicial hearings, as well as child protection agencies will utilize this judgment and adopt new policies that reflect the Appellate court’s ruling.”

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