Suit Before Ninth Circuit Court Of Appeals Seeks To Halt Federal Actions Against California’s Medical Cannabis ProvidersOctober 25, 2012
On Wednesday, October 24, a group of California dispensary operators, medical cannabis providers, and patients, as Plaintiffs, filed their Opening Brief before the Ninth Circuit Court of Appeals in San Francisco, asking the Circuit Court to hold that Plaintiffs, in their continuing litigation against the Federal Government, have a constitutional Ninth Amendment and Substantive Due Process fundamental right to distribute, possess and use medical cannabis. The brief, filed by members of the NORML Legal Committee, also contends that the Federal Government’s criminal prohibition of medical cannabis has no rational basis and thus violates the Equal Protection Clause of the Constitution. Plaintiffs further contend that the Federal Government is Judicially Estopped from enforcing medical marijuana prohibition in states that allow such activity because the Administration has previously asserted in public and in court that they would no longer do so.
Plaintiffs in November 2011 initially filed suit in California’s four federal districts against Eric Holder (United States Attorney General), Michelle Leonhart (Administrator of the Drug Enforcement Administration and the individual US Attorneys of each California District: Sacramento, San Francisco, Los Angeles, and San Diego — following increased efforts from the Obama administration and the state’s US Attorneys to crack down on the production and distribution of medical cannabis. Plaintiff’s are asking the Ninth Circuit to reverse the district court’s dismissal of that complaint, and to allow the plaintiff’s the opportunity to prove their contentions in a court of law.
Three members of the NORML Legal Committee — Matt Kumin and David Michael from San Francisco and Alan Silber from Roseland, NJ — are representing the Plaintiffs in this appeal. In a press release, they stated, “The ill, in compliance with state law and with a physician’s recommendation, are made to suffer needlessly by the federal threats and denial of access to medical cannabis due to irrational governmental policy. Judicial intervention is the only way to stop the federal government from acting irrationally and from willfully ignoring the science supporting the use of cannabis as medicine.”
The cases are El Camino Wellness Center, et al. v. Eric Holder et al. (Sacramento), Marin Alliance for Medical Marijuana, et al. v. Eric Holder, et al. (San Francisco), and Alternative Community Health Care Cooperative, et al. v. Eric Holder, et al. (San Diego).
Other NLC attorneys who participated in the litigation of these cases are Lance Rogers of San Diego, Mark Reichel of Sacramento and Edward Burch of San Francisco.
A copy of Plaintiff’s Opening Brief is available here.
The U.S. Court of Appeals for the D.C. Circuit will hear opening arguments next week in a lawsuit challenging the federal government’s refusal to consider reclassifying cannabis as a schedule I prohibited substance under federal law.
At issue in the case is whether the Drug Enforcement Administration (DEA) acted appropriately when the agency last year denied an administrative petition – initially filed by a coalition of public interest organizations, including NORML, in 2002 – that called on the agency to initiate hearings to reassess the present classification of cannabis.
Under federal law, schedule I substances must possess three specific criteria: “a high potential for abuse;” “no currently accepted medical use in treatment;” and “a lack of accepted safety for the use of the drug … under medical supervision.” In its 2011 denial of petitioners’ rescheduling request, DEA Administrator Michele Leonhart alleged that cannabis possesses all three criteria, claiming: “[T]here are no adequate and well-controlled studies proving (marijuana’s) efficacy; the drug is not accepted by qualified experts. … At this time, the known risks of marijuana use have not been shown to be outweighed by specific benefits in well-controlled clinical trials that scientifically evaluate safety and efficacy.”
By contrast, a recent scientific review of clinical trials evaluating the safety and efficacy of cannabis concluded, “Based on evidence currently available the Schedule I classification is not tenable; it is not accurate that cannabis has no medical value, or that information on safety is lacking.”
Commenting on the upcoming hearing in a press release, Joe Elford, Chief Counsel with Americans for Safe Access (ASA) said: “Medical marijuana patients are finally getting their day in court. What’s at stake in this case is nothing less than our country’s scientific integrity and the imminent needs of millions of patients.” Elford will be arguing the case before the D.C. Circuit. Oral arguments in the case are scheduled for Tuesday, October 16th.
NORML previously filed a similar rescheduling petition with the DEA in 1972, but was not granted a federal hearing on the issue until 1986. In 1988, DEA Administrative Law Judge Francis Young ruled that marijuana did not meet the legal criteria of a Schedule I prohibited drug and should be reclassified. Then-DEA Administrator John Lawn rejected Young’s determination, a decision the D.C. Court of Appeals eventually affirmed in 1994.
A subsequent petition was filed by former NORML Director Jon Gettman in 1995, but was rejected by the DEA in 2001.
Further information on the lawsuit is available at: http://safeaccessnow.org. Additional information on the 2002 petition to reschedule cannabis is available at: http://www.drugscience.org/.
Members of the Montana Supreme Court ruled 6 to 1 on Tuesday that patients do not possess a fundamental right to access and consume cannabis for therapeutic purposes. The decision reverses a District Court ruling enjoining the state from enforcing various provisions of a 2011 state law that limits the public’s access to medical marijuana.
“In pursuing one’s health, an individual has a fundamental right to obtain and reject medical treatment,” Justice Michael Wheat opined for the majority. “But, this right does not extend to give a patient a fundamental right to use any drug, regardless of its legality.”
He added, “A patient’s ‘selection of a particular treatment, or at least a medication, is within the area of government interest in protecting public health,’ and regulation of that medication does not implicate a fundamental constitutional right.”
The Court further opined that a patient’s “right to privacy does not encompass the affirmative right of access to medical marijuana.”
The majority concluded, “[T]he plaintiffs cannot seriously contend that they have a fundamental right to medical marijuana when it is still unequivocally illegal under the (federal) Controlled Substances Act.”
The Court’s decision allows for the state to fully implement Senate Bill 423, a 2011 law that sought to significantly limit the use, production, and distribution of cannabis among patients who possess a physician’s authorization to consume it.
Montana voters will decide in November on Initiative Referendum 124, which seeks to repeal SB 423. Montana voters in 2004 approved patients’ use of medical cannabis for qualified illnesses by a vote of 62 percent.
Full text of the decision, Montana Cannabis Industry Association et al. v State is available online here.
NORML has additional details about this November’s statewide and municipal ballot initiative at our Smoke the Vote page here.
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This week: Colorado’s Amendment 64 would bring in big revenue for the state, Grand Rapids will be voting on marijuana decriminalization, and Arkansas’ medical marijuana initiative qualifies for the ballot.
Here is yet another example of a federal government that will twist and turn in the most constitutionally offensive manner to continue to justify Cannabis Prohibition. In a country with a sacredly held First Amendment and a self-evidently failed public policy like seventy-five years of Cannabis Prohibition, trying to silence a citizen—who spent nearly thirty years of his life behind the government’s prison walls for Cannabis Prohibition-created ‘crimes’—from both criticizing the now unpopular government policies surrounding cannabis and prohibiting him from educating willing senior citizens (and even American Bar Association members!) about cannabis as a safe, affordable and efficient (and in 17 states and the District of Columbia legal) alternative medical option to conventional pharmaceuticals (which are often dangerous and expensive as compared to naturally occurring cannabis).
This is just patently wrong.
Thankfully, led by NORML Legal Committee members Michael Minardi and board member Norm Kent, Robert has very aggressive and competent legal assistance to regain his freedom of speech. But, Robert indicates a need for us all to contact the U.S. Parole Commission and ask that they respect Robert Platshorn’s ability to speak and travel freely in America without fear of federal government reprisals.
This man has done his time, he is not breaking any laws, he believes that Cannabis Prohibition policy is bad public policy, people want to hear him speak based on his life’s experience with the policy. In America, no citizen should fear talking publicly to other citizens about public policy, most especially failed and unpopular ones.
Please get the word out as wide as possible about the federal government trying to stop me from exercising my First Amendment rights to talk publicly about the public policy of Cannabis Prohibition. I was to speak before the national convention of the American Bar Association on Aug. 4th. It would have been a milestone for ending cannabis prohibition. And then the call came, “You are not to travel to promote legalization of marijuana without the express permission of the U.S. Parole Commission in Wash. DC.” This is not a legal condition of parole. It’s a First Amendment violation. If you value your right to free speech, read, act and share. Make a phone call for freedom.
Robert’s federal parole officer, Scott Kirsche, phoned and rescinded his ability to travel to speak to a premiere gathering of American lawyers, prosecutors and judges; a prime public audience, a group of citizens integrally involved in the machinery of Cannabis Prohibition law enforcement extend an invitation to be educated by a citizen ill-effected by an unpopular public policy, and the federal government moves to stop this transfer of human-to-human information.
This is so wrong for so many reason.
Talk about the ‘genie being out of the bottle’, as Robert Platshorn’s crusading educational campaign to south Florida seniors about the need to reform cannabis laws has already been prominently featured in major news outlets over the last three months including the Wall Street Journal, NBC affiliate in Miami and soon to air Comedy Central Daily Show feature that is going to rightly ridicule the federal government for trying to silence Robert Platshorn.
Think the feds are feeling heat on ending Cannabis Prohibition? You bet when they try to stop people from simply talking about the failed public policy.
Kirsche to Hirshorn:
“I am ordered by my superiors [Reginald Michael and Frank Smith] to inform you that your permission to travel to Chicago is rescinded and you cannot travel to promote the legalization of marijuana without the permission of the U.S. Parole Commission in Washington D.C. You must request their permission directly.”
Correspondence to the U.S. Parole Commission may be sent to:U.S. Parole CommissionIsaac Fulwood, Jr., Commissioner
90 K Street, N.E., Third FloorWashington, D.C. 20530(202) 346-7000 (p)Media Contact: USPC.firstname.lastname@example.org