Suit Before Ninth Circuit Court Of Appeals Seeks To Halt Federal Actions Against California’s Medical Cannabis Providers

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.

This Week in Weed: April 8th-15th

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In this episode: NORML attorneys file a lawsuit in NJ, DC announces 6 marijuana cultivation centers, a new poll shows growing support for legalization, and more.

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New Jersey: NORML Lawyers File Constitutional Lawsuit Over State’s Failure To Implement Two-Year-Old Medical Cannabis Law

Members of the NORML Legal Committee filed suit yesterday against the State of New Jersey over regulators failure to implement the Compassionate Use of Medical Marijuana Act.

First signed into law by former Gov. Jon Corzine on January 18, 2010, the law — which establishes the creation of up to six state-licensed ‘alternative treatment centers’ to provide medicinal cannabis to qualified patients — was initially scheduled to take effect in July 2010. Since that time state regulators, at the behest of present Gov. Chris Christie, have unduly delayed the law’s implementation. To date, not a single patient in New Jersey has been afforded legal protections under the Act in the 27 months since the measure was signed into law.

On Wednesday, April 4, NORML Legal Committee attorneys William H. Buckman of Moorestown and Anne M. Davis of Brick filed a lawsuit on behalf of a New Jersey medical patient who would qualify for cannabis access. The suit also represents one of the few medical doctors who have registered with NJ to recommend medical marijuana. Named in the suit are the Department of Health and Senior Services (DHSS) Commissioner Mary O’Dowd and the newly appointed director of the Medicinal Marijuana Program John O’Brien.

Read the press release below:

CONSTITUTIONAL LAWSUIT FILED OVER FAILED NJ MEDICAL MARIJUANA PROGRAM

Trenton: Today a lawsuit was filed against the State of New Jersey over the failure to implement the Compassionate Use Medical Marijuana Act. Named in the suit are the Department of Health and Senior Services (DHSS) Commissioner Mary O’Dowd and the newly appointed director of the Medicinal Marijuana Program John O’Brien.

Civil rights attorneys William H. Buckman of Moorestown and Anne M. Davis of Brick brought the suit on behalf of a New Jersey medical patient who would qualify for cannabis access. The suit also represents one of the few medical doctors who have registered with NJ to recommend medical marijuana.

The compassionate use law was passed in January 2010 with a six-month implementation timeline. But since 2010 a series of politically motivated regulatory, legislative and bureaucratic delays have kept the program from operating at all. None of the six approved Alternative Treatment Centers have been fully permitted by DHSS to open.

“We represent a patient who suffered actual damages as a result of these delays,” said Anne Davis, “He cannot utilize the cannabis because New Jersey’s lack of a working program means he could lose his disability pension if he tested positive for cannabis.”

Davis continued, “Our neighbors with AIDS, cancer, MS and the worst of medical conditions have testified before the legislature and changed the law. Now, patients and doctors have to go to court to win the rights that they should have already been afforded.”

The lawsuit gathers more than two years of facts demonstrating that those in charge of the implementation process for New Jersey’s medical marijuana program have been unable or unwilling to put the law into place.

“Today we are filing suit to require the DHHS to do what every other citizen must do — follow the law,” said William Buckman, “We are also insisting that pursuant to the legislature’s will, sick people have access to medical marijuana without fear of arrest.”

This Week in Weed: March 4th-10th

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This week in weed: a recent study further illustrates marijuana’s effectiveness in treating chronic pain and a federal judge dismisses the NORML Legal Committee lawsuit against the federal government.

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2011: The Year In Review – NORML’s Top 10 Events That Shaped Marijuana Policy

#1 NORML Sues to Halt Government’s Prosecution of Medical Cannabis Providers
In October, the United States Deputy Attorney General, along with the four US Attorneys from California, announced their intentions to escalate federal efforts targeting the state’s medical cannabis dispensaries and providers. In response, members of the NORML Legal Committee filed suit in November against the federal government arguing that its actions were in violation of the Ninth, Tenth, and Fourteenth Amendments of the US Constitution. Plaintiffs further argued, using the theory of judicial estoppel, that the Justice Department had previously affirmed in federal court that it would no longer use federal resources to prosecute cannabis patients or providers who are compliant with state law. NORML’s lawsuit remains pending. Read the full story here.

#2 Members of Congress Introduce First Bill Since 1937 to Legalize Cannabis
House lawmakers introduced legislation in Congress in June to end the federal criminalization of the personal use of marijuana. The bipartisan measure – HR 2306, the ‘Ending Federal Marijuana Prohibition Act of 2011′ – prohibits the federal government from prosecuting adults who use or possess cannabis by removing the plant and its primary psychoactive constituent, THC, from the five schedules of the United States Controlled Substances Act of 1970. The bill awaits Congressional action. Read the full story here.

#3 Gallup: Majority of Americans Support Legalizing Cannabis
A record 50 percent of Americans now believe that marijuana ought to be legalized for adult use, according to a nationwide Gallup poll of 1,005 adults published in October. The 2011 survey results mark the first time ever that Gallup has reported that more Americans support legalizing cannabis (50 percent) than oppose it (46 percent). Read the full story here.

#4 Over One Million Americans Now Use Cannabis Legally Under State Law
Between one million to one-and-a-half million US citizens are legally authorized by the laws of their state to use marijuana, according to data compiled in May by NORML from state medical marijuana registries and patient estimates. Read the full story here.

#5 Marijuana Prosecutions For 2010 Near Record High
Police made 853,838 arrests in 2010 for marijuana-related offenses according to the Federal Bureau of Investigation’s annual Uniform Crime Report, released in September. The annual arrest total is among the highest ever reported by the agency. Marijuana arrests now comprise more than one-half (52 percent) of all drug arrests in the United States. Read the full story here.

#6 Largest State Doctors Association Calls For Legalizing Cannabis
The California Medical Association in October called for the “legalization and regulation” of cannabis for adults. The association, which represents some 35,000 physicians, recommends that cannabis be taxed and regulated “in a manner similar to alcohol.” Read the full story here.

#7 Connecticut Decriminalizes Cannabis Possession Offenses
Statewide legislation took effect in July reducing the penalties for the adult possession of up to one-half ounce of marijuana from a criminal misdemeanor (formerly punishable by one year in jail and a $1,000 fine) to a non-criminal infraction, punishable by a $150 fine, no arrest or jail time, and no criminal record. Read the full story here.

#8 Vaporized Cannabis Augments Analgesic Effect of Opiates in Humans
Vaporized cannabis significantly augments the analgesic effects of opiates in patients with chronic pain, according to clinical trial data published online in the journal Clinical Pharmacology & Therapeutics in November. Investigators surmised that cannabis-specific interventions “may allow for opioid treatment at lower doses with fewer [patient] side effects.” Read the full story here.

#9 State Governors Call on Obama Administration to Reclassify Cannabis
In December, governors from Rhode Island, Vermont, and Washington formally requested the Obama administration to reclassify cannabis under federal law in a manner that would allow states to regulate its therapeutic use without federal interference. The administration in July had previously rejected a nine-year-old petition calling on the agency to initiate hearings to reassess the present classification of marijuana as a schedule I controlled substance without any ‘accepted medical use in treatment.’ Read the full story here.

#10 Delaware Becomes 16th State to Legalize Limited Medical Use of Marijuana
State lawmakers in May approved legislation to allow patients with a qualifying illness may legally possess up to six ounces of cannabis, provided the cannabis is obtained from a state-licensed, not-for-profit ‘compassion center.’ The law is anticipated to be implemented in 2012. Read the full story here.