NORML Attorneys Matt Kumin, David Michael, and Alan Silber, have filed suit (read here) in the four federal districts in California to challenge the Obama Administration’s recent crackdown on medical marijuana operations in the Golden State. Aided by expert testimony from NORML Deputy Director Paul Armentano and research from California NORML Director Dale Gieringer, the suits seek an injunction against the recent federal intrusion into state medical marijuana laws at least and at most a declaration of the unconstitutionality of the Controlled Substances Act with respect to state regulation of medical marijuana.
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The NORML attorneys allege the federal government has engaged in entrapment of California patients and their caregivers. They point to the courts’ dismissal of County of Santa Cruz, WAMM et al. v. Eric Holder et al. where the Department of Justice (DOJ) “promised a federal judge that it had changed its policy toward the enforcement of its federal drug laws relative to California medical cannabis patients.” So after 2009, California providers had reason to believe that the federal government had changed its policy. The legal argument is called ‘judicial estoppel’, which basically means that courts can’t hold true to a fact in one case and then disregard it in another.
Kumin, Michael, and Silber also argue the government has engaged in ‘equitable estoppel’, which most people commonly think of as ‘entrapment’. That is to say, you can’t bust a person for committing a crime when the authorities told him it wasn’t a crime to do it!
Under established principles of estoppel and particularly in the context of the defense of estoppel by entrapment, defendants to a criminal action are protected and should not be prosecuted if they have reasonably relied on statements from the government indicating that their conduct is not unlawful. That principle should be applied to potential defendants as well, the plaintiffs in this action. Such parties, courts have noted, are “person[s] sincerely desirous of obeying the law”. They “accepted the information as true and [were]…not on notice to make further inquiries.” U.S. v. Weitzenhoff, 1 F. 3d 1523, 1534 (9th Cir. 1993).
The US Constitution figures prominently in the legal challenge as well. The 9th Amendment says that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The NORML attorneys argue that threatening seizure of property and criminal sanctions violates the rights of the people to “consult with their doctors about their bodies and health.”
The 10th Amendment provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The NORML attorneys argue that the States have the “primary plenary power to protect the health of its citizens” and since the government has recognized and not attempted to stop Colorado’s state-run medical marijuana dispensary program, it cannot suggest Colorado has a state’s right that California does not.
The 14th Amendment says that all citizens have equal protection under the law. The NORML attorneys argue that the federal government:
1. Actively provides cannabis for medical purposes to individuals through its own IND program.
2. Actively allows patients in Colorado to access medical cannabis through a state-licensing system that allows individuals to make profit from the sales of medical cannabis.
3. Actively restricts scientific research into the medical value and use of cannabis to alleviate human suffering and pain.
Thus, according to Kumin, Michael, and Silber, the government can’t be allowing Colorado medical marijuana commerce, engaging it its own IND program that mails 300 joints a month to four federal medical marijuana patients yet squelching all attempts to study medical value of marijuana, then have a rational basis for shutting down medical marijuana dispensaries in California. Under the 14th Amendment, the feds can’t treat Californians differently than Coloradoans and differently than four US citizens who get legal federal medical marijuana.
Finally, while acknowledging that Raich v. Gonzales 545 US 1 (2005) set the precedent that the Constitution’s Interstate Commerce Clause does allow the feds to prosecute California’s medical marijuana, the NORML attorneys argue:
…it is still difficult to imagine that marijuana grown only in California, pursuant to California State law, and distributed only within California, only to California residents holding state-issued cards, and only for medical purposes, can be subject to federal regulation pursuant to the Commerce Clause. For that reason, Plaintiffs preserve the issue for further Supreme Court review, if necessary and deemed appropriate.
We will keep you posted on all updates related to this groundbreaking lawsuit. Archive of our interview with the lead attorneys in this case is available in our “Audio/Video” section on The NORML Network.
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The Obama White House has released its official response to the “We the People” online petition for marijuana legalization submitted by NORML. The petition, which garnered 74,169 signatures, was by far the most popular petition submitted. The government response (released late on a Friday to avoid news cycles, we’ll note) repeats the same tired lies and classic misdirections. Most of all, it fails to answer NORML’s actual petition, which asked:
Legalize and Regulate Marijuana in a Manner Similar to Alcohol.
We the people want to know when we can have our “perfectly legitimate” discussion on marijuana legalization. Marijuana prohibition has resulted in the arrest of over 20 million Americans since 1965, countless lives ruined and hundreds of billions of tax dollars squandered and yet this policy has still failed to achieve its stated goals of lowering use rates, limiting the drug’s access, and creating safer communities.
Isn’t it time to legalize and regulate marijuana in a manner similar to alcohol? If not, please explain why you feel that the continued criminalization of cannabis will achieve the results in the future that it has never achieved in the past?
Following is the full official White House response, with NORML’s comments interspersed…
What We Have to Say About Legalizing Marijuana
By: Gil Kerlikowske
When the President took office, he directed all of his policymakers to develop policies based on science and research, not ideology or politics. So our concern about marijuana is based on what the science tells us about the drug’s effects.
Oh, good. Then we’ll look forward to implementation the 1972 Shafer Commission Report or any of the other government and scientific studies that recommend the decriminalization of cannabis. (more…)
President Obama responded to the most popular question (or, the eighty most popular questions) on YouTube.com’s “Ask Obama” forum regarding the debate on drug legalization in America. Despite being the most popular question and gaining four times the support of any other non-drug war question, the YouTube moderator didn’t ask the question until #15. The President’s response is a lot of platitudes about treatment, reducing demand, and reallocating resources, despite the Obama administration’s budget that puts twice the resources toward law enforcement than to treatment. At its core, however, it retains the premise that responsible adult marijuana consumers must be persuaded by our government, through drug tests, drug courts, forced rehab, and incarceration, into not consuming cannabis.
Mr. President, we’re never going to stop smoking marijuana. Never. American demand for cannabis is here to stay. You can let criminals control that market or you can do the sensible thing and begin regulating it.
Once again you have asked us about changing American policy and the direction this country should take. Your “Ask Obama” forum sponsored by YouTube promises to take questions from the American people on the issues they find most important in terms of national policy.
When you did this in 2010 you heard from us loud and clear about marijuana law reform. We asked about re-scheduling cannabis to allow medical marijuana to flourish, decriminalizing marijuana to end thousands of arrests, legalizing pot to raise tax revenue, ending prohibition to cripple Mexican drug traffickers, regulating cannabis to keep it out of kids’ hands, reforming drug laws to re-prioritize police resources, embracing industrial hemp as a truly green energy source, and using science, not politics, to dictate our drug policy.
And you flat-out ignored us, despite those questions dominating in both quantity and popularity.
When you did this in 2009 you got the same response from the public. That time you didn’t ignore us; you just laughed at us (see: http://www.youtube.com/watch?v=QLFmGu57jLI).
We know you’re a busy man and there are many pressing issues facing this country. So we took the time to review the Top 100 questions on the “Ask Obama” site just now and condense each one into a few words so you could get an idea what the country is voting on.
Understand that this is not the list that appears when one clicks on the site. This list is compiled by choosing “All Questions” and then choosing “Sorted by popularity”. When one first visits the site, one of seven random topics including Jobs & Economy, Foreign Policy & National Security, Health Care, Education, Immigration, Energy and Environment, and Other, is presented in “Sorted by what’s hot” order, so it isn’t as if a certain topic becomes popular and then gets more popular because more random visitors are exposed to it.
So here they are, out of 97,344 people who have submitted 77,551 questions and cast 826,973 votes, these are the Top 100 Questions (as of Tuesday, 10pm Pacific). I’ve taken the liberty of color-coding questions about the Drug War in white, questions about you ignoring our questions about the Drug War in yellow, and questions that are not about the Drug War in red.
Wait, make that the Top 101 Questions, so I can have at least one red question… Click the graphic above to read the full-sized version… or continue reading for all the questions…
(The Raw Story via InfoWars.com) “We’re not at war with people in this country,” [US Drug Czar Gil] Kerlikowske told The Wall Street Journal in May.
However, if the Office of National Drug Control Policy’s (ONDCP) budget for fiscal year 2011 is to be believed, Kerlikowske was full of hot air.
According to 2011 funding “highlights” released by the ONDCP (PDF link), the Obama administration is growing the drug war and tilting its funds heavily toward law enforcement over treatment.
The president’s National Drug Control Budget also continues the Bush administration’s public relations tactic of obscuring the costs of prosecuting and imprisoning drug offenders. “Enron style accounting,” is how drug policy reform advocate Kevin Zeese described it, writing for Alternet in 2002.
The budget places America’s drug war spending at $15.5 billion for fiscal year 2011; an increase of 3.5 percent over FY 2010. That figure reflects a 5.2 percent increase in overall enforcement funding, growing from $9.7 billion in FY 2010 to $9.9 billion in FY 2011. Addiction treatment and preventative measures, however, are budgeted at $5.6 billion for FY 2011, an increase from $5.2 billion in FY 2010.
In short, the Obama administration’s appropriations for treating drug addiction are just short of half that dedicated to prosecuting the war.
The problem, of course, is that when you have declared drugs to be illegal, you must expend resources to arrest, try, and convict the people who manufacture, transport, sell, buy, and use drugs. It’s really less about the the people who use drugs than it is about the people whose jobs depend on arresting the people who use drugs.
We’re in the middle of a recession. Jobless numbers are through the roof. If marijuana were regulated like alcohol or tobacco, you suddenly add a whole bunch of DEA, police, prosecutors, wardens, guards, and more to the unemployment line. Then add in the young people who have found marijuana growing and dealing to be the only living wage job they can find, now suddenly unemployed by marijuana re-legalization, and you’ll see unemployment figures that would guarantee an Obama re-election defeat in 2012.
Yes, a legal marijuana market would open up many jobs and industries and tax revenues heretofore unrealized, but transitioning to that market is going to take time. In the meantime, what jobs are open for former drug cops and pot dealers?
We bring this up to temper our disappointment in a man who in 2004 said our “War on Drugs is an utter failure and we need to rethink and decriminalize our marijuana laws” but in 2010 has turned into just another prohibitionist president.
(Find more information on this contradiction between the Obama Administration’s lip service toward treatment over incarceration, complete with quotes and informative graphs, at Pete Guither’s informative DrugWarRant blog.)