NORML Attorneys file multiple constitutional challenges to federal medical marijuana crackdown

  • by Russ Belville, NORML Outreach Coordinator November 7, 2011

    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.

    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.

    Click here to join NORML today and help us in the fight to legalize marijuana.

    93 responses to “NORML Attorneys file multiple constitutional challenges to federal medical marijuana crackdown”

    1. jacob says:

      finally! A REAL GOOD FIGHT!
      stick to those point lawyers!

    2. In case says:

      In case you haven’t noticed, all federal marijuana jurisprudence is aimed at supporting prohibition no matter the constitution. No hopes here.

    3. ancient wizard says:

      hellz yeah!!! Give ’em hell boys!!!!!

    4. Adam says:

      Beautiful. I’m just a little worried about this case making it’s way to an SC that thinks corporations have the same rights as people.

    5. Michael Hennigan says:

      I wanna see the judge try and evade the constitutional amendments. It should be a breeze! OR a corrupt judicial system.

    6. Jordan Foreman says:

      If the government is really going to single out Californians the way they are, they deserve to feel the wrath of attorneys that are willing to take a stand against Constitutional violations. Personally, I would like to see the attorneys mention something about the Right to Bear Arms, as they’re also singling us medical card holders out in that respect.

      Thank you for arguing our case, LET IT BE LEGALIZED

    7. Well, this is good news .After visiting my local dispensary here in, Los Angeles i picked up one of those free ” Kush ” magazines & inside it i learned that a lot of the well known dispensary landlords who get notifications that their Pot shop tenants must close down or their property will be seized have moved on but then just reopen in another location .So we say….Feds go away .Get out of our California .Your not welcome here .Go away .

      A grower named, Daleman & his landlord were given
      ” cease & desist ” orders to stop growing & clear the weeds from a medical marijuana farm .However in, Tulare County, Superior Court Judge, Paul Vortmann issued a restraining order to PREVENT officials from pulling any medical marijuana plants from his farm just north of Visalia .

    8. Joel: the other Joel says:

      This is a historic moment and should rank among the most significant constitutional challenges in American history.

      This is a serious constitutional issue that affects all citizens of the United States against a failed policy that was created by the angry and ambitious former president Richard M. Nixon.

      Will the results become a breaking news bulletin on major television networks and being mentioned on world news?

    9. Mark says:

      My guess is the government will say “Tough shit AND fuck you, it’s illegal on the federal level” and once again we will be heartbroken. How much longer are we gonna take this shit, guys?