NORML Attorneys Challenge Federal Crackdown

Nov, 7, 2011 - NORML attorneys notified the federal government today that they were filing suit against the crackdown on medical marijuana in all four federal court districts of California. The lawsuit cites multiple constitutional arguments and seeks an immediate TRO or
injunction against the DOJ in federal court. -DG

See a copy of the lawsuit

From the NORML blog:
NORML Attorneys file multiple constitutional challenges to federal medical marijuana crackdown
November 7th, 2011 By: Russ Belville, NORML Outreach Coordinator

NORML Attorneys Matt Kumin, David Michael, and Alan Silber, have filed suit in the four federal districts in California to challenge the Obama Administrationís 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 courtsí dismissal of County of Santa Cruz, WAMM et al. v. Eric Holder et al. where the Department of Justice (DOJ) ìpromised 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. The suit says,

"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 canít 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 Constitutionís Interstate Commerce Clause does allow the feds to prosecute Californiaís 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."


A fine set of legal arguments

My comment is more of a question for the group. how is it that cannabis can still be listed as a schedule 1 narcotic with no medical value when all of the medical research indicates it is impossible to overdose on medical cannabis and so many patients have attested to its efficacy,

How can the US Government put any witness on the stand to support the logical and factual basis for medical cannabis to be listed improperly as a harmful drug with no medical benefit.

I would love to see a ruling on in favor of NORML based on both equal protection and the commerce clause arguments.

Good Luck

THANK YOU NORML ATTORNEYS!!!!

Take that UNCLE SAM! Score 1 for our team! :)

Cite The Actual Substance of our U.S. Constitution!

It is imperative that you assert that the original Constitution, etc., are all made out of same Genus and Species! This has been the most neglected part of Raich, etal. - including our SCOTUS' own elementary school, history curricuals...