NORML Attorneys File Multiple Constitutional Challenges To Federal
Medical Marijuana Crackdown Posted by Ninja Smoker at 1:31 pm on
November 7, 2011 Medical Marijuana Policy Add comments
By Russ Belville
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 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.
