NORML Attorneys file multiple constitutional challenges to federal medical marijuana crackdown

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 thoughts

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

  2. 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.

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

  4. 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

  5. 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 .

  6. 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?

  7. 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?

  8. This is where judicial appointments matter. Why Presidential elections matter. There are more Republican nominated Federal judges than Democratic ones. Normally for a personal liberty, states rights, free market issue, that would be good. However, neither patients nor suppliers are large corporations (representing and controlling vast wealth) so Republican judges are less interested in protecting or expanding their rights. Add to the that, the culture war baggage that marijuana carries as being the favored drug of minorities and hippie/liberals and you have more headwinds in garnering judicial favor.
    If for example a group of multinational pharmaceutical companies were filing these suits, represented by top corporate law firms, that alone would affect how many of the judges would view these suits. In law, those factors aren’t supposed to matter, except they do.

  9. wow, this is a great argument! It’s about time, let’s just hope the courts agree. But this is pretty solid.

  10. its gonna take alot of people stepping up to the plate and completly smuthering and shutting up the ratty few that are still keeping this prohibition thing alive. and i saw and angel on top of a cloud with the seals in his hands and he came down and laid hold on the serpent….

  11. Some things are better off left alone,are’nt they boys? when WE THE PEOPLE ARE NOT HAPPY, NOBODY’S GOING TO BE HAPPY.

  12. Hell yes!!! Keep filing suits until they puke green and yell surrender!!! How about a follow up lawsuit for when they said marijuana has no medical value? Can we take that one to the next level of appeals? We have medical marijuana patients at the government level—-This is proof that the government admits marijuana has medical value. I’m glad NORML is going in this direction. Hit em high and hit em low—then do it again!!! Get em NORML!!!

  13. I think they should just challenge the fact that Marijuana is a Schedule I drug and that the enforcement as such is not legal to start with. The fact that doctors do prescribe Marijuana to patients should be enough evidence that the drug has medically recognized uses. The CSA does not specify what authority determines this criteria, and so it doesn’t really matter what the FDA or various half-century old studies have to say on the topic, medical practitioners in medical marijuana states prescribe marijuana as medicine and just because the FDA doesn’t recognize marijuana as medicine does not change that.

  14. Catch them up in their lies and discrepancies. Hit them where they can’t defend it, and make a big public show about it. The truth will always prevail if there are enough people screaming it.

  15. Obama, how will you expiain the way you aquired your presidency to your children? some example this is for them. Maybe yours should be taken too.

  16. sigh, until you order your state to remove pot from the same legal definetion as heroin you will continue to have problems. Period! Your going at the fed before dealing properly with disposing of the state level identification is doomed. Don’t blame anyone but yourselves! You have Got to sue your state to bring forth the state AG to defend your state-given right to pot. You have to take pot out of schedule one and Then sue hell out of the fed with your state AG like the law is built to act like. Knock yourselves out trying to re invent the wheel, regulatory law is already in place to help you do this vital, wonderful work.

  17. Regarding number three….I’m afraid he’s right .
    In case Says:
    November 7th, 2011 at 3:19 pm
    “In case you haven’t noticed, all federal marijuana jurisprudence is aimed at supporting prohibition no matter the constitution. No hopes here” .
    We’ve lost out rights . The constitution is gone . Corruption prevails . The Government has already set up fema camps for us when the populace explodes with anger .It’s coming and it’s getting close . They say it’s for emergencies such as federal disasters . Then why all the fencing & barbed wire ?
    http://www.freedomfiles.org/war/fema.htm

  18. my fear is that if this argument holds up, the easy way out for the feds is to say, hmmm you’re right! lets crack down everywhere, stop our own program and strangle any research more than we already have. of course if this happens we’ll have to push harder. (even though they’re already anticipating the potential violent side of that by taking away the right to bear arms)

  19. At this point, I don’t even care if we don’t win. I don’t care if it takes 100 years, because prohibition alone is enough to make me not free. Just keep fighting, we’ll never stop.

  20. I have said this numerous times, but I feel that I should announce this at least once more.
    1. Marijuana should be completely legalized for personal consumption by adults older than 18.
    2. When it does become legal, the government cannot be allowed to monopolize the production and sales.
    3. Every man and woman should have the opportunity to grow and sell for additional income. (If this is done, our economy will rebound quickly.)
    4. The government cannot control who is allowed to grow and sell, they will “sell” the rights to the highest bidder. I.e. – Corporate America.(We all see how well the government decides who gets funding and support.)
    5. Every home with a victory garden in the backyard will drive prices down, no more cartels. Quality not availability will determine prices, gifting will be the norm.
    6. Everyone growing or working green jobs will increase spending on all goods and services, thus requiring another hiring boon.
    Overgrow America!! I want a greenhouse on every block!!

  21. Thank you for the accurate update on the fight against this rediculous “crackdown” on medicinal cannabis. Glad to know that the suit is well under way. We as the people should be able to chose NATURAL alternatives to the MAN-MADE DRUGS being handed out by the millions+ and destroying peoples lives. Thank god for cannabis! Peace

  22. How is Jay Nixons son getting all charges dropped for MJ and everyone else gets screwed? i must have missed something. Anybody know? i smell a farce and it’s rank!

  23. “3. Actively restricts scientific research into the medical value and use of cannabis to alleviate human suffering and pain.”
    This is the one that really gets to me — to purposely thwart the advance of medical science. Absolutely MONSTROUS!
    All the crackdown will do is drive everything into the underworld, including the homicidal sociopaths in the Mexican drug cartels. These are your tax dollars at work. I’m not a big fan of conspiracy theories, but I find it funny that the government’s anti-weed actions always seem to accomplish nothing but put money in the coffers of a criminal underworld.

  24. i bet that the government absolutely hates the fact that the legalization movement has lawyers who can use the fucked up judicial system against them not like back in the day where all the advocates were just hippies and the government would just say no and not really have to do anything about it but now they have to justify their actions legally or itl be turned around

  25. Fascist Bush. Socialist Obama. Oh, okay, they’re GOP and Democratic Party guys but they are still not in favor of taking their oath of office seriously in regards to the protection and upholding of the Constitution of the United States of America. Yet anyone who wants to stand by this guarantee of our rights gets slammed as a fringe/radical type by the majority of US citizens. Sure a lot of freedom haters out there and they’re not Moslems out for a Caliphate, the extermination of Israel and terrorism, they’re Americans!
    Occupy America until it’s freedom is restored for ALL citizens.

  26. It’d be good to get a couple of my Constitutional Rights back. 2 out of 5 ain’t bad and better than what I’ve got right now. With a 2 Nano gram per liter blood limit on driving in my state I can’t even ride a bike legally and if I want to go target shooting I better slither through the back roads on that bike while leaving my MMJ card at home… that I have to jump through hoops to get. :-/
    Maybe the wall will fall?

  27. If this lawsuit is successful in obtaining an injunction, how far could it stop the crackdown? I mean, it would obviously stop the prosecutors, but would it stop the IRS from their obscene tax assessments?

  28. I am not optimistic.They will stall these lawsuits for years.The petitions are blown off like most of us do when a telemarketers number shows up on our caller ID.
    My state rep never acknowledges my petitions.We all demand change using our keyboards.When the farmers wanted change,they loaded up their tractors and went to Washington DC.When the truckers wanted change,they drove their trucks to Washington DC.Until someone organizes a movement,and enough people disregard fear and attend,we will live with what we deserve.

  29. Thank you to the brave gentlemen who are taking this fight to the courts. Cannabis must be removed from its Schedule 1 status, citing medical and psychological studies which show the benefits of its usage in a responsible manner.
    The federal government must understand that this argument for the safe and responsible use of cannabis by adults is not going away, nor will threats to property owners and caregivers at dispensaries diminish the support that justice prevail over outdated and scientifically ignorant policies which keep cannabis listed as a Schedule 1 drug.
    [Paul Armentano responds: Here is the Associated Press story on the lawsuit:
    Medical pot advocates sue feds over crackdown
    By MARCUS WOHLSEN, Associated Press – 1 day ago
    SAN FRANCISCO (AP) — Attorneys for medical marijuana advocates on Monday sought a temporary restraining order to put a stop to a federal crackdown on California pot dispensaries, claiming the effort by the state’s four U.S. attorneys is unconstitutional.
    Plaintiffs asked U.S. District Court Judge Donna Ryu in Oakland to issue an order barring the government from arresting or prosecuting patients, dispensary owners or landlords of properties housing dispensaries.
    Pot advocates said dispensaries in the San Francisco Bay area would start closing this weekend if a restraining order was not issued.
    The state’s four federal prosecutors last month announced a broad effort to close pot clubs, in particular by sending letters to landlords who rent space to pot dispensaries threatening to seize their property under federal drug trafficking laws.
    Lawsuits filed starting Friday in all four of California’s federal court jurisdictions accuse the Department of Justice of entrapping pot providers by reversing its own policy, among other legal issues.
    Plaintiffs’ attorneys cited a Santa Cruz County medical marijuana cooperative’s agreement with federal prosecutors to dismiss its case against the government because the department issued a memo telling U.S. attorneys to defer to states on medical use of the drug.
    The lawsuits claim that by introducing the Justice Department’s so-called Medical Marijuana Guidance memo as part of that case, prosecutors were essentially laying out their policy on medical marijuana. “They locked themselves in,” said San Francisco attorney Matt Kumin, lead attorney on the suits.
    Based on the memo issued in 2009, other medical marijuana providers in the state could reasonably assume they would no longer face federal prosecution, the suits argue.
    “The conduct of the government officials and their statement led the nation to believe that the government had changed its policy in 2009, ensuring that those who comply with state medical cannabis laws would not be subject to federal prosecution,” according to the suits.
    The U.S. Attorney’s Office for the Northern District of California had no comment, spokesman Jack Gillund said.
    Pot advocates hailed the 2009 memo as the fulfillment of an Obama campaign promise to respect state law on medical marijuana. But after a short honeymoon the federal government has steadily moved toward more restrictive marijuana policies, even as more states began permitting legal use of the drug for medical purposes.
    The California lawsuits argue that the federal government is also violating the 14th Amendment of the Constitution requiring equal protection under the law because medical marijuana operations in Colorado are not facing a similar crackdown.
    The suits claim patients’ rights to make their own health decisions are protected by the 9th Amendment, which retains rights for citizens not explicitly spelled out in the Constitution, and that the so-called Commerce Clause of the Constitution prevented the federal government from getting involved in an issue purely related to the in-state marijuana trade.
    National medical marijuana advocacy group Americans for Safe Access filed its own suit last month challenging the federal crackdown. That suit claims that recent raids of licensed dispensaries and letters warning city officials they could be prosecuted for trying to regulate medical marijuana cultivation and sales constitute an illegal power grab under the 10th Amendment. The amendment awards to states legislative authority not explicitly reserved for the federal government.
    Copyright © 2011 The Associated Press. All rights reserved.

  30. This current Administration is more involved at limiting the amount of Marijuana, as Obama like to state, by busting the people who can benefit from using it. Nevermind stopping the flow of Marijuana from their Mexican Cartels that they also bring up. Why? Could it be that they might actually have to enforce Immigration Laws to do that? This Administration has no interest in looking like the bad guys to foreign countries. They are worried about their image outside this country. Be damned what the Citizens think.
    Obama and Crew need to get elected out. Just my 2 pennies.

  31. The War on Drugs failed $1 Trillion ago! This money could have been used for outreach programs to clean up the bad end of drug abuse by providing free HIV testing, free rehab, and clean needles. Harmless drugs like marijuana could be legalized to help boost our damaged economy. Cannabis can provide hemp for countless natural recourses and the tax revenue from sales alone would pull every state in our country out of the red! Vote Teapot, PASS IT, and legalize it. Voice you opinion with the movement and read more on my artist’s blog at http://dregstudiosart.blogspot.com/2011/01/vote-teapot-2011.html

  32. From Justice Clarence Thomas (his dissent in Gonzales v. Raich):
    “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.”
    The Commerce Clause (i.e. “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”) has been irrationally applied to ban the non-economic possession of a plant.
    To abandon rationality is to abandon law.
    The outrageous “interpretation” of the Commerce Clause corrupting legal precedence for decades must stop. That will only happen when “We the people” take our Supreme Court to the truly highest court of the land, the court of public opinion, applying a sufficient public spotlight to expose the corruption.
    Please help spread the word.

  33. Unfortunately, it appears the medical cannabis industry as we know it probably won’t exist under the current government. The good news, something just feels really wrong with the marijuana laws. The foresight Gallop had with their recent polling pretty much echoes the sentiment of the American population. It looks very promising that a future of the baby boomers, X generation, and Millennium generation will have significantly decriminalized cannabis laws.

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