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. Maybe it’s just my personality, but there is nothing more enjoyable than consuming good cannabis and listening to the music of your preference.

  2. HELL YEAH, Sick’em guys, sick’em.
    Especially love the part about, you can’t stop us from doing something you claim is illegal, yet participate in yourself.

  3. Do a money bomb like the Ron Paul Campaign. Make sure these guys get all the financial resources they need to fight the govt!

  4. I think the main arguement the DOJ uses against leagalization is that it costs billions in counter productivity. I think there was a nice report they issued as evidence to that not too long ago. Well today I read that it costs America $38 billion waiting for the cable man and other similar services.I guess we are going to lock up the service technicians with horrible mandatory minimum sentences for making us wait at home for their services? This arguement gets sadder every day. Legalize it.

  5. First and foremost, Thank you for the attorneys who are fighting this battle for medical marijuana. I hope the restraining orders will be issued.The government should have no say over a persons health. If you wanna go after someone, go after the big time Pharmacutical Companies. Man made medicines that mess up your bodies normal process as well as a cause for many diseases and disorders. I blame you for my child disorder. I took medication as ordered while I was pregnant and they ended up causing defects to my child.I also believe it was the cause of the miscarriage of her twin.So I will continue to medicate myself with something more natural ,thank you very much.

  6. Hold to the concept of hypocrisy of the current way things are being done. Do not resent the government in your case. Persuade with utmost sense of fairness for the sake of patients and do not further your bounds. Stick to the formula and listen closely to the others, then think hard about what they want and how your case may help them get what they want and you will succeed. Good luck


  8. Starting to think it’s a political game with political timing. 24 months ago Obama was fresh new and in charge, and DEA resources were better used elsewhere right?
    Now it’s got this infusion of taxpayer money to go on the rampage all of the sudden, well not really, it’s seems very synchronized with a desperate Obama re-election campaign.
    Hopefully this is temporary and everyone will be sued into niceness for California’s Compassionate use.
    Long live Medical Marijuana

  9. #33 Lefty NugToker
    Amen to that … to each & every point!
    Further, IANAL but IF the Constitution’s inherent balance of power between the branches of government is routinely ignored, with the ‘Unitary Executive’ that can suspend habeous corpus, posse comitatus, engage in extreme rendition and enhanced interrogation techniques, plus extrajudicial execution (really assassination) of American citizens and start foreign wars without Congressional approval, wouldn’t legal arguments in favor of State over Federal rights also be routinely ignored?
    In America’s history, the Founding Fathers wanted to bind the former colonies together with the Federal government enforcing trade tariffs at external boundaries while eliminating internal tariffs that would hinder intrastate commerce. That is why the ‘Supremacy Clause’ exists in the body of the Constitution, while both Individual and States Rights were enumerated in the Bill of Rights aka the first 10 Amendments. External tariffs comprised the largest part of the Federal government funding, beyond special war taxes and war bonds, up until 1916 when the Wilson instituted income taxes to support the USAs entry into WW-1.
    ‘Our’ newly created (1914) private for-profit central bank aka Federal Reserve, used the income tax as ‘citizen’s collateral’ to loan the Federal government as much money as necessary for Wilson to wage the war he campaigned against, with interest. The Federal Reserve then ‘screwed the pooch’ by creating easy money (Roaring 20’s) and then issued a warrant on all stock call options that precipitated the stock market crash, a run on the banks, and the Depression. Of course, The Federal Reserve made money on both the up-side and down-side, so easy since they are essentially ‘insider’ traders.
    The prohibition of cannabis has been around institutionally for so long that nearly every one of the Bill of Rights has been squashed in its support, including:
    1st Amendment Freedom of Speech and Religion;
    2nd Amendment Right to Bear Arms;
    4th Amendment Rights Against Illegal Search & Seizure;
    5th Amendment Right From Self-Incrimination;
    6th Amendment Right to a Speedy Trial & Confront Witnesses;
    7th Amendment Right to a Trial by Jury of Peers;
    8th Amendment Right Against Excessive Bail and Punishment;
    9th Amendment Rights Not Enumerated Belong to the People;
    10th Amendment Powers Not Delegated to Feds Belong to States or People. ‘
    The only right not surrendered is the 3th Amendment pertaining to the quartering of Federal troops, although even that is questionable considering the powers granted to Department of Homeland Security and FEMA under Executive Orders pertaining to Martial Law and Continuation of Government going back to REX-84 under Reagan.
    The Federal government has attained powers far in excess of their Constitutional limitations — enough to question whether the Federal government has any legal authority whatsoever, because the Rule of Law, and Equal Protection Under the Law (14th Amendment) no longer abide. Obama, a Constitutional Law scholar, should know better / must know better, which makes him vulnerable to impeachment, for failure to uphold the Constitution as well as war crimes. Apparently, the award of the Nobel ‘Piece’ Prize was premature. Next stop, a nuclear conflagration with Iran over non-existent WMDs. Meanwhile, the War Against People (aka War OF Drugs) accelerates.
    Is this Really the body of good works of a President in ‘populist’ campaign mode? Really?
    Sic semper tyrannis!

  10. I’m proud to be representing patients of California’s Eastern Federal District in this lawsuit! I’ve spent my entire adult life fighting for patients & I’m greatfull for the opertunity to be a part of this effort to gain some of our constitutional rights back! We must stop the government from taking so many of our rights away, or we will cease to be America as she was intended by our forefathers. They would have never approved of inflicting pain, suffering, & illness on citizens whom an herb is available to help and is safe and extremely useful!
    Thanks for letting me take part in this strike back against our out of control federal government!
    Go Sacramento!!!

  11. let us plant trees that bear positive fruits that enlighten our minds to the deepest roots all
    the way to the core where the soul can stay true – where I can walk free with a joint in my hand
    and I can plant plants right upon my land help em’ understand these are natures laws my creator
    had visions in the things he saw
    For The Rest of My Life

  12. Well, the good thing about the crackdown is that it has opened the door for a real constitutional challenge to the very principle of cannabis prohibition and puts a spotlight the overly broad interpretation of the Commerce Clause. I’m no fan of Justice Thomas, but he’s a voice of reason on this issue.

  13. you liers have a lot to protect, big lumber, 80% of pulp from hemp can be used for paper, 30% pulp from trees is used, sickining when facts start coming I often wonder how some liers can sleep at night! “Some of my finest hours have been spent sitting on my back veranda, smoking hemp and observing as far as my eye can see.” – Thomas Jefferson, AMEN, George Washington planted it, Benjiman Franklin, see the problem is alot of you are just uninformed, ignorant you want to see the negative you need it for you its a drug also, while some folks just see a good cause and well its pure and the truth, and sooner or later the lies are going to be brought forth as the liers!

  14. I am afraid President Obama has betrayed all of us who voted for him. I wrote him an individual email when he was campaigning and he did state he was not going to waste time and money punishing sick people. Very subtle and very vague, I knew it at the time. What is there left to choose from then? Afraid Ron Paul has too many other negatives going for him to get my vote. The fellow who commented on Fema camps and Rex 84 is probably all to right – there is going to be hell to pay not too far down the road.

  15. This is not the 50’s people! Trying to end prohibition using a “Medicinal spin” may have worked in the 50’s when they thought 9 out of 10 doctos recommend lucky strikes. In a world where we KNOW smoking is not medically good for you how can we continue to market this movement as Medicinal?
    This is the worst argument to support in trying to end prohibition! The government LOVES this argument because its so easy to poke holes through. Plus they can always say that sure there may be medicinal benefits to “some” parts of cannabis and thus they will pay pharmaceutical companies to distill those chemicals into drugs, bypassing the end of prohibition.
    We need to get real about this people, and actually support a saine argument. We want recreational marijauna use just like alcohol and tobacco. To achieve this we all need to be united behind rational and not some half assed medical nonsense. We are losing this battle because the majority of us continue to play into the governments hand and not realize we need to appeal to the general public in a way that makes sense in 2011 and not in 1950.

  16. The federal goverment makes too much money off Marijuana Prohibition this is why they will never legalize on a federal level, Because if they did they would have to cut so much staffing that supports Marijuana Prohibition in the govt. If marijuana is legalized they loose from the companys that support Marijuana Prohibition like booze,prescription drugs,
    this is why it will not be legalized in the next 10 least

  17. Every sit down and face the music its over With election around the coiner the (A-G) OF THE U.S.A is being ? for his roll in the guns walking the press needs a clear win in the war on drugs and this is it. Not till we get a congress to vote with us will we c ( M-M ) in the u.s.a And get ready folks the law is going to get real mean on us.

  18. Go get ’em boys! Give ’em all the hell you can! Show them we’re not going to take this nonsense anymore. We love you!

  19. The real problem here is the “clear and unambiguous compliance with state law”. Unfortunately, no state laws regarding medical cannabis are clear enough that EVERYONE agrees what they do and do not allow. For example, CA state law says nothing specifically about the storefront dispensary distribution model. They operate under local ordinances that vary across the state. So that makes them a potential target, even going by the Holder memo.
    Add the that, what is essentially the impossibility of completely firewalling the medical pot world from the black market pot world in CA. It’s impossible to do, especially fairly and justly, not to mention that it isn’t necessary anyway. Pot should legal for general use. As long as the culture warriors/prohibitionists insist on conducting trench warfare, battling to prevent reform and keep pot in as small and cramped a box as possible, this waste of time, money and energy will continue.

  20. #60 David762 —->>>> CORRECTION <<<<—-
    In America’s history, the Founding Fathers wanted to bind the former colonies together with the Federal government enforcing trade tariffs at external boundaries while eliminating internal tariffs that would hinder intrastate (sic) / interstate (edited) commerce. That is why the ‘Supremacy Clause’ exists in the body of the Constitution, while both Individual and States Rights were enumerated in the Bill of Rights aka the first 10 Amendments.

  21. So how quickly are the federal district court required to act on these?
    If they grant the injunctions in California, would that also apply to DOJ operations in other states that have medical cannabis laws?

  22. I only voted for him is the primary. Obama’s just a hack. Hardly worth our time. At least he’s better than the last four bozos we’ve had as presidents. Too bad he feels we are just a liability to him. We just go around him instead.
    Ron Paul is the best vote. He can’t get all of his radical agenda passed, even as president. But at least he wants the US government to follow our Constitution; which is something no one else running seems vaguely interested in… The Constitution basically forbids the kinds of laws that have built up the “War on Drugs”; so who else is there for us to vote for?
    Respect American values and smoke up if you want to.

  23. Well I am glad to see you doing something NORML. I know you guys do other things to push the legalization of Marijuana, but it’s actions like these lawsuits that get us where we need to be! FULL LEGALIZATION!
    Oh and btw, if they pull that “schedule 1” bs, try throwing back at them the fact that the US FED GOVT has patents on cancer cures derived from Marijuana….it true, it is online for all to see!!!

  24. re; NORML Attorneys file multiple constitutional challenges to federal medical marijuana crackdown
    nice, but it would be much better if the title was;
    NORML Attorneys file multiple constitutional challenges to un-constitutional federal marijuana laws.
    i thought you were going “all out” for FULL legalization; see;
    “1.Rather than pour millions of dollars and human energy into creating a legally and politically contentious policy that allows some cannabis consumers who can obtain a physician’s recommendation to be immune from state (but not federal) prosecution during a time of general Cannabis Prohibition, all cannabis consumers, patients, cultivators and sellers and their families should focus their full attention and resources to once and for all legalizing cannabis for all responsible adult consumers.”
    Allen St. Pierre
    Executive Director
    Washington, DC
    possible constitutional challenges to federal marijuana laws;
    1. alcohol is legal, and is more intoxicating.
    2. tobacco is legal, and is deadly.
    3. religious use.
    4. medical efficacy. (please note i am talking reasons for full legalization here, so do not say; ‘we ARE fighting for medical use’.)
    5. medical use is a legal ‘can of worms’ without full legalization.
    6. it was initially made illegal with lies. (that is fraud)
    7. congress had no power to make it illegal without a constitutional ammendment, like alcohol.
    8. ‘spice’ and ‘K2’ are legal; main differences; i cannot grow it, it has no proven medical use, cannot make DIESEL out of it, cannot use as a textile, like hemp. this proves it is all about $$$, it is NOT about getting high.
    9. the ‘compassionate use’ program.
    10. marinol is legal, and is sch. 3.
    11. it was initially made illegal with racism, and it is still enforced with racial bias; that is not ‘equal protection under the law’.
    12. prohibition laws create the black market they are supposed to stop.
    13. millions of people get high with prescription drugs, and are not hassled, pot smokers are; that is not ‘equal protection under the law’.
    14. use “ROE v/s WADE” as a basis for a challenge. are we ‘wards of the state’, and they are our mommy, and own our bodies, or are we FREE MEN ?? is there some part of “ROE v/s WADE” that can be argued, that the gov’t. can’t interfere with our bodies and our private lives that would carry over to us ??
    does the gov’t. OWN OUR BODIES, like we are slaves, or do we ‘own’ ourselves, like the slaves who bought their freedom by buying themselves ??
    15. it is obviously and wildly un-constitutional. (it violates the persuit of happiness, and the right to be LEFT ALONE unless you hurt someone ELSE, or damage their property)
    16. it clearly violates rights enumerated in the Bill of Rights.
    17. it is the foundation for a police state, which is
    18. there is the ‘data quality act’, which is supposed to stop wastefull programs.
    19. rich people go to treatment, poor people go to jail. that is not ‘equal protection under the law’.
    20. the ‘drug war’ is causing a real war on the mexican border, endangering us.
    hammer them on it, for every possible reason. drown them in paper. every time they deny us for spurious reasons, using convoluted reasoning, we gain public support, and approval of ANYTHING gov’t., is at an all- time low.

  25. I have recently joined your organization as a supporter. As someone who did not follow any type of marijuana law reform, I only happened to find your organization after seeking out the truth. There was an article written weeks ago that sparked this investigation, but I don’t remember where or what it was. My point is, education and putting this issue in the public’s face is the key to its success. I’m not talking about a lot of tie dye and bake sales. I mean positive media support, (MSNBCs Lawrence O’Donnell comes to mind). I have seen a number of documentaries (like The Union: Business Behind Getting High). How do we get this type of info on the Discovery Channel, History Channel, etc? This fight will only be won when the public hears the truth about this issue.

  26. @ jacob (second/third post) dude wtf you mean Finally? norml had the right suit in the 70’s, just got effd in the A by the DEA. why u getting shit twisted? DEA judge Francis Young already has said that cannabis is not supposed to be where it is, but the DEA overthrew his say on the matter. funny huh? i dont see any way this is going to work, cause theres NOTHING stopping the dea from doing it in a supreme court. we should of made a petition to lessen the effective overturning of any judge, especially when their constitutional rights are being raped and ripped from them, or atleast SOMETHING that will make the dea sit there and let someone that can put a nukka in prison or sentence them to death. those kind of rulings are life changing, and uneffectable by the rest of the world, why is the dea able to overthrow any judge, especially their own?

  27. btw, no one person should have the power to do like the president does. look @ the movie Idiocracy. you cant tell me that that isnt where we are heading. especially if your not being a responsible human and not Question EVERYTHING. the official response for marijuana legalization ought to tell you all something. and that may or may not be: your being stupid thinking the government will change because enough people signed a petition on their official website. when in fact, the wording on the website pretty much made it known if they could scrape by without a good answer, they will.

  28. I am proud to be a plaintiff in the NORML lawsuit, representing the Northern California district. The Marin Alliance for Medical Marijuana has been licensed since 1997. We have obeyed all the rules and are a beloved charity in our community.

  29. The concept and practice of using marijuana as medicine has been around for over 3000 years. Not one death due to marijuana use has ever been recorded. Up until 1937 hundreds of medicines whose base ingredient was marijuana were approved for use by the Food and Drug Administration, (FDA). The FDA was created in the wake of the 1914 Harrison Act which began the regulation of drugs and the patent medicines made from them. The 1937 Marijuana Tax Stamp Act, which made marijuana a Federal crime, was designed to prohibit the possession and use of marijuana in such a way that you had to break the law in order to comply with it. The law required one to possess the marijuana to get a tax stamp for it, but if you are in possession of the marijuana , you have already broken the law. This hated law was declared unconstitutional in 1970. In it’s wake was created the 1970 Controlled Substances Act. This bill is also flawed and probably unconstitutional. The bill requires the Drug Czar to misinform the citizens about any drug listed as Schedule 1 in the arbitrary rating schedule of drugs and their dangers. This rating system is questionable because synthetic copies of schedule 1 drugs are listed as schedule 2 and can be prescribed by a doctor. Most of these ‘copies’ are less well tolerated than the drugs they are designed to replace.
    There is something inherently wrong about a law that requires such a high ranking public official to mislead the citizens. This has led to such ridiculous scenes as the Drug Czar, Mr. Gil Kerlikowske, standing in San Francisco after fifteen years of medical marijuana in California, and proclaiming that marijuana is dangerous and has no medical value. Does anyone wonder why the Federal Government is considered unreliable when it comes to drug facts? The government’s credibility has been destroyed by it’s inability to tell the truth when it comes to drugs or the success or failure of current drug policy.
    As long as this requirement to mislead the citizens is in place, we will not be able to have the honest discussion needed to for us to move forward on the issues of drugs and drug law. Currently the American Medical Association is calling for marijuana to be rescheduled to allow for it’s use as medicine. Sixteen states and Washington DC have medical marijuana laws and polling nationwide is 82% in favor of medical marijuana. The only thing standing in the way are the unrealistic and untrue pronouncements of the Drug Czar and his fellow prohibitionists.
    Congress should pass an amendment to the Controlled Substances Act of 1970 that requires the Drug Czar to tell the whole truth about drugs and cease this ridiculous charade. Until then the propaganda and misinformation continue unabated.

  30. “If people let the GOVERNMENT decide which foods they eat and medications they take, their bodies will soon be in as sorry a state as are the souls of those who live under tyranny“.
    Thomas Jefferson.

  31. If we pot smokers would bind together and refuse to vote for anyone opposing legalization then something would get done. I wrote Ron Paul in on my ballot last election and will continue to as some would say waste my vote but I feel the message is there, at least my small ripple in a raging lake of opinion but if enough people done the same something would happen. If you voted for any of the pot gestapo politicians stop belly aching this is your fault!

  32. Also I wonder if any of the Medical marijuana dispenceries closed down were part of those establishments that were against full legalization last election? If so they got what they deserved. If not that is an injustice.

  33. why limit you law suits to just marijuana? by challenging the fact that the food and drug act was passed with out the concent or vote of the people, which violates washington and other state constitutions art 1 sec 1 the 72 amendment and that art 2 sec 30 makes all municipal law corrupt solicitation and art 12 sec 22 outlines municipal law can not make law as they are now a corporation. the polce art 11 sec 11 are garbage collectors and have no right to violate the people art 1 sec 3,5 and 7 and the fact that corporations do not even have the right to representation or judges see grant county washington which is not even listed as having that right and in their own law says they get their charter from idaho violates art 2 sec 28.

  34. @ Clay… you posted the following…
    I think the main arguement the DOJ uses against leagalization is that it costs billions in counter productivity.
    As you said later, this is a ridiculous argument. I’d just like to point out that this can’t even be used as an argument because 1) Alcohol has a larger effect and is more dangerous to consume 2) Many people, including myself, have slowed or stopped their drinking by smoking Cannabis 3) I personally don’t even believe these numbers but then again we’ve never been lied to about the effects of Cannabis. Oh wait…

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