Government's Crackdown On Medicinal Cannabis Not Unconstitutional, Federal Judge Rules

OFF THE WIRE
NORML.COM
Sacramento, CA: A federal judge in Sacramento last week dismissed a federal lawsuit filed in November by members of the NORML Legal Committee against the US Department of Justice, US Attorney General Eric Holder, and DEA Director Michele Leonhart.
The lawsuit, one of four filed simultaneously in the state's four federal districts, argues that the Justice Department's ongoing crackdown against medical marijuana providers and distributors in California is in violation of the Ninth, Tenth, and Fourteenth Amendments to the US Constitution because the use of cannabis therapeutically is a fundamental right. Petitioners also argue, using the theory of judicial estoppel, that the Justice Department had previously affirmed in public memos and in statements made in federal court that it would no longer use federal resources to prosecute cannabis patients or providers who are compliant with state law.
On Wednesday of last week, US District Judge Garland Burrell, Jr., rejected those arguments and granted the respondent's dismissal motion. He denied petitioners request for a public hearing prior to making his ruling.
Judge Burrell rejected plaintiffs' Ninth and Tenth Amendment challenges, finding: "Since the Supreme Court has held the that CSA's (federal Controlled Substances Act) categorical prohibition of the possession, manufacturing, and distribution of marijuana does not exceed Congress' authority under the Commerce Clause (Article I Section 8, Clause 3 of the US Constitution), plaintiffs do not have a viable ... claim."
He also rejected plaintiffs' equal protection arguments, finding that the Justice Department's actions in California mimic efforts the federal government has taken against "similarly situated individuals" elsewhere. Judge Burrell also cited court rulings finding that defendants in previous challenges have failed to meet the "heavy burden of proving the irrationality of the schedule I classification of marijuana."
Finally, Judge Burrell dismissed plaintiff's judicial estoppel clam, which argues that defendants' "recent crackdown ... against medical cannabis patients flouts the representations made on the record by the Department of Justice" in public memos and statements in court. Responding to this challenge, Judge Burrell determined, "Since judicial estoppel does not apply unless 'a party's later position [is] 'clearly inconsistent with its earlier position,' and the Ogden memo does not contain a promise not to enforce the CSA, defendants' enforcement of the CSA is not inconsistent."
Commenting on the ruling, Attorney David Michael of San Francisco, who along with Matt Kumin of San Francisco and Alan Silber of Roseland, New Jersey were the lead attorneys in these four challenges, said, "We are disappointed, but not discouraged, that the District Courts have thus far denied us the relief we had sought. They are constrained by existing precedent, and the result was not unexpected. It is the Ninth Circuit where we hope to find a receptive audience, and, with the Lawrence v. Texas decision, we may also have a more receptive audience in the Supreme Court, should the issue go there."
Judges for the Ninth Circuit had previously determined in Raich v Gonzalez: "For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, ... (it) may be upon us sooner than expected."
For more information, please contact Keith Stroup, NORML Legal Counsel, at (202) 483-5500