by Phillip Smith
Attorneys with NORML have filed suit against the federal government over its crackdown on medical marijuana distribution and cultivation in California. In lawsuits filed last week in the four US Attorney districts in the state, the NORML attorneys bring a number of legal and constitutional arguments to bear in asserting that the federal government has overstepped its boundaries in interfering with the state’s medical marijuana business.
Leading the legal charge are San Francisco attorneys Matt Kumin, David Michael, and Alan Silber.
The lawsuits seek a temporary injunction to block the state’s four US Attorneys, as well as Attorney General Eric Holder and DEA administrator Michele Leonhardt, “from arresting or prosecuting Plaintiffs or those similarly situated, seizing their medical cannabis, forfeiting their property or the property of their landlords or threatening to seize property, or seeking civil or administrative sanctions against them or parties whose property is used to assist them” while the case is being heard.
The plaintiffs in the case are California medical marijuana dispensaries, cultivators, and patients. Some targeted dispensaries have already been forced to shut down by a deadline last Friday to avoid possible federal reprisals if the temporary injunction is not granted.
The lawsuits also seek a permanent injunction barring further federal action against lawful (under state law) medical marijuana operators and patients. And they ask the courts to declare the federal Controlled Substances Act unconstitutional to the extent that it blocks California residents from obtaining marijuana as medicine as is legal under state law.
The lawsuits are a response to a federal offensive against medical marijuana in California unleashed last month, when the Justice Department sent dozens of letters to California landlords and dispensaries ordering them to close down or face possible seizure of their properties and criminal prosecution. Dozens of dispensaries have already closed in response to the threats.
The federal offensive has also included SWAT-style DEA raids on medical marijuana operations, including some that are among the most closely regulated under state law. In Mendocino County, for example, the DEA raided Northstone Organics, a cultivation operation so regulated by local authorities that every plant had a sheriff’s tag on it.
The lawsuits claim the federal government “entrapped” medical marijuana suppliers by seeming to give the okay to their operations in an October 2009 Justice Department memo. They also claim that the federal actions violate the 9th, 10th, and 14th Amendments to the US Constitution.
The 9th Amendment says that merely because some rights are enshrined in the Constitution does not mean the federal government can “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 gives powers not delegated to the federal government “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.
A lawsuit challenging the federal crackdown filed last month by Americans for Safe Access also makes a 10th Amendment argument. The feds have “instituted a policy to dismantle the medical marijuana laws of the state of California and to coerce its municipalities to pass bans on medical marijuana dispensaries,” the advocacy group complained.
“Although the Obama Administration is entitled to enforce federal marijuana laws, the 10th Amendment forbids it from using coercive tactics to commandeer the law-making functions of the State,” said ASA Chief Counsel Joe Elford, who filed the lawsuit in San Francisco. “This case is aimed at restoring California’s sovereign and constitutional right to establish its own public health laws based on this country’s federalist principles.”
The 14th Amendment provides all citizens equal protection under the law. The NORML attorneys argue that because the federal government allows a handful of people access to marijuana through the Investigational New Drug program, allows a state-licensed medical marijuana system in Colorado to go unharassed, and blocks scientific research into medical marijuana, it is effectively denying equal protection to California residents.
The NORML attorneys also take issue with the US Supreme Court decision in Raich v. Gonzalez, which upheld the use of the Constitution’s interstate commerce clause to stop California patients from legally growing their own medicine.
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While acknowledging the Raich decision, they wrote that “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.”
The courts are going to be busy with this matter for awhile, but a preliminary injunction would allow the California medical marijuana industry to go about its business unmolested while the matter gets sorted out.
Phillip S. Smith is a writer and editor with StoptheDrugWar.org. He is a graduate of the University of South Dakota (BA Political Science, 1979) and the University of Texas at Austin (MA Latin American Studies, 1989), and served as writer and Associate Editor at the magazine Covert Action Quarterly from 1993-1996. Phil has done freelance reporting on Central American and Mexico since the 1980s, and has had articles published in In These Times, Guardian (now defunct), New Politics and many other publications. He is also a long time drug policy activist, having helped to found one of the first NORML chapters in the state of South Dakota. He has been involved in local drug reform efforts in Austin, TX and Washington, DC, including the DC Metro chapter of NORML.
CC / Attribution / StoptheDrugWar.org
80% of the things that the federal government spends our money on is things of which they are granted no control by the constitution
Ya, now if only the Fed gov’t gave a …..
What is laughable is that we import hemp from Canada! : p Let the farmers grow it here!
Not the Federal governments right – but their laws technically dont prohibit use. They prohibit possession of a potentially dangerous substance, and teh states should enforce the same type laws.
I oppose dope smoking, but agree 100% that it should be a state issue, and the Feds should not be involved with it. I will oppose “Medical Marijuana” laws in my own state, but let the other states cater to the stoners if they want to with no Federal interference.
Good point. More clear to me though is the Second Amendment because federally it shall not be infringed and addressing it in the Bill of Rights means that states shall make no law either making gun laws wholly unconstitutional.
If it took a amendment to the Constitution to make the production and sale of alcoholic beverages illegal, then the same should apply to Marijuana at the Federal level, using the same logic and a proper reading of the 10th Amendment.
I thought the states were not able to make laws similar to Fed. laws and have no authority to enforce them…just like in AZ.
the War on Drugs is one of the biggest scams ever……..there is no winning a “war on drugs” only waging war, which is great for those in power because there is no money in winning wars……the profits come from waging them……which is why it was brilliant to declare war on terror……how you think we are ver gonna win a war on terror? But we can sure go broke waging it
I oppose sex outside of marriage too, but I don’t think the government should try to enforce it. Marijuana prohibition makes as much sense from a practical standpoint as alcohol prohibition did. However, it is certainly clear that the Feds have no legitimate authority to regulate it.
There will never be another amendment to the US Constitution. Congress or the president will simply do what they want to do, and there is enough precedent based on the interstate commerce, general welfare, and necessary and proper clauses, as well as the fraudulent 14th Amendment, to basically get away with the vast majority of what they want.
The feds seized unto themselves that power all the way back in 1942 in Wicker v Filburn when they told a farmer that they can control the grain he grows on his farm EVEN if it is consumed entirely on his own farm. Since then there have been few checks by the supreme court to stop the feds from doing whatever they please.
Great.
All they need is 5 or more people in the supreme court who agree with them that the law has good enough intentions.
Right, Harold, and more recently they have prohibited people to consume raw milk extracted from their own cows on their own farms. The states were meant to interpose on behalf of the people when the “checks and balances” system in the federal government failed to work. That’s what the 9th and 10th Amendments are for.
Esspecally when the active ingredient in pot is methane. The same molecule that all the anti-pot people fart out their butts when they eat too many beans…
it’s actually decriminalized by default because the federal government TAXES the sale of marijuana in california!! illegal products cannot be legally sold so cannot be taxeds. and taxable items cannot be illegal! tell the federal government to suck it!!
No authority whatsoever.
“NULLIFY”
LMAO! Wait,…doesn’t the commerce clause grant the federal government the power to regulate absolutely every facet of daily life? I always wondered why the framers who pretended to be for extremly limited government even bothered with those enumerated powers.
Note: This comment was typed with toungue firmly planted in cheek.
Nullify now!
Oh, are unconstititutional DEA raids significantly increasing under the stewardship of our constitution law scholar, ex-pot smoking president? Who would’ve thought??
I wish people understood that the Federal Government can virtually do what it wants through the 14th Amendment, as it relates to “persons.” That’s how we have a federal income tax on individuals. The Commerce, Necessary and Proper and General Welfare Clause are just legal fronts up against the 14th AMENDMENT.
You speak truth about the 14th amendment, which it needs to be challenged and, hopefully, modified one day. The 14th amendment should be called the Federal Tyranny Act.
I think it infringes on my “pursuit of happiness” which is addressed in the Declaration of Independence…And don’t the Feds have better things to deal with? Like creating jobs instead of trying to get rid of them like this?
I couldn’t agree more. I would never use any mind altering substance, but as a retired cop (28yrs.) I will say I never had to fight an arrested person high on marajuana, though I did have to stop and pick them up potato chips on the way to jail. But as a taxpayer I don’t think my tax dollar should be used to assist those in medical need after using such substances.
I know of no law, John, that requires you to buy chips for a junkie. Bless you, however, for caring.
@Vanessa: “They prohibit possession of a potentially dangerous substance, and teh states should enforce the same type laws.”
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You mean like bleach and lye and caustic soda. Stuff like that?
Look up Rick Simpson’s “Run from the Cure” on YouTube and tell me how “dangerous” marijuana is. The hemp plant is very good for you but not to smoke. Hemp oil cures cancer & many other diseases but we can’t have it.
The Whole Thing Is A Load Of CRAP !!, The Only Reason MJ Is Not Legal, Is That You Can’t Patent A “Natural Plant”, There Have Been Many Studies On MJ, It’s Has Been Proven That A Person Who Uses It Has A 73% Less Chance Of Developing Cancer !, Not To Mention All The money Spent On The “War Against Drugs”, That Could Go To Other Specific Needs In This Country, Like Maybe Feeding Hungry Children, Or Rebuilding Our Infrastructure, JMHO…