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.
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.
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