Lawsuit Argues That Feds' Cannabis Ban Violates Our Constitutional Rights
A diverse group of cannabis patients and activists is seeking to end the plant's inclusion in the United States Controlled Substances Act (CSA), calling it unconstitutional; if they succeed, the suit could end prohibition without Congress' help.
Yesterday, plaintiffs in the federal case of Washington, et.al v. Sessions, et.al provided oral arguments in response to the federal government's motion to dismiss their suit, which challenges the constitutionality of cannabis' classification under the CSA.
Originally filed last July, the lawsuit argues that cannabis' controlled status violates plaintiffs' constitutional rights as established by the 1st, 5th, 9th, 10th and 14th amendments, pertaining -- among other things -- to their fundamental rights to travel, engage in commerce, and enjoy equal protection under federal law.
Plaintiffs include retired NFL player and Super Bowl champ Marvin Washington, Iraq War veteran Jose Belen, 12-year-old medical patient Alexis Bortell, seven-year-old patient Jagger Cotte, and the New York-based Cannabis Cultural Association, which promotes inclusion and leadership for people of color and other marginalized groups within the cannabis industry.
On Wednesday, Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York heard oral arguments from plaintiffs and reserved his decision rather than ruling from the bench. He also acknowledged cannabis' medicinal value before the court. A decision on which if any of the plaintiffs' claims will be dismissed is expected within the next few weeks.
In a statement following the hearing, plaintiff’s lead attorney Michael S. Hiller, of Hiller PC, thanked Judge Hellerstein for his work in this case and emphasized that plaintiffs and their supporters are determined to pursue this legal fight. "We’ve seen civil rights trampled on before, but we have also seen everyday Americans and leaders rise to the occasion and have our judicial branch recognize when an interpretation of the law is obviously tragically flawed and wrong," he commented.
"The stated basis for the Controlled Substances Act was to help Americans’ lives," Hiller continued. "However, today, the federal government came to court to preserve the right to put Americans in jail, who use cannabis -- even when it used as an alternative medicinal treatment to addictive opioids and powerful prescription drugs. Tragically, what the federal government has done is taken the Controlled Substances Act and turned it on its head."
Nelson Guerrero, co-founder of Cannabis Cultural Association, also commented, "This is not just about cannabis, it's a human rights issue. The federal government argued to keep the right to unequally prosecute Americans of color for cannabis, even though they use cannabis at the same rates of white people."
Washington, the suit's lead plaintiff, a former New York Jets and Denver Broncos player, and a well-known cannabis activist, hopes to build a business that provides professional football players and other patients with access to cannabis medicine for its neuroprotectant and antioxidant qualities, which have been found to protect against the effects of head trauma, and to reduce opioid dependency and addiction. He has been unable to obtain grants under the Federal Minority Business Enterprise program for this purpose, however, due to cannabis' controlled-substance status.
Bortell, who uses cannabis to control the intractable seizures that previously threatened her life several times a day, has been unable to travel to out-of-state hearings because current federal law prohibits her from crossing state lines with her medicine she needs, a spokesman for the Cannabis Cultural Association explained by phone.
After some maneuvering with the court, however, she was able to listen to Wednesday's proceedings via audio link from her home in Colorado, where her family relocated three years ago after failing to find the medicine she needed back in Texas. Her father, Dean Bortell, appeared on her behalf in court.
Belen, a disabled combat veteran, uses medical cannabis to control the post-traumatic stress disorder (PTSD) and suicidal ideation that he has suffered from since returning from the Iraq War.
Cotte, who suffers from Leigh’s Disease, has reportedly prolonged his life by two years beyond his maximum prognosis through treatment with medical cannabis, and been able to control the "excruciating" pain caused by the disease.
As the New York Times reported this week, the case was drawn into the national spotlight last month after Attorney General Jeff Sessions, who has frequently expressed disapproval (in a word) for the plant, issued an order encouraging prosecutors to enforce U.S. marijuana law to its fullest extent.
The lawsuit itself is also wide-ranging: through a 98-page complaint, the Times explains, "the suit presents its case for legalization not only through a host of constitutional arguments, but also by way of a world-historical tour of marijuana use — from its first purported role 10,000 years ago in the production of Taiwanese pottery to the smoking habits of President Barack Obama in his younger days ... [and] James Madison [crediting] 'sweet hemp' for giving him 'insight to create a new and democratic nation.'"
It further cites documents from advisers to President Richard Nixon (and later, in Roger J. Stone's case, to President Trump) suggesting that early cannabis criminalization efforts intentionally sought to disrupt counter-cultural movements.
If Judge Hellerstein ultimately rejects the government's motion to dismiss in at least some of the plaintiffs' cases, as advocates expect, the trial would likely begin this summer. If the judge grants the government's motion in all cases, plaintiffs and their attorneys plan to appeal in the same time frame.
Link to the original article by Janet Burns at Forbes.com