NORML Attorneys File Multiple Constitutional Challenges to Federal MMJ Raids

Posted: November 13th, 2011 by Militant Libertarian

by Aaron Turpen, CannaCentral

Attorneys for the National Organization for the Reform of Marijuana Laws (NORML) have filed lawsuits in the four federal districts of California to challenge the Obama Administration’s crackdown on medical marijuana (MMJ) operations in the state. The suits allege multiple infractions against the U.S. Constitution by the federal authorities including both civil and state’s rights.

NORML attorneys Matt Kumin, David Michael and Alan Silber are coordinating the four-court effort in demanding immediate injunctions against the federal agencies involved in the raids. The suit also hopes to gain a ruling on the constitutionality (or lack thereof) of the Controlled Substances Act in respect to state-sponsored regulation of MMJ.

NORML attorneys allege entrapment via judicial estoppel (what holds true in one court must hold true in another) by federal agents, citing 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 policy towards enforcement of federal drug laws against California MMJ patients. This gave providers in the state reason to believe that their lawful acts under state law would not be subject to federal reprisals – something that has obviously not been the case.

Further judicial estoppel is argued on behalf of those being prosecuted by the feds for their non-crimes. The argument by NORML’s attorneys being that if the authorities tell someone that what they’re doing isn’t a crime, they can’t then prosecute them for said non-crime.

“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.”

Further, the arguments from NORML cite both the 9th and 10th Amendments to the Constitution. The attorneys argue that threatening seizure of property and criminal sanctions violates the rights of the people to consult with doctors about their health and that states have the primary power to protect the health of their citizens since this is not an enumerated right in the Constitution nor is it a power delegated to the federal government by that foundational document. This is especially poignant given that the feds have thus far given no indication of conducting the same types of raids in other MMJ states like Colorado or Montana that they have conducted in California.

In fact, they argue, the federal government is hypocritical in its enforcement against medical cannabis by pointing out that the federal govenrment:

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.

Last, but definitely not least, is the final state’s rights argument – one that may hold more sway than any other. That’s a challenge to the “Interstate Commerce” clause used to justify federal action over many aspects of commerce, including medical marijuana that is legal at the state level.

The argument is that since MMJ is grown in, distributed only within, and used only by California residents, it is not “interstate commerce” but instead is “intrastate commerce” and thus not under federal jurisdiction, citingRaich v. Gonzales 545 US (2005). So far, this argument has only rarely been heard in the courts, but is now becoming a thorny issue for the federal government thanks to some actions by several states on many fronts.

Montana and Wyoming, for instance, have both passed laws prohibiting federal agents from enforcing federal firearms statutes against citizens of those states who build, use, and trade their guns only within the state. The Wyoming law goes so far as to provide criminal action against federal agents who break this law. Neither law has been heard in any higher court, however.

Other historic actions against the Interstate Commerce clause have had success in court, however. In 1997, two sheriffs in Arizona challenged the federal Brady Bill law requiring local law enforcement to apply federal law at their own expense. The sheriffs ultimately won in court (Printz v. United States, 521 US 898, 1997), dealing a serious blow to the efforts of federal law enforcement (specifically the Bureau of Alcohol, Tobacco, Firearms and Explosives).

These new challenges to the Drug Enforcement Agency (DEA) and the DOJ are on a similar vein.

 

[source NORML Complaint Brief (PDF)]

[via NORML blog]

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