January 20, 2020
In July 2017, retired NFLer, Marvin Washington, along with four other plaintiffs, filed a lawsuit against then-Attorney General Jeff Sessions and the DEA in the Southern District of New York. The other plaintiffs in the case were two young children and a military veteran who relied on medical marijuana to treat chronic conditions. In view of legalization in numerous states, Washington and his fellow plaintiffs sought to have marijuana decriminalized at the national level. The lawsuit makes for interesting and educational reading demonstrating how marijuana came to find itself at the top of the government’s Schedule I drug classification.
Though most legal experts didn’t give the lawsuit much of a shot when Julia K. Marsh broke the story in New York Post, and though the lawsuit was dismissed in SDNY, it seemed to resonate with the Second Circuit panel, at least initially. Instead of affirming the decision of the district court or remanding the appellate panel decided to retain jurisdiction. After noting a series of failed lawsuits attempting to decriminalize marijuana, the judges noticed something different about this one.
The appellate panel agreed with the district court that the plaintiffs had not exhausted administrative remedies by taking their petition directly to the DEA and retained jurisdiction, instructing the plaintiffs to petition the agency within 6 months as they retained jurisdiction to “take whatever action might become appropriate” if the DEA didn’t move swiftly.
The lawsuit raised questions about the constitutionality of classifying marijuana as a Schedule 1 substance, the same level as heroin, mescaline, and LSD.
The government deemed to have no medical use and considered it a gateway drug to opiates, but as the complaint suggests, that was intended as a temporary designation, pending testing that for political purposes never happened. “To have been assigned this Schedule I classification, the Federal Government was required to have determined that Cannabis: (i) has a high potential for abuse; (ii) has absolutely no medical use in treatment; and (iii) cannot be used or tested safely, even under strict medical supervision (“Three Schedule I Requirements”). Significantly, however, as also shown below, the Federal Government does not believe, and upon information and belief, never has believed, that Cannabis meets or ever met the Three Schedule I Requirements.”
The complaint delves into the history of cannabis and states, “despite the relatively recent stigmatization of Cannabis in the United States as a supposed “gateway drug” used primarily used by “hippies” and minorities, there is a long and rich history, dating back thousands of years, of people from virtually every part of the world using Cannabis for medical, industrial, spiritual, and recreational purposes.”
The complaint alleges, “as it pertains to Cannabis [the Controlled Substances Act] was enacted and subsequently implemented, not to control the spread of a dangerous drug, but rather to suppress the rights and interests of those whom the Nixon Administration wrongly regarded as hostile to the interests of the United States—African Americans and protesters of the Vietnam War.”
The complaint says that the Nixon Administration realized that African Americans couldn’t be arrested on racial grounds and war protesters couldn’t be arrested for exercising their freedom of speech. “However, the members of the Nixon Administration decided that Cannabis was the drug of choice for these two groups. Consequently, the Nixon Administration ushered the CSA through Congress and insisted that Cannabis be included on Schedule I so that African Americans and war protesters could be raided, prosecuted and incarcerated without identifying the actual and unconstitutional basis for the government’s actions.” The allegation is chilling but the complaint backs it up with numerous historical facts.
Marvin Washington played for the New York Jets, San Francisco 49ers, and Denver Broncos during his career spanning from 1989-1999. In retirement, he became a businessman which led to his association with Kannalife, a company that has been developing Cannabis-based medications to minimize the damage caused by head injuries and to reduce and ultimately eliminate opioid addiction among professional athletes. Washington and Kannalife have been working with companies in the European Union for research and development and would like to expand to include whole-plant cannabis products, but is concerned that, even in States in which whole-plant Cannabis is legal for medical and/or recreational use, he may be subject to arrest and prosecution because of the federal statute.
He’d also like to avail himself of the benefits associated with the Federal Minority Business Enterprise program in connection with whole-plant Cannabis products, but he is ineligible for it solely because such activities would be illegal under the Controlled Substances Act. In that way, and through disproportionate incarceration rates for a low-level marijuana offense, the Nixon Administration’s goal of suppressing African Americans has survived intact.
The Cannabis Cultural Association (CCA) formed as a nonprofit to provide a voice and forum for persons of color to develop a presence in the Cannabis industry – an industry in which they are and, at all relevant times have been, grossly under-represented except when it comes to being arrested. People of color, especially black males, are up to four times as likely to be arrested in connection with Cannabis than white Americans, with nearly 70% of the 2.5 million people in prison for drug crimes. CCA is also a plaintiff in the lawsuit.
The complaint alleges unconstitutionality in several areas including by limiting the right to travel—an issue of primary concern to plaintiffs Alexis Bortell and Jagger Cotte.
At the time the lawsuit was filed Alexis was 11-years old. At the age of 7, she was diagnosed with intractable epilepsy, a condition that often results in multiple daily seizures. Intractable epilepsy cannot be safely controlled with FDA approved medical treatments and procedures. As a result of uncontrolled epilepsy, Alexis found it hard to attend school since it seemed she spent most of her time in the nurse’s office rather than the classroom.
Two years after her diagnosis and countless doctor visits, medications, and trips to the ER, her parents tried whole-plant cannabis with high THC concentrations, since it was the last known option available. Alexis immediately began to experience relief from the seizures that had held her captive, but she then became a captive in a different way.
Alexis’s family lived in Texas, where medical marijuana remained illegal. Her family moved to Colorado, where Alexis “was thrust into a very grown-up world and joined a then-largely unknown community of Cannabis patients known as, ‘Medical Marijuana Refugees.’” Since starting the cannabis regimen, Alexis has been seizure-free for two years.
As a Navy veteran, Alexis’s father and his family should be eligible for numerous Veterans Benefits but are prohibited from possessing cannabis on a military base making it difficult for them to avail themselves of things like the commissary, exchange, and base medical services.
Alexis and her family miss their friends and family in Texas and would like to move back or at least be able to visit but feel the risk is too great. She and her parents would be subject to arrest for possession, or worse, her parents could be subjected to proceedings that would imperil their parental rights.
“In the context of the Right to Travel, medical Cannabis patients, in particular, are subjected to a Hobson’s Choice of (i) using their medication but relinquishing their Right to Travel [to or through states where marijuana hasn’t been legalized]; (ii) exercising their Right to Travel but risking arrest; or (iii) exercising their Right to Travel but foregoing physician-recommended medical treatment that maintains their health and lives.”
Like Alexis, plaintiff Jagger Cotte is a child dependent on medical cannabis. He suffers from a rare, congenital disease known as “Leigh’s Disease,” which disables and then kills approximately 95% of the people afflicted with it. Jagger was diagnosed at the age of one, and the prognosis for children diagnosed prior to age two is death by the age of four. At one year of age, Jagger became a hospice patient. Not only was Jagger unable to do things a normal one-year-old child could do, but he also began experiencing near-constant pain, “shrieking in agony as he tried to get through each day.”
Like Alexis’ parents, Jagger’s parents decided to try whole cannabis as a last resort. Since starting the cannabis regimen, Jagger is no longer in pain and can now interact with his parents; he has now outlived his life expectancy.
Unfortunately, the Cottes face the same dilemma as the Bortell family. While they moved to Colorado for a time, they were financially unable to sustain a dual residence and were forced to return by car to Georgia, another state where marijuana is illegal. They now live daily with the anxiety of their Hobson’s Choice.
Plaintiff Jose Belen is a veteran of the first Gulf War, serving in Iraq for 14 months, much of the time in active combat. When Jose returned to the states, he could not erase the horrors of war from his mind and was diagnosed with PTSD.
Jose was declared disabled and the Veterans Administration issued various prescriptions for opioid medications to try to control the PTSD, but none were effective—in fact, his symptoms intensified and he began to contemplate suicide like on average, the 22 military veterans who commit suicide each day. The lawsuit states most of the suicides are directly linked to PTSD.
Like the others, he found relief through cannabis but is limited in being able to avail himself of many Veterans’ Benefits, air travel, or moving through states where marijuana has not been decriminalized.
Recent Developments and Potential Certiorari Review
As the plaintiffs sought to comply with the Second Circuit instructions their research led them to believe that the DEA would not consider (and had previously ruled could not consider) anything aside from moving marijuana from Schedule I to Schedule II.
Their pro bono attorney, Michael S. Hiller, requested additional time to comply with the Second Circuit’s demand for petitioning the DEA directly, but the court denied the request, with dismissal presumed.
On January 17, Hiller wrote a letter to the clerk of court in which he described the DEA’s position.
Hiller went on to say, “Reclassification of cannabis under Schedule II would actually exacerbate the conditions afflicting our clients; would instantly throw thousands of cannabis businesses out of business; and would disrupt the lives of tens of thousands, if not millions, of Americans who rely upon cannabis daily to sustain their health, wellness, and lives. Furthermore, reclassifying cannabis under Schedule II is not the relief that Plaintiffs requested in the Complaint…And lastly, were the DEA to reclassify cannabis under Schedule II (which, as with the Schedule I misclassification, would wrongly presuppose that cannabis is inherently dangerous), Plaintiffs would eventually find themselves right back in Court.”
“Regardless, because the DEA’s position (that cannabis cannot be de-scheduled) conflicts with the Second Circuit Decision (in which the Com1 ruled that cannabis can be de-scheduled), we requested an extension of time within which to file the Petition to afford us the oppo11unity to file a declarato1y judgment action against the DEA, challenging its stated-position that the only remedy available under the CSA relative to cannabis would be to reclassify it under Schedule II”
The issue certainly seems ripe for review at the nation’s Highest Court. The balance of justices currently on the bench is concerning, but even if the plaintiffs had prevailed at the district or federal appellate court level, it seems certain that William Barr, whose name is now on the complaint as the current Attorney General, would have sought certiorari anyway, so perhaps this conclusion was inevitable. While the Supreme Court only accepts about 2% of the cases it’s asked to hear, this one seems as if it might stand a good chance since it affects a broad base of the population and hinges on constitutional law.
In a more optimistic tone, the Supreme Court has shown that at least in some cases it’s willing to strike down the government position as it did when it found the Professional and Amateur Sporting Protection Act (PASPA) to be unconstitutional, enabling states to legislate legal sports betting. In that many states have already decriminalized marijuana, I’d anticipate amicus briefs by those states and hopefully a ruling that finally delivers relief and reflects reality.
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