THE EMPIRE STRIKES & THE REBELS STRIKE BACK

OLA, CA – Coming off the latest heavy-handed repression against the infirmed and wheel-chair bound in Wildomar, Obama and his boys have scared straight the landlord of the only dispensary in the small town, pulling the rug again from under those least able to stand on their unsteady feet, medical marijuana patients. Using the old political trick of courting a population segment to get into office with promises of entitlement then reversing to throw the same constituency under the bus (Muslims voted in mass for Bush in 00 and look where they are now), AG Holder tried unconstitutionally stripping legal MMJ patients/growers of the second amendment. Now again the rebels are fighting back.

NORML Attorneys Matt Kumin, David Michael and Alan Silber have filed suit in the four federal districts in California to challenge the Obama Administration's recent ‘crackdown’ on medical marijuana operations in the Golden State. Aided by expert testimony from NORML Deputy Director Paul Armentano and research from California NORML Director Dale Gieringer, the lawsuits seek an injunction against the recent federal intrusion into state medical marijuana laws at least and at most a declaration of the unconstitutionality of the Controlled Substances Act with respect to state regulation of medical marijuana.

The NORML attorneys allege the federal government has engaged in entrapment of California patients and their caregivers. They point to the courts' dismissal of 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 its policy toward the enforcement of its federal drug laws relative to California medical cannabis patients." So after 2009, California providers had reason to believe that the federal government had changed its policy. The legal argument is called 'judicial estoppel', which basically means that courts can't hold true to a fact in one case and then disregard it in another.

Kumin, Michael, and Silber also argue the government has engaged in 'equitable estoppel', which most people commonly think of as 'entrapment'. 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. That principle should be applied to potential defendants as well, the plaintiffs in this action. Such parties, courts have noted, are "person[s] sincerely desirous of obeying the law". They "accepted the information as true and [were]...not on notice to make further inquiries." U.S. v. Weitzenhoff, 1 F. 3d 1523, 1534 (9th Cir. 1993).

The attorneys have also employed constitutional arguments based on the 9th and 10th Amendments. The 9th Amendment says that "The enumeration in the Constitution, of certain rights, shall not be construed to 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 provides that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved 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."

The suit also alleges the recent federal intervention is a violation of the constitutional guarantee of equal protection and due process. Since the government has permitted and not attempted to stop Colorado's state-run medical marijuana dispensary program, it cannot now suggest Colorado has a state's right that California does not.

The suit also preserves the Interstate Commerce argument that was rejected in Gonzales v. Raich, in the event this case should eventually reach the high court.

Commenting on the lawsuits, NORML Executive Director Allen St. Pierre said, "It is crucial to receive judicial review and relief from the federal government's recent actions against medical cannabis dispensaries in California, which at best appear selective in nature and at worst disrespectful of the autonomy of citizens at the state level to govern themselves in respects to public health, safety and criminal justice priorities."

Meanwhile back in the beltway, HR 2306, entitled the Ending Federal Marijuana Prohibition Act of 2011, prohibits the federal government from prosecuting adults who use or possess personal use amounts of marijuana by removing the plant and its primary psychoactive constituent, THC, from the five schedules of the United States Controlled Substances Act of 1970. Under present law, all varieties of the marijuana plant are defined as illicit Schedule I controlled substances, defined as possessing a high potential for abuse, and no currently accepted medical use in treatment. This classification is not supported by either existing science or public opinion.

HR 2306 mimics changes enacted by Congress to repeal the federal prohibition of alcohol.  Passage of this measure would remove the existing conflict between federal law and the laws of those sixteen states that already allow for the limited use of marijuana under a physicians supervision.  It would also permit state governments that wish to fully legalize and regulate the responsible use, possession, production, and intrastate distribution of marijuana for all adults to be free to do so without federal interference.  In recent years, several states including California, Massachusetts, and Washington have considered taking such actions either legislatively or via the ballot initiative process, and it is likely that several additional states will be considering this option in 2012.  The citizens and lawmakers of these states should be free to explore these alternate policies including medicalization, decriminalization, and/or legalization without running afoul of the federal law.

Over the past 70+ years, the federal criminalization of marijuana has failed to reduce the public’s demand or access to cannabis, and it has imposed enormous fiscal and human costs upon the American people.  Further, this policy promotes disrespect for the law and reinforces ethnic and generational divides between the public and law enforcement.  Since 1970, police have arrested over 20,000,000 American citizens for marijuana offenses nearly 90 percent of which were prosecuted for the personal possession of marijuana, not marijuana trafficking or sale.  Yet today federal surveys indicate that the public, including America’s young people, have greater access to marijuana including stronger varieties of marijuana than ever before.  It is time to stop ceding control of the marijuana market to unregulated, criminal entrepreneurs and allow states to enact common sense regulations that seek to govern the adult use of marijuana in a fashion similar to alcohol.

13 of your colleagues from both sides of the aisle have already signed on to support state's rights and personal freedom. Ask yourself, after 70 years of failure, isn't it time for an alternative approach?

That is why it is important to urge you to co-sponsor HR 2306: Ending Federal Marijuana Prohibition Act of 2011.