For those who believe the War on Drugs has always been a subterfuge for a war against innocent drug users, especially people of color, your day in court has finally arrived.
In the most significant lawsuit ever filed regarding federal cannabis policy, a group of individuals — represented by my law firm, Hiller, PC — has sued Attorney General Jeff Sessions, the Department of Justice and the Drug Enforcement Administration (DEA), alleging that the Controlled Substances Act, as it pertains to cannabis, is unconstitutional.
If the plaintiffs prevail in court, cannabis will be descheduled.
Two of the plaintiffs are children, 11-year-old Alexis Bortell and 6-year-old Jagger Cotte.
Alexis is a “medical refugee,” having relocated to Colorado after being diagnosed with intractable epilepsy, a condition that causes her to suffer multiple seizures daily, if not for medical cannabis with a high concentration of THC. Significantly, Alexis’ father is a U.S. military veteran, which entitles his family to health care insurance and benefits.
Jagger is on hospice care, suffering from a rare, congenital and painful illness known as Leigh’s disease (subacute necrotizing encephalomyelopathy). Jagger and his father lived briefly in Colorado as medical refugees, but they could not afford to stay, having spent their life’s savings on a home in Georgia, built with special accommodations for Jagger’s disability.
Medical cannabis has completely eliminated all of Alexis’ seizures. Jagger’s family credits medical cannabis with eliminating his excruciating pain and extending his life by two years (and counting) beyond his original prognosis. However, low-THC or CBD-only cannabis — the only forms currently available to Alexis and Jagger in their respective home states of Texas and Georgia — fails to provide them with meaningful and sustained relief.
Another plaintiff, Jose Belen, a retired veteran, suffers from post-traumatic stress disorder (PTSD) as a result of his combat military service on behalf of the United States. PTSD was included as a qualifying medical condition for medical cannabis in Belen’s home state of Florida earlier this year, but his Veterans Administration physicians do not support its use, which remains illegal under the federal Controlled Substances Act.
Marvin Washington, another plaintiff, is a retired NFL player and Super Bowl champion who owns equity in multiple cannabis businesses that “touch the plant” to varying degrees. As an African-American, Washington should be able to utilize benefits associated with federal grant programs, including the Minority Business Enterprise Program, to provide a pathway for those disproportionately affected by the War on Drugs to gain much-needed access to startup capital to operate cannabis businesses. Significantly, less than 3% of cannabis businesses are owned by people of color, while cannabis use rates between them and Caucasians are virtually identical.
In addition, the nonprofit Cannabis Cultural Association, Inc. is also suing in its association capacity on behalf of its members, some of whom have been arrested, prosecuted, convicted and/or incarcerated for a variety of cannabis offenses, including non-violent possession crimes that violate the Controlled Substances Act, which plaintiffs contend is unconstitutional. The Cannabis Cultural Association was founded in an effort to empower and promote the inclusion of people of color in the cannabis space. The complaint points out that such people are “grossly under-represented [in the cannabis space] except when it comes to being arrested.”
The plaintiffs do not seek money damages; rather, they ask the court to declare that the classification of cannabis as a Schedule I drug violates the Due Process Clause of the Fifth Amendment, various rights to free speech under the First Amendment and/or the fundamental right to travel. Additionally, the plaintiffs allege that Congress, in enacting the Controlled Substances Act, unconstitutionally extended the breadth of its legislative authority under the Commerce Clause, in violation of Article I, Section 8 of the U.S. Constitution.
Each claim constitutes an independent basis upon which to invalidate the Controlled Substances Act as it pertains to cannabis. The plaintiffs’ Commerce Clause claim is most likely to garner favor among conservatives — and the highest court. However, the Due Process claim — the threatened deprivation of life, liberty and property — exposes the alleged, seemingly undeniable fact that the federal government recognizes that cannabis does not qualify as Schedule I, namely that it: (a) does not have a high potential for abuse; (b) does have currently acceptable medical uses in the U.S.; and (c) is safe under medical supervision.
Another Due Process claim, this one unique to the Cannabis Cultural Association, further alleges that the Controlled Substances Act was enacted in an environment “tainted by racial discrimination,” and with the intent to suppress First Amendment rights of those protesting the Vietnam War, as then-President Richard Nixon’s administration inexplicably and irrationally claimed that war protestors and people of color were enemies of America’s war against communism.
The plaintiffs rely heavily on statements made by former Nixon administration officials, as well as transcripts of contemporaneously made tape recordings of meetings in the Oval Office.
“Today, we simply allege the truth: that the Controlled Substances Act as applied to marijuana is unconstitutional, and for decades has been used as a tool to wrongly criminalize the most vulnerable members of our national community,” says Joseph Bondy, a prominent criminal defense attorney, longtime cannabis advocate and co-counsel for the plaintiffs. “Our aim is to end this injustice through the rule of law, once and for all.”
Regarding the plaintiffs’ Due Process claim, the federal illegality of medical cannabis requires each plaintiff to make a “Hobson’s Choice” between medical cannabis and some form of life, liberty or property.
For instance, Alexis and Jagger must choose between their use of life-saving medication and living at home, or foregoing their critical medical treatments in order to travel between states. Alexis and Belen must further decide whether their medical cannabis treatment protocol takes precedence over the “free” military treatment to which they ordinarily would be entitled. Washington must choose between startup capital and admitting to what would be a federal offense.
According to the plaintiffs, they should not have to make these choices. They assert that cannabis’ Schedule I classification bears no “rational relation” to a “legitimate governmental purpose.” And, according to the plaintiffs, the government knows this to be true, which, under controlling precedent in the Second Circuit (where the lawsuit was filed) precludes the government’s enforcement of cannabis’ classification under the Controlled Substances Act, as a matter of law.
The evidence, which seems to confirm the government’s knowledge of this “irrationality,” is set forth in the plaintiffs’ 90-page complaint. Support includes, among other things: 10,000 years of documented safe use of cannabis, including by George Washington, James Madison and other framers of the U.S. Constitution; that in the latter half of the 19th century and early half of the 20th century, nearly every major pharmaceutical company was manufacturing and selling cannabis as medicine; that 29 states and Washington, D.C. have legalized medical cannabis; that the DEA has been defunded with respect to enforcement against state-compliant medical cannabis businesses; that the issuance of the Cole Memorandum and FinCen guidance reflects the government’s acknowledgment that medical cannabis can be an effective treatment of disease; and the institutional bias and bigotry by lawmakers, particularly statements made by officials in the Nixon administration, including former adviser John Erlichman, confirm that cannabis scheduling was motivated by racial animus and a desire to suppress political opposition to the Vietnam War, rather than fostering public safety.
The complaint further details how Sessions, the current attorney general, apparently shares this hostility against people of color and cannabis users. Sessions is alleged to have spoken favorably of the Ku Klux Klan; referred to a white civil rights attorney as “maybe” a “disgrace to his race”; repeatedly referred to an African-American assistant U.S. attorney as “boy” and instructed him to “be careful what you say to white folks”; remarked that the NAACP and ACLU were “un-American”; noted that he was heartbroken that former President Barack Obama said that “cannabis is not as dangerous as alcohol”; and of course, that he stated, “good people don’t smoke marijuana.”
Michael Hiller, lead counsel for the plaintiffs, says he looks forward to asking Sessions, during his deposition, whether the attorney general regards the first U.S. President, George Washington, a known cannabis user, to be a “good person.”
But perhaps the most damning evidence confirming that the U.S. government knows cannabis does not meet the definition of a Schedule I drug is that the government owns and exploits a patent on cannabinoids as a neuroprotectant and antioxidant, among other things. In its patent application, the government presented to the U.S. Patent and Trademark Office that cannabis may be effective “in limiting neurological damage following ischemic insults, such as stroke and trauma, or in the treatment of neurodegenerative diseases, such as Alzheimer’s Disease, Parkinson’s Disease, and HIV dementia.” In support of the patent application, the government cited a series of medical studies and reports confirming the efficacy of cannabis as medicine. Significantly, the plaintiffs’ complaint provides a comprehensive analysis of the hypocrisy between the government’s stance on cannabis and its ownership of this patent.
The Cannabis Cultural Association’s Due Process claim takes this constitutional inquiry a step further. According to the association, the disproportionate enforcement of the Controlled Substances Act against people of color triggers “strict scrutiny” — a level of judicial scrutiny over congressional enactments that transcends, and is more “strict” than the “rationality” review described above. In the United States, laws that target or disproportionately affect members of a “suspect class,” must be “narrowly tailored” to achieve a “compelling” state interest.
“Suspect classes” are defined as classes of individuals who have, historically, suffered significant discrimination, like people of color or foreign nationals — such as many of the Cannabis Cultural Association’s constituents and members. And “compelling” state interests necessarily exclude interests that are rooted in racism, ignorance and misinformation.
Thus, the association alleges that the disparate impact of the Controlled Substances Act on its members, in the absence of a “compelling” state interest, renders the act — as it pertains to cannabis — unconstitutional and invalid, as a matter of law.
The plaintiffs’ claim under the Commerce Clause refers to unauthorized acts of Congress, as opposed to infringement upon individuals’ constitutional rights. Under well-established principles of federalism, Congress may legislate only with respect to matters that have an appreciable impact on “interstate commerce,” or commerce with foreign nations and/or with Native American tribes. Regulation of activity that is “purely intrastate” is reserved for individual states, pursuant to the 10th Amendment to the U.S. Constitution. In their complaint, the plaintiffs allege: (a) that the regulation of the doctor-patient relationship and the dispensing of medications have historically been reserved for the states; and alternatively (b) that individual use of cannabis has no appreciable impact on the national economy. Further, they allege that, in classifying cannabis as a Schedule I drug, Congress did not actually seek to regulate interstate commerce, but rather sought to propagate the irrational and discriminatory motives described above. Thus, congressional regulation of Cannabis as a Schedule I drug unconstitutionally encroaches upon states’ rights.
It is clear that a judicial “check” on cannabis scheduling is long overdue.
Co-counsel David Holland, a longtime cannabis advocate and the current executive director/legal director of Empire State NORML, says, “The ability to seek redress in this court from the institutionalized racism against our people and persecution of a plant that has been used medicinally for thousands of years is the beauty of our democracy and the everlasting beauty of the pillar of justice.”
Lead counsel, Hiller, is optimistic that the lawsuit will be successful and that it will “afford our judicial system the opportunity to correct an historic injustice underwritten by a racist and unconstitutional statute that should never have been enacted in the first place.”
Hiller also called upon the Justice Department and DEA “to act now — right now — and deschedule cannabis immediately, rather than subjecting medical cannabis patients to further delays and legal obstacles that serve only to undermine their efforts to receive appropriate, and often life-saving, medical care.”
Lauren Rudick represents investors and startup organizations in all aspects of business and intellectual property law, specializing in cannabis, media and technology. Her law firm, Hiller, PC (www.hillerpc.com), is a white-shoe boutique firm with a track record for success and handling sophisticated legal matters that include litigation and corporate law. This article is the first of a series regarding this groundbreaking lawsuit.