Safe Streets Alliance et al. v. John Hickenlooper, et al. – Good News, Bad News

C1_8734_r_xA ruling issued on June 7th by the US Court of Appeals for the Tenth Circuit, in response to a series of legal challenges to Colorado’s adult cannabis use regulations, includes both good news and bad news.

The Good News

Most importantly for the legalization movement nationwide, the appeals court rejected the argument raised by the states of Nebraska and Oklahoma that Amendment 64 in Colorado, the voter initiative that legalized and regulated the adult use of marijuana, was preempted by the federal Controlled Substances Act. That argument, made by these neighboring states, if accepted by the court, would have voided Amendment 64.

It should be noted that this was not a definitive ruling on the federal preemption argument. Rather, it was a procedural ruling, finding that only the US Supreme Court has jurisdiction to hear disputes between the states. (The Supreme Court declined to consider a similar challenge in 2016.)

In fact, it was only after the Supreme Court had rejected their motion that the two states elected to raise these same issues with the 10th Circuit, by filing a motion to intervene in the Safe Streets case.

Also a big win, the Circuit Court rejected a similar attempt by a group of sheriffs and prosecutors from Colorado, Kansas, and Nebraska to use the US Controlled Substances Act and the Supremacy Clause of the US Constitution to enjoin the enforcement of Amendment 64. The court found that the Supremacy Clause “does not give rise to a private right of action.”

Hopefully this will give pause to other anti-marijuana zealots out there who might wish to use the federal preemption argument to undermine the various state legalization laws.

The Bad News

The bad news is that the 10th Circuit did reinstate a civil RICO complaint filed by private landowners in Colorado against a state-licensed indoor cultivation center, alleging it had caused a noxious odor that damaged their property value. The appellate court remanded the case back to the US District Court for further proceedings to allow the plaintiffs to attempt to prove their RICO claims.

While this is necessarily concerning to those in the state-legal cultivation industry, since the problems presented by the odors emanating from large grow operations is a theme which has been raised in several Colorado communities, it likely does not open the floodgates for every neighbor to bring a RICO suit against any cultivation center. Rather it likely will accelerate the adoption of the most effective technology by cultivation centers to minimize the odor of marijuana.

In the court’s own words, “We are not suggesting that every private citizen purportedly aggrieved by another person, a group, or an enterprise that is manufacturing, distributing, selling, or using marijuana may pursue a claim under RICO. Nor are we implying that every person tangentially injured in his business or property by such activities has a viable RICO claim. Rather, we hold only that the Reillys alleged sufficient facts to plausibly establish the requisite elements of their claims against the Marijuana Growers here.”

Why We Should Demand That Congress Reschedule Marijuana

austinLike most Americans who follow the debate over marijuana legalization in this country, I was disappointed that the U.S. Drug Enforcement Administration this week once again determined that marijuana has no medical use and left it in Schedule I of the federal Controlled Substances Act.

Disappointed, but not surprised.

NORML first petitioned the DEA to reschedule marijuana to a lower schedule back in 1973, and we have been involved in two subsequent attempts to accomplish the same result, without success. The DEA is a law enforcement agency. So they will continue to oppose any steps to loosen controls over marijuana until Congress forces them to change.

A Brief History of Rescheduling Attempts.

The initial petition NORML filed to reschedule marijuana in 1973 ended up being an endurance test. The agency refused to even acknowledge our petition or respond to it until we went to the court of appeals and forced them to respond. And this strategy of ignore and delay continued at every step, dragging the process out for 15 years until 1988, when DEA Chief Administrative Law Judge Francis Young, following days of testimony, finally ruled in our favor.

The ruling concluded that “Marijuana, in its natural form, is one of the safest therapeutically active substances known to man. By any measure of rational analysis marijuana can be safely used within a supervised routine of medical care.”

Judge Young continued: “It would be unreasonable, arbitrary and capricious for DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence in this record.”

However, the DEA Administrator simply ignored the decision of his own hearing examiner and rejected our petition, claiming the hearing examiner had relied on anecdotal evidence. NORML again appealed that decision to the U.S. Court of Appeals, but the court allowed the Administrator’s decision to stand, saying he had acted within his discretion.

And twice in the intervening decades NORML has been a party to subsequent attempts to require the DEA to reschedule marijuana; and both times, as they did in this most recent case, the DEA continued to insist that marijuana has no medical usefulness and should remain on Schedule I, along with heroin.

So I hope readers will understand when I say, “Enough is enough! Time to ignore the DEA altogether and focus our efforts on Congress.”

How Marijuana Ended Up on Schedule I in the First Place.

When the federal Controlled Substances Act was being considered by Congress in 1970 — after the prior federal anti-marijuana act had been held unconstitutional — various members of Congress debated the question of where to place marijuana under the new act. A separate provision of that new law established The National Commission on Marijuana and Drug Abuse (aka the Marijuana Commission), which was charged with the responsibility of determining the appropriate policy regarding marijuana and reporting back to Congress. A compromise was reached to temporarily place marijuana in Schedule I until the commission came back with their report.

When the commission came back with its marijuana report in 1972, they recommended that minor marijuana offenses be decriminalized, which would have made it available (again) as a medicine. (Marijuana was on the U.S. Pharmacopeia from the mid-1850s until 1937, and it was available by prescription and widely prescribed for several conditions.)

However, those recommendations were not accepted by then-Presdient Nixon or Congress, and marijuana was left in Schedule I, where it remains today.

In fact, what Congress should really do, and what NORML has been arguing for some time, is to totally de-schedule marijuana by removing it from the Controlled Substances Act and treat it as we do alcohol and tobacco, thus providing states the power to establish their own marijuana regulatory policies free from federal interference.

Bills Pending In Congress.

There are currently several bills pending in Congress that, if adopted, would resolve this matter. HR 1774, the Compassionate Access Act, introduced by Rep. Morgan Griffith (R-Va.) and Rep. Dana Rorhabacher (R-Calif.), would require that marijuana be rescheduled and would prohibit federal officials from interfering in state-compliant activities specific to the physician-authorized use or distribution of medical cannabis.

And Sen. Bernie Sanders (I-Vt.) recently introduced S.2237, the Ending Federal Marijuana Prohibition Act of 2015, that would de-schedule cannabis from the CSA and treat it like alcohol and tobacco.

Of course, neither of these bills have been scheduled for a hearing or given a vote — even in committee. But those conditions may change following the upcoming election in November, and we may well have the opportunity to move a rescheduling proposal forward in the next Congress.

So instead of trying to convince the DEA that they should act responsibly and compassionately and lower marijuana to a more appropriate schedule under federal law, or remove it entirely, it is now time to put our efforts behind a push to convince the next Congress to solve this problem directly.

______________________________________________________________

This column originally appeared on ATTN.com.

http://www.attn.com/stories/10683/how-congress-should-reschedule-marijuana-unlike-dea

DEA Reaffirms ‘Flat Earth’ Position With Regard To Scheduling Marijuana

imgresThe United States Drug Enforcement Administration has rejected a pair of administrative petitions that sought to initiate rulemaking proceedings to reschedule marijuana under federal law.

Although the DEA’s ruling continues to classify marijuana in the same category as heroin, the agency also announced in a separate decision that it is adopting policy changes designed to expand the production of research-grade cannabis for FDA-approved clinical studies.

Presently, any clinical trial involving cannabis must access source material cultivated at the University of Mississippi — a prohibition that is not in place for other controlled substances. Today, the agency announced for the first time that it will be seeking applications from multiple parties, including potentially from private entities, to produce marijuana for FDA-approved research protocols as well as for “commercial product development.” This change was initially recommended by the DEA’s own administrative law judge in 2007, but her decision was ultimately rejected by the agency in 2011.

Below is a statement from NORML Deputy Director Paul Armentano regarding the DEA’s decisions:

For far too long, federal regulations have made clinical investigations involving cannabis needlessly onerous and have placed unnecessary and arbitrary restrictions on marijuana that do not exist for other controlled substances, including some other schedule I controlled substances.

While this announcement is a significant step toward better facilitating and expanding clinical investigations into cannabis’ therapeutic efficacy, ample scientific evidence already exists to remove cannabis from its schedule I classification and to acknowledge its relative safety compared to other scheduled substances, like opioids, and unscheduled substances, such as alcohol. Ultimately, the federal government ought to remove cannabis from the Controlled Substances Act altogether in a manner similar to alcohol and tobacco, thus providing states the power to establish their own marijuana regulatory policies free from federal intrusion.

Since the DEA has failed to take such action, then it is incumbent that members of Congress act swiftly to amend cannabis’ criminal status in a way that comports with both public and scientific opinion. Failure to do so continues the federal government’s ‘Flat Earth’ position; it willfully ignores the well-established therapeutic properties associated with the plant and it ignores the laws in 26 states recognizing marijuana’s therapeutic efficacy.

Under the U.S. Controlled Substances Act of 1970, the cannabis plant and its organic cannabinoids are classified as Schedule I prohibited substances — the most restrictive category available under the law. By definition, substances in this category must meet three specific inclusion criteria:

The substance must possess “a high potential for abuse”; it must have “no currently accepted medical use” in the United States; and, the substance must lack “accepted safety for use … under medical supervision.”

Substances that do not meet these criteria must, by law, be categorized in less restrictive federal schedules (Schedules II through V) and are legally regulated accordingly. Alcohol and tobacco, two substances widely acknowledged to possess far greater dangers to health than does cannabis, are not classified under the Controlled Substances Act.

A recent review of FDA-approved clinical studies evaluating the safety and efficacy of herbal cannabis concluded: “Based on evidence currently available the Schedule I classification is not tenable; it is not accurate that cannabis has no medical value, or that Information on safety is lacking.”

Added Armentano: “The DEA’s decision is strictly a political one. There is nothing scientific about willful ignorance.”

The DEA has previously rejected several other rescheduling petitions, including a 2002 petition filed by a coalition of marijuana law reform and health advocacy organizations, and a 1972 petition filed by NORML. The petitions that triggered this latest DEA action were filed in 2009 by a nurse practitioner and 011 by then-Govs. Christine Gregoire of Washington and Lincoln Chafee of Rhode Island.

‘Respect State Marijuana Laws Act’ Introduced In Congress

United States Congressman Dana Rohrabacher (R-CA), along with a bipartisan coalition of three Republicans (Reps. Rohrabacher, Rep. Justin Amash [R-MI], and Don Young [R-AK]) and three Democrats (Reps. Earl Blumenauer [D-OR], Steve Cohen [D-TN] and Jared Polis [D-CO]) today introduced House Bill 1523: the Respect State Marijuana Laws Act.

The measure would amend the federal Controlled Substances Act to exempt from federal prosecution individuals and businesses, including marijuana dispensaries and/or retail outlets, who comply with state marijuana laws.

“This bipartisan bill represents a common-sense approach that establishes federal government respect for all statesmarijuana laws,” Rohrabacher said in a news release. “It does so by keeping the federal government out of the business of criminalizing marijuana activities in states that don’t want it to be criminal.”

The proposal is one of several marijuana law reform bills now pending before the United States Congress, including 013, House Bill 689: the States’ Medical Marijuana Patient Protection Act, and 013.

Take Action to End Marijuana Prohibition!

Last month, Congressman Jared Polis (D-CO) introduced legislation, House Resolution 499, which would effectively end the federal prohibition on marijuana and allow states to set their own policies.

House Resolution 499: The Ending Marijuana Prohibition Act of 2013, would remove marijuana from the Controlled Substances Act, transfer the Drug Enforcement Administration’s authority to regulate marijuana to a newly renamed Bureau of Alcohol, Tobacco, Marijuana and Firearms, require commercial marijuana producers to purchase a permit, and ensure that federal law distinguishes between individuals who grow marijuana for personal use and those involved in commercial sale and distribution.

You can read the full text of this measure here.

Congress needs to hear from you, please take a minute and click here to quickly and easily write your Representative and urge him or her to support the Ending Federal Marijuana Prohibition Act of 2013!

CLICK HERE TO WRITE YOUR REPRESENTATIVE

Federal Legislation Reintroduced to Legalize and Reschedule Medical Cannabis

Members of Congress reintroduced legislation this week to protect state-authorized medical marijuana patients from federal prosecution.

House Bill 689, the States’ Medical Marijuana Patient Protection Act, would ensure that medical cannabis patients in states that have approved its use will no longer have to fear arrest or prosecution from federal law enforcement agencies. It states, “No provision of the Controlled Substances Act shall prohibit or otherwise restrict in a State in which marijuana may be prescribed or recommended by a physician for medical use under applicable State law.”

The measure also calls for the federal government to reclassify cannabis so that it is no longer categorized as a Schedule I prohibited substance with no accepted medical use and a high potential for abuse. It states: “Not later than one year after the date of enactment of this Act, the Administrator of the Drug Enforcement Administration shall, based upon the recommendation under paragraph (1), issue a notice of proposed rulemaking for the rescheduling of marijuana within the Controlled Substances Act, which shall include a recommendation to list marijuana as other than a Schedule I or Schedule II.”

In January, a three-judge panel for the US Court of Appeals for the District of Columbia denied petitioners request to overturn the Obama administration’s July 2011 rejection of an administrative petition that sought to initiate hearings regarding the reclassification of marijuana under federal law.

Separate federal legislation, House Bill 710: The Truth in Trials Act, which provides an affirmative defense in federal court for defendants whose actions were in compliance with the medical marijuana laws of their state was also reintroduced this week in the US House of Representatives.

Those who wish to contact their member of Congress in support of these federal measures can do so by clicking here.

Industrial Hemp Farming Legislation Reintroduced In Congress

Congressman Thomas Massie (R-KY) and 28 co-sponsors, including House Agriculture Committee ranking member Collin Peterson (D-MN), have reintroduced legislation in Congress that requires the federal government to respect state laws allowing the cultivation of industrial hemp. Hemp is a distinct variety of the plant species cannabis sativa that contains only trace (less than one percent) amounts of tetrahydrocannabinol (THC), the primary psychoactive compound in cannabis.

House Bill 525, 013, amends the Controlled Substances Act to exclude industrial hemp from the definition of marijuana. The measure grants state legislatures the authority to license and regulate the commercial production of hemp as an industrial and agricultural commodity.

Eight states – Colorado, Maine, Montana, North Dakota, Oregon, Vermont, Washington and West Virginia – have enacted statutory changes defining industrial hemp as distinct agricultural product and allowing for its regulated commercial production. Passage of HR 525 would remove existing federal barriers and allow these states and others the authority to do so without running afoul of federal anti-drug laws.

“Industrial hemp is a sustainable crop and could be a great economic opportunity for Kentucky farmers,” Rep. Massie stated in a press release. “Industrial hemp will give small farmers another opportunity to succeed.”

Senator Rand Paul (R-KY) and Republican Leader Mitch McConnell (KY) are supporting the introduction of a companion bill in the US Senate.

According to a Congressional Research Service report, “The United States is the only developed nation in which industrial hemp is not an established crop.”

Previous versions of the Industrial Hemp Farming Act have stalled in Congress. The issue has never before been debated in the Senate.

Additional information regarding HR 525 is available from NORML’s ‘Take Action Center’ here.

Arizona Superior Court Judge: State-Licensed Dispensing Of Medical Cannabis Is Not Preempted By Federal Law

A 2010 voter-approved Arizona state law authorizing “the local cultivation, sale, and use, of medical marijuanais not preempted by the federal Controlled Substances Act, according to the Superior Court of Arizona, Maricopa County.

The ruling, issued earlier this month by Superior Court Judge Michael Gordon, allows for the establishment of state-licensed medicinal cannabis dispensaries within Arizona — the first of which opened its doors last week. State-licensed medical marijuana facilities now operate in several states, including Colorado, New Jersey, New Mexico, and Maine.

A majority of Arizona voters approved the AMMA in 2010. Under the law, qualified patients may possess and, depending on where they reside, cultivate cannabis. The program also mandates the state to license citizens to form not-for-profit dispensaries to grow and dispense cannabis. AMMA requires that each of the state’s 126 Community Health Care Analysis Areas permit at least one dispensary operator. Maricopa County’s prosecutor sought to block the establishment of local dispensaries by claiming that AMMA was preempted by federal anti-drug laws.

Writing for the Court in White Mountain Health Center, Inc. v. Maricopa County, Judge Gordon declared that nothing in the Arizona Medical Marijuana Act circumvents federal law since Justice Department officials, if they wished to do so, could still continue to locally enforce the Controlled Substances Act. “No one can argue that the federal government’s ability to enforce the CSA is impaired to the slightest degree [by Arizona’s medical marijuana law],” Gordon opined, adding that the new law “affirmatively provides a roadmap for federal enforcement of the CSA, if they so wished to” since the statute requires patients and proprietors to register their activities with the state.

Judge Gordon further suggested that Arizona’s law did not conflict with the federal lawmakers’ intentions when they enacted the federal Controlled Substances Act. He declared, “Instead of frustrating the CSA’s purpose, it is sensible to argue that the AMMA furthers the CSA’s objectives in combating drug abuse and the illegitimate trafficking of controlled substances.”

He concluded: “The Court rejects … arguments that the [law] violates public policy simply because marijuana use and possession violate federal law. Eighteen states and the District of Columbia have passed legislation permitting the use of marijuana in whole or in part. The Court will not rule that Arizona, having sided with the ever-growing minority of States, and having limited it to medical use, has violated public policy.”

Maricopa County Attorney Bill Montgomery is appealing Judge Gordon’s ruling.

Arizona regulations regarding patient access and dispensary operations is available from the Arizona Department of Health Services here.

Listen To Voters President Obama, Not The Vice President!

According to Rolling Stone: “There are not many friends to legalization in this administration,” says Kevin Sabet, director of the Drug Policy Institute at the University of Florida who served the White House as a top adviser on marijuana policy. In fact, the politician who coined the term “drug czar” – Joe Biden – continues to guide the administration’s hard-line drug policy. “The vice president has a special interest in this issue,” Sabet says. “As long as he is vice president, we’re very far off from legalization being a reality.”

Really?!

We’ve got a decidedly baby boom president and former leader of the Choom Gang as the so-called elected leader of the free world, but reform of cannabis prohibition is supposedly being held up by the World War II era-influenced, and current self-described “drug warrior” Joe Biden?

Let’s send a clear message to President Obama to sensibly pay attention to public polls and election vote totals regarding the tenor of America quickly moving away from the failed eight decade-old federal cannabis prohibition and embracing logical public policy alternatives–notably taxing and regulating cannabis products in a manner similar to alcohol and tobacco products–and NOT to his stodgy, longtime prohibitionist and disconnected Vice President.**

Please sign this White House petition here.

**Joe Biden, when he was a Senator from Delaware, led the Democrats’ efforts in the 1980s to try to rebuff longtime and successful Republican efforts to paint Democrats as ‘being soft on crime and weak on drugs’ by helping to create the Office of National Drug Control Policy (AKA Drug Czar’s office) and inserting into its mission statement one of the most anti-democratic and anti-free market charters of all time in a government bureaucracy.

According to Title VII Office of National Drug Control Policy Reauthorization Act of 1998: H11225:

Responsibilities. –The Director– [...]

(12) shall ensure that no Federal funds appropriated to the Office of National Drug Control Policy shall be expended for any study or contract relating to the legalization (for a medical use or any other use) of a substance listed in schedule I of section 202 of the Controlled Substances Act (21 U.S.C. 812) and take such actions as necessary to oppose any attempt to legalize the use of a substance (in any form) that–

is listed in schedule I of section 202 of the Controlled Substances Act (21 U.S.C. 812); and
has not been approved for use for medical purposes by the Food and Drug Administration;

 

 

The Hill.com: “Voters Say ‘No’ To Pot Prohibition”

I have an op/ed today online at The Hill.com’s influential Congress blog (“Where lawmakers come to blog”).

Read an excerpt from it below:

Voters say ‘No’ to pot prohibition
via TheHill.com

Voters in Colorado and Washington made history on Election Day. For the first time ever, a majority of voters decided at the ballot box to abolish cannabis prohibition.

… Predictably, the federal government – which continues to define cannabis as equally dangerous to heroin – is not amused. According to various media reports, the Justice Department is in the process of reviewing the nascent state laws. Meanwhile, the U.S. Drug Enforcement Administration has already affirmed that the agency’s “enforcement of the [federal] Controlled Substances Act remains unchanged.” That may be true. But in a matter of weeks, the local enforcement of marijuana laws in Colorado and Washington most definitely will change. And there is little that the federal government can do about it.

States are not mandated to criminalize marijuana or arrest adult cannabis consumers and now two states have elected not to. The federal government cannot compel them to do otherwise. State drug laws are not legally obligation to mirror the federal Controlled Substances Act and state law enforcement are not required to help the federal government enforce it. Yes, theoretically the Justice Department could choose to prosecute under federal law those individuals in Colorado and Washington who possess personal amounts of cannabis. But such a scenario is hardly plausible. Right now, the federal government lacks the manpower, political will, and public support to engage in such behavior. In fact, rather than triggering a federal backlash, it is far more likely that the passage of these two measures will be the impetus for the eventual dismantling of federal pot prohibition.

Like alcohol prohibition before it, the criminalization of cannabis is a failed federal policy that delegates the burden of enforcement to the state and local police. How did America’s ‘Nobel Experiment’ with alcohol prohibition come to an end? Simple. When a sufficient number of states – led by New York in 1923 – enacted legislation repealing the state’s alcohol prohibition laws. With state police and prosecutors no longer complying with the government’s wishes to enforce an unpopular law, federal politicians eventually had no choice but to abandon the policy altogether.

… On Election Day, voters in Colorado and Washington turned their backs on cannabis prohibition. They are the first to do so. But they will not be the last. Inevitably, when voters in the other 48 states see that the sky has not fallen, they too will demand their lawmakers follow suit. As more states lead the way, federal politicians will eventually have no choice but to follow.

You can read the entire op/ed here. You can also post your feedback and comments to The Hill by going here. Congress is listening; tell them what’s on your mind.

California Congresswoman Introduces ‘Medical Marijuana Property Rights Protection Act’

United States Congresswoman Barbara Lee (D-CA), along with eight co-sponsors, has introduced legislation — House Bill 6335, the Medical Marijuana Property Rights Protection Act — which seeks to amend the federal Controlled Substances Act so as to “exempt real property from civil forfeiture due to medical-marijuana-related conduct that is authorized by State law.”

Representative Lee’s bill, the first of its kind ever introduced in Congress, is a direct response to Justice Department’s increased and arbitrary use of the civil asset forfeiture statute to sanction property owners whose tenants are in compliance with state medical marijuana laws. Since October, US Attorneys in California alone have sent more than 300 threatening letters to landlords across the state, resulting in the closure of more than 400 dispensaries, according to tabulations compiled by the group Americans for Safe Access.

Speaking in support of the proposal, Rep. Lee explained, “As a long-time supporter of the rights of patients to have safe and legal access to medicine that has been recommended to them by their doctors, this bill will provide clarification to California businesses and security for California patients. The people of California have made it legal for patients to have safe access to medicinal marijuana and, as a result, thousands of small business owners have invested millions of dollars in building their companies, creating jobs, and paying their taxes. We should be protecting and implementing the will of voters, not undermining our democracy by prosecuting small business owners who pay taxes and comply with the laws of their states in providing medicine to patients in need.

The Medical Marijuana Property Rights Protection Act has been assigned before the House Judiciary Committee and the House Committee on Energy and Commerce. You can contact your member of Congress is support of the Act via NORML’s ‘Take Action Center’ here.

Several other marijuana law reform bills also remain pending before Congress, including:

* HR 2306, the Ending Federal Marijuana Prohibition Act, which prohibits the federal government from prosecuting adults who use or possess marijuana by removing the plant and its primary psychoactive constituent, THC, from the five schedules of the United States Controlled Substances Act of 1970. The measure presently has 20 co-sponsors. You can contact your member of Congress in support of this Act here.

* HR 1983, the States’ Medical Marijuana Patient Protection Act, which ensures that medical cannabis patients in states that have approved its use will no longer have to fear arrest or prosecution from federal law enforcement agencies. The measure presently has 22 co-sponsors. Support this measure by clicking here.

* HR 1831, the Industrial Hemp Farming Act, excludes low potency varieties of marijuana from federal prohibition. The measure presently has 33 co-sponsors. Its just introduced Senate companion bill, S 3501, has three co-sponsors. Contact your member of the House and Senate in support of this Act here.

* HR 6134, The Truth in Trials Act, provides an affirmative defense in federal court for defendants whose actions were in compliance with the medical marijuana laws of their state. The measure presently has 22 co-sponsors. You can support this measure here.

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