NORML Sues Feds in CA Medical Marijuana Fight [FEATURE]

Attorneys with NORML have filed suit against the federal government over its crackdown on medical marijuana distribution and cultivation in California. In lawsuits filed last week in the four US Attorney districts in the state, the NORML attorneys bring a number of legal and constitutional arguments to bear in asserting that the federal government has overstepped its boundaries in interfering with the state's medical marijuana business.

Leading the legal charge are San Francisco attorneys Matt Kumin, David Michael, and Alan Silber.

The lawsuits seek a temporary injunction to block the state's four US Attorneys, as well as Attorney General Eric Holder and DEA administrator Michele Leonhardt, "from arresting or prosecuting Plaintiffs or those similarly situated, seizing their medical cannabis, forfeiting their property or the property of their landlords or threatening to seize property, or seeking civil or administrative sanctions against them or parties whose property is used to assist them" while the case is being heard.

The plaintiffs in the case are California medical marijuana dispensaries, cultivators, and patients. Some targeted dispensaries have already been forced to shut down by a deadline last Friday to avoid possible federal reprisals if the temporary injunction is not granted.

The lawsuits also seek a permanent injunction barring further federal action against lawful (under state law) medical marijuana operators and patients. And they ask the courts to declare the federal Controlled Substances Act unconstitutional to the extent that it blocks California residents from obtaining marijuana as medicine as is legal under state law.

The lawsuits are a response to a federal offensive against medical marijuana in California unleashed last month, when the Justice Department sent dozens of letters to California landlords and dispensaries ordering them to close down or face possible seizure of their properties and criminal prosecution. Dozens of dispensaries have already closed in response to the threats.

The federal offensive has also included SWAT-style DEA raids on medical marijuana operations, including some that are among the most closely regulated under state law. In Mendocino County, for example, the DEA raided Northstone Organics, a cultivation operation so regulated by local authorities that every plant had a sheriff's tag on it.

The lawsuits claim the federal government "entrapped" medical marijuana suppliers by seeming to give the okay to their operations in an October 2009 Justice Department memo. They also claim that the federal actions violate the 9th, 10th, and 14th Amendments to the US Constitution.

The 9th Amendment says that merely because some rights are enshrined in the Constitution does not mean the federal government can "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 gives powers not delegated to the federal government "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," and since the government has recognized and not attempted to stop Colorado's state-run medical marijuana dispensary program, it cannot suggest Colorado has a state's right that California does not.

A lawsuit challenging the federal crackdown filed last month by Americans for Safe Access also makes a 10th Amendment argument. The feds have "instituted a policy to dismantle the medical marijuana laws of the state of California and to coerce its municipalities to pass bans on medical marijuana dispensaries," the advocacy group complained.

"Although the Obama Administration is entitled to enforce federal marijuana laws, the 10th Amendment forbids it from using coercive tactics to commandeer the law-making functions of the State," said ASA Chief Counsel Joe Elford, who filed the lawsuit in San Francisco. "This case is aimed at restoring California's sovereign and constitutional right to establish its own public health laws based on this country's federalist principles."

The 14th Amendment provides all citizens equal protection under the law. The NORML attorneys argue that because the federal government allows a handful of people access to marijuana through the Investigational New Drug program, allows a state-licensed medical marijuana system in Colorado to go unharassed, and blocks scientific research into medical marijuana, it is effectively denying equal protection to California residents.

The NORML attorneys also take issue with the US Supreme Court decision in Raich v. Gonzalez, which upheld the use of the Constitution's interstate commerce clause to stop California patients from legally growing their own medicine.

While acknowledging the Raich decision, they wrote that "it is still difficult to imagine that marijuana grown only in California, pursuant to California state law, and distributed only within California, only to California residents holding state-issued cards, and only for medical purposes, can be subject to federal regulation pursuant to the Commerce Clause. For that reason, Plaintiffs preserve the issue for further Supreme Court review, if necessary and deemed appropriate."

The courts are going to be busy with this matter for awhile, but a preliminary injunction would allow the California medical marijuana industry to go about its business unmolested while the matter gets sorted out.

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Drug prohibition is patently unconstitutional.

It took a Constitutional Amendment to prohibit alcohol and another amendment to repeal that prohibition. No Constitutional Amendment was passed and ratified to prohibit certain drugs from being grown/manufactured, traded, or ingested by freely consenting adults; therefore, prohibition of certain drugs is a violation of the unalienable rights of many, many people.

Since it IS unconstitutional:

Quoting – <i>Sixteenth American Jurisprudence, Second Edition, Section 177. (late 2nd Ed. Section 256)</i>:

"The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land.

"The Constitution of the United States is the supreme law of the land, and any statute, to be valid, must be in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows:

"An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.

"Since an unconstitutional law is void, the general principals follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it . . . A void act cannot be legally consistent with a valid one.  An unconstitutional law cannot operate to supersede any existing valid law.  Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby.

"No one is bound to obey an unconstitutional law and no courts are bound to enforce it."

Carl Olsen's picture

These arguments need a proper burial

These arguments have been made and lost before.  Raich v. Gonzales, 500 F.3d 850 (9th Cir. 2007).  The Ogden memo from 2009 clearly says any amount of marijuana for any reason is a federal crime and that the memo creates absolutely no legal protection whatsoever.  The response filed by the U.S. Department of Justice two days ago reminds everyone that marijuana is in federal schedule I that says it has no accepted medical use in treatment in the United States.  What?  I thought California had accepted it.  Why haven't California officials filed to have it federally reclassified?  That's treason.  Nobody in California is holding the state officials accountable.  Instead, they keep making these fruitless arguments in the federal courts.  Wake up, citizens of California.  Your state officials have ceded your state sovereignty to the DEA and now you're paying the price for it.

Carl Olsen's picture

Court Order - Nov. 16, 2011

MARIN ALLIANCE FOR MEDICAL MARIJUANA, a not-for-profit association; JOHN D’AMATO, an individual, MED  THRIVE, INC. a not-for-profit cooperative corporation doing business as MedThrive Cooperative; THE JANE PLOTITSA SHELTER TRUST, a revocable living trust; and THE FELM TRUST, an irrevocable living trust; THE DIVINITY TREE PATIENTS’ WELLNESS COOPERATIVE, INC., a non profit cooperative corporation,



ERIC HOLDER, Attorney General of the United States; MICHELLE LEONHART, Administrator of the Drug Enforcement Administration; HON. MELINDA HAAG, U.S. Attorney for the Northern District of California,


Case No: C 11-5349 SBA


On November 4, 2011, Plaintiffs filed the instant action and motion for temporary restraining order (“TRO”) and preliminary injunction seeking to prevent the federal government from arresting, prosecuting, or otherwise seeking sanctions or forfeitures against medical marijuana growers and providers who operate under the auspices of
California law. Dkt. 1, 5.

At the direction of the Court, the parties met and conferred regarding a briefing schedule on Plaintiff’s motion. By letter dated November 10, 2011, Plaintiffs state that the parties agreed that Defendants would file their response to the TRO motion only by no later than November 15, 2011, and that once the TRO is resolved, the parties will meet and confer regarding a briefing schedule on Plaintiffs’ motion for preliminary injunction. Dkt. 20. On November 11, 2011, Plaintiffs filed an amended complaint and amended motion for TRO and preliminary injunction. Dkt. 21, 23. Defendants filed their opposition to Plaintiffs’ amended motion for TRO on November 15, 2011. Dkt. 31.

Given the exigent circumstances alleged by Plaintiffs, the Court deems the motion for TRO fully briefed.1 In addition, given the briefs submitted, a reply brief is unnecessary for the Court to render an informed decision on the TRO request. As such, the parties may not submit any additional memoranda or other filings in connection with Plaintiff’s motion for TRO. Any papers filed in contravention of this Order will be stricken by the Court. Pursuant to the Civil Local Rule 7-1(b) and Federal Rule of Civil Procedure 78(b), the Court may resolve the motion without a hearing.

Dated: November 16, 2011 ______________________________

United States District Judge

1 The Court notes that Plaintiffs have had ample opportunity to brief the salient issues. Both Plaintiffs’ original and amended TRO motions are thirty-one pages in length, which well exceeds the twenty-five page limit imposed by Civil Local Rule 7-2(b), and the fifteen page limit set forth in this Court’s Standing Orders. See Dkt. 15 at 5. Plaintiffs neither sought nor obtained prior leave of Court to file oversized briefs. Although the Court would be well within its discretion to strike Plaintiffs’ non-compliant briefs, the Court declines to do so at this time. However, Plaintiffs are warned that further transgressions of the Court’s Local Rules and/or Standing Order may result in the
imposition of sanctions.

Why does the govt waste money to prosecute medical pot users?

Fuck Eric Holder! he covered up the govt and ATF involvement in the Oklahoma City bombing, ships guns into Mexico to Mexican drug cartels, and now is spending the already tapped out federal funds to arrest, prosecute, and imprison law-abiding citizens with medical illnesses! Smolder in hell Holder!

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