Lawsuit Takes Big Swing at Prohibition. Can It Connect?

Published on July 25, 2017 · Last updated July 28, 2020
With Congress now taking legalization seriously, a group of civil rights and social justice advocates say it's time to talk about legal reform and reparations.

Editors’ Note: This story was updated on July 26 to include additional comments from lawyers and legalization advocates.

An 11-year-old girl with epilepsy, a disabled military veteran with PTSD, and a former NFL lineman are among those who took aim at cannabis prohibition this week. They’re among the five plaintiffs who filed a lawsuit against the federal government on the grounds that the Controlled Substances Act—as it relates to cannabis, at least—violates the US Constitution.

The federal lawsuit, which names Attorney General Jeff Sessions, the Department of Justice, and the Drug Enforcement Administration as defendants, unleashes a smattering of legal arguments against the Controlled Substances Act (CSA) and its enforcement. At its core is the assertion that the government’s classification of cannabis as a Schedule I substance—alongside heroin and LSD—is so “irrational” as to be unconstitutional.

“If we win,” Joseph A. Bondy, a lawyer for the plaintiffs, told Leafly, “we win the overturning of the federal cannabis law.”

Even the federal government, the suit alleges, doesn’t believe cannabis qualifies for Schedule I status, which includes drugs that have a high potential for abuse, no accepted medical use, and no means of safe use, even under medical supervision.

“The Federal Government has admitted repeatedly in writing and implemented national policy reflecting that Cannabis does in fact, have medical uses and can be used and tested safely under medical supervision,” says the complaint, filed late Monday in the Southern District of New York. “On that basis, the federal government has exploited cannabis economically for more than a decade by securing a medical cannabis patent and entering into license agreements with medical licensees.”

“This is the tip of the freakin’ iceberg.”

Plaintiffs—who also include a six-year-old boy with Leigh disease and the nonprofit Cannabis Cultural Association, which promotes diversity in the cannabis industry—aren’t asking the court to scrap the CSA entirely. Instead, they want to forbid the government from enforcing the portion of the law that applies to cannabis.

The law has harmed each plaintiff in significant ways, the suit alleges. Marvin Washington, a retired defensive end for the New York Jets, says the CSA disqualifies him from receiving grants under the Federal Minority Business Enterprise program. He’s the co-founder of Isodiol, a company with a line of CBD-infused sports products.

The three medical cannabis patients—two minors as well as 34-year-old Army veteran Jose Balen—each claim the CSA has prevented them from traveling freely, whether in an airplane, through states where cannabis remains illegal, or onto a military base.

The New York-based Cannabis Cultural Association, meanwhile, asserts that the CSA has historically targeted people of color and today hinders their involvement in the legal cannabis industry.

“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 complaint says.

“This lawsuit reads like a H.S. student got really excited to write a paper about marijuana.”

Bondy, one of a team of plaintiffs’ lawyers led by New York litigator Michael Hiller, said that the suit’s claims could conceivably be extended to include discriminatory action against LGBTQ individuals, patients with terminal illnesses, and other potential plaintiffs.

Asked by Leafly whether similar arguments could conceivably be used to challenge federal prohibition of other drugs—many illegal substances have shown signs of medical benefits, and drug laws across the board tend to be enforced disproportionately against people of color—Bondy confirmed they could. “This is the tip of the freakin’ iceberg,” he said.

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But as Bondy and others trumpeted the lawsuit after filing it on Monday, some cannabis activists remained skeptical. Longtime legalization advocate Tom Angell, founder of the advocacy group Marijuana Majority, told Leafly he thought the suit was “ridiculous.” Shortly after it was filed, he took to Twitter to question its significance.

Angell’s critiques are informed by his experience as longtime cannabis reformer and an eagle-eyed policy observer (as he notes, he’s not a lawyer). And indeed, although the lawsuit’s claims may appeal to common sense, past efforts to challenge federal prohibition have gone down in flames. There’s a considerable history of challenges to cannabis prohibition, and it goes without saying that none has succeeded.

“I thought it was a rather impressive complaint.”

But Keith Stroup, the founder of NORML and a Washington, DC-based attorney, took issue with Angell’s criticisms. He described the lawsuit as “a refreshing attempt” to overturn prohibition in court. “I thought it was a rather impressive complaint,” he told Leafly.

Numerous rescheduling petitions have been launched throughout the years, including by high-profile petitioners such as NORML, High Times, then-Washington state Gov. Christine Gregoire, and the patient-advocacy group Americans for Safe Access (ASA).

The ASA action was most recent. In 2012, ASA filed an appeal of its rescheduling petition in the US Court of Appeals for the DC Circuit. The organization argued that the DEA’s Schedule I classification of cannabis was arbitrary and capricious, contradicted by available scientific evidence. Judges were unmoved, however and the appeal went nowhere. It was the third time that court had considered and rejected a rescheduling request.

Hiller, the lead attorney for the current lawsuit, said the challenge is distinctly different from the ASA appeal. “In this case we are not alleging that the Drug Enforcement Administration abused its discretion,” he said. “We are arging that Congress enacted a statute that’s so irrational as to be unconstitutional. And that’s a different argument.”

Norm Kent, a Florida criminal defense and constitutional rights attorney who chairs NORML’s legal committee, agreed. He told Leafly that even though the lawsuit invokes some familiar arguments, they’re being deployed in a much different legal environment today than 10 or 15 years ago.

“I’m not going to mislead you and tell you that everything they’re doing is novel and has never been done before,” he said, but “there are a whole bunch of legal issues that are being raised that haven’t been raised before because they weren’t issues back then.”

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Americans’ right to travel freely between states, for example, now collides with patients’ right to carry and consume cannabis in nearly half of all US states, Kent said. “What I like about the lawsuit is that jurists will consider it in 2017,” he added. “There’s new legal platforms on which to argue a constitutional right that didn’t heretofore exist.”

NORML founder Stroup, who wrote a blog post about the suit, cautioned that courts historically have “consistently refused to get involved” in issues of cannabis reform.

“While the courts have played a major role in areas like civil rights or women’s rights, they have refused to engage in challenging the prohibition of marijuana,” he said.

Then he added: “That doesn’t mean we shouldn’t keep trying.”

The full text of the complaint is embedded below:

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Ben Adlin
Ben Adlin
Ben Adlin is a Seattle-based writer and editor who specializes in cannabis politics and law. He was a news editor for Leafly from 2015-2019. Follow him on Twitter: @badlin
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