August 14, 2020

Petition filed with SCOTUS to Declare the Criminalization of Cannabis Unconstitutional

August 14, 2020

In an appeal with national implications, a petition has been filed with the U.S. Supreme Court, demanding that the federal statute criminalizing marijuana, the Controlled Substances Act (CSA), be declared unconstitutional.

The case, Washington v. Barr, was brought on behalf of five plaintiffs, including 14-year-old legalization activist Alexis Bortell, Iraq War Veteran Jose Belen, and nine-year old Jagger Cotte — three plaintiffs whose treatment with cannabis keeps them alive. 

Alexis, Jagger and Specialist Belen, who must carry their medical cannabis with them at all times, cannot legally enter onto federal land and cannot travel by air or other federally-regulated modes of transportation. Worse, they live in constant fear that their medication may someday be taken from them and that they (or, in the cases of Alexis and Jagger, their parents) will be arrested. Despite that it’s legal in 38 States and U.S. Territories, and that many of those states have deemed cannabis businesses essential during the pandemic, cannabis remains illegal under the CSA. This has created substantial confusion not only for these plaintiffs, but also for the millions of registered cannabis patients throughout the country, not to mention the doctors who prescribe, and the businesses that supply, their medication. According to Lauren Rudick, co-counsel for the plaintiffs, “there was hope in the cannabis industry that marijuana would be de-scheduled by the Trump administration.” However, despite his 2016 campaign promises to leave the issue of legalization to the States, President Trump and the Justice Department have aggressively defended the CSA and opposed this lawsuit, and have made no progress toward legalization or decriminalization. 

The legal premise for the lawsuit is that the classification of cannabis under the CSA as a Schedule I drug is unconstitutionally irrational and violates plaintiffs’ fundamental rights to equal protection under the law, substantive due process and to preserve their health and lives through treatment with lifesaving medication. The nearly 100-page complaint points out that, in order to be classified a Schedule I drug under the CSA, a substance must be found to have no accepted medical applications in the U.S., and be too dangerous to treat with even under medical supervision. Yet, over 70% of U.S. jurisdictions have legalized cannabis for use in medical treatment, rendering the federal government’s position that there is no accepted medical use for cannabis in the U.S., according to plaintiffs, utterly irrational. 

SCOTUS is the final hurdle the plaintiffs must clear to obtain the relief they seek. The lawsuit was initially brought in the Southern District of New York. Although acknowledging in the court record that cannabis had “saved [plaintiffs’] lives,” the District Court Judge dismissed the case, ruling that the plaintiffs, before moving forward with their lawsuit, must submit a special petition to the Drug Enforcement Administration (DEA), requesting that cannabis be de-scheduled administratively. The Second Circuit Court of Appeals, in a decision hailed by Law360 as a possible “turning point” in the legalization effort, reinstated the complaint – the first time ever a complaint seeking de-criminalization of cannabis under the CSA has survived dismissal. However, the Appeals Court proceeded to rule, consistent with the District Court, that the complaint would be held in abeyance pending the plaintiffs’ submission of a de-scheduling petition with DEA. The DEA, in turn, was directed by the Court to promptly respond to an administrative petition.

Fatima Afia is an Associate at Hiller, PC, and contributes significantly to many of the firm’s most successful practice areas including complex commercial litigation, business law, land use and landmarks law matters.

Right now, we are in what is called the “Cert” stage of the appeals process before the US Supreme Court, meaning that we are asking the Court to agree to hear our appeal from the Second Circuit Court of Appeals (there is no automatic right to appeal to the US Supreme Court). We filed our Petition asking the Court to hear our appeal, on July 2, 2020.  Because the US Supreme Court takes only a fraction of the cases filed before it each year, it is imperative to demonstrate to the Court that the issues raised in your lawsuit have national significance, requiring the Court to step in and resolve them.  In order to make this case to the court, litigants regularly garner support from outside parties called “amici” (i.e., “friends of the court” who are not parties to the lawsuit) who submit legal briefs (“amicus briefs”) to the Court explaining how the issues raised in the lawsuit directly impact them and/or their constituents/members, and supporting the appealing party’s request that the appeal be heard by the Court.  In this case, more than a dozen organizations and individuals, including at least one member of Congress (and likely more), are submitting amicus briefs in support of our request to have the US Supreme Court hear our appeal.  These organizations and individuals comprise and represent Americans from all walks of life, ranging from medical cannabis patients to business entrepreneurs to social justice activists and advocates to professional sports organizations and players, and everyone else in between.  And then there are, of course, the many attorneys and law firms who have generously donated their time and energy to preparing these amicus briefs.  The outpouring of support we have received over the last several months has been incredible, but it is not surprising when you consider the fact that an overwhelming majority of Americans, irrespective of political ideology, support legalization of both medicinal and adult use cannabis (more than 90% support medical cannabis legalization and two-thirds support adult-use cannabis legalization). We are confident that the Court will recognize the national significance of our lawsuit and agree to hear our appeal particularly because of the amicus briefs to be filed in this case, each of which will tell powerful stories, tragedies, and lived experiences of organizations, communities, and individuals who have been harmed by federal prohibition – stories and experiences that resonate with thousands (or in many cases, millions) of similarly-situated Americans from all over the country. 

-Fatima Afia

When asked about the relevance to current events, and particularly the pandemic and recent civil unrest in America, Afia explained:

“We filed this lawsuit in 2017, at a time when legalization was already long overdue and when state legal programs were in danger of being undermined by the DOJ which at the time was led by Attorney General Jeff Sessions – an avid opponent of legalization who rescinded the Cole Memorandum shortly after our lawsuit was filed. However, as relevant as our lawsuit was back then, it is infinitely more important today.  We have been thrust into a global pandemic, an economic depression, and a civil rights movement all within the matter of months, and as surprising as it may seem, the legalization of cannabis could play an important role in finding some resolutions to these crises. With respect to the global pandemic, there is some promising, but preliminary, medical research suggesting that cannabinoids can be used to treat symptoms of COVID-19 including acute respiratory distress syndrome, but a schedule I classification of cannabis makes it logistically difficult to conduct comprehensive and reliable cannabis research in the United States. The success of our lawsuit, which would have the effect of removing cannabis from the CSA entirely, would, thus, allow medical cannabis research to flourish, particularly amid a public health crisis such as this where time is of the essence. Another way that our lawsuit is relevant to the COVID-19 pandemic is that medical cannabis dispensaries and most adult-use retail stores, considered “essential” businesses throughout the lockdown periods in their respective states, did not qualify for federal stimulus relief through the SBA loan program, despite being required to adopt costly cleaning protocols in order to safely operate, because of cannabis’s Schedule I classification under the CSA.  Clearly, in the absence of federal prohibition, cannabis companies would have more financial security, particularly during a national or global crisis such as this pandemic, as they would have access to a number of financial benefits and funding assistance that is currently unavailable to them.  Finally, and most notably, is the relevance of our lawsuit to the civil rights movement we currently find ourselves in. Cannabis prohibition has played an instrumental role in the war on drugs – a war that has disproportionately destroyed communities of color since the 1970s, and fueled a host of the problems at the center of today’s BLM movement including, police brutality/militarization and mass incarceration.  Indeed, in 2018, 40% of all drug-related arrests were for cannabis related offenses (more than for any other drug related offense) even though state legalization was rapidly increasing. Moreover, Black people are four times as likely as white people to be arrested for cannabis possession even though white and Black people possess and use cannabis at similar rates. These alarmingly high rates of arrest of persons of color for cannabis offenses allow for increased interactions between law enforcement and persons of color, thereby increasing instances where excessive force is used by an officer against a person of color. Ending federal prohibition would not only serve as an example to the minority of states that still criminalize cannabis to legalize it, but it would also clear a path for members of Congress to push forward more aggressively on social equity and criminal justice reforms to remedy some of the harms caused by the war on drugs, including automatic expungement and community reinvestment initiatives.”

Notwithstanding the Second Circuit’s ruling, the DEA and D.C. Circuit have consistently ruled since 1977 that filing a de-scheduling petition of the sort directed by the Second Circuit and the District Court would be futile, since cannabis cannot be de-scheduled administratively or even be re-classified any lower than Schedule II under the CSA. In other words, the plaintiffs were directed to proceed with an administrative review process doomed to failure. Accordingly, they filed their petition with SCOTUS. 

Michael Hiller, lead counsel for the plaintiffs and a former Professor of Constitutional Law whose law firm, Hiller, PC, is handling the case pro bono, is hopeful that SCOTUS will accept jurisdiction of the appeal, even though few such petitions are granted by the Court. In particular, Hiller pointed to the “mass uncertainty” in the law governing cannabis, “the conflicting decisions among the courts,” “the millions of Americans who depend on medical cannabis to keep themselves healthy and alive,” and the “tens of billions of capital invested by cannabis businesses throughout the country to mass produce a product, the legality of which is completely unclear.” 

Joseph Bondy, pro bono co-counsel for plaintiffs, commented: “We are particularly proud to see the unification of the cannabis legalization movement behind this petition, as evidenced by the dozen or more organizations and the members of Congress who we expect will be seeking leave to file ‘friend of the Court’ amicus briefs in support of plaintiffs’ petition.” A decision on the petition isn’t expected until next year. 


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