On Wednesday, October 24, a group of California dispensary operators, medical cannabis providers, and patients, as Plaintiffs, filed their Opening Brief before the Ninth Circuit Court of Appeals in San Francisco, asking the Circuit Court to hold that Plaintiffs, in their continuing litigation against the Federal Government, have a constitutional Ninth Amendment and Substantive Due Process fundamental right to distribute, possess and use medical cannabis. The brief, filed by members of the NORML Legal Committee, also contends that the Federal Government’s criminal prohibition of medical cannabis has no rational basis and thus violates the Equal Protection Clause of the Constitution. Plaintiffs further contend that the Federal Government is Judicially Estopped from enforcing medical marijuana prohibition in states that allow such activity because the Administration has previously asserted in public and in court that they would no longer do so.
Plaintiffs in November 2011 initially filed suit in California’s four federal districts against Eric Holder (United States Attorney General), Michelle Leonhart (Administrator of the Drug Enforcement Administration and the individual US Attorneys of each California District: Sacramento, San Francisco, Los Angeles, and San Diego — following increased efforts from the Obama administration and the state’s US Attorneys to crack down on the production and distribution of medical cannabis. Plaintiff’s are asking the Ninth Circuit to reverse the district court’s dismissal of that complaint, and to allow the plaintiff’s the opportunity to prove their contentions in a court of law.
Three members of the NORML Legal Committee — Matt Kumin and David Michael from San Francisco and Alan Silber from Roseland, NJ — are representing the Plaintiffs in this appeal. In a press release, they stated, “The ill, in compliance with state law and with a physician’s recommendation, are made to suffer needlessly by the federal threats and denial of access to medical cannabis due to irrational governmental policy. Judicial intervention is the only way to stop the federal government from acting irrationally and from willfully ignoring the science supporting the use of cannabis as medicine.”
The cases are El Camino Wellness Center, et al. v. Eric Holder et al. (Sacramento), Marin Alliance for Medical Marijuana, et al. v. Eric Holder, et al. (San Francisco), and Alternative Community Health Care Cooperative, et al. v. Eric Holder, et al. (San Diego).
Other NLC attorneys who participated in the litigation of these cases are Lance Rogers of San Diego, Mark Reichel of Sacramento and Edward Burch of San Francisco.
A copy of Plaintiff’s Opening Brief is available here.