Judge Offers Hope in New York Marijuana Scheduling Hearing

By | February 15, 2018

Supporters of a lawsuit to strike down federal marijuana prohibition were heartened Feb. 14 when the judge hearing the case said it was clear that cannabis had accepted medical use.

“Your clients are living proof of the medical appropriateness of marijuana,” U.S. District Judge Alvin K. Hellerstein told Michael Hiller, the plaintiffs’ lead lawyer, during a hearing in Manhattan on the federal government’s motion to dismiss the case. “How could anyone say that your clients’ pain and suffering has not been alleviated by marijuana? You can’t.”

The suit, filed last July, seeks an injunction to prevent the federal government from enforcing the Controlled Substances Act of 1970 “as it pertains to cannabis.” It argues that the law’s placing marijuana in Schedule I as a drug with “no currently accepted medical use” has no rational basis; that it violates users’ rights to due process and equal protection because it was enacted based on “illegal racial and ethnic animus”; and that it violates patients’ rights to free speech and travel because medicine they need is wrongly prohibited.

The five plaintiffs are Marvin Washington, a former defensive lineman who now works for a medical-marijuana company; Alexis Bortell, a 13-year-old girl whose family moved from Texas to Colorado so she could get marijuana to treat her multiple daily seizures; Jose Belen, an Iraq-war veteran who uses it to deal with post-traumatic stress disorder; Jagger Cotte, a seven-year-old boy who uses it for a congenital disease that few kids survive long enough to see their fourth birthday; and the New York-based Cannabis Cultural Association, a pro-legalization group comprised mainly of African-Americans and Latinos. (Note: The CCA’s Jake Plowden, Nelson Guerrero and Leo Bridgewater are featured in the photo above.)

Samuel Dolinger, an assistant U.S. attorney for the Southern District of New York, argued that the suit should be dismissed because courts have previously struck down similar claims, the courts should not have jurisdiction until the plaintiffs had exhausted the Drug Enforcement Administration’s administrative review procedures for drug scheduling and that the only way to prove a law has no rational basis is to “negate every conceivable basis that supports the law.” Congress’ goal in enacting the law in 1970 was “to protect public health and welfare from drug abuse and trafficking.” There is “no fundamental right to use marijuana,” he added.

Judge Hellerstein appeared unsympathetic to all of the suit’s claims except for the challenge to medical-marijuana prohibition. He emphasized that issue in questioning attorneys for both sides, asking Dolinger how he could claim that marijuana has no accepted medical use. The federal prosecutor answered that there haven’t been enough adequate studies to say it’s “accepted.” Since numerous states have accepted it, “that’s the critical issue,” the judge responded.

But Hellerstein also said it was not his place to judge whether the Nixon administration had racist motives for enacting the Controlled Substances Act, and he didn’t think a district court was the appropriate place to weigh the need for medical access to marijuana against the dangers of pharmaceutical drugs that are widely available.

The pro-descheduling legal team: Michael Hiller (speaking), Lauren Rudick (left), Joe Bondy (middle) and David Holland (right).

Empire State NORML director David Holland, who is one of the lawyers representing the plaintiffs, told Freedom Leaf after the hearing that it seemed the judge “really wants to rule in our favor and is trying to figure out how.”

A History of Efforts to Change the CSA

The plaintiffs argue that relying on the DEA’s administrative-review process is “illusory and futile” because of the agency’s “institutional bias.” The DEA has rejected more than 10 attempts to remove cannabis from Schedule I, most recently in 2016. In the first, filed by NORML in 1972, the agency took more than 16 years to reject it, overruling its administrative-law judge Francis Young’s 1988 determination that cannabis was the “safest therapeutically active substance known to man” and the continued prohibition of medical marijuana was “unreasonable, arbitrary and capricious.”

“When you have people who are dying, administrative review is not sufficient for them,” Holland commented. Judge Hellerstein said he would consider two arguments against deferring to the DEA’s judgment: That the agency’s procedures had an unreasonable or indefinite timeline and that it was biased.

The hearing drew more than 50 supporters from as far away as Kentucky and Florida, most of who had to watch the proceedings on video in an overflow courtroom. Penny Johnson, 55, of Burnside, Ky., said she came “in support of Alexis [Bortell]” and “because I’m a cannabis user.” Jason Lee, a retired police detective from Melbourne, Fla., said he became involved because he works with Jose Belen in Mission Zero, an organization trying to prevent suicide by military veterans. Before Lee got on Florida’s medical-cannabis-extract program in November, he’d spent seven years taking fentanyl and other opioids to relieve the pain he suffers from severe back injuries sustained in a scuffle with a domestic-violence suspect.

RELATED: Freedom Leaf’s Diversity in Cannabis Impact List

“The judge made it absolutely clear that cannabis does not meet one of the three criteria for Schedule I,” Michael Hiller told a press conference after the hearing. “He told the government to stop making that argument.”

Marijuana was put in Schedule I, Hiller continued, before: the federal Compassionate Investigative New Drug program began giving it to people with AIDS, glaucoma and other diseases; Young’s declaration; and 46 states legalizing medical cannabis in some form.

“When the facts change, the courts have to change too,” he declared. If they didn’t, he said, they would never have outlawed racial segregation in schools, struck down laws prohibiting gay sex or allowed same-sex marriage.

Judge Hellerstein did not say when he would issue his decision on the government’s dismissal motion. His main options, Holland added, would be to deny the motion and let the case go to trial, dismiss the suit, or dismiss some of its challenges to the law while allowing others.

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