The medical marijuana fight may end up at the Supreme Court ... by the time we're all really old.
San Francisco attorney Matthew Kumin's lawsuit challenging the feds' recent crackdown on state-legal medical marijuana dispensaries was dismissed by a federal judge in Sacramento -- without being heard in court.
Kumin fully expects more losses, when his other claims filed in federal court in Oakland and Los Angeles are also dismissed.
And that's all right with him. Kumin told us Thursday that the plan all along was to take the case "upstairs" to the Ninth Circuit Court of Appeals. There, judges may be liberal enough to let Kumin challenge the government's doublespeak -- and to allow U.S. attorneys the chance to defend it.
"They're saying, 'It's illegal because we say it's illegal,'" said Kumin, who pointed to the Food and Drug Administration allowing cannabis-based medicine Sativex to undergo clinical trials as surefire proof of "irrational" and selective federal enforcement. "That's just not a good enough answer for the American public."
Kumin's local clients include medical marijuana collectives Divinity Tree, Medithrive, and Marin Alliance for Medical Marijuana. All were recently shut down by Melinda Haag, the U.S. Attorney for Northern California, as part of a statewide crackdown on medical marijuana in coordination with California's three other federal prosecutors.
In the argument dismissed this week, Kumin pointed to a 2009 memo issued by a deputy attorney general that suggested federal prosecutors use their "limited resources" on crimes other than state-legal medical marijuana, a suggestion that has evidently been ignored. In his opinion dismissing the suit in Sacramento, U.S. District Judge Garland Burrell said that the memo "was a statement of priorities" and "does not contain a promise not to enforce federal law."
The problem is not that the law is bogus -- though certainly medical marijuana advocates think it is -- but that the feds are enforcing their own law selectively.
In the past, federal law enforcement officials have pointed to the myriad ills perpetrated upon the public by marijuana use; in recent years, the argument's been circular. It's illegal because Congress said it's illegal; it has no medical use because the Drug Enforcement Administration says so. This tautology would unlikely get a user past their 1L year, and it's also logic that the government's own actions betray as faulty (and can be challenged under The Equal Protection Clause).
In addition to the Veterans Administration letting its beneficiaries use cannabis, and the FDA allowing cannabis-based medicine like Sativex to be tested, the National Cancer Institute -- which is part of the National Institute on Health -- issued an infamous statement in which it observed cannabis components' tumor-shrinking effects in mice (since retracted, due to political pressure, it's thought).
"The government's blocking of us is irrational at this point," Kumin said. "It's clear there's medical use; circumstances have changed."
To date, lawyers for the federal government have not been called to answer for any of the above in front of a judge. Judges like Burrell have a right not to hear any case they wish; if they didn't, the courts would be hopelessly tied up with frivolous lawsuits.
The Ninth Circuit could get the case within nine to 12 months, Kumin said. First, the U.S. District judges in Oakland and L.A. need to dismiss the initial suits, which asked judges to slap an injunction upon further federal actions shutting down state-legal cannabis. So Kumin could be arguing in front of the Ninth Circuit -- which has been famously friendly toward medical marijuana in the past -- by this time next year.
Whenever medical cannabis gets a fair hearing in a court of law, next year or 10 years from now, the decision can only go one way, Kumin says.
"The judges know we're in the right, they just don't want to admit it," said Kumin, who used the example of the civil rights movement: It took the Supreme Court 58 years to reverse its affirmation that "separate but equal" segregated schools were okay in Plessy v. Ferguson -- he just hopes it doesn't take quite so long this time.
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