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Tuesday, January 7, 2014

Federal Appeals Court Cancels Hearing on Right to Use Marijuana

Posted By on Tue, Jan 7, 2014 at 6:45 AM

Not today
  • Not today

It's rare that a court hearing will generate enough excitement to interest the press.

Then again, a public defense of medical marijuana's merits made in court is a rare event -- as is is the government forced to publicly defend its crackdown on California's state-legal cannabis industry.

Next week, the U.S. Ninth Circuit appeals court, which has been long derided by conservatives as the nation's most liberal pack of activist judges, was to hear arguments on a lawsuit brought by medical marijuana providers that had been shut down during the Department of Justice's crackdown which began in 2011(technically, it's an ongoing issue).

Citizens have a fundamental right to use, possess, and cultivate cannabis under state law, plaintiffs' attorneys were set to argue. The stage was set ... until the court abruptly canceled next week's oral arguments.

And that's not a good sign for pot people.

It's easy to forget, years on, but some of the California collectives and dispensaries shut down by the federal government in 2011 are still hanging around, fighting the feds in court. At the same time, dispensaries in Berkeley, San Francisco,and Oakland are fighting against asset forfeiture proceedings.

The Ninth Circuit may have been as good a stage as any for cannabis at this point, with worldwide attention on the experiment in Colorado, legal weed in Uruguay, and a majority of Americans in every major poll saying they're sick of the drug war and in favor of marijuana, if only medical marijuana and not full-on legalization.

And attorneys David Michael, Alan Silber, and Matthew Kumin had cooked up an argument that may have sat well with justices: Marijuana users in California and elsewhere may enjoy a "fundamental right" to use their preferred medicine, with state law deeming cannabis as such, in the same way that gay people in Texas have a right to express their love privately. That was the line of logic that struck down Texas's infamous anti-sodomy laws, anyway.

At the least, it would be interesting. And now it's not.

On Monday, the attorneys for the plaintiffs sent out a press release advising the media of next week's hearing. Within the hour, the court sent out a missive informing all parties that the hearing was canceled.

The timing is, in a word, ridiculous. Anyone looking for a grand weed-hating conspiracy can look no further -- though the lawyers don't see it that way.

It could just be that the judges have already written their opinion and don't need an oral hearing. It's more likely that the factual merits of cannabis under federal law -- it's not allowed -- have already been examined ad nauseam, and no further recitation of, "Congress makes the laws, the drug laws are what they are, and now leave us alone, we're not going to issue a landmark decision" is needed.

This doesn't end things, of course. "We are all committed to seeing this through to the last possible appeal," said a frustrated and a bit disappointed Kumin in comments to SF Weekly.

If the Ninth Circuit dismisses the appeal, the next step is the Supreme Court of the United States -- which is possible, though Kumin stopped short of vowing to secure a date with SCOTUS.

Could pot-scuttling federal prosecutors be led to explain themselves in front of the likes of Roberts, Scalia & Co.? If so, hopefully the day in court will actually happen.

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About The Author

Chris Roberts

Chris Roberts has spent most of his adult life working in San Francisco news media, which is to say he's still a teenager in Middle American years. He has covered marijuana, drug policy, and politics for SF Weekly since 2009.


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