https://www.law.com/newyorklawjournal/sites/newyorklawjournal/2018/02/14/judge-says-dea-not-courts-may-be-better-forum-to-challenge-cannabis-policy/
A federal judge on Wednesday lobbed tough questions at an attorney for a group of plaintiffs challenging the constitutionality of marijuana prohibition, asking why his court is the best forum to push the government to cease enforcement.
But U.S. District Judge Alvin Hellerstein of the Southern District of New York, while hearing oral arguments on the government’s motion to dismiss the suit,
challenged the Drug Enforcement Administration’s position that marijuana has no acceptable medical use.
“It may not be universal, but some states in their legislative findings have found that there is a legitimate medical use,” Hellerstein said during an exchange with a federal prosecutor before a standing-room-only courtroom.
“So you can’t say what you’re arguing. The argument doesn’t hold.”
The plaintiffs in the suit, filed in July, are challenging the classification of marijuana under the Controlled Substances Act as a Schedule I drug, which is defined as drugs with a high potential for abuse, no accepted medical use, and no way of using or testing them safely, even under medical supervision.
Other Schedule I drugs include heroin, LSD and ecstasy. The plaintiffs ask for a permanent injunction to prevent enforcing cannabis under the CSA.
The lawsuit was filed on behalf of a diverse assortment of plaintiffs, including Marvin Washington, a former professional football player who now works in the cannabis industry; Alexis Bortell, a 12-year-old girl who suffers from epilepsy and says cannabis has kept her seizure-free for more than two years; and Jose Belen, an Iraq war veteran who uses cannabis to treat symptoms of post-traumatic stress disorder.
The plaintiffs argue that the Schedule I classification for marijuana violates their due process rights, First Amendment protections and the right to travel. The oral argument in their case comes as 30 states and the District of Columbia have adopted laws legalizing marijuana, but after U.S. Attorney General Jeff Sessions announced he would roll back the Obama administration’s hands-off approach to states that legalized marijuana.
In arguing for dismissal of the suit in the Southern District, the government contends that changing marijuana’s classification of a Schedule I drug needs to be accomplished through administrative rule-making.
Assistant U.S. Attorney Samuel Dolinger of the Southern District U.S. Attorney’s Office, who presented oral arguments on the government’s behalf, said the plaintiffs have yet to exhaust their administrative remedies to reclassify marijuana under the CSA.
“A ruling on exhaustion would dispose of all of the claims in this case,” Dolinger said. But the plaintiffs argue that, in passing the CSA, Congress created a “completely dysfunctional” construct in which a drug can only be rescheduled through testing but has classified marijuana as so dangerous that it could never have a conceivable benefit.
Additionally, the plaintiffs contend, waiting for the DEA to rule on petitions to reclassify cannabis is often a lengthy process, noting in their court papers that a petition to transfer cannabis to any other classification and another to transfer it to a Schedule II drug, filed in 2009 and 2011, respectively, did not receive rulings until July 2016. Both were denied.
“I represent people who need cannabis to live,” said Michael Hiller, one of the plaintiffs attorneys, during oral arguments.
But Hellerstein, who was appointed to the bench by President Bill Clinton, told Hiller a district court is not the proper place to “weigh all the conflicting elements” of how the DEA determines its narcotics schedule, which he said includes assessments of a drug’s danger to the community.
“An agency is set up to weigh all the things you want me to do,” Hellerstein said. “I think the right thing to do is defer to the agency,” Hellerstein said.
Hellerstein reserved judgment on the government’s motion, telling Hiller his side presented “provocative arguments.”
In addition to Hiller, the plaintiffs are represented by Hiller PC attorneys Lauren Rudik and Fatima Afia; David Holland of the Law Offices of David Clifford Holland; and Joseph Bondy of the Law Offices of Joseph A. Bondy.
Dolinger was joined in the courtroom by Assistant U.S. Attorney David Jones.
The plaintiffs have faced uphill battle so far. In September, Hellerstein denied the plaintiffs’ request for a temporary restraining order to cease cannabis enforcement under the CSA.
Additionally, the U.S. Court of Appeals for the Second Circuit previously held that the Schedule I classification for cannabis is constitutional and, in a 2016 ruling, U.S. District Judge Elizabeth Wolford of the Western District of New York ruled in a criminal case to reject a constitutional challenge to the Schedule I classification.
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