Lawsuit Takes a Big Swing at Prohibition, but Few Give It a Chance

An 11-year-old girl with epilepsy, a disabled military veteran with PTSD, and a former NFL lineman are among those who took aim at cannabis prohibition this week. They’re among the five plaintiffs who filed a lawsuit against the federal government on the grounds that the Controlled Substances Act—as it relates to cannabis, at least—violates the US Constitution.

The federal lawsuit, which names Attorney General Jeff Sessions, the Department of Justice, and the Drug Enforcement Administration as defendants, unleashes a smattering of legal arguments against the Controlled Substances Act (CSA) and its enforcement. At its core is the assertion that the government’s classification of cannabis as a Schedule I substance—alongside heroin and LSD—is so “irrational” as to be unconstitutional.

“If we win,” Joseph A. Bondy, a lawyer for the plaintiffs, told Leafly, “we win the overturning of the federal cannabis law.”

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Even the federal government, the suit alleges, doesn’t believe cannabis qualifies for Schedule I status, which includes drugs that have a high potential for abuse, no accepted medical use, and no means of safe use, even under medical supervision.

“The Federal Government has admitted repeatedly in writing and implemented national policy reflecting that Cannabis does in fact, have medical uses and can be used and tested safely under medical supervision,” says the complaint, filed late Monday in the Southern District of New York. “On that basis, the federal government has exploited cannabis economically for more than a decade by securing a medical cannabis patent and entering into license agreements with medical licensees.”

“This is the tip of the freakin’ iceberg.”

Joseph A. Bondy, lawyer for plaintiffs

Plaintiffs—who also include a six-year-old boy with Leigh disease and the nonprofit Cannabis Cultural Association, which promotes diversity in the cannabis industry—aren’t asking the court to scrap the CSA entirely. Instead, they want to forbid the government from enforcing the portion of the law that applies to cannabis.

The law has harmed each plaintiff in significant ways, the suit alleges. Marvin Washington, a retired defensive end for the New York Jets, says the CSA disqualifies him from receiving grants under the Federal Minority Business Enterprise program. He’s the co-founder of Isodiol, a company with a line of CBD-infused sports products.

The three patients—two minors as well as 34-year-old Army veteran Jose Balen—each claim the CSA has prevented them from traveling freely, whether in an airplane, through states where cannabis remains illegal, or onto a military base.

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The New York-based Cannabis Cultural Association, meanwhile, asserts that the CSA has historically targeted people of color and today hinders their involvement in the legal cannabis industry.

“The Nixon Administration ushered the CSA through Congress and insisted that cannabis be included on Schedule I so that African Americans and war protesters could be raided, prosecuted and incarcerated without identifying the actual and unconstitutional basis for the government’s actions,” the lawsuit says.

“This lawsuit reads like a H.S. student got really excited to write a paper about marijuana.”

Tom Angell, Marijuana Majority

Bondy, one of a team of plaintiffs’ lawyers led by New York litigator Michael Hiller, said that the suit’s claims could conceivably be extended to include discriminatory action against LGBTQ individuals, patients with terminal illnesses, and other potential plaintiffs.

Asked by Leafly whether similar arguments could conceivably be used to challenge federal prohibition of other drugs—many illegal substances have shown signs of medical benefits, and drug laws across the board tend to be enforced disproportionately against people of color—Bondy confirmed they could. “This is the tip of the freakin’ iceberg,” he said.

But while Bondy and others trumpeted the lawsuit after filing it on Monday, some other cannabis activists are unconvinced. Longtime legalization advocate Tom Angell, founder of the advocacy group Marijuana Majority, told Leafly he thinks the suit is “ridiculous.” Shortly after it was filed, he took to Twitter to question its significance.

Angell’s critiques are informed by his experience as longtime cannabis reformer and an eagle-eyed policy observer. And indeed, although the lawsuit’s claims may appeal to common sense, there’s good reason to be skeptical that the suit will succeed in court.

In part that’s because many of its arguments have already been tried. There’s a considerable history of challenges to cannabis prohibition, and it goes without saying that none has succeeded.

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Numerous rescheduling petitions have been launched throughout the years, many of which hinged on similar arguments to those invoked in this week’s lawsuit. Petitioners have included high-profile advocacy groups such as NORML, High Times, then-Washington state Gov. Christine Gregoire, and the patient-advocacy group Americans for Safe Access (ASA).

While the latest action is a federal lawsuit rather than a rescheduling petition, the ASA action gives some indication of how the new challenge may fare. After its rescheduling petition was rejected, ASA filed an appeal in the US Court of Appeals for the DC Circuit. The organization argued that the Schedule I classification of cannabis was arbitrary and capricious, contradicted by available scientific evidence. Judges were unmoved, however and the appeal went nowhere. It was the third time that court had considered and rejected a rescheduling request.

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It’s impossible to know for sure how the new lawsuit, Washington et al. v Sessions et al., will be received by the courts. There are plenty examples of courts reaching unexpected conclusions—especially around cannabis. But if this is the court challenge that will end cannabis prohibition in the US, it has an uphill battle before it.

The full text of the complaint is embedded below:


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