Washington Et Al. v. Sessions Et Al., 07-CV-05625 (S.D.N.Y.) - Complaint
Washington Et Al. v. Sessions Et Al., 07-CV-05625 (S.D.N.Y.) - Complaint
Plaintiffs, COMPLAINT
Defendants.
----------------------------- x
Infant ALEXIS BORTELL, JOSE BELEN, SEBASTIEN COTTE as Parent/Guardian for Infant
"Plaintiffs"), as and for their Complaint against defendants ("Defendants"), allege as follows:
PRELIMINARY STATEMENT
1. This action is brought on behalf of two young children, an American military veteran,
a retired professional football player and a membership organization, all of whom have suffered
harm, and who are continuously threatened with additional harm, by reason of the provisions of the
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Controlled Substances Act ("CSA"). 21 U.S.C. 801, et. seq. The CSA has wrongfully and
(comprised of Cannabis Saliva, Cannabis Indica, and Cannabis Rudera/is), which, historically, has
been harvested to produce, among other things, medicine, industrial hemp, and a substance known
as tetrahydrocannabinol ("THC"). 1
2. Although not styled as a class action, this lawsuit stands to benefit tens of millions
of Americans who require, but are unable to safely obtain, Cannabis for the treatment of their
illnesses, diseases and medical conditions, the successful treatment of which is dependent upon its
curative properties. 2 In addition, this lawsuit, if successful, would aid in the restoration of
communities hardest hit and most egregiously stigmatized by the Federal Government's misguided
United States as a supposed "gateway drug" used primarily used by "hippies" and minorities, there
is a long and rich history, dating back thousands of years, of people from virtually every part of the
world using Cannabis for medical, industrial, spiritual, and recreational purposes. 3 Indeed, those
1
Robert Deitch, HEMP -AMERICAN HISTORY REVISITED: THE PLANT Willi A DIVIDED HISTORY 3
(2003); Editors of the Encyclopedia Britannica, Cannabis, ENCYCLOPEDIA BRITANNICA,
https://www.britannica.com/plant/cannabis-plant.
2
Cannabis, as used in this Complaint, refers to whole-plant Cannabis, with its full spectrum of
cannabinoids, including THC, which is separately classified as a Schedule I drug. 21 C.F .R 1308(d)(31 ).
3
Deitch, supra note 1 at 1; History ofMarijuana as Medicine - 2900 BC to Present,
PROCON.ORG, http://medicahnarijuana.procon.org/view.timeline.php?timelineID=000026 (last updated
Jan. 30, 2017) [hereinafter referred to as "PROCON.ORG"]; Lecia Bushak, A BriefHistory Of Medical
Cannabis: From Ancient Anesthesia To The Modern Dispensary, MEDICAL DAILY (Jan. 21, 2016),
http://www.medicaldaily.com/brief-history-medical-cannabis-ancient-anesthesia-modem-dispensary-370
344 [hereinafter referred to as "MEDICAL DAILY"].
2
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who have cultivated, encouraged the cultivation of, and/or used Cannabis include, inter alia, George
Washington, Thomas Jefferson, John Adams, James Madison, James Momoe, Abraham Lincoln,
John F. Kennedy, Jimmy Carter, Bill Clinton, and Barack Obama - an assortment of the most
4. As further shown below, the criminalization of Cannabis - a drug that has never
killed anyone - arose out of the enactment of legislation uuderwritten by illegal racial and ethnic
animus, and implemented and enforced at the federal level by those who have chosen to disregard
its scientific properties and benefits, and have been motivated by hatred and outright bigotry. 4
Cannabis as a Schedule I drug, is unconstitutional, because it violates the Due Process Clause of the
Fifth Amendment, an assortment of protections guaranteed by the First Amendment, and the
fundamental Right to Travel. Further, Plaintiffs seek a declaration that Congress, in enacting the
CSA as it pertains to Cannabis, violated the Commerce Clause, extending the breadth oflegislative
power well beyond the scope contemplated by Article I of the Constitution. 5 The claims are as
follows:
6. First, as shown below, the CSA as it pertains to Cannabis violates the Due Process
4
Notably, although a powerful and vocal minority of public officials have continued their
irrational opposition to rescheduling or de-scheduling of Canuabis, the overwhelming majority of
Americans desire a change. According to an April 20, 2017 Quinnipiac Poll, nearly 94% of Americans
support legalization of medical marijuana. And 60% of Americans support full legalization and de-
criminalization of Cannabis for all purposes (Exh. 1).
5
In interposing this particular claim, Plaintiffs explicitly seek the overturn of the Supreme
Court's decision in Gonzalez v. Raich, 545 U.S. 1 (2005).
3
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Clause of the Fifth Amendment to the United States Constitution because the CSA is so irrational
as a matter oflawthat it cannot be said to be rationally related to any legitimate government purpose.
Cannabis is classified as a Schedule I drug under the CSA, along with such psychotropic drugs as
heroin, mescaline and LSD. To have been assigned this Schedule I classification, the Federal
Government was required to have determined that Cannabis: (i) has a high potential for abuse; (ii)
has absolutely no medical use in treatment; and (iii) cannot be used or tested safely, even under strict
below, the Federal Government does not believe, and upon information and belief, never has
believed, that Cannabis meets or ever met the Three Schedule I Requirements.
7. Under Federal Law, it is not enough for the government, in arguing in favor of a
which a law is rationally related for the purpose of responding to a lawsuit; the government must also
actually believe its own argument. And, as shown below, the Federal Government, at a minimum,
does not, and cannot possibly, believe that there is no acceptable medical use for Cannabis or that
it cannot be used or tested safely under medical supervision. In other words, the Federal
Government has recognized that Cannabis does not meet (or come close to meeting) two of the Three
Schedule I Requirements. Indeed. the Federal Government has admitted repeatedly in writing. and
implemented national policy reflecting. that Cannabis does. in tact, have medical uses and can be
used and tested safelv under medical supervision. On that basis. the Federal Government has
exploited Cannabis economically tor more than a decade by securing a medical cannabis patent and
8. Because the Federal Government does not believe the factual predicate underlying
4
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its own arguments in support of the CSA as it pertains to Cannabis, the CSA is irrational and thus
9. Second, as shown below, the CSA as it pertains to Cannabis was enacted and
subsequently implemented, not to control the spread of a dangerous drug, but rather to suppress the
rights and interests of those whom the Nixon Administration wrongly regarded as hostile to the
interests of the United States-African Americans and protesters of the Vietnam War. In particular,
members of the Nixon Administration have confirmed that, when the CSA was enacted, President
Nixon regarded those who opposed the Vietnam War as a threat to America's Cold War fight against
Co=unism. And associates in the Nixon Administration, including and especially, Myles Ambrose
(America's First Drug Czar), harbored considerable antipathy towards African Americans.
10. The Nixon Administration recognized that African Americans could not be arrested
on racial grounds, and war protesters could not be prosecuted for opposing America's involvement
in Vietnam. However, the members of the Nixon Administration decided that Cannabis was the
drug of choice for these two groups. Consequently, 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
11. Unfortunately, the Federal Goverrnnent has been quite successful in using the CSA
to harass, intimidate and incarcerate African Americans in disproportionate numbers over the years,
ruining the lives of generations of black men and women and other persons of color. War protesters
resulting in convictions that stained reputations and limited the career options of countless politically
5
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active Americans. In so doing, the Federal Government violated (and continues to violate) the First
Amendment and the Due Process Clause of the Fifth Amendment to the United States Constitution
12. Third, as shown below, the CSA as it pertains to Cannabis violates the constitutional
Right to Travel. As ofthis writing, 29 States plus Washington, DC and three U.S. Territories have
legalized the use of Cannabis containing high concentrations of THC for the treatment of scores of
illnesses, diseases and conditions. Indeed, more than 62% of Americans currently live in States in
which Cannabis with high THC count may be recommended by physicians for medical treatment.
13. Those who live in State-legal medical-Cannabis jurisdictions are, for the moment,
able, as a practical matter, to avail themselves of medical Cannabis, notwithstanding the provisions
of the CSA, based upon a series of federal initiatives which have created temporary, de facto
impediments to its enforcement at the federal level. However, those temporary federal initiatives
do not have the force of law and explicitly state that they do not provide a defense to prosecutions
14. Thus, those who cultivate, distribute, sell, recommend and use medical Cannabis in
conformity with State-legal medical Cannabis programs remain vulnerable to federal enforcement.
Worse, those patients who rely upon medical Cannabis, even in State-legal medical-Cannabis
jurisdictions, cannot safely travel by airplane; cannot travel onto federal lands or into federal
buildings; cannot enter facilities owned by the Federal Government; and cannot travel to or through
States in which medical Cannabis has not been legalized, without risk of arrest and prosecution.
Consequently, the physicians who recommend medical Cannabis, the businesses that manufacture
6
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and distribute medical Cannabis, and the patients who need and use it remain at constant risk that
they could be arrested, prosecuted and incarcerated by the Federal Government at any time.
15. In the context of the Right to Travel, medical Cannabis patients in particular are
subjected to a Robson's Choice of: (i) using their medication but relinquishing their Right to Travel;
(ii) exercising their Right to Travel but risking arrest; or (iii) exercising their Right to Travel but
foregoing physician-recommended medical treatment that maintains their health and lives. Insofar
as subjecting themselves to arrest or loss of medical treatment do not constitute viable options, those
using Cannabis to treat their illnesses, diseases and conditions are required to relinquish their Right
16. Fourth, the CSA as it pertains to medical Cannabis violates the Commerce Clause
and the Tenth Amendment to the United States Constitution. While empowered by Article I to
regulate interstate and international commerce, Congress does not have the authority to regulate
purely intra-state activities which do not have any impact on the national economy. Any use of
medical Cannabis that is legalized and regulated entirely within an individual State's borders does
not have any appreciable impact on the national economy. And Congress, in enacting the CSA,
never believed that the cultivation, distribution and sale of Cannabis, purely at the intra-state level,
has been, since ratification of the United States Constitution and subsequent adoption of the Tenth
Amendment, consistently interpreted as falling within the exclusive regulatory jurisdiction of the
States (not the Federal Government) under the provisions of the Tenth Amendment. By injecting
7
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itselfinto the exclusive regulatory jurisdiction ofthe States, Congress has exceeded its powers under
the Commerce Clause and violated the Tenth Amendment of the United States Constitution (Fourth
Cause of Action).
completely and utterly irrational legislative construct and thus violates the Due Process Clause of
the Fifth Amendment. Specifically, under the CSA, Schedule I drugs are classified as so dangerous
that they generally cannot be tested safely; however, in order to obtain the evidence necessary to
persuade the Federal Government that Cannabis is safe enough to be rescheduled or de-scheduled,
testable drug, Congress created a legislative Gordian Knot -- a statute that functions as a one-way,
19. What transforms this poorly-conceived provision into an unconstitutional one is that
Cannabis was categorized as a Schedule I drug, not because the evidence presented during the
legislative process actually demonstrated that it was dangerous, but rather because certain members
of Congress claimed that the data for classifying Cannabis in the first instance was, at the time,
supposedly insufficient. Accordingly, Cannabis was to be tested and then rescheduled, de-scheduled
or left under the provisions of Schedule I. In classifying Cannabis as a Schedule I drug in the first
instance, however, Congress permanently resigned Cannabis to that designation because in the
absence of testing, those seeking to petition to reclassify Cannabis are deprived of the opportunity
6
This is not to suggest that no one has ever obtained permission ftorn the Federal Govermnent to
test medical Cannabis; but the vetting process renders the approval process substantially impracticable.
8
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to collect the very evidence deemed necessary by the Federal Government to reschedule or de-
PLAINTIFFS
Marvin Washington
22. Plaintiff Marvin Washington ("Washington") is, and at all relevant times has been,
a citizen, resident and domiciliary of the County of Dallas in the State of Texas.
24. From 1989 to 1999, Washington played professional football as a defensive lineman
for such National Football League franchises as the New York Jets, San Francisco 49ers and Denver
25. After his retirement from professional football, Washington entered the business
world, working for Kannalife, a Long Island company that has been developing Cannabis-based
medications to minimize the damage caused by head injuries and to reduce and ultimately eliminate
opioid addiction among professional athletes. Washington is currently working with a Swiss
company known as Isidiol that has launched, among other things, a line of products infused with
9
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Cannabidiol, also known as CBD, produced in the European Union, outside the confines of the
CSA. 7
26. Washington would like to expand his business to include whole-plant Cannabis
(including THC) products, but is concerned that, even in States in which whole-plant Cannabis is
legal for medical and/or recreational use, he may be subject to arrest and prosecution.
27. Washington would like to avail himself of the benefits associated with the Federal
Minority Business Enterprise program ("MBE") in connection with whole-plant Cannabis products,
but he is ineligible for it solely because such activities would be illegal under the CSA. Were
Washington to open a whole-plant Cannabis business and apply for participation in the MBE, he
28. According to the Federal Government, CBD, unless extracted from industrial hemp,
29. Washington is concerned that, although CBD generally has a low concentration or
no concentration of THC, his existing business could be subjected to enforcement under the CSA.
31. Plaintiff Dean Bortell is, and at all relevant times has been, a citizen of Texas and
32. Dean is a former member of the Navy, and is now a 100% permanently-disabled
7
CBD, although part of the Cannabis plant, generally has no psychoactive effect. Nonetheless, it
is currently the position of the Federal Government that the cultivation and/or sale ofCBD is prohibited
under the CSA.
10
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33. As a disabled VFW, his children are entitled to receive certain veteran's benefits
("Veterans' Benefits"), including, inter alia, health insurance and the right to use the commissary
35. Alexis is, and at all relevant times has been, a citizen of Texas and Colorado,
37. At the age of seven, Alexis began experiencing seizures, and was eventually
39. By reason of her intractable epilepsy, Alexis often suffered from multiple seizures
per day, and spent most of her school-day afternoons in the nurse's office.
40. Alexis, with the assistance of her family and treatment providers, attempted to treat,
control and cure her intractable epilepsy for years without success. Nothing she tried worked.
41. After two years of doctor visits, tests, urgent trips to the emergency room, and pill
after pill, all with their assortment of negative side effects, her family exhausted traditional
pharmaceutical options to stop what Alexis referred to as the "seizure monster." At that point, they
turned to the last known option available: whole-plant Cannabis containing high concentrations of
THC.
42. Whole-plant Cannabis withhigh THC content provided Alexis immediate relief from
her seizures, but it is not legal in Texas, where she resided at the time. Accordingly, Alexis and her
11
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family were forced to move from her home State of Texas to seek life-saving treatment in Colorado.
There, Alexis was thrust into a very grown-up world and joined a then-largely unknown community
43. Since being on whole-plant medical Cannabis, Alexis has gone more than two years
44. Without her use of whole-plant medical Cannabis, Alexis would likely have no
quality of life, and instead be resigned to spending her days at home inside or worse, in a hospital
bed, as medical care-givers surround her with offers of palliative care which fail to provide any
actual palliative relief. In addition, Alexis would be subjected to traditional forms of treatment
which, aside from being ineffectual, threaten her with serious and life-altering side effects, including
infertility.
45. Alexis co-authored Let's Talk About Medical Cannabis, which was launched on April
20, 2017. In the book, she shares her and her family's experiences as Medical Marijuana Refugees
46. Alexis was also named a PACT National Pediatric Ambassador (2015-16), and
received the Texas Liberty Award (along with her sister) in 2016.
4 7. Alexis' s drive to help those around her led to her newest project, "Patches of Hope."
She and her sister Avery are growing USDA certified organic garden vegetables on their family farm
to donate to hungry people in need, including her beloved Medical Marijuana Refugees. Her story
and advocacy have been featured in documentaries, newspapers, magazines, TV, and on radio
stations worldwide.
48. While thrilled with the success she has experienced in treating her intractable epilepsy
12
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and eliminating her daily seizures, Alexis would like to move back to Texas, where she would be
eligible for free college tuition through Texas's State Department of Education. Alexis is not
49. In addition, Alexis would like to travel to other States, but cannot safely do so without
fear that: (i) her parents, with whom she would travel, might be prosecuted for possession of
Cannabis; or worse (ii) her parents might be subjected to proceedings which would imperil their
parental rights.
50. Alexis would also like to avail herself of the Veterans Benefits for which she is
eligible and which she would otherwise receive were it not for her necessary Cannabis use; however,
Alexis cannot enter the neighboring military base, where she would be able to avail herself of such
Benefits, including, for example, commissary benefits, unless she were to leave her medication
behind, risking her health. And, although currently receiving health insurance (another of the
Veterans Benefits to which she is entitled) through her father's veteran's benefit plan, Alexis will
almost certainly lose her eligibility within the next two years, as she would be required to enter a
United States military base to renew her health insurance card - a trip she cannot safely make
without taking her State-legal, but federally-illegal, medication with her. Thus, Alexis and her
family are subjected to an unacceptableHobson's Choice: (A) discontinuing the only medication that
has ever eliminated her sei=es (thereby resigning herself to living permanently with a dangerous
and disabling illness) so that she could return to Texas; or (B) continuing to use her medication but
refusing to relinquish her Right to Travel, risking arrest, prosecution and her parents' Joss of parental
rights; or (C) continuing to use her medication within the State of Colorado but foregoing her rights
to: (i) live in Texas; (ii) receive free tuition in Texas; (iii) travel to other States; (iv) use an airplane
13
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to travel to any other State; (v) step onto federal lands or into federal buildings; (vi) access military
Jose Belen
51. Plaintiff Jose Belen is a citizen of the State of Florida, with a residence in Seminole
County ("Jose").
52. On January 16, 2002, at the age of 19, Jose enlisted in the United States Army.
53. Soon after enlisting in the Army, Jose was deployed to Germany, where he
54. On March 20, 2003, the United States Military began an invasion oflraq, under the
55. In or around May 2003, Jose and his battalion were deployed to Kuwait.
56. Jose's battalion was then pushed directly into active combat, receiving orders to cross
57. In connection with this mission, Jose served in Iraq for 14 months, often witnessing
58. During his deployment, Jose came to know many of his fellow soldiers personally,
59. During his deployment, Jose witnessed the killing of several fellow soldiers, including
61. It soon became clear to Jose that he was unable to forget and/or otherwise cope with
14
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63. PTSD is an ailment which commonly afflicts members of the armed forces who have
64. Because of his PTSD, the Veterans Affairs Administration declared Jose "70%
disabled."
65. Jose sought treatment for his PTSD from the medical staff at the Veterans Affairs
66. The medical staff at the Veteran Affairs Administration issued Jose prescriptions for
68. Jose's PTSD intensified, and became so severe that Jose often contemplated taking
69. Statistics show that an average of 22 American military veterans commit suicide
every day.
70. Upon information and belief, most of these suicides are directly linked to PTSD.
71. Jose subsequently discovered that Cannabis was the only substance which actually
72. Since he began using medical Cannabis, Jose has been able to cope with his PTSD.
73. Jose has disclosed his need for medical Cannabis to his Veterans Administration
physicians.
74. Jose's treatment providers atthe Veterans Administration informed Jose that they are
15
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75. As with Alexis, Jose cannot safely: (i) enter a military base; (ii) travel by airplane;
(iii) step onto federal lands or into federal buildings; (iv) travel to States where medical Cannabis
is illegal and enforced nnder the CSA; (v) request medical Cannabis from his treating physicians;
and/or otherwise (vi) avail himself of the Veterans Benefits for which he is otherwise eligible and
to which he is legally entitled. Thus, as with Alexis, Jose is subjected to a Robson's Choice -- his
life and health, or the exercise of his constitutional rights and the risk of arrest.
76. Sebastien Cotte is, and at all relevant times has been, a citizen and domiciliary of the
77. Jagger Cotte is, and at all relevant times has been, a citizen and domiciliary of the
78. Jagger is a six-year old boy who lives with his parents, including his father, Sebastien.
79. Jagger suffers from a rare, congenital disease known as "Leigh's Disease," which
disables and then kills approximately 95% of people afflicted with it (if diagnosed before age 2) by
80. Consistent with his diagnosis and prognosis, Jagger, beginning at age one, became
a hospice patient, unable to speak, walk, masticate food, and/or otherwise handle any activities of
daily living.
81. Worse, Jagger began experiencing near-constant pain, shrieking in agony as he tried
82. As Sebastien and his wife prepared for what they expected would be their son's
inevitable demise, they turned to Cannabis withhigh concentrations of THC, in the hope of reducing
16
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83. Since he began treating with medical Cannabis with high concentrations of THC,
Jagger has stopped screaming in pain, has been able to interact with his parents, and has prolonged
84. Cannabis with a THC concentration of greater than 5% is illegal in the State of
Georgia.
85. Because his required dosage for effective treatment of his condition requires a THC
content greater than 5%, Jagger cannot obtain his medical Cannabis in State.
86. Worse, Georgia has no regulatory protocol for the cultivation, distribution and sale
of Cannabis. Thus, assuming that medical Cannabis with a THC content of 5% were sufficient to
treat Jagger's condition -- and it isn't -- obtaining State-legal medical Cannabis in Georgia is
87. At one point, Jagger and his family relocated to Colorado so as to facilitate the
administration of his medication; however, maintaining two residences and caring for a dying child
full time rendered this prospect economically infeasible. Consequently, the Cotte family returned
88. As with Alexis and Jose, Jagger cannot travel by airplane, enter onto federal lands
or into federal buildings, and/or travel to and/or through States in which medical Cannabis, by reason
of the CSA and other legislation, is illegal. Thus, Jagger is resigned to a Robson's Choice of: (i)
relinquishing his constitutional rights because of his treatment with medical Cannabis; or (ii)
retaining his constitutional rights but foregoing his medical treatment and subjecting himself to the
uncompromisingly painful and ultimately fatal effects of his illness; or (iii) traveling without regard
to where Cannabis is legal or illegal and risking his or his father's arrest.
17
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89. Cannabis Cultural Association, Inc. ("CCA") is, and at all relevant times has been,
a not-for-profit corporation organized and existing under the laws of the State of New York, with
90. The CCA was founded to provide a voice and forum for persons of color to develop
a presence in the Cannabis industry - an industry in which they are and, at all relevant times have
91. People of color, especially black males, are up to four times as likely to be arrested
in connection with Cannabis than white Americans, with nearly 70% of the 2.5 million people in
92. Convictions for violations of the CSA and other statutes criminalizing cultivation,
distribution and/or use of Cannabis frequently disqualify individuals from participating in State-legal
medical Cannabis businesses. By reason of the foregoing, persons of color, who are
disproportionately investigated and prosecuted for drug offenses, have been unfairly and inequitably
93. Members of the CCA include persons of color who have been arrested, prosecuted,
DEFENDANTS
Sessions
94. Defendant Jefferson Beauregard Sessions, III ("Sessions") is, and since on or about
February 8, 2017 has been, the Attorney General of the United States.'
18
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95. Before his ascension to Attorney General, Sessions, from 1997 until in or about late
2016, served as a United States Senator on behalf of the people of the State of Alabama.
96. Prior to his installation as a United States Senator, Sessions was a United States
97. While serving as a United States Attorney, Sessions was nominated to serve as a
United States District Court Judge; however, his nomination was withdrawn following a series of
repeatedly referred to an African American Assistant U.S. Attorney as "boy" and had
instructed the latter to "be careful what you say to white folks;"
remarked that the NAACP and ACLU were "un-American" and "Comrnunist-
inspired," and that they were trying to force civil rights "down the throats of people;"
and
complained that he had wished he could decline all civil rights cases. 9
98. Sessions was never again nominated to sit on the Federal Bench.
99. Upon information and belief, Sessions is, and at all relevant times since 1997 has
been, a citizen of Alabama, and a resident of both Alabama and Washington, DC.
9
Sessions admitted that he had made favorable comments about the Ku Klux Klan, but claimed
he was not being serious and later apologized. He claimed not to remember saying that a white civil
rights lawyer was "maybe" a "disgrace to his race." As to the comments about the ACLU and NAACP,
Sessions claimed to have been referring to the organizations' supposed support for the Sandinistas in
Nicaragua. He denied making the other above-referenced statements attributed to him.
19
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decline to re-schedule or de-schedule any drug classified under the provisions of the CSA. 21 U.S.C.
811.
he was "heartbroken" that former President Obama said that "Cannabis is not as
dangerous as alcohol;"
he thought favorably of the Ku Klux Klan, but then changed his view when he
learned that its members supposedly smoke "pot."
102. On or about May 1, 2017, Sessions sent correspondence to Congress requesting that
funding be provided that would allow the DOJ to resume criminal prosecutions of: (i) State-legal
medical marijuana patients, (ii) State-legal businesses that provide medical Cannabis to patients,
103. On July 19, 2017, Sessions announced his intention to resume civil forfeiture activity,
previously discontinued under the Obama Administration, as part ofhis continued war against those
104. Defendant United States Department ofJustice ("DOJ") is, and since in or about 1870
has been, an executive department of the United States, "with the Attorney General as its head." 12
10
As discussed below, Congress had previously enacted legislation that prevents the Attorney
General and Department of Justice from using legislative appropriations to prosecute those in State-legal
medical Cannabis jurisdictions operating in conformity with State law.
11
http://www. poIiti co .com/story/20 I 7/07I19/j eff-sessions-drug-war-seizures-2407 06.
12
https://www.justice.gov/about.
20
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105. According to the mission statement contained on its website, the DOJ's purpose is:
[t]o enforce the law and defend the interests of the United States
according to the law; to ensure public safety against threats foreign
and domestic; to provide federal leadership in preventing and
controlling crime; to seek just punishment for those guilty ofunlawful
behavior; and to ensure fair and impartial administration ofjustice for
all Americans. 13
106. To the extent that the DOJ treats medical Cannabis as a dangerous and illegal
substance, Plaintiffs and everyone else who may need to use, or who desires to cultivate and/or sell,
107. Defendant Charles "Chuck" Rosenberg ("Rosenberg") is, and since May 2015 has
been, the acting head of the defendant Drug Enforcement Agency ("DEA"). 14
108. Defendant DEA is, and since 1973 has been, a Federal Agency charged with the
responsibility of investigating and, together with the DOJ, enforcing, the CSA, and any other
109. Since at least 2002, the DEA's position has been that enforcement of Federal Laws
110. On or about November 10, 2015, Rosenberg publicly announced to CBS News that
13/d.
14
Rosenberg is sued only in his official capacity as Acting Administrator of the DEA.
15
http://www.cbsnews.com/news/dea-chief-says-smoking-marijuana-as-medicine-is-a-joke.
21
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111. The United States of America is named as a defendant because this action challenges
STATEMENT OF FACTS
112. Cannabis has been utilized in a multitude ofways by diverse groups ofpeople all over
113. The first documented use of Cannabis took place in the area of modern day Taiwan
where hemp cords were identified in pottery found in an ancient village dating back to about 10,000
years ago. 17
114. In 6,000 B.C., China became the first country known to utilize Cannabis seeds and
oil for food and, along with Turkestan, China began cultivating hemp for the purpose of producing
115. The first known medical use of Cannabis also occurred in China (in or around 2900
B. C.) when Chinese Emperor Fu Hsi, the father of Chinese civilization, noted that "Ma," the Chinese
word for Cannabis, was a "very popular medicine that possessed both yin and yang. " 19 Its popularity
16
See Deitch, supra note I at I, 7-8; Leslie Iversen, THE SCIENCE OF MARrmANA 122 (2000); .
17
Deitch, supra note 1 at 7-8; I 0, 000-year History of Marijuana use in the World, ADVANCED
HOLISTIC HEALTil, http://www.advancedholistichealth.org/history.html (last visited July 20, 2017)
[hereinafter referred to as "ADVANCED HOLISTIC HEALTI!"].
18
ADVANCED HOLISTIC HEALTI!, supra note 19.
19
Deitch, supra note 1 at 9.
22
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at that time has been confirmed by the "Pen ts'ao," a Chinese digest of herbal medicines which was
116. The Pen ts'ao "recommended Cannabis for the treatment of constipation, gout,
117. Hemp in particular was so important in ancient China that the Chinese people referred
118. The ancient Egyptians began to use Cannabis as medicine in or about 2000 B.C. 22
119. The ancient Egyptians used Cannabis at this time to treat sore eyes and cataracts,
inflammation, hemorrhoids, menstrual bleeding, and Glaucoma.23 And while the ancient Chinese
were the first people known to use Cannabis as medicine, "it was the ancient Egyptians who first
120. Beginning in 2,000 B.C., the use of Cannabis expanded to suit religious and spiritual
purposes as well. 25 Around this time, a sacred Hindu text, Atharvaveda, first refers to "Bhang," an
20
Jversen, supra note 18 at 122.
21
Deitch, supra note 1 at 9.
22
Claire Rankin, Marijuana use in ancient Egypt, NEWS TARGET(Feb. 26, 2016),
http://www.newstarget.com/2016-02-26-marijuana-use-in-ancient-egypt.html; see also In the Matter of
Rescheduling Marijuana, 86-22 at p. 33 (1988) (in a proceeding contested by the DEA, the ALI
observed: "Uncontroverted evidence [oJn this record indicates that marijuana was being used
therapeutically by mankind 2000 years before the Birth of Christ." (citation omitted).
23
Rankin supra note 24; See also PROCON.ORG, supra note 3.
24
Rankin supra note 24.
25
See ADVANCED HOLISTIC HEALTH, supra note 19.
23
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intoxicant made from the leaves of the female Cannabis plant, as one of the five sacred plants of
India. 26
121. Bhang was used in ancient India medicinally as an anesthetic and anti-phlegmatic. 27
122. Bhang was used in ancient India religiously as an offering to the god Shiva. 28
123. In approximately 1450 B.C., when the events of the Book of Exodus (30:22-23) are
alleged to have occurred, Cannabis was purportedly one of the ingredients contained in the Holy
anthropologists, and botanists, the recipe for the Holy anointing oil contained over six pounds of
125. The use of Cannabis as a medicinal substance continued to spread throughout Asia
126. The Venidad, a Persian text dating back to 700 BC, cited Cannabis as being one of
26
Id.; Charukesi Ramadurai, The Intoxicating Drug of an Indian God, BBC (March 13, 2017),
http://www.bbc.com/trave1/story/20 170307-the-intoxicating-drug-of-an-indian-god.
27
PROCON.ORG, supra note 3.
28
ADVANCED HOLISTIC HEALTII, supra note 19.
29
See PROCON.ORG, supra note 3.
30
Jd. See also Jane Marcus, Holy Cannabis: The Bible Tells Us So, Huffington Post,
http://www.huffingtonpost.com/jane-marcus-phd/holy-cannabis-the-bible-t_b_ 4 784309 .html (last
updated Apr. 16, 2014).
31
Rob Streisfeld, NMD, The Role of the EndoCannabinoid System & Cannabinoids Linked to Gut
Health, NY ANP 13,
http://www.nyanp.org/wp-content/uploads/2015/1 O/Streisfeld_Cannabis-F-NYANP .pdf (last visited May
24
Case 1:17-cv-05625 Document 1 Filed 07/24/17 Page 25 of 89
128. In 200 B.C. Greece, Cannabis was utilized as a remedy for earaches, edema, and
inflammation. 33
129. An important Roman medical text, De Materia Medica, was published in 70 A.D.
130. De Materia Medica refers to the Cannabis plant as "produc[ing] a juice" that was
131. By 200 A.D., a Chinese physician, Hua T'o, became the first known surgeon to use
laparotomies (incisions into the loin), and thoracotomies (incisions into the chest)."35
132. Ancient civilizations cultivated the Cannabis plant, not merely for medicinal and
religious needs, but also to produce industrial hemp for the manufacturing of items such as paper,
133. China was among the first known civilizations to produce paper from hemp. 36
134. Between 900-1200 A.D., the Arab world, Spain, Italy, England, France, and Germany
10, 2017~;PROCON.ORG, supra note 3 (citing Martin Booth, CANNABIS: A HISTORY (2005)).
3
PROCON.ORG, supra note 3 (citing Jonathan Green, CANNABIS (2002)).
33
US National Commission on Marihuana and Drug Abuse, MARIHUANA, A SIGNAL OF
MISUNDERSTANDING, Appendix, Chapter One, Part I (1972) [hereinafter referred to as "Shafer Report"].
34
PROCON.ORG, supra note 3 (citing Martin Booth, CANNABIS: A HISTORY (2005)).
35
Emest L. Abel, THE FIRST TWELVE THOUSAND YEARS 9 (1980),
https://cannabis-truth.yolasite.com/resources/Abel.%20marihuana%20the%20first%20twelve%20thousa
nd%20years.pdf; Deitch, supra note 1 at 10.
36
Abel supra note 37 at 6-7.
25
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135. The Venetian Republic, the first known Western Emopean nation to industrialize
around the production of hemp and the first Emopean country to experience genuine economic
progress emerging from the Dark Ages in the late 10th Century A.D ., elevated the art of processing
raw hemp into rope, sails and fine linen-like cloth. 38 This reliance upon Carmabis to produce
industrial hemp lasted well into the Middle Ages and spread all across Europe. 39
136. Britain became the "industrial goliath of Western Emope" in large part due to its
exploitation of hemp for the manufactme of, among other things, rope and sail-commodities that
137. In 1533, King Henry VIII imposed a law mandating that farmers grow hemp. 41
13 8. Three decades after King Henry VIII' slaw mandating the cultivation of hemp, Queen
Elizabeth I increased the mandated quota imposed on farmers growing hemp and increased the
139. Britain's reliance on Carmabis was not limited to its navy-related needs; Britain's
economy had also become largely driven by its production of hemp-based domestic goods such as
31Id.
38
Deitch, supra note 1 at 11.
"Id.
40
Jd. at 11-12.
41
Id. at 12.
42Id.
43 Id. at 14.
26
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140. Britain, during the 16th and 17th Centuries, utilized Cannabis for its medicinal
properties as well. 44
141. By the 17th Century, Britain began colonizing much of the world, and the Americas
in particular.
142. Britain's colonization project was built, in part, upon its cultivation, distribution and
use of hemp; however, Britain began to exhaust its geographic agricultural resources to produce
143. England's need for hemp was so substantial that, in 1611, after its establishment of
the Jamestown Colony in the Americas, England gave direct orders to the colonists to grow hemp
144. In 1619, "[t]he Virginia Company, by decree of King James I ... , ordered every
[property-owning] colonist ... to grow 100 [hemp] plants specifically for export."47
145. In 1663, the English Parliament passed legislation, granting rights and privileges of
natural-born citizens to "any foreigner who settled in England or Wales and established a hemp-
44
Queen Elizabeth I's doctor prescribed Cannabis to her to relieve her menstrual pain. History of
Cannabis, BBC NEWS, http://news.bbc.co.uk/2/hi/programmes/panorama/1632726.stm (last visited May
10, 2017).
45
Deitch, supra note 1 at 12. "The fundamental reason for America's predominately Protestant
British heritage is that Britain encouraged its people to colonize America - and they did that primarily
because Britain's domestic hemp-based industry, the lifeblood of the economy, desperately needed a
stable, reliable, and relatively cheap source ofraw hemp." Id. at 13.
46
Jd. at 14; Marijuana Timeline, PBS,
http://www.pbs.org/wgbh/pages/frontline/shows/dope/etc/cron.html (last visited May 10, 2017)
[hereinafter referred to as "PBS"].
47
Deitch, supra note 1 at 16.
27
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related industry within three years," in order to encourage those fleeing persecution in Europe to seek
refuge in England. 48
146. The value ofhemp was so well-recognized in the Americas during the colonial period
that it was frequently used as a barter medium, and farmers were permitted to pay part of their taxes
using the plant in the colonies of Virginia (1682), Maryland (1683), and Pennsylvania (1706). 49
147. Britain's colonization of the Americas was intended to provide England with raw
materials for its own production of goods. 50 However, a combination of America's first textile and
shipbuilding industries created a burgeoning domestic market for local hemp, which led the colonists
to retain the vast majority of American raw hemp for their own local production of rope, paper, and
cloth, rather than for export to England. 51 These growing American industries, based principally
upon hemp, helped pave the way for America's economic independence from England. 52
The Founding Fathers' Cultivation, Distribution and Sale of Cannabis in All its Variations
148. Among the colonists to benefit economically from the commercial uses of hemp in
the Americas were the Founding Fathers -- several of whom derived significant portions of their
48
Id at 18.
49
Id atl9.
50
Jd at 20.
5Ild
52Id.
53
Jd at 19.
28
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149. The men who cultivated and/or used hemp included, inter alia, George Washington,
Thomas Jefferson and one of America's richest colonists, Robert "King" Carter. 54
150. Indeed, "Jefferson received the first United States patent for his invention of a
machine that would break hemp (that is, start the process of extracting the fibers). " 55
151. Benjamin Franklin, America's leading paper producer, became wealthy from the
cultivation of hemp, since that was what paper was made from at that time. 56
152. Hemp was so widely utilized in the late 1700s that early drafts of the Declaration of
Independence and the United States Constitution were written on it; 57 many of the supplies and
uniforms needed for the Revolutionary War were made from it; 58 and the first United States flag was
153. In fact, all official American flags were made of hemp until 1937, when Congress
154. Colonial America's use ofthe Cannabis plant was by no means restricted to industrial
54Id.
55
Id. Hemp was viewed so favorably by Thomas Jefferson that he was quoted as saying that
"[h]emp is of first necessity to the wealth & protection of the country." Robbie Gennett, On Role Models
and their Bongs, HUFFINGTON POST,
http://www.huffingtonpost.com/robbie-gennet/on-role-models-and-their_ b_ 1643 87 .html (last updated
May 25, 2011).
56
Id. Until 1883, 75-90% of all the paper the world produced was made with hemp fiber. Id. at
21.
57
Deitch, supra note 1 at 35; Gennett supra note 57.
58
Deitch, supra note 1at35.
59Id.
29
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uses. "[C]olonial Americans were aware of the medicinal properties of Cannabis. It was one of the
few medicines they had, and they used it as commonly as we [in America] use aspirin today." 61
155. Some of the Founding Fathers smoked Cannabis (known at that time as "hemp" or
156. Entries from George Washington's diary reveal that Washington grew hemp at his
157. George Washington specifically grew Cannabis with high THC concentrations - the
very substance that today, would subject him to prosecution and incarceration under the CSA. 64
158. Thomas Jefferson, who was also a hemp farmer, mentioned in his diary that he
159. Madison stated that sweet hemp "gave him insight to create a new and democratic
nation. " 66
160. The notion that Cannabis negatively impairs a user's mental or physical abilities is
61
Jd. at 25.
62
Id. at 25-26.
63
Jd. at 25.
64
Jd. Washington's diary entries read: '"Sowed hemp [presumably Indian hemp] at muddy hole
by swamp'(May 12-13, 1765);" "Began to separate the male from female plants at do [sic] - rather too
late' (August 7, 1765);" and "Pulling up the (male) hemp. Was too late for the blossom hemp by three
weeks or a month' (August 29, 1766)" which all indicate that he was growing the Cannabis away from
the hemp for fiber and that he was trying to grow female plants, which produce a high THC content. Id.
(citing Washington's Diary Notes, Library of Congress (Volume 33, page 270)); see also George
Andrews and Simon Vinkenoog, THE BOOK OF GRASS: AN ANTilOLOGY OF INDIAN HEMP 34 (1967).
65
Deitch, at note 1 supra at 25.
66
Julian Sonny, The Presidents Who Admitted To Smoking Weed, ELITE DAILY (Feb. 18 2013),
http://elitedaily.com/news/politics/presidents-admitted-smoking-weed/.
30
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rendered ludicrous by the fact that the visionaries of our democratic system of govermnent were
161. At the conclusion of the Revolutionary War in 1781, the value of industrial hemp
plummeted.
162. By 1850, hemp dropped to the third most commonly-grown agricultural crop in
America- it had been the first until this time - behind only cotton and tobacco. 68
163. During the mid-19th Century, due to the introduction of more modern sailing ships,
164. At or about the time that hemp became obsolete for military purposes, Cannabis was
still a mainstream form of medicine in the West and particularly in the United States.
165. Cannabis was formally introduced into Western medicine in the 1830s by William
166. After experimenting with Cannabis on both animals and humans for years, Dr.
O'Shaughnessy concluded that Cannabis was an "anti-convulsive remedy of the highest value"71 and
67
Deitch, supra note 1 at 27. Aside from George Washington and Thomas Jefferson, whose
Cannabis use is discussed supra, other Americau Presidents known to have smoked cannabis include:
James Madison, James Monroe, Andrew Jackson, Zachary Taylor, Franklin Pierce, Abraham Lincoln,
John F. Kennedy, Jimmy Carter, George W. Bush, Bill Clinton, and Barack Obama. Id. at 26-27;
Gennett supra note 57; Sonny supra note 68; Chris Conrad, HEMP: LIFELINE TO THE FUTIJRE 192 (1994).
68
Deitch supra note 1 at 3 8.
70
Martin Booth, CANNABIS: A HISTORY 109-10 (2003 ); Steve DeAngelo, THE CANNABIS
MANIFESTO: A NEW PARADIGM FOR WELLNESS 48 (2015).
31
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that it was highly effective in treating conditions such as rheumatoid arthritis, spasticity, and pain. 72
167. Shortly after making the aforementioned and described discoveries, Dr.
O'Shaughnessy and a London pharmacist created an extract from Cannabis, later termed "Squire's
Extract."
169. After the development of Squire's Extract, Cannabis made its way further into
170. As early as 1840, studies regarding the medical uses of Cannabis appeared in
listing of America's most widely taken medicines, listed Cannabis as a treatment for "neuralgia,
tetanus, typhus, cholera, rabies, dysentery, alcoholism, and opiate addiction, anthrax, leprosy,
incontinence, snake bite, gout, convulsive-inducing conditions, tonsillitis, insanity ... []excessive
72
DeAngelo, supra note 73 at 48.
73
Booth, supra note 73 at 112. Indeed, Sqnire's Extract and similar medicines became quite
popular aruong physicians who found that the only other pain killer that was equally effective was opium,
which unlike Cannabis-based products, they found to be highly addictive and riddled with adverse side
effects. Id. at 113.
74
Id. at 112-13.
75
DeAngelo, supra note 73 at 50.
76
Booth, supra note 73 at 113-14; Edward M. Brecher, et al., The Consumers Union Report on
Licit and Illicit Drugs, CONSUMER REPORTS MAGAZINE {1972),
http://www.drnglibrary.org/schaffer/Library/studies/cu/cu54.html#Anchor-35882; PROCON.ORG, supra
note 3. Interestingly, "pharmaceutical supplies of Cannabis indica were entirely imported from India
(and occasionally Madagascar), in accordance with the Pharmacopoeia, which specified that it come
32
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173. 1n 1860, the Ohio State Medical Society's Committee on Cannabis lndica found
Cannabis to be medically effective for ailments including stomach cramps, coughs, venereal disease,
174. By the latter half of the 19th century, "every pharmaceutical company [in America
was] ... busy manufacturing [C]annabis-based patent cures [including] E.R. Swuibb & Sons [which]
marketed their own Chlorodyne and Corn Collodium; Parke, Davis, [which] turned out Utroval,
Casadein and a veterinary [C]annabis colic cure; Eli Lilly [which] produced Dr[.] Brown's Sedative
Tablets, Neurosine and the One Day Cough Cure, a mixture of [C]annabis and balsam which was
a main competitor for another new cough cure released by the German pharmaceutical firm,
Bayer." 79
from flowering tops of the Indian variety." PROCON.ORG, supra note 3. However, by 1913, the U.S.
Department of Agriculture Bureau of Plant Industry determined that it had succeeded in growing
Cannabis of equal quality to the Indian variety. Id Thus, when World War I disrupted America's receipt
of foreign supplies, the United States was able to be self-sufficient in the production of Cannabis. Id. "By
1918, some 60,000 pounds were being produced annnally, all from pharmaceutical farms east of the
Mississippi." Id
77
Id.; Brecher supra 79.
78
Booth, supra note 73 at 114; DeAngelo, supra note 73 at 50. There is even evidence that
suggests that none other than Abraham Lincoln smoked "sweet hemp." According to
Huffingtonpost.com, Lincoln is reported to have written, while serving as President of the United States:
See http://m.huffuost.com/us/entry/J 64387. There are those who have disputed the authenticity of the
evidence underlying this claim, but it is not without significance that the claim has been reported by
reputable media sources.
79
Booth, supra note 73 at 116.
33
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175. During the latter half of the 19th Century and the beginning of the 20th Century,
Cannabis was also commonly used to treat asthma in the United States. 80 Specifically,
Cigarettes") for the purpose of treating asthma in both England and the United States. 81
176. Legal Cannabis Cigarettes were so highly regarded as a remedy for asthma in late
19th Century America that the Boston Medical and Surgical Journal, in its 1860 publication,
advertised Legal Cannabis Cigarettes, which were manufactured by Grimault & Co., as being able
to "promptly" cure or relieve "Asthma, Bronchitis, Loss of Voice, and other infections of the
respiratory organs." 82
177. Legal Cannabis Cigarettes continued to be widely advertised and recommended for
the treatment of asthma in the United States until the Marijuana Tax Act of I 93 7 ("MTA") was
enacted.
178. As discussed in greater depth infra, the MTA effectively outlawed Cannabis in all of
its forms. 83
80
Viewers' Guide to the Botany ofDesire: Based on the book by Michael Pollan, Chapter 3, p. 7,
PBS, https://www-tc.pbs.org/thebotanyofdesire/pdf/Botany_of_Desire_Viewers_Guide.pdf (last visited
June 29, 2017).
81
Id. Grimault & Co. manufactured "Indian cigarettes" containing Turkish tobacco and
Cannabis, which "were promoted as an asthma and cough treatment which would also dull facial pain
and aid insomniacs." Id.; see also Iversen supra note 18 at 130; Rowan Robinson, THE GREAT BOOK OF
HEMP: THE COMPLETE GUIDE TO THE ENVIRONMENTAL, COMMERCIAL, AND MEDICINAL USES OF THE
WORLD'S MOST EXTRAORDINARY PLANT 4 7 ( 1996).
82
Cupples, Upham & Company, Medical Journal Advertising Sheet, 83 B. MED. & SURGICAL J.
260 (1870-1871).
83
DeAngelo, supra note 73 at 52.
34
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179. Nineteenth Century Americans utilized the plant for social purposes as well. 84 A
"Cannabis fad" took place in the mid-1800s among intellectuals, and the open use of hashish (i.e.,
Cannabis containing a very high THC content) continued into the 20th Century.' 5
180. The Food and Drugs Act ("FDA") was enacted in 1906, requiring the labeling of over-
America's Southern border States in 1910, articles in the New York Sun, Boston Daily Globe and
other papers decried the "evils of ganjah smoking" and suggested that some inunigrants used it "to
182. The vast majority of stories urging the public to fear the effects of "marijuana"
appeared in newspapers published by William Randolph Hearst, a man who had financial interests
in the lumber and paper industries, and therefore, saw the hemp industry as an obstacle to his path
to economic success.' 8
84
See Brecher et al. supra note 79, PBS supra note 48; The Associated Press, As pot goes proper,
a history of weed, NYDAILYNEWS (Dec. 6, 2012),
http://www.nydailynews.com/news/national/pot-proper-history-weed-article- l. l 2146 l 3.
85
Brecher, et al., supra note 79; PBS supra note 48; The Associated Press supra note 87.
86
PBS supra note 48; The Associated Press supra note 87; PROCON.ORG supra note 3.
88
PROCON.ORG supra note 3 (citing Mitchell Earleywine, PhD, UNDERSTANDING MARIJUANA: A
NEW LOOK AT THE SCIENTIFIC EVIDENCE (2005). "William Randolph Hearst was an up-and-coming
newspaper tycoon, owning twenty-eight newspapers by the mid- l 920s ... Hearst then dropped the words
Cannabis and hemp from his newspapers and began a propaganda campaign against 'marijuana,'
(following in Anslinger's footsteps)." Id. (citation omitted).
35
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183. As a result of the hysteria created by the aforementioned and described horror stories
published by pro-paper entrepreneurs, Cannabis became associated with Mexican immigrants, and
because there was tremendous fear and prejudice with respect to these newcomers, Cannabis
186. This domino effect was largely triggered by the spread, in the 1890s, ofracist and
187. The aforementioned and described xenophobia was exacerbated by job losses
associated with the Great Depression. During that time, "massive unemployment increased public
resentment and fear ofMexican immigrants, escalating public and goverrunental concern [regarding]
89
PBS supra note 48. "The prejudices and fears that greeted these peasant immigrants also
extended to their traditional means of intoxication: smoking marijuana. Police officers in Texas claimed
that marijuana incited violent crimes, aroused a 'Just for blood,' and gave its users 'superhuman
strength.' Rumors spread that Mexicans were distributing this 'killer weed' to unsuspecting American
schoolchildren .... In New Orleans newspaper articles associated the drug with African-Americans, jazz
musicians, prostitutes, and underworld whites. 'The Marijuana Menace,' as sketched by anti-drug
campaigners, was personified by inferior races and social deviants." Eric Schlosser, Reefer Madness,
THE ATLANTIC (Aug. 1994),
https://www.theatlantic.com/magazine/archive/1994/08/reefer-madness/303476/
90
See The Associated Press supra note 87; PROCON.ORG supra note 3.
91
PBS supra note 48.
92
See The Associated Press supra note 87.
93
PBS supra note 48.
36
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188. Harry J. Anslinger ("Anslinger"), the first Commissioner of the Federal Bureau of
Narcotics, initially doubted the seriousness of the so-called "marijuana"94 problem, but after the
repeal of alcohol Prohibition in 1933, he began to push vigorously for the nationwide prohibition of
189. Anslinger then publicly claimed that the use of"evil weed" led to murder, sex crimes,
190. Anslinger authored sensational articles falsely associating Carmabis with violence and
191. Anslinger also made a series ofracist statements pertaining to African Americans and
94
The term "'[M]arijuana' came into popular usage in the U.S. in the early 20th century because
anti-cannabis factions wanted to underscore the drug's 'Mexican-ness.' It was meant to play off of
anti-immigrant sentiments." Matt Thompson, The Mysterious History Of 'Marijuana', NPR (July 22,
2013),
http://www.npr.org/sections/codeswitch/2013/07/14/2019 81025/the-mysterious-history-of-marij uana.
95
The Associated Press, supra note 87; Schlosser, supra note 92. "Harry [Anslinger] was aware
of the weakness of his new position. A war on narcotics alone - cocaine and heroin, outlawed in 1914 -
wasn't enough ... they were used only by a tiny minority, and you couldn't keep an entire department
alive on snch small crumbs. He needed more." Cydney Adams, The man behind the marijuana ban for
all the wrong reasons, CBS NEWS (Nov. 17, 2016),
http://www.cbsnews.com/news/harry-anslinger-the-man-behind-the-marijuana-bau/.
96
Schlosser, supra note 92. Much of his rhetoric was blatantly racist in nature. "He claimed that
black people and Latinos were the primary users of marijuana, and it made them forget their place in the
fabric of American society. He even went so far as to argue that jazz musicians were creating 'Satanic'
music all thanks to the influence of pot ... [and that] cannabis promotes interracial mixing, interracial
relationships." Adams, supra note 98.
97
Jd. In this article, he said: "No one knows, when he places a marijuana cigarette to his lips,
whether he will become a philosopher, a joyous reveler in a musical heaven, a mad insensate, a calm
philosopher, or a murderer." The Associated Press, supra note 87.
37
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(b) "Marihuana influences Negroes to look at white people in the eye, step on white
men's shadows, and look at a white women twice;"
(c) "Colored students at the University of Minnesota partying with (white) female
students, smoking [marijuana] and getting their sympathy with stories of racial
persecution. Result: pregnancy;"
(d) "There are 100,000 total marijuana smokers in the US, and most are Negroes,
Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing, result
from marijuana usage. This marijuana causes white women to seek sexual relations
with Negroes, entertainers and any others;"
(e) "Marijuana is the most violence causing drug in the history of mankind. Most
marijuana smokers are Negroes, Hispanics, Filipinos and entertainers;" and
(f) "The primary reason to outlaw marijuana is its effect on the degenerate races." 98
192. The hysteria that followed was captured in propaganda films such as "Reefer
Madness," which purported to show young adults turning to violence and becoming insane after
smoking marijuana. 99
193. This Cannabis-related propaganda ultimately resulted in the passage of the MTA. 100
194. The MTA effectively outlawed Cannabis by requiring physicians and pharmacists to
register and report use of the plant, as well as pay an excise tax for authorized medical and industrial
uses. 101
98
AZQuotes. Harry J. Anslinger Quotes.
http://www.azquotes.com/author/23 l 59-Harry_J_Anslinger
99
Id.; PBS, supra note 48.
100
PBS, supra note 48; Thompson, supra note 97.
101
PBS, supra note 48. "The Federal law ... maintained the right to use marijuana for medicinal
purposes but required physicians and pharmacists who prescribed or dispensed marijuana to register with
federal authorities and pay an annual tax or license fee ... After the passage of the Act, prescriptions of
marijuana declined ..." PROCON.ORG supra note 3 (citing Rosalie Liccardo Pacula, PhD, State Medical
Marijuana Laws: Understanding the Laws and Their Limitations, JOURNAL OF PUBLIC HEALTH POLICY
(2002).
38
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195. The MIA was passed even though members of Congress neither understood the
chemical properties of Cannabis, nor had they even read the bill itself. 102
196. Worse, Congress enacted the MTA despite failing to garner support from the medical
community for the notion that marijuana was a dangerous substance. 103
197. During Congressional hearings regarding the proposed MTA, Dr. William Woodward
testified:
There is nothing in the medicinal use of Cannabis that has any relation to
Cannabis addiction. I use the word "Cannabis" in preference to the word
"marihuana," because Cannabis is the correct term for describing the plant
and its products. The term "marihuana" is a mongrel word that has crept into
this country over the Mexican border and has no general meaning, except as
it relates to the use of Cannabis preparations for smoking ... To say, however,
as has been proposed here, that the use of the drug should be prevented by a
prohibitive tax, loses sight of the fact that future investigation may show that
there are substantial medical uses for Cannabis. 104
198. Despite enactment of the MIA, the United States Department of Agriculture
("DOA") and the New York Academy of Medicine ("NYAM") both recognized the beneficial uses
of Cannabis. 105
102
The following exchange between members of Congress several days after the MTA' s passage
provides some insight into this ignorance: "Bertrand Snell of New York, confessed, "I do not know
anything about the bill." The Democratic majority leader, Sam Rayburn of Texas, educated him. "It has
something to do with something that is called marihuana," Rayburn said. "I believe it is a narcotic of
some kind." Jacob Sullum, Marijuana Prohibition Is Unscientific, Unconstitutional And Unjust, FORBES
(May 14, 2015),
https://www .forbes.com/sites/jacobsullum/2015/05/ 14/marij uana-prohibition-is-unscientific-unconstituti
onal-and-unjust/#3d9bbddf6cf0
103
"[T]here was little scientific evidence that supported Anslinger's claims. He contacted 30
scientists ... and 29 told him carmabis was not a dangerous drug. But it was the theory of the single [so-
called] [']expert['] who agreed with him that he presented to the public - cannabis was an evil that
should be banned- and the press ran with this sensationalized version." Adams, supra note 98.
104
William C. Woodward, MD, Statement to the U.S. House of Representatives Co=ittee on
Ways and Means (May 4, 1937).
105
The Associated Press, supra note 87.
39
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199. In 1942, after America lost its access to Asian fiber supplies during World War II,
the DOA released a film entitled "Hemp For Victory" (Exh. 2), which encouraged farmers to grow
hemp, praising its uses for production of parachutes and rope to support the war effort. 106
200. In 1944, NYAM issued the "LaGuardia Report," concluding that, "use of marijuana
did not induce violence, insanity or sex crimes, or lead to addiction or other drug use." 107
201. Despite the lack of evidence that Cannabis was dangerous, and notwithstanding the
DOA's insistence that American farmers continue growing hemp for war supplies, Anslinger
continued his anti-Cannabis campaign throughout the 1940s and 1950s. 108
202. As heroin addiction in America grew worse during the 1950s, Congress responded
bogus claim that "marijuana" was a "gateway drug" that would eventually lead its users to heroin. 110
203. The 1960's saw a cultural shift in the way Americans viewed Cannabis. "Use of the
106
Jd.; Gennett supra note 57.
107
The LaGnardia Report found that: "The practice of smoking marihuana does not lead to
addiction in the medical sense of the word ... The use of marihuana does not lead to morphine or heroin
or cocaine addiction and no effort is made to create a market for these narcotics by stimulating the
practice of marihuana smoking ... Marihuana is not the determining factor in the commission of major
crimes ... The publicity concerning the catastrophic effects of marihuana smoking in New York City is
unfounded." PROCON.ORG supra note 3 (citing LaGuardia Committee Report on Marihuana, THE
MARlHUANA PROBLEM IN THE CITY OF NEW YORK (1944)).
108
The Associated Press, supra note 87.
109
Congress included "marijuana" in the Narcotics Control Act of 1956, providing stricter
mandatory sentences for marijuana-related offenses. PROCON.ORG supra note 3; PBS supra note 34.
Under the statute, "[a] first-offense marijuana possession carrie[ d] a minimum sentence of 2-10 years
with a fine of up to $20,000." PROCON.ORG supra note 3; PBS supra note 34.
110
The Associated Press, supra note 87.
40
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drug became widespread among members of the white upper middle class." 111
204. Reports requested by Presidents Kennedy and Johnson concluded that Cannabis was
not a "gateway drug" nor did its use induce violence. 112
205. In 1969, the United States Supreme Court, in Leary v. United States, 395 U.S. 6
(1969) struck down the MTA, ruling that it unconstitutionally violated the Fifth Amendment right
206. After the Supreme Court decision in Leary, the Nixon Administration urged Congress
to enact legislation that would classify drugs under separate schedules according to their medical
utility, dangerousness, and addictive potential. 114 Congress heeded the President's request bypassing
207. At the request of the Nixon Administration and upon the temporary recommendation
111
Jd; PBS, supra note 48.
112
PBS, supra note 48.
113
Leary v. United States, 395 U.S. 6 (1969); Yasmin Tayag, Timothy Leary's Arrest For
lvfarijuana Possession Still Matters 50 Years Later, INVERSE (Mar. 13, 2016),
https://www.inverse.com/article/12782-timothy-leary-s-arrest-for-marijuana-possession-still-matters-50-y
ears-later.
114
Kevin A. Sabe, The "Local" Matters: A Brief History of the Tension Between Federal Drug
Laws and State and Local Policy, J. GLOBAL DRUG POL'Y &PRAC. 4 (2006-2010),
http://www.globaldrugpolicy.org/IssuesN 01%201 %20Issue%204/The%20Local%20Matters. pdf.
115
The Controlled Substances Act, Pub. L. No. 91-513, 84 Stat. 1242,
https://www.gpo.gov/fdsys/pkg/STATUTE-84/pdf/STATUTE-84-Pgl236.pdf.
41
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of the Department of Health, Education, and Welfare ("HEW"), 116 Congress placed "Marihuana" 117
under Schedule I, thereby "subject[ing Cannabis] to the most stringent controls under the bill." 118
208. While "[t]here is ahnost total agreement among competent scientists and physicians
that marihuana is not a narcotic drug like heroin or morphine ... [and to J equate its risks ... with the
risks inherent in the use of hard narcotics is neither medically or legally defensible[,]" 119 Congress
nonetheless listed Cannabis under the same schedule as opiates and opium derivatives. 120
210. The aforementioned and described "further research" was to be conducted by the
Commission on Marihuana and Drug Abuse -- a commission established by the CSA for the purpose
116
It should be noted that HEW recouunended that Cannabis remain under Schedule I only "until
the completion of certain studies now underway to resolve this issue." H.R. Rep. 91-1444 at 2111
(1970). However, despite HEW's temporary recouunendation, President Nixon and his Administration
subsequently ignored a CSA-required report (discussed infra) which (i) explored the pharmacological
effects of Cannabis and (ii) recommended decriminalization of the personal use and possession of
Caunabis.
117
Under the CSA, "The term 'marihuana' means all parts of the plant Cannabis sativa L.,
whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every
compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin." Pub.
L. No. 91-513, 84 Stat. 1244.
118
H.R. Rep. 91-1444 at 2063 (1970).
119
Drug Abuse Control Amendment- 1970: Hearings Before the Subcomm. on Public Health and
Welfare, 91 Cong. 179 (1970) (Statement of Dr. Stanley F. Yalies).
120
Pub. L. No. 91-513, 84 Stat. 1248-49.
121
See H.R. Rep. 91-1444 at 2111 (1970); COMMON SENSE FOR DRUG POLICY, NIXON TAPES
SHOW ROOTS OF MARIJUANA PROHIBITION: MISINFORMATION, CULTURE WARS AND PREJUDICE l (2002)
[ hereinafter "CSDP"].
42
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of studying, inter alia, Cannabis's pharmacological makeup and the relationship (if any) of its use
211. Upon completion ofits research, the Shafer Commission was required under the CSA
to submit a comprehensive report to the President and to Congress within one year after it received
212. The aforementioned and described report was to consist of the Shafer Commission's
findings as well as its recommendations and proposals for legislation and administrative actions with
213. President Nixon thereafter appointed Raymond Shafer (the former "law and order"
Governor of Pennsylvania) to Chair the National Commission on Marihuana and Drug Abuse which
consisted of 12 other individuals, including four medical doctors and four members of Congress
214. The Shafer Commission conducted "more than 50 projects, ranging from a study of
the effects of marihuana on man to a field survey of enforcement of the marihuana laws in six
122
Pub. L. No. 91-513, 84 Stat. 1281.
125
NATIONAL COMMISSION ON MARlHuANA AND DRUG ABUSE, MARlHuANA: A SIGNAL OF
MISUNDERSTANDING, at iv (1972).
126/d. at 2.
43
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(b) "No verification is found of a causal relationship between marihuana use and
subsequent heroin use." 128
(c) "[T]he weight of the evidence is that marihuana does not cause violent or aggressive
behavior, ifanything, marihuana serves to inhibit the expression of such behavior." 129
(d) "Neither the marihuana user nor the drug itself can be said to constitute a danger to
public safety." 130
(e) "Most users, young and old, demonstrate an average or above-average degree of
social functioning, academic achievement, and job performance." 131
(f) "Marihuana's relative potential for harm to the vast majority of individual users and
its actual impact on society does not justify a social policy designed to seek out and
firmly punish those who use it." 132
(g) Despite the media's portrayal of Vietnam War protesters as being violent while high
on Cannabis, the vast majority of those protesters were peaceful and the few who
were violent were not under the influence of Cannabis. 133
(h) "The actual and potential harm of use of the drug is not great enough to justify
intrusion by the criminal law into private behavior, a step which our society takes
only with the greatest reluctance." 134
127
Id. at 61.
128
Id. at 88.
129
Id. at 73.
uoid. at 78.
131
1d. at96.
132
Jd. at 130.
133
Id. at 99-100.
134
Id. at 140.
44
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216. The Shafer Commission recommended that possession of Cannabis for personal use
217. The Nixon Administration rejected the findings and recommendations by the Shafer
Commission.
218. The Nixon Administration refused to accept the findings and recommendations by
the Shafer Commission because they were not consistent with: (i) the preordained outcome Nixon
demanded; and (ii) the Administration's agenda with respect to Cannabis, which was focused on
219. John Ehrlichman, who served as the Nixon Administration's Domestic Policy Chief
and was one of the President's closest political advisors, confirmed that the enactment and
enforcement of the CSA criminalizing Cannabis was directed toward political suppression and racial
You want to know what this was really all about? The Nixon
campaign in 1968, and the Nixon White House after that, had two
enemies: the antiwar left and black people. You understand what I'm
saying? We knew we couldn't make it illegal to be either against the
war or black, but by getting the public to associate the hippies with
marijuana and blacks with heroin and then criminalizing both heavily,
we could disrupt those communities. We could arrest their leaders,
raid their homes, break up their meetings, and vilify them night after
night on the evening news. Did we know we were lying about the
drugs? Of course we did.
135
Id. at 142.
136
Jd. at 151.
45
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N. Y Daily News, A. Edelman, Nixon Aide: "War on Drugs" was tool to target "black people"
(March 23, 2016) (Exh. 3); see also Harper's Magazine, D. Baum, Legalize it All: How to Win the
War on Drugs (April 2016) (Exh. 4) ("Nixon's invention of the war on drugs as a political tool was
. 1 ....
cymca ")
220. Thus, the findings and recommendations of the Shafer Commission were irrelevant
to Congress and the Nixon Administration, insofar as the purpose of the CSA was never to "protect"
people from the supposed "scourge" of Cannabis use, but rather to harass, intimidate, prosecute and
ultimately incarcerate those whom members of the Nixon Administration irrationally regarded as
221. The irrationality ofthe Nixon Administration's support for enactment of the CSA and
rejection of the Shafer Commission's findings and recommendations is further revealed by tape
222. Although established for the purpose of properly educating lawmakers about
Cannabis with respect to the issue of scheduling or de-criminalization, 137 the Shafer Commission was
223. Nixon repeatedly made clear that the purpose of the Shafer Commission was to justify
what he had already decided to do with respect to Cannabis, ultimately linking support for its de-
137
H.R. Rep. 91-1444 at 2111 (1970); CSDP, supra note 123 at 1.
46
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HALDERMAN: Sure.
NIXON: I mean, one on marijuana that just tears the ass out of
them. I see another thing in the news summary this morning about it.
You know, it's a funny thing- every one of the bastards that are out
for legalizing marijuana is Jewish. What the Christ is the matter with
the Jews, Bob? What's the matter with them? I suppose it because
most of them are psychiatrists, you know .. us
224. In September 1971, before his Commission's report was issued, Raymond Shafer
visited the White House to speak with Nixon about a morale problem he was experiencing on the
Commission - specifically, that the members of the Commission were concerned that it was "put
together by a President to merely tow the party line ... " 139
225. In response, Nixon made absolutely clear that he did not care what the Shafer
226. During Shafer's meeting with Nixon, the latter proceeded to direct the Shafer
Commission to ignore the obvious differences between Cannabis and heroin and other dangerous,
addictive drugs:
227. When Shafer tried to assure Nixon that the Commission would not go "off half-
cocked," ostensibly promising to conclude that Cannabis should remain a Schedule I drug, along
138
Tape Recording, May 26, 1971 (Conversation 505-4).
139
Tape Recording, September 9, 1971 (Oval Office Conversation No. 568-4).
47
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with drugs that actually were (and are) dangerous, Nixon responded tersely, "Keep your Commission
in line!" 142
228. Nixon threatened Shafer with public recriminations, asserting that conclusions
contrary to Nixon's demands "would make your Commission just look as bad as hell." 143
229. Nixon's threats were not limited to Shafer and his Commission. When Nixon became
aware that Bertram Brown, then-director of the National Institute of Mental Health, called for de-
Now, did you see this statement by [Bertram] Brown, the National
Institute of Mental Health, this morning? Uh, he should be out. I
mean today, today. If he's a presidential appointee, [what we should]
do is fire the son of bitch and I mean today! Get the son of a bitch
out ofhere. 144
230. In that same conversation, Nixon also tied protesters to use of Cannabis:
... these, uh, radical demonstrators that were here the last, ... two
weeks ago. They're all on drugs. Oh yeah, horrible, it's just a~
when, I say "all," virtually all. And uh, uh, just raising hell. 145
231. The so-called "radical demonstrators" to whom Nixon was referring were those
opposed to the Vietnam War, which, at the time, deeply divided the Country.
232. When the Shafer Commission issued its findings and recommendations, which
controverted the Nixon Administration's preordained conclusions and agenda against African
144
Tape Recording, May 18, 1971 (Oval Office Conversation No. 500-17).
48
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Um, I met with Mr. Shafer, uh, I've read the report, uh, eh, it is a
report that deserves consideration and will receive it. However, as to
one aspect of the report I am in disagreement. I was before I read it,
and reading it did not change my mind. Uh, I, uh, oppose the
legalization of marijuana, and that includes the sale, its possession
and its use. 146
233. If incarceration of antiwar protestors and African Americans constitutes the measure
of the War on Drugs' success, the Nixon Administration's efforts must be characterized as
"successful." According to the New York Daily News, "by 1973, about 300,000 people were arrested
under the law - the majority of whom were African American" (Exh. 3).
234. The Nixon Administration's anti-Cannabis policies thus were manifested in two
distinct, but related, efforts - to usher the CSA through Congress and then to use the law as a tool
to incarcerate, harass and undermine those whom members of the Nixon Administration considered
23 5. Those who opposed Nixon's agendas were cast aside, vilified or ignored. The Shafer
Commission's conclusions which conflicted with Nixon's plans were treated similarly.
236. Under the CSA, drugs are classified by five Schedules, with Schedule I drugs
identified as the most dangerous to human life, and Schedule V drugs regarded as the most benign.
146
March 24, 1972 Press Conference (Oval Office Conversation No. 693-01).
147
21 C.F.R. 1308. ll(d)(23) and (31) (wrongly listed as a hallucinogenic drug, along with heroin,
mescaline and LSD)
49
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23 8. To meet the requirements of a Schedule I drug under the CSA, the followmg elements
2. the drug has "no currently accepted medical use in the United States;" and
3. there is a lack of accepted safety for use of the drug even under medical
supervision. 148
239. The Federal Government does not genuinely believe that Cannabis meets the Three
Schedule I Requirements.
240. The Federal Government cannot genuinely believe that Cannabis meets the Three
Schedule I Requirements.
241. Upon information and belief, the Federal Government has never believed that
242. In or about 1978, the United States began subsidizing a program pursuant to which
medical patients were provided with Cannabis, directly or indirectly, by the Federal Govermnent.
243. The aforesaid and described program, which exists to this day, is known as the
244. The first patient to receive Cannabis under the auspices of the IND Program was
Ro bert Randall.
148
Pub. L. No. 91-513, 84 Stat. 1247.
149
The IND Program was created as part of the settlement of a lawsuit.
50
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245. Upon information and belief, Mr. Randall used medical Cannabis provided under the
246. Thereafter, at least 14 other individuals participated in the IND Program and received
247. Upon information and belief, the Federal Government, as of the date of this filing,
continues to sponsor and/or provide medical Cannabis to patients pursuant to the IND Program.
248. Upon information and belief, the number of patients currently receiving medical
249. Pursuant to the IND Program, the Federal Govermnent has authorized the University
250. Upon information and belief, the acres ofland harvested by University of Mississippi
251. Upon information and belief, none of the patients who have participated in the IND
Program have suffered any serious side effects from their Cannabis treatments.
252. Upon information and belief, none of the patients who have participated in the IND
253. Upon information and belief, the Federal Govermnent does not have any information
suggesting that any of the patients who have participated in the IND Program have ever suffered any
254. Upon information and belief, no Federal Agencies have ever collected any significant
255. The Missoula Chronic Clinical Cannabis Use Study evaluated the long-term effects
51
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of heavy Cannabis use by four patients in the IND Program ("MCCCUS Study").
256. The MCCCUS Study demonstrated clinical effectiveness in these patients in treating
Glaucoma, chronic musculoskeletal pain, spasm and nausea, and spasticity of multiple sclerosis.
257. All four patients who were the subject of the MCCCUS Study were stable with
258. Upon information and belief, none of the four patients who were the subject of the
MCCCUS Study suffered any serious side effects from their Cannabis treatments.
259. Upon information and belief, none of the four patients who were the subject of the
260. Upon information and belief, the Federal Government does not have any information
suggesting that any of the four patients who were the subject of the MCCCUS Study suffered any
261. Upon information and belief, all four patients who were the subject of the MCCCUS
Study were taking fewer standard pharmaceuticals than before they began treatment with medical
Cannabis. 150
262. The MCCCUS Study is one of thousands of studies which have confirmed that
Cannabis provides measurable health benefits while resulting in minimal or no negative side effects.
United States Administrative Law Judge, Francis L. Young, Concludes that Cannabis
Safely Provides Medical Benefits to Patients with an Assortment ofIllnesses Without
Serious Side Effects
263. In 1988, Administrative Law Judge Francis Young, In the Matter ofMarijuana
Rescheduling, DEA Docket No. 86-22, issued a determination arising from a petition by the National
150
http://-cannabis-med.org/jcant/russo chronic_use.pdf.
52
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Organization for the Reform of Marijuana Laws ("NORML") to reschedule Cannabis ("ALJ
264. In determining whether to recommend rescheduling Cannabis under the CSA, Judge
Young focused on two issues - (i) whether Cannabis "has a currently accepted medical use in
treatment in the United States, or a currently accepted medical use with severe restrictions;" and (ii)
"whether there is a lack of accepted safety for use of the marijuana plant, even under medical
265. The two issues analyzed by Judge Young focus on the latter two of the Three
Schedule I Requirements necessary under the CSA to classify a drug as a "Schedule I" substance (Id.
266. If a drug has no medically-accepted use and cannot be safely used or tested even
under medical supervision, it qualifies as a Schedule I drug; ifthe drug does not meet either of these
267. In resolving these issues, Judge Young made a series of fmdings of fact (ALJ
268. The aforesaid and described "findings of fact" by Judge Young were
"uncontroverted" by the parties (ALJ Decision at 10, 54, 56, Exh. 5).
269. One of the aforesaid and described parties to the proceeding over which Judge Young
270. Judge Young thereafter devoted the next 15 pages of the ALJ Decision to evidence
adduced during the hearing process, confirming that Cannabis constitutes a recognized, well-
53
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accepted and superior method of treatment of cancer patients suffering from nausea, emesis and
271. As part of his analysis, Judge Young cited to studies, patient histories, State
legislative findings and other evidence of the medical efficacy of Cannabis (Id. at 10-26).
272. The DEA did not attempt to dispute the facts upon which the aforesaid analysis by
274. Judge Young proceeded to analyze the record with respect to the use of medical
Cannabis for the treatment of multiple sclerosis, spasticity and hyperparathyroidism (Id. at 40-54).
276. The DEA did not attempt to dispute the facts comprising the "extensive record" upon
which Judge Young relied in reaching the aforesaid and described conclusion pertaining to the
medical efficacy of Cannabis for the treatment of spasticity resulting from multiple sclerosis and
other causes.
277. Judge Young similarly concluded that medical Cannabis provides therapeutic benefits
278. The DEA did not attemptto dispute the facts comprising the "extensive record" upon
54
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which Judge Young relied in reaching the aforesaid and described conclusion pertaining to the
2 79. After concluding that Cannabis does, in fact, have currently-accepted medical uses,
Judge Young turned to the issue of whether it may be used or tested safely under medical supervision
280. After reviewing the uncontroverted evidence, Judge Young ruled in a series of
enumerated paragraphs that, not only is Cannabis not dangerous; it is extraordinarily safe. In this
281. Judge Young found that, to induce a lethal response to Cannabis, the patient would
and time frame which, as a practical matter, are completely unrealistic (Id. at 57).
55
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283. If these findings were not sufficiently damning to the CSA's mis-classification of
Cannabis as a Schedule I drug, Judge Young made it even more clear when he wrote:
284. Judge Young thereafter recommended that Cannabis be removed from Schedule I of
285. The DEA did not accept Judge Young's findings or recommendation.
286. The ALJ's Decision was issued years before 29 States and the District of Columbia
legalized Cannabis for medical use; before eight States plus the District of Columbia legalized
Cannabis for recreational use; before two U.S. Territories approved the use ofwhole-plant Cannabis.
287. In 1996, California became the first State to legalize Cannabis for medical use.
288. Oregon, Alaska and Washington (State) followed soon thereafter and also legalized
56
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289. Today, the following States have legalized Cannabis for medical and/or recreational
use:
California
Oregon
Alaska
Washington (State)
Maine
Hawaii
Colorado
Nevada
Montana
Vermont
New Mexico
Michigan
New Jersey
Arizona
Massachusetts
New York
Maryland
Minnesota
Florida
Delaware
Ohio
Pennsylvania
Illinois
North Dakota
Arkansas
Connecticut
New Hampshire
Rhode Island
West Virginia
57
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290. In addition to the States, the following territories, protectorates and other areas under
United States jurisdiction have legalized Cannabis for medical and/or recreational uses:
Washington, DC 151
Puerto Rico
Guam
291. The method of legalization of Cannabis by States and other areas within Federal
jurisdiction has varied from State constitutional amendment, to legislative enactment, to voters'
referenda.
292. Today, more than 62% of Americans live within a jurisdiction in which Cannabis is
293. California, the world's sixth largest economy, has legalized Cannabis for recreational
purposes as well.
294. State-legal Cannabis has been available to millions of Americans for decades.
295. Cannabis has been available illegally (i.e., on the "black market") to millions of
296. Upon information and belief, no credible medical report has confirmed a single
297. By contrast, the following "legal" substances have caused the following number of
151
Although initially barring Washington, DC from implementing a medical Cannabis program in
or about 1998, Congress took no action to prevent enactment of a medical legalization program in our
Nation's Capitol in 2011. Thus, Washington, DC was able to institute a medical Cannabis program in
2011. Thereafter, in 2014, Washington, DC approved a decriminalization program for Cannabis.
Although subjected to a mandatory 30-day review period to be undertaken by Congress under the District
of Columbia Home Rule Act, Congress took no action. Thus, although afforded the opportunity to stop
implementation of Washington, DC's decriminalization program, Congress decided not to do so.
58
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298. 1n or about 1999, the United States Govermnent filed a patent application, entitled:
299. 1n the U.S. Cannabis Patent application ("U.S. Cannabis Patent Application"), the
Federal Govermnent made representations to the United States Patent and Trademark Office
300. In the U.S. Cannabis Patent Application, the Federal Govermnent represented to the
USPTO that Cannabis provides medical benefit to, and thus has medical uses for, patients suffering
with an assortment of diseases and conditions. 1n this regard, the Federal Government asserted that:
152
https://www.cdc.gov/tobacco/data_statistics/fact_sheets/health_effects/tobacco_related_mortal
ity/index.htm
153
https://www.niaaa.nih.gov/alcohol-health/overview-alcohol-consumption/alcohol-facts-and-sta
tistics.
154
https://www.cdc.gov/nchs/data/factsheets/factsheet_drug__poisoning.pdf.
155
http://www.huffingtonpost.com/2013/09/24/tylenol-overdose_n_3976991.html. This does not
include the 78,000 Americans who are rushed to emergency rooms annually, or the 33,000
hospitalizations in the United States each year, all due to ingestion of acetaminophen. Id.
59
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301. In support of its U.S. Cannabis Patent Application, the Federal Government cited a
series of studies and academic papers, which, the Federal Government represents, support its
conclusion that Cannabis does, in fact, provide medical benefits, including conditions which are
listed and which are not listed on the U.S. Cannabis Patent Application (Id.).
302. The U.S. Cannabis Patent Application directly and unmistakably controverts the
303. Simply put - the Federal Government cannot maintain, on its U.S. Cannabis Patent
Application, that Cannabis does, in fact, have curative properties that provide medical benefits to
patients suffering from an assortment of diseases while also simultaneously "finding" that Cannabis
has no medical application whatsoever for purposes of application and enforcement of the CSA. 156
continued to pass throughout the United States, the Federal Government was confronted with a
problem - under the CSA, the cultivation, harvesting, extraction, distribution, sale and use of
156
Because the U.S. Cannabis Patent was granted by tbe USPTO, the Federal Government is
estopped from contesting the assertions contained in its Application.
60
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Cannabis was (and is) illegal; however, States were granting their citizens permission to cultivate,
305. On or about October 19, 2009, defendant DOJ, while professing the importance of
enforcing the CSA as it pertains to Cannabis, acknowledged the existence of State laws authorizing
the use of "medical marijuana," and directed that United States Attorneys:
See October 19, 2009 Memorandum by Deputy Attorney General of the United States, David W.
306. Thus, notwithstanding the provisions ofthe CSA, prohibiting cultivation, distribution,
sale, possession and use of Cannabis, as a drug so dangerous that it cannot be tested under strict
medical supervision, the DOJ expressly discouraged United States Attorneys from using federal
resources to prosecute violations of the CSA by users of Cannabis for medical purposes in State-
legal jurisdictions.
307. On or about August 29, 2013, defendant DOJ promulgated what has come to be
308. Under the Cole Memorandum, the DOJ, consistent with the Ogden Memorandum,
officially recognized that patients using State-legal medical Cannabis, in accordance with the laws
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of the States in which they reside, and businesses cultivating and/or selling State-legal Cannabis for
medical purposes, are not appropriate targets for federal investigation, prosecution and incarceration
(Id. at 3).
309. The net effect of the Cole Memorandum was to inform medical-Cannabis businesses
operating in accordance with the laws of the States in which such businesses operate, and patients
who use medical Cannabis in accordance with the laws of the States in which such patients reside,
that they would not be prosecuted, provided that such Cannabis businesses and medical Cannabis
patients did not engage in conduct which encroached upon eight (8) specific federal priorities,
3. Preventing the diversion of marijuana from states where it is legal under state
law in some form to other states;
5. Preventing violence and the use of firearms in the cultivation and distribution
of marijuana;
7. Preventing the growing of marijuana on public lands and the attendant public
safety and environmental dangers posed by marijuana production on public
lands; and
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310. On February 14, 2014, the Financial Crimes Enforcement Network ("FinCEN")
issued a Memorandum providing guidance to clarify Bank Secrecy Act ("BSA") expectations for
311. FinCEN issued the FinCen Memorandum "in light of recent state initiatives to
legalize certain marijuana-related activity and related guidance by the DOJ [i.e., the Cole
312. In essence, the FinCen Memorandum was the Treasury Department's own version
of the Cole Memorandum, except that the FinCen Memorandum was sent to private actors (banks
and other financial institutions), informing them how it is that they can transact with Cannabis
313. FinCen provides guidance and advice to banks and other financial institutions
concerning how they can engage in conduct which is illegal under the CSA, as well as under 18
314. By the FinCen Memorandum, the Treasury Department provided, inter alia, the
following background relative to the guidance later set forth in the FinCen Memorandum:
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315. Under the provisions of the FinCenMemorandum, the Federal Government provided
authorization to banks and other financial institutions to transact with Cannabis businesses.
316. Under the provisions of the FinCenMemorandum, the Treasury Department directed
that financial institutions, prior to engaging in transactions with medical Cannabis businesses,
undertake due diligence to ascertain whether the latter are operating in conformity with the
31 7. The Ogden Memorandum, Cole Memorandum and FinCen Memorandum each state,
in form and substance, that the CSA has not been superseded and remains in effect; however, each
aforesaid Memorandum makes equally clear that the United States Government should not interfere
with State-legal medical-Cannabis businesses, and should not otherwise enforce the CSA as against
such businesses or the patients who use the products cultivated and dispensed by such businesses,
provided that all such businesses and patients act in conformity with the laws of the States in which
318. The 2009 Ogden Memorandum, 2013 Cole Memorandum and 2014 FinCen
Schedule I drug that is so dangerous that it has no medical purpose and cannot be tested even under
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319. On or about February 4, 2015, the then-United States Surgeon General, Dr. Vivek
320. While on CBS This Morning, the U.S. Surgeon General publically acknowledged that
Cannabis can provide bonafide medical benefits to patients ("Surgeon General's Acknowledgment").
321. The DEA, earlier this year, removed from its website, all references to Cannabis as
a supposed "gateway drug;" as a drug that causes "permanent brain damage;" and as a drug that leads
322. The DEA's Website Revision 1s consistent with the Surgeon General's
Acknowledgment.
323. Prior to the DEA's Website Revision, a petition was filed on behalf of Americans for
Safe Access, alleging that the DEA's website contained false information ("ASA Petition") (Exh.
10).
324. The ASA Petition was filed nnder the Information Quality Act ("IQA") (Id.).
325. Under the IQA, Federal Agencies are required to devise guidelines to ensure the
3 26. These requirements are designed to ensure that, inter alia, the information contained
327. Upon information and belief, it was in response to the ASA Petition, asserting that
the information contained on the DEA website was inaccurate, that the DEA effected its Website
157
44 U.S.C. 3516, Statutory and Historical Notes.
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Revision. In other words, the DEA, ratherthan litigating the inaccuracy of the information contained
on its website, changed that information and effected its Website Revision in recognition that the
language asserting that Cannabis is a supposed "gateway drug" that causes psychosis and permanent
funding the Federal Government through September 30, 2015 ("2014 Funding Rider").
329. Under the 2014 Funding Rider, Congress expressly prohibited the DOJ from using
the appropriations provided thereby to prosecute the use, distribution, possession or cultivation of
See Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, 538, 128
331. The States referenced in the 2014 Funding Rider are those that, as of the date of the
158
The FDA also removed all references to Cannabis as a supposed "gateway drug" on its
website.
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332. Various short-term measures extended the 2014 Funding Rider through December
22, 2015.
333. On December 18, 2015, Congress enacted a new appropriations act, which
appropriated funds through the fiscal year ending September 30, 2016, and included essentially the
same rider as the 2014 Funding Rider. Consolidated Appropriations Act, 2016, Pub. L. No. 114-113,
542, 129 Stat. 2242, 2332-33 (2015) (adding Guam and Puerto Rico and changing "prevent such
States from implementing their owu State laws" to "prevent any of them from implementing their
owu laws").
334. In 2017, Congress enacted another rider, updating the 2014 Funding Rider to include
the States that added medical-Cannabis programs over the preceding three years, and again
restricting the use of Congressional appropriations to prosecute only those violations of the CSA in
which the defendants cultivate, distribute, and/or sell Cannabis in a manner that violates State-legal
medical marijuana programs ("2017 Funding Rider"). In this regard, the 2017 Funding Rider states:
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See Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, 537 (2017).
3 3 5. The net effect of the foregoing allegations and evidence confirms beyond serious
question that the Federal Government does not and cannot believe that Cannabis: (i) has no medical
use, and (ii) cannot be used or tested even uuder strict medical supervision. Indeed, it bears
has been widely used as a legal medication for more than 10,000 years, including by
the Founding Fathers ofthis Couutry;
was legal uutil the end of Prohibition threatened to leave Anslinger without any
responsibilities;
was found by the Shafer Commission to be safe enough to decriminalize for personal
use;
has been dispensed by the Federal Government to participants in the IND Program
for more than 30 years without evidence of harm to any of the patients;
was found by ALJ Young to be the safest drug available in the world, based upon
evidence that the DEA never attempted to contest;
has been used continuously as part of State-legal programs for medical purposes
throughout the United States, beginning in 1996;
has been available to millions of Americans on a daily basis for decades without a
single fatality - a record that neither coffee nor aspirin can claim;
is the subject of the successful U.S. Cannabis Patent Application, in which the
Federal Government admitted (indeed, bragged) that Cannabis provides safe, medical
benefits to patients suffering from an assortment ofillnesses, diseases and conditions;
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cannot be the subject of a federal crinrinal prosecution under the CSA unless
cultivated, distributed, sold or used in violation of State law; and
is the subject of established federal policy which recognizes the medical benefits of
Cannabis.
336. Indeed, the notion that the Federal Government persists in classifying Cannabis as
a Schedule I drug, while ignoring the undeniable addictive and lethal chemical properties of nicotine
and tar, which kill millions of Americans every year, renders this mis-classification of Cannabis
337. Under the CSA, members of the public are afforded the opportunity to file petitions
to requestthat medications and drugs be re-scheduled and/or de-scheduled. 21 U.S.C. 811 and 21
C.F.R. 1308.
338. The legal mechanism available to the public to file petitions to change the
classification of drugs and medications previously scheduled under the auspices of the CSA is
illusory. Petitions filed with the DEA and/or any other Federal agency linger for years, often
339. The following chart of petitions filed with the DEA, reflects the futility of the
petitioning process:
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Remove Cannabis from Individual May 12, Dec. 19, NIA DEA
Schedule I 2008 2008 declined
to accept
the filing
of the
petition
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340. Excluding the petitions which are either still pending or were never decided at all
(because they were rejected based upon standing or other grounds), the average delay from filing a
petition to reschedule a drug under the CSA to the date of the petition's resolution is approximately
341. Persons seeking to re-classify a Schedule I drug or medication based upon an urgent
medical need are resigned to waiting until ostensibly the drug would no longer serve any useful
purpose, because the illness, disease and/or condition has resolved or the patient has died.
343. Worse than the entrenched, systemic delays imposed by the Federal Government is
the institutional bias of public officials which all but assures denial of applications pertaining to
Cannabis.
344. As referenced supra, in November 2015, defendant Rosenberg ofthe defendant DEA,
which is responsible for responding to petitions to reclassify drugs under the CSA, publically
asserted that medical Cannabis is "a joke" -- essentially pre-judging any petition to re-schedule or
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de-schedule Cannabis.
345. As reported by Politico, defendant Sessions, "[a]s a U.S. Attorney in Alabama in the
1980s, []said he thought the KKK 'were [sic] OK until I found out they smoked pot."'
346. On December 5, 2016, Politico reported that, in April 2016, defendant Sessions
347. As the Attorney General of the United States, defendant Sessions would have the
opportunity to reclassify Cannabis; however, as with defendant Rosenberg, defendant Sessions has
348. Upon information and belief, Rosenberg did not review any medical or scientific
studies prior to asserting, in or about November 2015, that medical Cannabis is a joke.
349. Upon information and belief, Sessions did not review any medical or scientific studies
prior to issuing his statement in the 1980s, in which he said that he thought the KKK "were [sic] OK
3 50. Upon information and belief, Sessions did not review any medical or scientific studies
prior to issuing his statement on or about December 5, 2016 that "Good people don't smoke
marijuana."
351. Upon information and belief, defendants Sessions and Rosenberg, in condemning
medical Cannabis and those who recommend and/or use it, were not speaking from experience or
an in-depth medical or scientific understanding ofthe chemical properties of Cannabis and its impact
on the body's metabolic systems and processes; nor were their assertions the product of an analysis
concerning whether medical Cannabis has been accepted by the medical community. Rather, the
opinions of defendants Sessions and Rosenberg are based upon political (not scientific) distinctions
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made by a diminishing minority of vocal public officials who, without conducting any scientific
review or analysis, assume that any conduct associated with Cannabis is necessarily dangerous and
352. The unconscionable delays in processing petitions, coupled with the institutional bias
at the DOJ and DEA against re-classifying Cannabis, renders the petitioning process illusory and
futile. In short, the Federal Government does not provide real "due process" to those aggrieved by
the mis-classification of Cannabis under the CSA. This lawsuit is the only mechanism by which
patients in need of medical Cannabis can lawfully and without risk of prosecution safely obtain and
use it.
353. Even assuming arguendo that the petitioning process were not futile - and it is - it
would not provide a meaningful remedy for Plaintiffs insofar as the petition process: (i) cannot
resolve the substantial constitutional issues which Defendants have repeatedly declined to address
in a manner consistent with the provisions of the United States Constitution; and (ii) cannot provide
Plaintiffs with a genuine opportunity for adequate relief (specifically, a declaration that the CSA, as
it pertains to Cannabis, is unconstitutional), insofar as the relief requested herein is beyond the
354. Plaintiffs repeat and reallege each and every allegation of the preceding ififl-353, as
355. Under the Due Process Clause of the Fifth Amendment, no person may be "deprived
of life, liberty or property without due process of law" ("Due Process Clause").
356. Under well-established constitutional jurisprudence, laws which are not rationally
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related to a legitimate interest of the Federal Government violate the Due Process Clause. 159
357. The CSA classifies drugs into five scheduled categories - Schedule I, Schedule II,
3 58. Cannabis has been classified as a Schedule I drug, along with heroin, mescaline, and
LSD. As such, under the CSA as it pertains to Cannabis, the cultivation, distribution, prescription,
sale, and/or use of Cannabis constitutes a violation of Federal Law, subjecting those accused of such
359. The stated basis for enactment and implementation of the CSA as it pertains to
Cannabis was that the drug meets the Three Schedule I Requirements, i.e.:
2. the drug has "no currently accepted medical use in the United States;" and
3. there is a lack of accepted safety for use of the drug even under medical
supervision. 161
360. In view of the facts and evidence set forth above and summarized below, the Federal
Government does not believe that Cannabis meets the aforementioned and described requirements.
361. Cannabis has been cultivated and used as a medication for thousands of years.
362. Cannabis was cultivated and used as a medication in Colonial America and in post-
363. Cannabis was cultivated and used throughout the 19th Century, during which it was
159
Weinberger v. Wiesenfeld, 420 U.S. 636, 651-53 (1975); United States Dep't. of Agric. v.
Moreno, 413 U.S. 528, 533 (1973).
160
Pub. L. No. 91-513, 84 Stat. 1247.
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364. Cannabis was listed in prominent pharmacological publications throughout the second
half of the 19th Century and the beginning of the 20th Century as a medication that treats dozens of
365. The Shafer Commission confirmed that Cannabis is not dangerous and should be de-
366. Since in or about 1978, the Federal Government has been continuously dispensing
and/or authorizing the dispensing of Cannabis to between 8 and 15 patients for the treatment of an
367. In 1988, ALJ Francis Young, after a review of the uncontroverted medical evidence,
concluded that Cannabis provides medical benefits to patients, none of whom have been endangered
by it (Exh. 5).
368. Beginning in 1996, States throughout the Country have instituted medical and
369. Today, more than 62% of the American public resides in States in which whole-plant
Cannabis is legal for medical and/or recreational purposes; thus, millions of Americans have the
370. Upon information and belief, there have never been any documented deaths in the
371. Since 2009, the DOJ has consistently directed its U.S. Attorneys to refrain from
prosecuting patients, physicians and businesses involved in the use, cultivation and/or sale of
Cannabis if the same is consistent with State-legal medical-Cannabis programs (Exhs. 8 and 9).
76
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372. Since 2014, the Treasury Department has authorized banking and other financial
institutions to engage in transactions with Cannabis businesses that act in conformity with State-legal
373. For the last three years, Congress has de-funded the DEA and DOI from prosecuting
individuals and businesses engaging in conduct that is consistent with State-legal medical-Cannabis
programs.
374. In or about 2002, the United States Government repeatedly asserted in its U.S.
Cannabis Patent Application that, based upon a series of scientific studies, Cannabis has accepted
medical uses for the treatment of brain diseases and disorders (Exh. 6).
375. After obtaining a U.S. Cannabis Patent, the Federal Government executed license
3 76. While the Federal Government may conceivably argue that the initial and continued
classification of Cannabis as a Schedule I drug is necessary because of its alleged high potential for
abuse, supposed lack of medical use, and purported risks of potential harm to those who use it even
under medical supervision, the foregoing history confirms that the United States Govermnent does
377. Based upon the foregoing, the Federal Government, not only does not believe that
Cannabis meets the Three Schedule I Requirements of the CSA, but further, no rational person could
378. There is no credible evidence that Cannabis has a high potential for abuse.
3 79. There is no credible evidence that Cannabis lacks any medical benefit; to the contrary,
the overwhelming weight of evidence confirms that Cannabis has, for Millennia, from Ancient
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Chinese and Egyptian societies, to the Founding Fathers, to modem-day America, provided
substantial medical benefits to the patients who have been treated with medical Cannabis.
380. There is no credible evidence that Cannabis poses a serious risk of harm when used
under medical supervision; to the contrary, the overwhelming weight of evidence confirms that,
although virtually all medications have some toxic, potentially lethal effects, "marijuana is not such
a substance" (ALJ Decision at 56, Exh. 5). And no one in the United States has ever died from using
3 81. Because Cannabis does not meet the criteria required for classification of a Schedule
I drug and is, in fact, safe for use, and because the Federal Government is fully aware of the
foregoing but nonetheless insists upon continuing the mis-classification of Cannabis as a Schedule
I drug, the CSA and its implementation is irrational, arbitrary, capricious and is not rationally related
382. The only rational explanation for the enactment of the CSA and its subsequent
enforcement by the Federal Government lies in the politically-suppressive, xenophobic and racial
animus described by John Ehrlichman and other members of the Nixon Administration - an animus
383. As set forth above, the petitioning process does not constitute "due process" within
the meaning of the Fifth Amendment to the Constitution, insofar as the petition process: (i) is rife
with unconstitutional delays that render review impracticable for the Plaintiffs (and most medical
Cannabis patients); (ii) is rife with institutional bias, by which a vocal minority of public officials
162
This allegation does not include reference to those who may have used black-market synthetic
Cannabis.
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refuse to consider the overwhelming weight of medical evidence establishing that Cannabis provides
a safe medical benefit for those who use it; (iii) cannot resolve the substantial constitutional issues
which Defendants have repeatedly declined to address in a manner consistent with the provisions
of the United States Constitution; and (iv) cannot provide Plaintiffs with a genuine opportunity for
adequate relief, insofar as the relief requested requires correcting an Act of Congress which is
3 84. Alexis, Jose, and Jagger need medical Cannabis for the treatment of their diseases and
conditions, but cannot safely use it without risking their freedom or other rights to which they are
legally and constitutionally entitled. Washington desires to open a whole-plant Cannabis business
through the use of the MBE Program, but cannot do so, as he would be ineligible to receive such
benefits and would be risking potential incarceration were he to file the required paperwork for MBE
benefits. The CCA seeks, on behalf of its membership, termination of disproportionate enforcement
notwithstanding the overwhelming weight of the evidence in the record (including statements made
by the Federal Govermnent itself that Cannabis has curative properties and is safe), that Cannabis
is somehow an addictive, dangerous and lethal drug on par with heroin, mescaline and LSD without
any medical benefits whatsoever and thus must remain illegal and continue to be enforced in the
385. Meanwhile, substances that undeniably provide no medical benefit whatsoever, are
highly addictive and cause hundreds of thousands of deaths per year, including for example, tobacco,
386. An actual case in controversy exists between Plaintiffs and Defendants, by which
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Plaintiffs need and/or desire to use, prescribe and/or engage in business transactions involving
Cannabis, whereas Defendants falsely and unconstitutionally maintain that possession and use of
3 87. By reason of the foregoing, Plaintiffs are entitled to issuance of an order and
judgment: (i) declaring that the CSA, as it pertains to Cannabis, is irrational, arbitrary, capricious and
not rationally related to any legitimate governmental interest, and thus unconstitutional; and (ii)
389. Plaintiffs repeat and reallege each and every allegation of the preceding '\['\[1-388, as
390. The United States Supreme Court has consistently held that discrimination may be
so unjustifiable as to constitute a violation of the Due Process Clause of the Fifth Amendment. 163
391. The CSA was enacted in an environment tainted by racial discrimination and animus,
392. The CSA was implemented in an environment tainted by racial discrimination and
animus, hostile to the interests of African Americans and other persons of color.
393. The CSA has been enforced in a manner reflective of racial discrimination and
animus, hostile to the interests of African Americans and other persons of color.
394. Although Cannabis is consumed and used equally by African Americans and White
163
Davis v. Passman, 442 U.S. 228, 234-35 (1979); Weinberger v. Wiesenfeld, 420 U.S. 636, 638
n. 2 (1975); Cruz v. Hauck, 404 U.S. 59, 62 n. 10 (1971); Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
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3 95. Upon information and belief, the racial animus underwriting the CSA continues to
this day, resulting in convictions and the incarceration of African Americans and other persons of
396. The CSA was also intended to suppress the First Amendment rights and interests of
those protesting the Vietnam War, including such rights as freedom of speech and the right to
397. Upon information and belief, the Federal Government tactically enforced the CSA
against war protesters and persons of color insofar as members of the Nixon Administration
398. In enacting and disproportionately enforcing the CSA against persons of color, the
Federal Government violated, and continues to violate, the Due Process Clause of the Fifth
Amendment.
399. In enacting and disproportionately enforcing the CSA against those protesting the
Vietnam War, the Federal Government violated, and continues to violate, the First Amendment and
400. The Federal Government lacks a compelling interest in the enactment ofa statute that
discriminates against persons of color, and violates and has violated the First and Fifth Amendment
401. Upon information and belief, even assuming arguendo that the Federal Government
were to have a compelling interest in enacting and enforcing the CSA in the manner herein
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described, the CSA is not narrowly tailored to satisfy and achieve that compelling interest (whatever
it might be).
402. An actual case in controversy exists between Plaintiff CCA on the one hand, and
Defendants on the other, by which the CCA maintains that the CSA was enacted on the basis of
racism and political suppression of the rights guaranteed under the First Amendment, and enforced
in a manner that is so discriminatory as to rise to the level of a violation of Due Process, whereas
Defendants irrationally and unconstitutionally maintain that the CSA constitutes a valid exercise of
federal power.
403. By reason of the foregoing, the CCA is entitled to issuance of an order and judgment:
(i) declaring that the CSA, as it pertains to Cannabis, violates the rights of its members under the
405. Plaintiffs repeat and reallege each and every allegation of the preceding iJiJl-404, as
406. Freedom to travel throughout the United States, including between and among States
of the Union, has long been recognized as a basic right under the Constitution. 164
407. Alexis and Jose require medical Cannabis to live healthy and productive lives, but
cannot travel with medical Cannabis without risking prosecution, incarceration, and/or the loss of
408. Jagger requires medical Cannabis to live without excruciating pain and to avoid death,
164
See, e.g., Williams v. Fears, 179 U.S. 270, 274 (1900).
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but cannot travel with medical Cannabis without risking prosecution, incarceration, and/or the loss
409. The aforesaid and described Plaintiffs are required to choose between depriving
themselves of life and liberty associated with receiving appropriate medical care, and depriving
themselves of the opportunity to: (i) travel to other States; (ii) use an airplane to travel to any other
State; (iii) step onto federal lands or into federal buildings; (iv) access military bases; and/or (v)
410. Members of the CCA desire to travel between and among the States with their
medical Cannabis, but cannot do so without risk of investigation, prosecution, conviction and
incarceration under the CSA which is disproportionately enforced against persons of color.
the record (including statements made by the Federal Government itself that Cannabis has curative
properties and is safe) that Cannabis is somehow an addictive, dangerous and lethal drug on a par
with heroin, mescaline and LSD, and without any medical benefits whatsoever and thus must be
412. An actual case in controversy exists between Plaintiffs Alexis, Jose, Jagger and the
CCA on the one hand, and Defendants on the other, by which such Plaintiffs require the use of
Cannabis and desire to travel, whereas Defendants irrationally and unconstitutionally maintain that
413. By reason of the foregoing, Plaintiffs Alexis, Jose, Jagger and CCA are entitled to
issuance of an order and judgment: (i) declaring that the CSA, as it pertains to Cannabis, violates
their constitutional Right to Travel; and (ii) permanently enjoining Defendants from enforcing the
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CSA.
415. Plaintiffs repeat and reallege each and every allegation of the preceding ififl-414, as
416. The framework ofthe United States Constitution created a government of limited and
enumerated powers.
417. Under Article I, 8, cl. 3 of the United States Constitution, Congress has the limited
power:
418. The Commerce Clause does not include a general power to regulate intra-State
commerce.
419. The United States Constitution does not include a federal police power.
intra-State commerce that have no appreciable impact on interstate commerce or commerce with
165
U.S. Const. art. I, 8, cl. 3.
166
U.S. Const. amend. X.
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foreign nations and/or with Native American Tribes. Such commerce is reserved to the States and
422. Historically, the regulation ofthe doctor-patient relationship and decisions pertaining
to dispensing medications have been reserved to the State under the Tenth Amendment.
423. The Constitution does not empower Congress to regulate doctor-patient relationships.
424. The CSA, proscribing and criminalizing the use of Cannabis, was not enacted for the
purpose of regulating interstate commerce; Congress enacted the CSA based upon a series of
irrational and discriminatory motives that cannot be justified or even explained when considered
against an incontrovertible record that includes evidence that the United States Government has
acknowledged in its U.S. Cannabis Patent Application that Cannabis is an effective treatment for,
powers, and encroaching upon the powers expressly reserved to the States, Congress engaged in an
unauthorized and thus unconstitutional exercise of power that violates well-recognized principles
of federalism.
426. Even assuming arguendo that distribution and/or sale of Cannabis that occurs on an
entirely intra-state level could be deemed to have an appreciable impact on interstate commerce -
and, respectfully, it cannot - individual use of Cannabis cannot rationally be claimed to have an
effect on the national economy. Thus, it is alleged in the alternative that, even assuming that
Congress were to have the power to regulate purely intra-state economic activity that has no
relationship with interstate commerce, Congress lacks the power to regulate use as a purely intra-
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427. An actual case in controversy exists between Plaintiffs and Defendants, by which
Defendants maintain that use of Cannabis is lethally dangerous and thus must remain illegal, whereas
Plaintiffs maintain that the CSA, as it pertains to Cannabis, constitutes an unconstitutional exercise
428. By reason of the foregoing, Plaintiffs are entitled to issuance of an order and
judgment: (i) declaring that the CSA, as it pertains to Cannabis, constitutes an unauthorized exercise
of power by Congress, rendering the CSA, as it pertains to Cannabis, unconstitutional; and (ii)
430. Plaintiffs repeat and reallege each and every allegation of the preceding i!i!l-429, as
4 31. Under the provisions of the CSA, de-scheduling or rescheduling a drug such as
Cannabis must be supported by medical and/or scientific evidence - such as, for example, the
432. To acquire and accumulate such medical and/or scientific evidence, studies and tests
must be conducted; however, because Cannabis has been classified as a Schedule I drug, it cannot
legally be tested unless special permission has been obtained from the Federal Govemment. 167
433. Upon information and belief, in the 47 years since the CSA was enacted, the Federal
Government has granted only one application to conduct scientific and/or medical testing of
Cannabis.
167
Pub. L. No. 91-513, 84 Stat. 1255.
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434. The Federal Government has thus created a legislative construct which, by design,
is completely dysfunctional. The CSA requires testing and studies to reclassify Cannabis, but
prevents such tests and studies from being conducted because Cannabis is supposedly so dangerous
that it cannot be tested - except that the stated basis for classifying Cannabis as a Schedule I drug
435. After creating the Shafer Commission to conduct such tests and studies, the Federal
Government, led by the biased and unstable Nixon Administration, promptly rejected its findings.
436. By creating a process that, by its terms, necessarily requires all petitions for de-
scheduling or rescheduling to be denied- and, as regards Cannabis, that is exactly what has occurred
with respect to every petition - Congress enacted an irrational, arbitrary and capricious law.
43 7. Simply put - if, by its terms, the CSA created a petition process to allow aggrieved
individuals to file futile challenges to the classification of Schedule I drugs, then the procedure
serves no lawful purpose and is thus unconstitutionally irrational and violates the Due Process
438. An actual case in controversy exists between Plaintiffs and Defendants, by which
Plaintiffs need and/or desire to use, prescribe and/or engage in business transactions involving
Cannabis, whereas Defendants falsely and unconstitutionally maintain that proscriptions against
cultivation, distribution, possession and use of Cannabis is lethally dangerous and thus must remain
illegal.
4 39. By reason of the foregoing, Plaintiffs are entitled to issuance of an order and
judgment: (i) declaring that the CSA, as it pertains to Cannabis, constitutes an unauthorized exercise
of power by Congress, rendering the CSA, as it pertains to Cannabis, unconstitutional; and (ii)
87
Case 1:17-cv-05625 Document 1 Filed 07/24/17 Page 88 of 89
WHEREFORE, for the reasons stated, Plaintiffs demand judgment, over and against
Defendants, declaring the CSA as it pertains to the cultivation, distribution, marketing, sale,
prescription and use of Cannabis, unconstitutional under the Due Process Clause of the Fifth
Amendment, the Right to Travel, and the Commerce Clause, together with: (i) a permanent
injunction (and temporary relief if so required), restraining Defendants from enforcing the CSA as
it pertains to Cannabis; (ii) reasonable legal fees and costs pursuant to the Equal Access to Justice
Act, 28 U.S.C. 2412, insofar as the Federal Government cannot maintain its position on the existing
record that continued enforcement of the CSA as it pertains to Cannabis is "substantially justified;"
and (iii) any and all other and further relief this Court deems just and proper.
88
Case 1:17-cv-05625 Document 1 Filed 07/24/17 Page 89 of 89
HILLER, PC
Attorneys for Plaintiffs
600 Madison A venue
New York, New York 10022
-4 0
By:
16 8Ad . . pend"mg.
m1ss10n
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