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Meet the Lawyer Suing Jeff Sessions to End Cannabis Prohibition

February 20, 2018
Iraq war veteran Jose Belen, who takes marijuana to treat post-traumatic stress disorder, stands in front of federal court in New York. Belen is one of five plaintiffs challenging federal marijuana laws a lawsuit that claims classifying marijuana as a dangerous drug is irrational and unconstitutional. (Mark Lennihan/AP)
Last week, in a lawsuit that could put an end to federal cannabis prohibition, a federal judge in New York acknowledged the healing potential of medical marijuana. “It’s saved a life,” he said, referring to a Colorado girl with epilepsy. “She has no more epileptic seizures.”

The judge then turned to lawyers for the federal government, who have argued that cannabis is a dangerous drug with no accepted medical benefit. “If there is an accepted medical use,” he told them, “your argument doesn’t hold.”

The five plaintiffs have clearly obtained, and are able to maintain, a better quality of life because of cannabis.
David C. Holland, attorney for plaintiffs

The case of Washington v. Sessions has generated great interest. Five plaintiffs, including former NFL player Marvin Washington; 12-year-old Colorado medical refugee Alexis Bortell; youngster Jagger Cotte; US military veteran Jose Belen; and the Cannabis Cultural Association, a nonprofit that helps people of color benefit from cannabis in states where it’s legal, have challenged the constitutionality of the classification of marijuana under the federal Controlled Substances Act. The case, filed in 2017, finally received its first hearing in federal court last week, when US District Court Judge Alvin Hellerstein heard the federal government argue for the case’s dismissal.

Leafly sat down with David C. Holland, a member of the legal team representing plaintiffs in the suit, following the Feb. 14 hearing. Holland is a litigator in New York City and the executive and legal director of Empire State NORML. He’s former counsel to High Times Magazine and a member of the New York Cannabis Bar Association.

Holland walked us through what’s at stake in the lawsuit and the significance of the government’s recent effort to dismiss it.

Related

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Leafly: Why have the plaintiffs sued US Attorney General Jeff Sessions?

Holland: The five plaintiffs have sued Sessions and the DEA to declare the classification of cannabis under the Controlled Substances Act unconstitutional on claims it violates their rights, including that to travel, to be engaged in business’ interests, and to be free from racial discrimination and in enforcement of the law against communities of color. The federal government denies those claims and has moved to dismiss the action.

What are the main components of the Controlled Substances Act? Take us through its procedural history.

In 1970, the federal Controlled Substances Act established five classifications, from Schedule I to V, ranging from prohibited to prescription, which classify and categorize drugs and how they may be researched, used, and administered. Marijuana was placed in Schedule I, the most restrictive category, based upon three criteria: high risk of abuse, no medical efficacy or use, and no ability to use or research it in a safe manner. Cannabis has never been rescheduled since 1970.

He was clearly wrestling with the reality that 30 states have already found cannabis to be a useful medical treatment, which directly contradicts one of the criteria of the CSA.

That Schedule I classification of cannabis can be changed by one of three ways: through an act of Congress, an act of the US attorney general, or an act of the FDA. Within the CSA is an administrative remedy where anyone can petition the FDA to have cannabis rescheduled where it would no longer be prohibited in that most restricted classification.

If anyone can petition the FDA, why haven’t more patients done so?

The petitioning process can take years, if not a decade to get an FDA determination on a rescheduling request. The FDA has repeatedly denied those petitions, as recently as 2013 (Americans for Safe Access v. FDA), and 2016 (Krumm Petition), finding that cannabis still should sit as a Schedule I substance based on those three criteria.

Related

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Tell us a bit more about the plaintiffs.

Three of the plaintiffs in the Washington case—Alexis Bortell, Jagger Cotte, and Jose Belen—suffer life-threatening or severely debilitating diseases. They are seeking to bypass the FDA’s administrative petitioning process in order to get more immediate relief, because they may not live long enough to otherwise await and hear the determination.

The CSA petitioning process does not have any realistically viable means for them to expedite review of a petition to bring relief to their life-altering and life-threatening circumstances. Therefore, for them, the petitioning process is futile. They seek relief from the federal court for the CSA’s violation of their constitutional rights, with regard to this medicine as well as redress of other violations and due process.

The government has moved to dismiss the plaintiffs’ claims on a multitude of theories rather than put in an answer to the claims and let them be heard and determined by the judge or jury.

On Feb. 14, Judge Hellerstein entertained written opposition to the motion to dismiss and heard oral argument from the parties. At the conclusion of oral argument, the judge reserved his decision and retired to his chambers to deliberate and draft an opinion about all the legal issues he was wrestling with in regard to motion.

Related

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Why did Judge Hellerstein seem so conflicted when speaking in court?

He was clearly wrestling with several legal issues pertaining to the Controlled Substances Act, and the reality that 30 states have already found cannabis to be a useful medical treatment, which directly contradicts one of the criteria of the CSA.

The first issue is referred to in legal terms as “exhaustion of remedies.” That is, the judge may be considering whether he must defer to the prior decisions of the FDA regarding the scheduling of cannabis. The government based its dismissal motion in part on a claim that the five plaintiffs had failed to exhaust their administrative remedies under the CSA. In other words, because no petition had first been filed with the FDA to reschedule cannabis, [the government argued that the court] does not have the jurisdiction to entertain the claims of the plaintiffs. Thus, their reasoning goes, the case should be dismissed.

Related

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Judge Hellerstein, however, did not seem particularly swayed by that argument. Several federal criminal cases have found that there is no requirement to file a petition to exhaust that administrative petition remedy when there are claims that constitutional rights are being violated by the enforcement of cannabis as a Schedule I drug under the CSA. That rule was upheld in late 2017 by the federal court in upstate New York, in a case known as US v. Green, which caused Judge Hellerstein to pause during the course of oral argument.

Do you think that was Hellerstein’s primary concern?   

Not really. The issues that seemed to trouble Judge Hellerstein the most about the CSA petition process was whether he, as a judge, was without jurisdiction to hear, or must defer to, the administrative agency role of the FDA and prior findings in 2013 and 2016. In those findings, the FDA determined that cannabis was properly classified as a Schedule I substance.

If he did have such jurisdiction, could he then stand in the shoes of the FDA and make his own determination about the propriety of that schedule?

He further was concerned about any restrictions on the court’s analysis of the language of the statute, and the proper evidence to be evaluated, to determine whether the three criteria of Schedule I status continues to be met by cannabis. Some of the factors he noted included the fact that 30 states have legalized marijuana for medical purposes; the federal government has filed a patent on certain cannabinoids from the cannabis plant; and the five plaintiffs have clearly obtained, and are able to maintain, a better quality of life because of [medical cannabis].

Related

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The language of the CSA regarding the three scheduling criteria seems straightforward.

It is straightforward as “conjunctive,” in that cannabis seemingly must satisfy each and every one of the three factors to qualify as a Schedule I substance. The failure to satisfy any one of those factors renders the designation void. In other words, if the plaintiffs prove that cannabis fails to meet any one of the three criteria, [then the question becomes: Is the court] required to declare the Schedule I classification null and void?

What seemed to concern Judge Hellerstein was that generally, when a federal court reviews an agency’s determinations, like those of the FDA, and that agency has repeatedly determined that cannabis satisfies the Schedule I criteria, the court must generally evaluate and disjunctively weigh all the factors in the aggregate to determine if they are satisfied with the intent of the criteria and classification.

This was a concern to the court in the Green case I mentioned earlier. It also troubled the Eastern District of California court in the US v. Picard case. In Picard, the court allowed a five-day hearing of evidence on the science behind the Schedule I classification, and then ultimately concluded that any determination to reschedule cannabis is best left to Congress.

Related

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Do you think Hellerstein will defer to Congress?

This quandary of whether to defer to Congress invokes the “political question” doctrine, which says courts should generally not make decisions that are political in nature and best left to the legislative process. It is difficult to tell where Judge Hellerstein will ultimately fall on this political question issue. But he surely will wrestle with the fact that 30 states have already legalized cannabis despite its Schedule I status. That means that as a matter of politics, the actions of Congress should already have responded to the legislative actions already taken by an overwhelming majority of the states.

One argument advanced by your lawsuit is that the Controlled Substances Act and federal law enforcement should not govern cannabis in the 30 legalized states.

That is correct. The plaintiffs argue that although Congress may regulate interstate commerce—a.k.a. the commerce clause—between the states, the state-based activity of medical marijuana in those 30 states does not impact upon interstate commerce. Judge Hellerstein seemed to dismiss the argument out of hand, citing federal case law which finds that even a negligible or de minimis impact on commerce is enough to give the federal government jurisdiction over the issue.

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There was also the argument about racism and equal protection under the law. While the history of cannabis prohibition, ignited by former federal drug czar Harry Aslinger, wasn’t addressed in court, President Nixon and his administration’s racist motivations for instituting the Controlled Substances Act were definitely called into question. Hellerstein seemed dismissive of the Nixon argument. How is Nixon’s racism still a contributing factor to the Controlled Substances Act? 

It is unclear how Judge Hellerstein will rule on this “as applied” claim of the Cannabis Cultural Association (CCA). The CCA brought a claim on behalf of their members of color, who were disproportionately targeted for prosecution for marijuana offenses under the CSA. People of color unequally suffered collateral consequences stemming from those convictions as a result.

Judge Hellerstein seemed unpersuaded by statements of President Richard Nixon and his advisor, John Ehrlichman, which made clear that the criminalizing of marijuana under the CSA was done as a means to suppress minorities and social dissent against the Vietnam War. Judge Hellerstein suggested that any racist tendencies of the Nixon administration were not attributable to Congress under the separation of powers doctrine—where the powers of one branch of government are not affected by the actions of another. While there are compelling arguments to the contrary, which were not heard during the hearing, the plaintiffs hope that the issue is revisited in Judge Hellerstein’s opinion. Since so much of that claim seems to be a question of fact that will require lots of discovery and information to be tendered by the government, however, it’s unlikely to be the primary focus of the judge’s anticipated decision.

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It seems that there are various possible outcomes. Do you think Hellerstein will dismiss the case? He hinted that he was going to kick the case to the Second Circuit Court.

There are three possible resolutions to the federal government’s motion to dismiss. Firstly, there is the potential dismissal of the claims. Secondly, Judge Hellerstein could deny the motion, and all claims will proceed to trial. Or, lastly, some mixture of the two.

Based on the comments and concerns [expressed by the] court, there is a possibility that the court will follow the precedent of the district courts in Picard and Green and find this to be a political question. However, if Judge Hellerstein finds that there are some claims that may be dismissed but [that] others are tenable, then there is a strong possibility that the court will berate both the FDA and Congress for failing to reschedule or deschedule cannabis, especially in light of the fact that 30 states have found that there is medical validity to marijuana. After all, as he openly stated, the plaintiffs are the best evidence of the effectiveness of cannabis as a medical cure.

For now, we will just have to wait and see. A ruling is expected as soon as this coming week.

 

Correction: An earlier version of this story mistakenly referred to Holland as the lead attorney for the plaintiffs.

Sara Brittany Somerset's Bio Image

Sara Brittany Somerset

New York-based reporter and photographer Sara Brittany Somerset has covered cannabis culture for 15 years. She has been the U.N. Bureau Chief for High Times, and occasionally works from remote places like Timbuktu.

View Sara Brittany Somerset's articles

  • Frank Dorka

    I asked Sessions if he would like to join me in “burning one” and he asked “On whose lawn?”

    • dene97

      Hilarious!
      You owe me a new shirt.
      I blasted coffee out my nose reading your comment,lol!

    • albobcat

      Thanks. I needed that!

    • Charles Harris

      Lol!!!!!

  • lovingc

    False hope. We will have to elect enough democrats to rid ourselves of the republican right wing idiots that only want to harm the people that elected them to office. Then saner people will be able to relieve us of this lie that became law under Nixon.

    • Justin Snider

      Its both partys
      Do your research

      • lovingc

        In what universe? It is the gop .

        • Walter Schwenk

          obama had the chance with both houses dem

      • lovingc

        Pete Sessions is blocking all cannabis bills from getting a vote, he is a Texas republican, I voted against him. This is why we have to elect democrats.

        • CATRYNA49

          The two politicians who started the prohibition of Cannabis were Rockefeller (republican) and Hearst (Democrat). It’s never about politics, but always about money and control.

          • lovingc

            You do realize that you are talking about events that happened 85 years ago, both parties have changed in the ensuing years.

          • Truepatriot_56

            They have? How so???

          • lovingc

            So what? I doesn’t mater what they did 80 years ago. The democrats have made legalization a party plank.It was that way in 2016 and will be again in 2020.

        • LLP2112

          He’s from Alabama – please don’t insult this Texan like that!!

          • LLP2112

            While the North makes fun of the South, the South makes fun of Alabama. It’s true!

          • lovingc

            Think again dip stick, Google Pete Sessions, is a Texas representative, Jeffy boy is a ‘ bama cracker.. They are only related by their hatred of freedom.

          • Clayton

            Pete Sessions is who they are referring to.

        • Truepatriot_56

          You don’t know much about the workings of congress.

      • lovingc

        No it is the republican committee chairs that are blocking all cannabis legislation. Study a bit!

        • Ephraiyim

          Sorry you are mistaken. When Obama had both houses the committee chairs were Democrats.
          The party with the majority decide who is chair of all committees.
          True those committees now are holding things up and they are the Republicans but the Democrats were no better when they were in power.
          It is all about the money. While the government could steal a great deal with taxes on cannabis, their masters, the Corporations, would make little if any because it is a plant and cannot be patented.
          Studies in other countries have shown that when people are given the chance to choose a synthetic pill or the real thing most would choose cannabis over a pill.
          The only way Corps could make money, except banks, would be to “contain” the availability of the real stuff. Hence, they pay enormous sums to lobbyists who wine and dine the elected officials while never actually giving them money. Wink Wink.
          They want it left alone at the Federal level because, in spite of having spent untold millions in the states, they have mostly lost.
          The Federal level is their last stand!

          • albobcat

            Your post contains some errors:
            1) A plant is certainly patentable. In fact, the US government, per the article, has patented 11 cannabinoids in an effort to defeat its use. Growers are regularly patenting different strains of marijuana.
            2) Studies (including a couple in this country) that evaluate a THC pill against smoking or vaping cannabinoids show a strong preference for smoking. This is currently a confound that appears to be related to a cannabinoid “cascade” versus THC alone. Closer to home, a friend of my son has MD and gets THC legally for the spasms. But she routinely trades the pills for smokable because it is more effective by a large margin.
            3) The corporate involvement is a pure straw dog.

          • LLP2112

            This is correct, both on the politics and how committee chairs are chosen (by the majority party), and also on why both parties will do nothing – just look at the $$$ amounts of campaign contributions by pharma companies. The cannabis industry simply doesn’t have those billions to fork over to candidates.

          • lovingc

            We were talking about 2018 not the past.Get over your hatred of Obama. Come back to the present time.That is all you can change.

          • Ephraiyim

            Did I say I hated Obama? I think I was addressing the fact that no matter which party is in control Nothing happens.
            Personally, so far as I can see on this issue, there is little difference in the end result no matter what the rhetoric of a particular party.
            I think Trump is an asshole but I also thought the same about his predecessor. In fact after seeing administrations since JFK I am pretty well convinced all of them since old man George Washington were assholes.
            Of course, I can only judge what they actually did while they were president not what their heart motives are/were.
            In any case I pray for all sitting presidents to have wisdom and proper discernment in every decision they make. Their free will not withstanding.

          • Truepatriot_56

            Sooo, whom did you blame for the inaction when the other party was in power? These politicians just play gullible people like yourself. Mst weed smokers are too ignorant & too lazy to do anything to actually initiate change. Hound your state and federal elected officials endlessly to pass legislation. Complaining about dems or repubs, gets nobody anywhere.

          • lovingc

            Ge your stupid heads out of he clouds nothing Obama did has hurt the legalization movement. The issue is now! We have one party in control of all of the so called government.They are blocking their own people now. Since there are republican representatives in legal states now they are beginning to experience the inequality.

        • LLP2112

          There were no Republican committee chairs when Pelosi/Reid controlled Congress. When the majority party is Democrat, 100% of committee chairs are democrats also. They had their chance but were too obsessed with Obamacare to ever get anything else done.

          • lovingc

            and? We were talking about now not ten years ago.

        • Truepatriot_56

          You need to grow up. There is no difference between parties, they are both corrupt. But you just keep blaming one side over the other. You are too gullible.

      • lovingc

        No it is not.The republican majority has all of the committee chairs and they are blocking all cannabis bills.Pete Sessions is the currant road block. No that is not Jeff Sessions they don’t even claim each other.

    • Masculist Man

      Dana Rohrabacher,a Republican,has introduced The Rorabacher-Blumenauer amendment,which keeps the DEA from going after medical marijuana. Dianne Feinstein,A Democrat,is a staunch prohibitionist.

      • lovingc

        You might notice that she is out of favor fr her archaic ideas.The California democrats are not supporting her candidacy this year.

    • LLP2112

      Democrat = Republican = Democrat. Hence why I voted Libertarian, knowing he had no chance of winning but refusing to vote for the corrupt two-party system.

      • lovingc

        Well you just confirmed my suspicions you are a moron. When you voted for a candidate that had no hope of winning you elected Trump! The democrats are the only hope of saving the country.

        • Truepatriot_56

          you are just the kind of person the two party world love. you seem to think, that voting for the best person is a vote for someone else. what you said is total garbage. it’s people from you’re mindset that gives us garbage government. if people weren’t locked into your mindset, third parties would rule. your sort vote out of fear. you are easily manipulated. voting third party simply means you don’t agree with the other two faces in the race.

          • lovingc

            Another moron that can’t think for himself.

          • mike

            W was elected because a lot of people in Florida voted for the Bush-Nader ticket. Math trumps idealism.

      • Ephraiyim

        A true Libertarian probably would not vote. Depending of course on what type of true Libertarian one is speaking of.
        Been down that road. When a Libertarian candidate starts talking about all they will do I realize they don’t get it at all.
        A good libertarian would veto all bills that violate the Constitution or the rights of man.
        In other words they would allow the government to collapse on itself and burn (metaphorically).

    • Truepatriot_56

      Get real, both parties are garbage. Get involved if you want change.

    • Azwe Thinkweiz

      I think you mean it became law under a Democrat Congress. They are who approved it being a schedule 1.

      • lovingc

        Nope dope.The republicans were in the majority during Nixon’s term of office and Nixon was the one that put it in sched1.

        • Azwe Thinkweiz

          No, it was Dems. It was the 91st United States Congress which held a 57/43 majority in the senate and a 243/192 majority in the house for the DEMS!!! You made it happen. Dems made pot a schedule 1. Deal with it.

    • drmrgrl

      the “saner” people??? please elaborate

      • lovingc

        Non republican.

    • David O’Hare

      What needs to happen is a cleansing of congressional seats and honestly, there should be a limit on the number of years a person can hold a seat in congress; maybe something like 20 years .. but even that seams like that is a lot of time for someone to hold a seat of power. A lot of corruption can grow in that amount of time.

  • Auryan

    It’s all about money…..Big Pharma pulls the purse strings in Congress.

  • CATRYNA49

    Every politician who fights against the legalization of Cannabis is an enemy of the people and should be sued and kicked out of office. Shameful human beings are what they are.

  • 360dunk

    Top ten reasons Judge Hellerstein should look at those states where pot is legal and conclude that the benefits far outweigh the dangers:

    1. Millions in tax revenue collected to help struggling municipalities and their schools. (Colorado, Nevada, and Washington for example bring in over $100 million/year just in taxes)
    2. Murderous foreign cartel presence weakens as Americans patronize dispensaries.
    3. Regulated cannabis sales means that whatever we smoke or eat is pre-tested for molds and pesticides.
    4. Fewer alcoholics on the road.
    5. Less dependency on addictive and synthetic painkillers and opioids as more and more citizens opt to use a natural plant.
    6. More focus by law enforcement on serious crimes like assault, murder, robbery and less time spent dragging weekend puffers to jail.
    7. Less clogging of court dockets and less money wasted by local prosecutors.
    8. Fewer perfectly able-bodied citizens losing their jobs because of petty marijuana arrests.
    9. Fewer drunken brawls as pot smokers are typically more relaxed and rational.
    10. Freedom of choice….smoking cannabis is a personal decision and we should be able to exercise that freedom. Some of us opt to go easy on our livers.

    Judge Hellerstein, this is your chance to do the right thing and make a landmark decision….please take advantage of this opportunity.

    Sincerely,
    Most of America

    • LLP2112

      It’s a lot harder than that. The plaintiffs much address each of those individual issues in their complaint, and then they have to be ready to prove those issues in court. While the judge may agree with something like #1 and #2, he’s not allowed to order judgment based on his own knowledge and beliefs – they have to be brought up and proven by the plaintiffs. Which is a lot harder to do than it sounds. #2 for example – there’s no actual way to prove that in court – under rules of evidence it would be dismissed as “speculative” since there is literally no way to prove it one way or the other. Same with #4, #5, and on and on.

      • 360dunk

        You totally missed my point. Obviously, the DEA is unwilling to bend and so is Jeff Sessions. This leaves an opportunity for Judge Hellerstein to defer to Congress on the matter, which is how it should be. One person’s opinion should not be the final answer here. Congress represents all of America and should have the final say. Yes, some of my points are speculative but they are all undeniable to those with the common sense gene. Can you refute ANY of them?

  • Mr. Lucas Brice

    You can vilify Sessions (rightfully) but let’s not forget that it was the Leftist God-King Obama who failed to reclassify cannabis when he had the chance.

    • John Rah

      Obama and Holder put in the hands of the state’s and Sessions and Trump rolled back the Federal law after 30 states voted for…..who does shit like that? But some Big Pharmacy pocket stuffing Devils!….One reason and one reason only to keep folks high on Opioids!….They are bought and paid for and your dumb ass put them office!

  • Truepatriot_56

    Jeez, what a loser. You can waste your time doing this nonsense and get nowhere. You will get nowhere because weed is illegal at the federal level, period! Leafly runs these bogus nutty stories but will not write articles to educate those supporting weed. If you people want change, pressure your senators and reps. Complaining because the ag enforces the law is about stupid.
    I tried to get leafly to write some articles instructing people how to take real action, but they were not the least bit interested. There’s nothing on leafly but fluff and nonsense.
    Anybody that thinks that taking the feds to court for enforcing the law, are just childish and ignorant.
    Hound your elected officials constantly if you really want change, that’s how it works.

  • Ruth Hill

    Why sue the AG? he does not make laws, he only enforces them. Sue the FDA, or your congressman. with all the states legalizing cannabis why isn’t the inept Congress changing the law? Make this an issue in the 2018 elections and elect senators and congressmen who will change this mess and tell the FDA and NIH to reclassify cannabis. Suing the AG is not a long term solution

  • Ruth Hill

    Laws should not be changed by the courts. Congress has to be pressured into changing the law for good.

  • John Rah

    The bottom line..old crusty ass
    Republicans..Block this every year. AFTER the House and the Senate OKs it….some bullshit Republican Committee removes it from the annual Veteran Bill…..they have done it every year for the past 4 years and hide behind that DEA schedule 1 Federal bullshit….even after 30 states have spoken…Republicans are greedy and are in bed with Big Pharmacy…..Vote those ass holes out….and senators like Bernie Sanders and Corey Booker will be heard.