Last July, news broke that a group of five plaintiffs had filed a lawsuit against Attorney General Jeff Sessions, the Department of Justice (DOJ), and the Drug Enforcement Administration (DEA) claiming that keeping cannabis as a Schedule I drug was unconstitutional. Yesterday, on Valentine’s Day, the opening arguments were heard in the Federal District Court in Manhattan by U.S. District Judge Alvin Hellerstein.
A government attorney has filed a motion to dismiss the case, and after this first hearing the judge will take time to consider each side’s argument before determining if the case will be dismissed or move forward. Those representing the plaintiffs are confident that the judge will allow the case to proceed.
“From our perspective, we know the answer already – that’s why we brought the case,” Michael Hiller, lead counsel for the plaintiffs, said in a press conference shortly after the hearing. “We are confident that we are going to have an outcome here which generates the results that we’ve all been waiting for, for over 48 years; and that is that the Controlled Substances Act as it pertains to the classification of cannabis will be declared unconstitutional.”
Meet the Plaintiffs Suing the Federal Government
The plaintiffs in the case include three medical marijuana patients – two of whom are children. Alexis Bortell is a 12-year-old diagnosed with intractable epilepsy at the age of seven. For a period of 14 months she had multiple seizures each day and was hospitalized several times. Eventually, her doctors gave her parents two options – the choice between experimental brain surgery that would require doctors to remove a portion of the left side of her brain, or medical cannabis.
Her doctors recommended medical cannabis – since there is no going back after removing a portion of the brain – and her parents chose the more conservative alternative. Now, after using medical cannabis, Alexis has been seizure-free for three years.
Jagger Cotte was diagnosed with Leigh’s disease before he was two years old, and at that point his life expectancy was that he would not live past the age of four. His parents had all but given up; they had moved him into hospice, and when the pain became too much for him they gave him medical cannabis to help. After the introduction of medical cannabis, his condition improved – and now, at seven years old, he is a plaintiff in this case against the federal government.
Jose Belen was an Army combat veteran who suffers from post-traumatic stress disorder (PTSD) after the Iraq War. The doctors from Veterans Affairs could not legally recommend medical cannabis, so they prescribed pharmaceuticals instead – none of which worked. Finally, Belen turned to medical cannabis through doctors outside the VA, and it allowed him a better quality of life for himself, and his family as well in turn.
The two remaining plaintiffs are former NFL player for the New York Jets, Marvin Washington, who is the co-founder of a company called Isodiol Performance which produces hemp-based CBD sports performance products, and the nonprofit organization the Cannabis Cultural Association, which works to end the war on drugs and aims to promote people of color working in the cannabis industry.
In the courtroom, Judge Hellerstein right away admitted that there was no denying the value that cannabis has for these patients with how it has improved their quality of life.
Is Leaving Cannabis Schedule I Unconstitutional?
One of the biggest points made by advocates of legalization is the fact that the current scheduling of cannabis in the Controlled Substances Act is wrong for one simple reason – the definition of a Schedule I drug includes that the substance in question does not hold any medicinal value.
Over the years, the government has defended their choice to allow cannabis to remain schedule I regardless of the mountains of research that has been done to prove otherwise – but Judge Hellerstein basically told the lawyers defending Sessions, the DEA, and the DOJ not to even bother with that argument.
“I think there is really no question though, that we heard something super important, that, as far as I’m aware, very few judges have commented very openly on until today – and that is, the judge made absolutely clear that cannabis does not meet one of the three requirements for scheduling as a schedule I drug,” said Hiller. “And that is, the government cannot show, and shouldn’t even bother trying to show that there is no medical benefit to cannabis. He essentially told the government today to stop making that argument, there is no point to it.”
The 98-page lawsuit claims that the Controlled Substances Act (CSA) limits patients travels within the U.S. and blocks them from entering government buildings; it also brings up that it discriminates against black people who are more likely to be arrested for possession of cannabis than white people, and that cannabis itself has been proven to have medicinal benefits and therefore does not belong in the same classification as substances like LSD and heroin.
The entire case is based off the fact that this is an infringement on human rights – and if the judge agrees by the time this case ends, the government may be forced to remove cannabis from the Controlled Substances Act.
“What that shows us is that the federal government knows that cannabis doesn’t meet their three requirements for a schedule I drug, they know it – and that’s why they’ve allowed 30 state legal programs.”
When Will We Know if the Case is Moving Forward?
Unfortunately, there is no set deadline for Judge Hellerstein to decide on whether to grant the government’s motion to dismiss the suit or not. However, he could have decided from the get-go to dismiss the case – but instead he chose to hear the arguments as to why the case should move forward or end here and now. He also suggested that the government not to even bother with the argument that cannabis holds no medicinal value and acknowledged how it benefits the plaintiffs – which means he clearly knows that medical marijuana helps millions each day.
“The judge did make very clear that this case is going to be among the highest priorities of all the cases on his docket.”
This lawsuit was filed back in July – and it was already moved ahead of several other cases that are awaiting a court date with Judge Hellerstein. It’s clear that the judge understands that this is a critical issue that needs to be handled both carefully, and quickly.
“We’ve seen civil rights trampled on before, but we have also seen everyday Americans and leaders rise to the occasion and have our judicial branch recognize when an interpretation of the law is obviously tragically flawed and wrong,” Hiller wrote in a statement issued Wednesday evening.
Regardless of the eventual outcome of this lawsuit, Hiller, and everyone who spoke at the press conference after the hearing, also reminded everyone that this is a fight we simply cannot give up. This is a matter of human rights, it is a matter of the well-being and quality of life for millions of Americans who risk arrest to use the medicine that works for them simply because the federal government deems it a crime. There is no longer a lack of research, there is no longer a question as to the efficacy and safety of medical cannabis for numerous conditions – yet prohibition continues.
“The fact of the matter is, whether it is resolved here as it should be, or if by some miracle, Congress steps up to the plate and resolves it for us, one thing is for certain and that is that we have to keep fighting until the people who desperately need the medications that are saving and preserving their lives, can continue to do so without government interference.”