First Medical Marijuana Federal Preemption Challenge
MMJ patients need help to pay for the precedent setting litigation we presently have in front of the Colorado Supreme Court that will impact everyones relationship with cannabis.
Recent News Coverage
Boulder Weekly: Local attorney argues fed laws dont apply to MMJ (May 22, 2014)
Toke of the Town: Colorado medical marijuana activists appeal to state Supreme Court to make medical marijuana use a right by William Breathes (April 15, 2014)
Denver Post: Colorado Supreme Court to Review Brandon Coats Firing over Medical Marijuana, by John Ingold (January 17, 2014)Colorado Supreme Court to Review Brandon Coats Firing over Medical Marijuana
Boulder Weekly, May 22, 2014
Boulder attorney Andrew Reid of the law firm Springer & Steinberg, on behalf of Nederland area resident Kathleen Chippi and the Patient and Caregiver Rights Litigation Project (PCRLP), has filed an amicus curiae (friend of the court) brief to the Colorado Supreme Court containing arguments that might finally end the doctrine that that federal law overrides state medical marijuana laws. In a bold contention, Reid claims that medical marijuana is not covered by the federal Controlled Substances Act (CSA), because Congress never intended it to be.
The Colorado Supreme Courts review of this issue, in the case of Coats v. Dish Network, should bring much-needed clarity to the rights of medical marijuana patients in Colorado. If successful, Reid and Chippi claim that their arguments could have a national impact by stopping the federal Drug Enforcement Administration (DEA) from prosecuting medical marijuana use and distribution in all states where these activities are protected by local law.
Brandon Coats, a paralyzed medical marijuana patient, was fired from his job at Dish Network after testing positive for THC on a random drug screening. Coats, through his attorney Michael Evans, argued that since he was a legal medical marijuana patient under the Colorado Constitution, his offduty use of medical marijuana was covered under the Colorado Lawful Off-Duty Activities Statute (CLODAS). Therefore Dish Network could not legally fire him.
The Colorado Court of Appeals ruled that Coats use of medical marijuana is not covered by CLODAS, even though medical marijuana is protected in the state Constitution, because marijuana is illegal under federal law.
The Coats case highlights the doctrine of federal preemption, which means that federal law usually overrides or preempts state law. Federal preemption is at the heart of thousands of cases throughout the country where the federal government has prosecuted medical marijuana patients for activity that is legal under their own state laws.
In his amicus brief, Reid attacks the issue of federal preemption at its core by presenting a novel legal theory. He argues that the U.S. Congress never intended to ban medical marijuana when they listed marijuana in the federal CSA. When the CSA was enacted in 1970,
Congress listed marijuana as a Schedule 1 drug, meaning it has a high potential for abuse and no currently accepted medical use in treatment in the United States. However, its listing was supposed to be only temporary, until the Nixon administrations National Commission on Marihuana and Drug Abuse (also known as the Shafer Commission) could complete its investigation into the harm and benefits of marijuana.
When the Commission released its final report on marijuana in 1972, they found that marijuana was safe and recommended that it be decriminalized altogether. Nixon, of course, chose to ignore those findings and instead officially started the War on Drugs (which Chippi calls the longest-running war in U.S. history.)
According to Reid, the issue of whether medical marijuana should be included in the CSA along with nonmedical use of marijuana was never properly decided. Reid writes: A decision upon the temporary scheduling of cannabis in Schedule I has never been made by the Attorney General as required by the CSA, although over 40 years have passed since it was first listed.
Constitutional law is Reids specialty, and he has been studying the issue of federal preemption as it relates to medical marijuana for years. Although other cases have argued federal preemption with regards to medical marijuana, Reid claims that his arguments are unique and that this is a case of first impression for the Colorado Supreme Court. Reid writes, Neither the United States Supreme Court, this Court, nor any other high court has as yet engaged in a proper and full Preemption Doctrine analysis to determine whether the Congress, the drafters of the federal CSA, ever intended to include state recognized medical uses of marijuana in the CSAs Schedule 1 listing of marijuana, or whether the listing was intended to be limited to non-medical uses.
Reid contends that patients will be harmed if the Court of Appeals ruling in the Coats case that federal CSA criminalization of marijuana covers the lawful use and possession of medical marijuana under state law is allowed to stand. Reid maintains that dozens of occupations, occupational licenses, permits, and state benefits will be denied to thousands of legal medical marijuana patients because their possession and consumption of their medication would be considered illegal.
Reid says that it is only because of the largesse of President Obama that thousands of patients and medical marijuana providers are not being prosecuted for federal marijuana crimes. In two years when we have a new president, the current federal leniency on medical marijuana could easily end, he says.
The Colorado Supreme Court is expected to rule by July. The amicus brief can be found online at www.CannabisLawsuits.com.
More on the issues from Kathleen Chippi, PCRLP founder
1. For the first time ever a high court will consider and RULE on IF federal law (Controlled Substances Act, CSA) preempts state medical marijuana laws, in this case the Colorado Constitution.
"Federal premeption" - The invalidation of US state laws that conflict with federal laws.
2. For the first time in Colorado, the Colorado Supreme Court will decide if medical marijuana patients have rights, not merely privileges.
Both issues will have national impact. The High Court intends to rule sometime in June-July 2014.
Federal Preemption: The feds have spent the last 18 years since Prop 215 passed telling everyone that the CSA trumps state MMJ programs, yet there is no case law that confirms that. Raich confirmed the feds trump on inter-state commerce, not medical marijuana. Pro-cannabis attorneys, drug 'reform' groups, law enforcement and government offices across the country have conceded that the feds trump and patients have no rights. The Patient and Caregiver Rights Litigation Project (PCRLP) believes differently.
On Patient Rights: This will be the third time this issue has been brought to the CO Supreme Court by the PCRLP since the passage of HB10-1284 gutted Colorado's Constitutional patient/caregiver medical marijuana model passed in 2000.
Read the 2011 PCRLP petition to the Supreme Court filing trying to overturn House Bill 10-1284, a bill that gutted the patient/caregiver model protected under Amendment 20.
Implications: If the Colorado Supreme Court rules patients have rights and federal law does not trump state medical marijuana rights (what the PCRLP is hoping for which would mean they would overturned the lower court rulings in Coats v Dish) then people who use medical marijuana:
If the court agrees with the lower courts and rules patients do not have rights and federal law does preempt state law, then everything above will still be a risk for medical patients, except patients and caregivers deciding their own plant count under state law, which is Constitutional but still needs to be addressed by a high court now that the CDPHE believes they have a right to limit plants (limit medicine quantities) and any plant count would remain at risk from the feds.
If the court rules patients have rights but federal law preempts, then anything related to federal aid, federal housing, banking, student loans, organ transplants or cultivation/possession/use will still be at risk.
In our opinion, the court will most likely not rule against patient rights and against federal preemptionwhich would mean the patients still have all risks above at a state level, but not at a federal level.