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Lawyers Take Novel Approach in Bid to Reclassify Pot

Feb. 20, 2018, 12:07 PM

The law firm suing the federal government over its classification of cannabis as a dangerous drug is taking an unusual legal approach in the closely watched New York case.

Hiller, PC claims the Schedule I categorization approved by Congress decades ago violates the plaintiffs’ constitutional rights as well as states’ rights.

It’s “a true bipartisan case because it energizes the left with patient advocacy issues and energizes the right with states’ rights issues,” plaintiffs’ co-lead counsel Lauren A. Rudick told Bloomberg Law.

The U.S. Drug Enforcement Administration Schedule I classification means it has “no currently accepted medical use and a high potential for abuse.” It’s also illegal under the Controlled Substances Act.

Efforts over the years to remove pot from the list of drugs that includes heroin and LSD via the regulatory process, Congress, or the courts have fallen short. Nine states and the District of Columbia have signed legislation legalizing recreational use. More than 29 states, D.C., Guam, and Puerto Rico allow its use for medicinal purposes.

Medical cannabis helps keeps three of the five plaintiffs alive in this suit in the U.S. District Court for the Southern District of New York that names Attorney General Jeff Sessions, the complaint says. The plaintiffs include a girl with epilepsy, a boy with a neurological disorder, and an Army combat veteran.

Cannabis Constitutional?

Hiller, PC started practicing cannabis law in 2014 and it comprises about 30 percent of the firm’s work, Rudick, whose practice is dedicated to cannabis law, said.

The plaintiffs here deserve discovery and a trial, Rudick said. She and Michael S. Hiller represent the plaintiffs pro bono, or without charge.

The case was originally brought as an emergency preliminary injunction to allow plaintiff Aleixs Bortell, 12, to travel, but it was denied.

Bortell can’t travel from her home in Colorado or petition the government because of cannabis’s classification, Rudick said.

Bortell has epilepsy and endured multiple life-threatening seizures every day until she began treatment with medical cannabis. She has had no seizures since she began taking medical cannabis three years ago, Rudick said.

Under current law, however, she can’t board a plane to fly to Washington, or petition the government on federal land for legalization of medical cannabis, Rudick said.

This is because she must have cannabis with her at all times in the event of an onset of a seizure, she said. If Bortell were to travel with the drug, she would be committing a federal crime, Rudick said.

The request for an injunction is still pending and the district court Feb. 14 heard arguments on the government’s motion to dismiss.

The Justice Department argued that the plaintiffs first have to petition the DEA before suing the government.

The plaintiffs allege that such an application could take 10 years.

Their complaint alleges that the drug’s classification violates their due process and equal protection rights as well as their rights to petition the government for redress of grievances, to travel, and to preserve their life.

It also alleges that Congress doesn’t have a right to regulate intra-state activities that have no impact on the national economy, like medical marijuana.

Treating Post-Traumatic-Stress

The other plaintiffs are former NFL lineman Marvin Washington; Jagger Cotte, 7, of Georgia who suffers from Leigh Syndrome, a neurological disorder that typically results in death after two or three years; disabled Iraq War veteran Jose Belen, who suffers from combat-related post-traumatic stress disorder; and the Cannabis Cultural Association.

Washington wants, but is ineligible because of the controlled substances law, to obtain grants under the Federal Minority Business Enterprise program. With that money he could open a business that would allow former football players to use medical cannabis as a response to harms caused by repeated head trauma, and to reduce opioid dependency and addiction.

Cotte has prolonged his life by two years beyond his prognosis and has been able to control his excruciating pain through his treatment with medical cannabis, Rudick said.

Belen uses the drug to treat his PTSD and suicidal thoughts.

The Justice Department didn’t return a request for comment.

If the plaintiffs prevail on the injunction, Bortell will be able to travel freely. If they win on the merits, cannabis would be descheduled, Rudick said.

Everyone has a fundamental right to preserve their life, and descheduling cannabis gives the plaintiffs that right, she said.

The Law Offices of Michael Kennedy P.C. and the Law Offices of Joseph A. Bondy also represent the plaintiffs.

The case is Washington v. Sessions, S.D.N.Y., No. 1:17-cv-05625, argued 2/14/18.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com