Pubdate: Thu, 22 May 2014
Source: Boulder Weekly (CO)
Copyright: 2014 Boulder Weekly
Contact: http://www.boulderweekly.com/
Details: http://www.mapinc.org/media/57
Author: Laura Kriho
LOCAL ATTORNEY ARGUES FED LAWS DON'T APPLY TO MMJ
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 Court's 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 administration's 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 Reid's 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 CSA's 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.
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MAP posted-by: Jay Bergstrom