New Medical Marijuana Lawsuit Filed Against Attorney General, DOJ, and DEA

Two and a half weeks ago, a little girl from Rowlett named Alexis Bortell filed a lawsuit in federal court against the federal government because she wants access to medical marijuana here in Texas.  She’s sick; Alexis suffers from epileptic seizures.

Medical marijuana helps her – she doesn’t have the seizures if she uses it.  It’s been a long time now since she has had a seizure.

Alexis couldn’t get medical marijuana here in Texas, because it’s illegal.  So she and her parents moved to Denver, Colorado.  She’s able to access medical marijuana there because Colorado law has legalized it.  But she’s trapped there – she cannot venture outside the state because of the current marijuana laws.

So she has sued the Drug Enforcement Administration; the Department of Justice; and the Attorney General of the United States, arguing that she has a right to possess and use medical marijuana here in Texas, and anywhere else.  Because it’s medicine to her.

For more on Alexis’ personal story, read the January 2015 article written by Dan Solomon and published in Texas Monthly entitled, “A 9-Year-Old Girl is about to Become the Face of Medical Marijuana Activism in Texas.”

Marijuana under the Federal Controlled Substances Act

Under both federal and state law, marijuana is an illegal drug in the State of Texas.  It is listed on the 2017 Schedule of Controlled Substances published by the Texas Department of State Health Services.  And, of course, it is listed on the Justice Department’s list of Controlled Substances too (see page 10).

Under the Controlled Substances Act, marijuana is classified as a “Schedule 1 Drug,” alongside heroin.  For more on drug schedules and federal drug laws, read our discussions in:

• Heroin and Marijuana in Texas: What’s the Federal Government Doing?
• Drug Free Zones in Texas: Serious Issue for Defendants Arrested for Drug Crimes;
• Fentanyl and Heroin Here in Dallas: Dangers of Arrest and More.

And while the U.S. Attorney General has the authority to change or amend the drug schedules, it’s been made clear by Jeff Sessions that he has no interest in changing the current legal position of marijuana under federal law.

Sessions Wants Congressional Okay to Arrest for Marijuana in All States

Furthermore, AG Sessions wants Congress to give him the funding to pursue marijuana charges based upon the CSA despite state laws that have legalized marijuana with the state’s boundaries.

That’s right.  Sessions is so eager to go after marijuana users that he wants to arrest people based upon violations of the CSA even if they are in a state which has legalized medical marijuana.

Read his letter to Congress here:

The 2017 Lawsuit for Medical Marijuana

On July 24, 2017, Alexis’ lawsuit was filed in the United States District Court for the Southern District of New York.  She is not the only plaintiff.  Joining with her are four other plaintiffs; they include former NFL defensive end Marvin Washington.

1. This isn’t the first lawsuit to try and gut the Controlled Substances Act. Advocates for marijuana use have been fighting against the CSA almost from the day it became effective back in 1971.  There’s a list provided in the article published by Leafly entitled, “Lawsuit Takes Big Swing at Prohibition. Can It Connect?”
2. The lawsuit does have some new arguments. These include that the current federal position on marijuana flies in the face of guarantees provided in the commerce clause of the U.S. Constitution, as well as in violation of due process.
3. Specifically, the lawsuit seeks to have a federal court rule that the Controlled Substances Act is unconstitutional insofar as it classifies Cannabis as a Schedule 1 Drug under (a) the Due Process Clause of the Fifth Amendment; (b) the “fundamental right to travel” and an “assortment of protections guaranteed by the First Amendment; (c) as an unconstitutional act of Congress under the Commerce Clause, as including cannabis in the Controlled Substances Act exceeded its legislative authority and surpassed the “scope contemplated by Article 1 of the Constitution.”  (See paragraph 5 of the Complaint).

Red the full text of the 89 page complaint for further details here:

Arrested for Possession of a Controlled Substance in Texas

It’s commonplace in Texas for police and prosecutors to combine a charge for possession of a controlled substance with other charges.  Things like drug trafficking or possession with intent to sell, are often additional charges to a possession charge.

This means that the accused must defend against several serious felony charges, not just one (the possession charge).   Is there sufficient evidence to prove these added charges?  Maybe not.  And that is frequently a big defense argument in possession cases, urged in a motion to suppress or plea negotiation.

But these scenarios usually involve drugs like heroin, fentanyl, cocaine, or meth.  Not pot.

However, if our Attorney General gets his way, anyone caught with pot or THC or medical cannabis in the State of Texas (as well as Vermont, Colorado, California, etc.) will be subject to the serious felony charges that come under the Controlled Substances Act for Schedule 1 Drugs.

Will this new lawsuit change things?  Or will we need to wait for legislation to legalize medical use of marijuana or its recreation use in Texas?

_____________________________________

For more information, check out our web resources, read Michael Lowe’s Case Results, and read his discussion in ”Conspiracy to Distribute Controlled Substances.”