Jan 042014
 January 4, 2014

ninth circuit court medical marijuanaNinth Circuit Court of Appeals to Hear Whether Citizens Have a Fundamental Right Under the US Constitution to Use Cannabis for Medical Purposes

On January 13, 2014, at 9:00 a.m., the Ninth Circuit Court of Appeals, sitting in San Francisco, will hear oral argument on whether citizens in the 9 Western states which make up the Ninth Circuit, have a fundamental right to possess, use, and distribute cannabis for medical purposes as allowed by state law. The underlying lawsuits that have led to the case being before the Ninth Circuit accuse the federal government of unconstitutionally intruding on that fundamental right. All of the 9 Western states in the Circuit have legalized or immunized medical cannabis use and possession.

Entitled Sacramento Nonprofit Collective et al v. Eric Holder et. al,, Case No. 12-15991, the case stems from the massive crackdown by the four United States attorneys in California against patients and collectively-owned dispensaries in California in 2011. During that crackdown, numerous people were arrested and prosecuted and numerous cannabis dispensaries were forced to close after their landlords received letters threatening property forfeitures. In some cases, the Department of Justice did initiate forfeiture proceedings against a number of properties. In response, the plaintiffs in all four federal districts of California – Sacramento, San Francisco, Los Angeles and San Diego – including cooperatives, landlords, and medical cannabis patients such as Briana Bilbray, the daughter of former California Congressman Brian Bilbray, sued the federal government. Their suit aims to allow them to lawfully possess and use cannabis to treat their medical conditions with a doctor’s recommendation without interference by the federal government. A positive ruling will impact the entire Ninth Circuit.

Plaintiffs have sought relief based on a number of legal claims, including whether, after 20 states plus the District of Columbia have enacted laws allowing the use of cannabis as medicine, there now exists a “fundamental right” to such possession and use, a right guaranteed under the US Constitution. Fundamental rights are rights that are either explicitly guaranteed by the Bill of Rights in the U.S. Constitution or are rights that have been recognized as basic to human existence, regardless of the existence of any government regulation or law. In the past, courts have found a fundamental right to interstate and intrastate travel, a right to privacy and particularly, within that privacy right, the right to marry, the right to procreate, the right of a woman to choose to have an abortion before fetal viability, the right to use contraceptives, and the right of unrelated people to live together.
One of the more recently recognized fundamental rights by the U.S. Supreme Court in 2003 was the right of people to engage in private, consensual sexual activity, a case stemming from the arrest of two gay men in Texas prosecuted under that state’s anti-sodomy laws. That case was Lawrence v. Texas.

David Michael, one of 7 attorneys on the plaintiffs’ legal team, will argue the case before the Ninth Circuit. Attorney Michael was also lead counsel in Raich v. Gonzeles, where, in 2004, this same Ninth Circuit ruled that the Commerce Clause of the U.S. Constitution did not apply to the intra-state growing and possession and use of medical cannabis. Seventeen months later, in 2005, the case went before the U.S. Supreme Court, which narrowly reversed the Ninth Circuit, holding that the Commerce Clause gave broad powers to the federal government over any activity that could impact interstate commerce. However, the Supreme Court has never weighed in on the issue of whether the possession and use of cannabis for medical purposes has now become a fundamental right.

The Ninth Circuit, though, did address the fundamental rights question when the Supreme Court sent the original case back down in 2007. At that time, only 11 states had a medical cannabis law in place. The Ninth Circuit, in its 2007 decision, Raich II, did portend however, that the courts would eventually recognize this right. The Ninth Circuit panel stated that “federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected.”

Now that 20 states plus the District of Columbia have recognized medical cannabis, and other states have decriminalized cannabis use and possession, which encompasses more than 53% of the population of this country, Plaintiffs and their attorneys believe that the day has indeed dawned for society to finally recognize the medical use of cannabis as a fundamental right and that the federal courts, beginning with this Ninth Circuit, will now recognize that right and decide that it trumps any federal law to the contrary.

Source: NORML - make a donation

About Johnny Green

Johnny Green is a marijuana activist from Oregon. He has a Bachelor's Degree in Public Policy. Follow Johnny Green on Facebook and Twitter. Also, feel free to email any concerns.
  • Choom Gang

    edit delete, changed my mind…..sorry.

  • Sarijuana

    Wow. I’ll try my best to be optimistic!

    • jimmyTumbleweed

      I live in Washington its coming

  • Burlwood Barry

    the feds will be the last to know because they have chosen the side of willful ignorance. how can anyone in their right mind take these clowns seriously? i know in my heart of hearts that if they were to #puffpuffpass a couple of times, they’d see it our way… real quick like.

  • Jetdoc

    It’s MY opinion that day WILL come within the next 3 years. With 21 states plus DC, that day just might already be upon us. I guarantee you that’s EXACTLY what Obama’s hoping for. He does NOT want to be known as the President that LEGALIZED CANNABIS! That’s why he’s ORDERED Federal Prosecutors to lay off of States that have legalized cannabis. He recognizes that public opinion is SWIFTLY heading toward legalization. He’s HOPING that the Federal Courts will rule it legal, enough states will legalize it or possibly Congress will succumb to Popular Opinion before he leaves office. That way we can override Federal law & HE won’t have to be known as the “President who legalized pot” But that day is NEAR!

    • micko

      Override federal law… so you guys don’t even have law? Just “capitalism” Sad

      • lance

        It might be sad….like us having to teach the world …..most everything 1st.
        Try being a leader….instead of a critical follower

    • Big Johnson

      Obama does not give a rats ass about anything at this point, he is set for life with a lifetime paycheck, a book deal in the future I’m sure. He is a joke, and a puppet, an empty suit. Your random use of caps makes no sense except TO you. Obama will go down as a huge failure as a president. As a black man I am really pissed off at him.

      • MrPC

        Your ability to see into the future and report history’s evaluation of Obama as President is remarkable. With that skill, you should be able to get a decent book deal yourself.

        • Slappy

          With your skill for insulting people when they share their opinions, I’m sure a well deserved ass beating is in your future Mr. PCP

          • Rev Bongwater

            Mr PC this is your ISP, we are concerned about the amount of kiddie and animal porn you have downloaded. Have a good day and tell the gideon’s your sorry

          • MrPC

            When their opinions are so poorly informed and irrational that I am compelled to respond, I believe it is my right to do so. No?

          • Slappy

            Here are the facts , President Barack Obama is ending his fifth year in office with the lowest approval ratings at this point in the presidency since President Richard Nixon, according to a new Washington Post/ABC poll released Tuesday.Obama’s approval rating in the poll stands at 43%. By comparison, President George W. Bush had a 47% approval rating at the end of the fifth year of his presidency. And all other Post-World War II presidents had approval ratings above 50% — with the exception of Nixon, who, amid the Watergate scandal, had a dreadful 29% approval rating.

            Read more: http://www.businessinsider.com/obama-approval-rating-polls-nixon-2013-12#ixzz2pgJIpQNH

          • MrPC

            Slappy, here is another fact: In the 1970’s, fewer than 20% of Americans believed that marijuana should be legalized, according to polls. As you probably know from reading this blog, those numbers have dramatically changed over time. Fortunately, historians actually look at facts, not the propaganda that forms the short-term opinions of many.

          • Grim Reefer

            This has nothing to do with the fact that obama is one the most worthless men to ever hold office. You should run for local, city or state government with your smoke and mirrors approach to being truthful

          • MrPC

            You are certainly entitled to your opinion, even if it is based on the agitprop of AM talk radio pundits whose primary concern is making more money for themselves. But don’t confuse those opinions with the long view of history. And if you are convinced that everyone who holds political office is inherently evil, consider the alternative – no government at all. I think those unfortunate folks who live in places where anarchy reigns would trade places with us in a heartbeat.

          • Cherokee

            Good points, All I care about is the feds keeping their word and leaving medical marijuana and legal marijuana alone. I am a freedom fighter and a martyr for the cause. My willingness to do so will follow me to my death. Divided we fall, united we stand.

          • Grim Reefer

            True enough for me to agree with you, all news thats forms our opinions is under government control. Peace

        • Vaginal Jane

          With your amazing wit and smart ass skills I’d bet you are in a wonderful relationship and have many caring friends

          • Soupy Sales

            Arguing with people on message boards is like competing in the Special Olympics. Everyone’s a winner, but in the end your still retarded.

          • Loving Parent

            My son is mentally and handicapped and does compete at various events at school and everyone is a winner just for trying. Because of your poor choice of words it shows you are a person with poor taste in expressing yourself. Maybe you have a mental issue that would cause you to speak in such a rude way.

          • Loving Parent

            Forgive my typing skills as I am still learning to speak and write english

      • Randy Baker

        as a white man im pissed at him too lol

        • Big Johnson

          I hear you bro!

      • Conservatives4Legalization

        Amen

      • Jetdoc

        It obviously made enough sense that you understood EXACTLY what I was trying to say!

    • Jamie Guest

      Funny Jet I just said it 2 days ago…he doesn’t have the balls to stand up for this decision and doesn’t want to be “the One” who did it…great AZ pict by the way

  • Paul Lucas

    Thank God. Im a terminally ill patient n California being charged with intent to sell for 10.7 ounces alone in two mason jars. How do I join the lawsuit as a plaintiff?

    • Christopher Steele

      Considering how far the case has already gone, I don’t think you can. No sort of expert though. However, I think if they do deem medical marijuana a fundamental human right or what not you could get your personal case dropped.

    • moldy

      Are you saying just for possessing 10.7 oz you’re charged with intent? Get a lawyer but it sounds like as an MMJ patient, they can’t touch you.

      • Paul lucas

        yes just 10.7 ounces. Long story on the lawyer. but I got a good one now. had Public defenders prior to this. 2.5 years later in this case.

  • Choom Gang

    edit delete, changed my mind.

  • Jamie Guest

    federal law is blind to the wisdom of a future…. woohoo! is all i can say… good stuff

  • Jamie Guest

    federal law is blind to the wisdom of a future…. woohoo! is all i can say… good stuff

  • Stephen Aiken

    Yes, the people have a fundamental to use cannabis. Read Amendment IX of the U.S. Constitution, it says ” The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Basically, that means the “We the people” have the right to do as we please, as long as we do not harm others, either physically or financially.

    • Slippy

      As a senior citizen 76 in pain all the time dr put me on Percocet then tell me I’m addicted to them and offer me suboxone that makes me so sick I have to call an ambulance to take me to the emergency room then someone says try pot witch really helped but I am scared to death that I’m going to be arrested so I go to a pain clinic they take a urine test and guess what they say they can’t help me anymore don’t dr take an oath to help sick people is the dea so strong that it controls drs and a man of the senate can get a slap on the wrist and go back to work you got to be kidding me I worked all my life only to be told to suffer in my old age unless you young people fix this big brother will become a real thing. God bless

  • Mark Elrod

    How about the right to use it for any reason they see fit? People can drink themselves to death, & that is their choice. Where are the choices for marijuana users?

    Also, does anybody see the corelation between government entities & the Mafia? They both “lean” on people to enforce their will.

  • T BOY

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  • nedmorlef

    here in the south they steal houses as fast as they can poison your dog.
    i got a sheriff that’s been literally crawling in my shrubbery for 16 years. The funny thing is they didn’t come here because, i’m a user. They came here because i walked up on the county District Attorney involved in criminal activity. They sought to shut me up so, it wouldn’t ruin their hard work..

    After getting me fired from a couple of high paying jobs, handing out my bank info to “informants” I am not able to keep a job or money so, i began smoking for all the medical issues I have.

    I’ve always been a supporter and very casual user however, my work for celebrities brought a high security clearance. I really have not been able to enjoy weed. The catch though is I am a year round gardener and they thought they could set me up as a grower. I haven’t grown weed since I was a teenager.

    So now with no job there’s now no reason to NOT smoke. So they followed me around enough to finally figure out I was buying from someone and they laid off of the 100 or so K-9 sweeps and breaking into my property. They actually sneak up to my house and lay under my windows sniffing. Remember they killed my dogs. 3 in about a ten year span of time. I think the only reason they didn’t plant something was I had cameras. They basically told me I couldn’t prove those were deputies hiding in my bushes.

    Well they didn’t bring anything and they didn’t take anything away so they aren’t Jehovah’s Witnesses or thieves.

    Anyway, I became an activist to get their money by removing their real estate license. I’ve got lots of time.