Judge Dismisses Case Challenging Federal Prohibition

A decision was handed down today in the landmark Washington v. Sessions case: Case dismissed.

From the U.S. District Court’s Southern District of New York, the presiding Judge Alvin Hellerstein released his 20-page decision to dismiss the case on Monday afternoon. “The defendants’ motion to dismiss the complaint is granted,” he wrote. “The clerk is instructed to terminate the motion, mark the case as closed.”

Plaintiffs Marvin Washington, Dean Bartell, Alexis Bortell, Jose Belen, Sebastien Cotte, Jagger Cotte and the Cannabis Cultural Association had filed their complaint against the federal government on July 24, 2017. Oral arguments were heard on Feb. 14.

With Judge Hellerstein’s ruling, the plaintiffs’ bid to constitutionally challenge the Controlled Substances Act (CSA), which classifies marijuana as a Schedule I drug, has officially failed this round.

Despite the fact that the case was dismissed, it still was able to bring publicity to the federal cannabis movement, highlighting citizens with genuine afflictions that cannot get the relief they readily deserve and which is proven to work for them. The plaintiffs included Bortell, who is a 12-year-old girl suffering from epilepsy, and Washington, who is a former NFL player.

Judge Hellerstein’s ruling to dismiss Washington v. Sessions was based on several grounds, specifically that the Controlled Substances Act did not impede the First Amendment rights and the “right to travel” of the plaintiffs, which was what their lawyers were arguing. Judge Hellerstein ruled that, while the First Amendment protects the plaintiffs’ right to travel within a state, it did not apply to federal law or the Controlled Substances Act.

“Unfortunately, Alexis Bortell’s medical condition was deemed by Judge Hellerstein to be beyond redress in this particular challenge,” said attorney David Holland, who was representing the plaintiffs. “Hellerstein has sided with courts which have found that there is no fundamental right to use medical cannabis for a health condition. Therefore, her bodily integrity claim is not cognizable by the court.”

Bortell will remain a medical marijuana refugee, who cannot return home with her medicine until it is available in the state of Texas. Sufferers of PTSD, such as plaintiff Jose Belen, are subject to further trauma, if they are arrested for traveling with their medicine.

Another significant factor of the ruling to dismiss the case was that Judge Hellerstein believes that civil litigants should have first petitioned the FDA to reschedule cannabis. He suggested that only after petitioning the FDA could relief be sought in the courts, as described and set forth in the CSA.

Essentially, Hellerstein seems to have passed the buck, rather than take the opportunity to correct the outdated Controlled Substances Act, according to several lawyers who spoke with Cannabis Now.

A third significant issue discussed by Judge Hellertstein was that he believed that the racial animus of President Nixon could not be attributed to Congress, which drafted the CSA and determined the initial scheduling of cannabis. This point came in response to the argument put forth by the Cannabis Cultural Association, represented by their board member Joseph Bondy, who was arguing that the Controlled Substances Act has been enforced more strongly against communities of color.

(In a twist of irony, at the same time that Judge Hellerstein’s court clerk was filing his ruling, a New York City Council hearing down the street was simultaneously reviewing racial disparities in the city’s marijuana arrests.)

Despite the ruling, the plaintiffs’ lawyer Holland expressed appreciation for his colleagues.

“While this has been a disappointing set back to the battle to reschedule, great kudos is due to our litigation team,” he told Cannabis Now. “We were able to bring this battle into the mainstream conversation where the general public was able to identify with the suffering of many of these plaintiffs and empathized with efforts to seek simple, safe, effective medical relief.”

They may have lost this battle, but the war continues. There is a path forward for the plaintiffs, which is to take this matter up on appeal to the Court of Appeals for the Second Circuit. It is doubtful that they will attempt to file a petition to reschedule with the FDA, given the futility of such an undertaking as proven by many litigators before them.

This ruling does not set precedent for other cannabis cases, because it follows in the footsteps of previous cases that have established the legal basis for a judge ruling against cannabis rescheduling.

It is likely the case will be eventually be appealed to a higher court, where it may potentially require a ruling from the United States Supreme Court.

TELL US, do you think the judge should have dismissed Washington v. Sessions?