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June 21, 2014

Citing Windsor, marijuana defendant aggressively attacks federal prosecution

This interesting local article from Michigan, headlined "Attorney says marijuana wrongly classified as dangerous drug, federal prosecution unfair," highlights interesting arguments being made in a local federal prosecution:

A West Michigan man facing federal marijuana charges has filed a constitutional challenge based, in part, on disparate federal prosecution in different states. Shawn Taylor, the alleged leader of a marijuana grow operation, also argues that marijuana has medicinal value and should not be classified as a Schedule 1 drug -- the designation for the most dangerous drugs.

Taylor is seeking an evidentiary hearing on the issues before U.S. District Judge Robert Jonker in Grand Rapids.  “We’re raising arguments that have really never been raised before in a federal marijuana case,” former Kalamazoo attorney John Targowski, now practicing in Santa Monica, Calif., said on Thursday, June 19, after he filed an 86-page brief on behalf of his client. “We’re arguing that cannabis is wrongly scheduled -- it has medicinal value,” Targowski said.

Taylor is one of 37 people arrested for alleged roles in grow operations in Kent, Muskegon, Oceana and Ottawa counties and Traverse City.

Targowski said that a U.S. Supreme Court decision invalidating the Defense of Marriage Act should have bearing on marijuana cases.  “Recognizing the historical support for defining marriage as between one man and one woman, the court determined that it was the duty of the judiciary to rectify past misperceptions which result in constitutionally unsound legislation,” Targowski wrote in court documents.

“Like the long held beliefs regarding the marital relationship, the long held beliefs about the effects of marijuana have evolved. While the former evolution has been the result of societal ideologies, the latter is predicated on scientific evidence, and therefore, can be more readily established through an evidentiary hearing.”

Targowski has asked that Jonker consider declarations of three experts, including a former FBI supervisor and a physician, to establish there is no rational basis to treat marijuana as a controlled substance.  Medical science has documented that “marijuana has a notably low potential for abuse,” Targowski wrote.

He said the Supreme Court has acknowledged its medical value.  “Compared to other over-the-counter substances, cannabis has the lowest potential for abuse, as it is impossible to die from an overdose: further, no studies have proven that the use of cannabis causes harms similar to those caused by the use of common over-the-counter medications, even at recommended dosages,” he wrote.  “In effect, the facts upon which marijuana was scheduled as one of the most dangerous narcotics in 1970 have been disproven.”

He also said that the government’s policy of not prosecuting those who comply with their state’s medical marijuana laws amounts to unequal prosecution based on where people live.  “The policy statement presented in the memorandum to U.S. Attorneys from Deputy Attorney General James Cole, issued on Aug. 29, 2013, by Attorney General Eric Holder has resulted in a discriminatory application of federal law, in that it protects similarly situated individuals from criminal sanctions for actions identical to that alleged to have been conducted by the defendant, and therefore violates the Equal Protection Clause,” Targowski wrote.

The government contends Taylor ran a large-scale drug operation that sold marijuana in Michigan, Indiana and Ohio.  He worked with a doctor for “certification clinics” for alleged patients, police said. The government said Taylor used the state’s medical marijuana law as a ruse.

As the title of this post suggests, I find the argument based on the Supreme Court's rejection of DOMA in the Windsor ruling the most intriguing (and perhaps most viable) argument here. Until I can see the defense's 86-page filing in this case, as well as the feds response, I am disinclined to predict whether the defendant here will even secure an evidentiary hearing to present all his best evidence to attack federal marijuana law and policy. But I am already inclined to predict that these kinds of arguments could become a real game-changer if hundreds of federal marijuana defendants were to start raising them in dozens of federal district courts.

Cross-posted at Marijuana Law, Policy and Reform

UPDATE:  The lawyer representing Shawn Taylor in the federal indictment in the western district of Michigan reported to me via e-mail that he "essentially replicated work that has been successful in another case in the Eastern District of California, which has led to the scheduling of an evidentiary hearing later this summer to allow the defendant to raise the issues with expert testimony." He tells me that "California attorneys Zenia Gilig and Heather Burke wrote the originally brief in the ED of CA case {though] their work didn't get any press." He also provided this link to a California blog covering the case out there which has some pdfs of some key documents.

June 21, 2014 at 09:09 AM | Permalink


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Winsdor is ultimately an equal protection case (via the federal due process route). The first section explains how marriage was historically generally something left to be developed by the states with certain constitutional limitations and federal regulations. DOMA was held to be an invidious discriminatory "unusual" departure from this.

I'm sympathetic to some sort of liberty claim at least in regard to medicinal marijuana. We can point to how the states historically had a broad power to regulate medicine and police power. But, Gonzalez v. Raich (with the liberals joining in) held that the federal government (unlike for marriage) has an enumerated power, commerce, here.

Likewise, unlike cases that recognized that homosexuals must be respected for equal protection purposes, the USSC did not recognize a liberty interest in marijuana use as of yet. This was actually tried after the USSC ruled as it did in G v. R, but the 9th Circuit rejected a substantive liberty interest in medicinal marijuana.

The citation to Windsor seems too cute. Handling of drugs, like marriage, might evolve in certain ways, but given the Commerce Clause and the lack of a liberty interest like marriage, the feds have more power to close over such evolving. At least, under current precedents.

Posted by: Joe | Jun 21, 2014 10:42:05 AM

I support the decriminalization of marijuana. I agree that it's classification as a Schedule 1 drug is not empirically sound.
Any substantive victories in litigating these issues will not, however, come from the efforts of self-styled "marijuana reform" attorneys like Mr. Targowski.
These types exist to take huge fees from pot dealers who are not even in compliance with their own state's laws, and throw a whirlwind of clever and not so clever legal ululations at the federal court, only occasionally getting a reduced sentence and never a dismissal or acquittal.

Posted by: Wayne-O | Jun 21, 2014 7:01:11 PM

It will never fly. See US v. Carter, No. 12-5045 (4th Cir. Apr. 30, 2014)

In a word, "public safety."

Posted by: George | Jun 21, 2014 11:10:22 PM

Carter is only peripherally about marijuana. It is really about guns.
Carter will not be part the matrix on this issue.

Posted by: Wayne-O | Jun 22, 2014 12:07:52 AM

The case is about "unlawful user of and addicted to a controlled substance" (including marijuana) being a legitimate limitation on the constitutional right to keep and bear arms. It notes that it is acceptable largely given the special degree of violence correlated to such use and addiction. This is relevant in determining independently that use of drugs itself can be made illegal.

But, since even alcohol use can limit other rights and privileges in certain ways, the argument only takes you so far in allowing the banning of the substance, especially if it is used medicinally. Certain medicines have negative reactions somehow correlated to violence. This doesn't necessarily mean one does not have a right to them if necessary for one's health and well being.

The case therefore is of limited value.

Posted by: Joe | Jun 22, 2014 12:44:24 AM

Seems to me the argument equates pot "addicts" with gay couples. Carter found pot addicts so dangerous they should not be allowed to have guns. No courts are finding gay marriage equally as dangerous. Gay couples should be able to sit at home and smoke a joint with a gun in the house if they want, but can't because pot is dangerous, not gays. So the attempt to equate gays and pot fails and "public safety" wins. The only solution is to to reschedule pot and get it out of federal jurisdiction.

Posted by: George | Jun 22, 2014 4:27:48 AM

The case was about "unlawful use" and "addiction" so again since other medicines that are allowed might in some sense be correlated to violence etc., it is unclear to me that it is crystal clear that at least medical use of marijuana would lose out if the rules are evenly handled.

And, ultimately, it about guns. Minors, those with disabilities who could not use them safety, etc. currently constitutionally can be denied guns in various respects. Guns are a special case. The inability of certain people not to be able to use guns doesn't remove all their rights. One might have the right to use certain drugs for medical conditions that make it dangerous for you to have a gun. Denial of the gun doesn't mean the drugs necessarily can be banned.

Anyway, past case law held barriers to gays were legitimate. Prop 8 was upheld a few years ago. Over time, as knowledge, norms and precedents changed, these cases were seen as outdated. The danger of marijuana cited in passed cases can also eventually be seen to be.

Posted by: Joe | Jun 22, 2014 12:23:02 PM

Doesn't this Court claim to support federalism? Isn't the above a motion to stop federalism on a narrow question?

Posted by: Supremacy Claus | Jun 22, 2014 7:24:55 PM

The update is good news. Is Schweder presenting better evidence than Carter did?

Posted by: George | Jun 23, 2014 12:24:02 AM

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