Appeals Court hears case on medical value of marijuana

[RainDog]

http://safeaccessnow.org/blog/blog/2012/10/16/appeals-court-hears-case-on-medical-value-of-marijuana/

From Oct. 16th -

In front of a packed courtroom in Washington, the three-judge panel questioned ASA’s Chief Counsel Joe Elford and a federal lawyer about the merits of the scientific case, and the crucial legal issue of “standing.” Standing is a legal concept that restricts the right to sue to injured parties – people who are directly hurt by what they are fighting, and can get relief from a legal judgement. The issue of standing has been the reason why two prior appeals of the DEA’s classification of marijuana were rejected. In the past, patients have not been part of lawsuits against the Controlled Substances Act. The three judges were Merrick Garland, Karen Henderson, and Harry Edwards.

ASA’s Chief Counsel Joe Elford opened his appeal by arguing that the federal “Department of Health and Human Services plays a game of gotcha” by tightly controlling research access to cannabis and then claiming that there is not enough compelling research to justify reconsidering it as Schedule I. The Drug Enforcement Administration erred by determing that cannabis has a high potential for abuse when its findings determine its abuse and harm potential is less than other substances in less-controlled schedules, such as cocaine.

Judge Garland asked Elford if he was arguing that marijuana in fact meets HHS’s standard for studies. ASA’s counsel cited over 200 studies and argued that a circular standard is impossible to meet. He also said that, given that the schedule is relative, the DEA is ignoring even its own studies showing that marijuana has merely a “mild” potential for abuse.

Many observers felt the judges were willing to consider the argument of Michael Krawitz’s direct harm from the Controlled Substances Act, and this issue of “standing” has been the Achilles heel of past lawsuits against Schedule I. However, Judge Garland asked at one point, “Don’t we have to defer to the agency? We’re not scientists. They are.”

actually, the DEA gets its propaganda from the DHHS, who confirm what the DEA wants to hear.

no word yet on the ruling, from what I've seen.

[RainDog]

1. Circuit Court ordered supplemental briefing

http://www.theweedblog.com/dc-circuit-orders-supplemental-briefing-in-federal-landmark-medical-marijuana-case/

Just hours after the U.S. Court of Appeal for the D.C. Circuit heard oral arguments in the federal landmark case Americans for Safe Access v. Drug Enforcement Administration, the court ordered supplemental briefing on the issue of “standing.” In a rare move for a case that has been covered by the Associated Press, Reuters, CNN, Bloomberg News, Los Angeles Times, San Francisco Chronicle, Huffington Post, and others, the request for additional briefing indicates that the court is taking the issue of medical marijuana very seriously.

Yesterday’s order asks the petitioners to provide the court with details about how plaintiff Michael Krawitz, a U.S. Air Force veteran, sustained harm as a result of the federal government’s refusal to recognize the therapeutic value of marijuana. During yesterday’s oral arguments, Americans for Safe Access (ASA) Chief Counsel Joe Elford argued that Krawitz had been denied medical services and treatment from Veterans Administration physicians because of his status as a medical marijuana patient.

Specifically, the court ordered ASA to file a brief not to exceed five pages in order to “clarify and amplify the assertions made [by] Michael Krawitz regarding his individual standing,” and “more fully explain precisely the nature of the injury that gives him standing.” The brief is due by Monday.

If ASA can reasonably show that Krawitz has been harmed by a federal policy that holds marijuana has no medical value, the country’s largest medical marijuana advocacy group may also get the court to rule on the merits of the case — whether the scientific evidence of medical efficacy is ample enough to reclassify marijuana from its current status as a Schedule I substance.

[RainDog]

5. The ASA's brief to the DC Court of Appeals was due Monday, Oct. 22nd

The court has five days to respond after they receive the brief (noted in an earlier post) to further clarify "standing."

http://www.cannabisnowmagazine.com/breaking-news/update-on-asa-appeal

“Standing” refers to the ability of a person or organization to be a party to a lawsuit. According to constitutional principles a person will not have standing to a controversy unless they have somehow been injured, the injury was caused by the person’s opponent in the suit, and action by the court is capable of redressing the injury. In the order requesting the clarification, the Court of Appeals made special mention of Mr. Kravitz’s alleged injury.

Kravitz, a veteran of the U.S. Air Force, suffered an auto accident in 1984 which left him totally and permanently disabled. Veterans Affairs put him on a regimen of potent pain pills with terrible side effects, and when he began using cannabis to help manage his pain and reduce his pill intake, the VA punished him by pulling him from the pain management program. ASA alleges that a rescheduling of cannabis out of Schedule I would open the door for the VA to reform its policies, so that Kravitz will no longer have to choose between legal treatments and tolerable ones.

What does the court’s request mean? Joseph Elford, counsel for ASA, says that the request is a sign that the court is taking the issue of medical marijuana seriously. But the move could presage a serious blow for medical activists.

Jeremy Daw, the author of Weed the People: From Founding Fiber to Forbidden Fruit and a graduate of Harvard Law School, notes that the move could signal a willingness by the court to delay the appeal or even dismiss it on procedural grounds. “Although it’s quite possible that the court is treading carefully, as ASA contends,” said Daw, “the request for further briefs on a procedural issue may indicate that the court intends to further delay the case by bogging it down on the standing issue. It could even mean that some of the judges on the court mean to try to dismiss the case on procedural grounds without even reaching the merits.”

[RainDog]

2. Some additional info

The U.S. Court of Appeals for the D.C. Circuit is the second-most powerful U.S. court.

http://thinkprogress.org/justice/2012/10/17/1025131/powerful-federal-appeals-court-considers-marijuanas-medical-benefits/

The three judges on the D.C. Circuit panel expressed some sympathy for claims that plaintiffs were harmed by the Schedule I classification, necessary to establish standing to sue in the first place. Judge Harry T. Edwards said at least one of the plaintiffs, Michael Krawitz, had established a strong argument that he had standing based on his inability to obtain medical marijuana through his Veterans Administration doctor to treat chronic pain and trauma. But neither the parties nor the judges devoted much time to an even tougher hurdle: overcoming the court’s traditional stance of extreme deference to the decisions of administrative agencies like the DEA.

Even if the court did side with the plaintiffs, it would likely return the case to the DEA to reconsider its decision or require a hearing on the issue, and the agency has already declined to reclassify marijuana several times before in 1972 and again in 1988, even after an Administrative Law Judge ruled that the drug should be reclassified.

from a comment at ASA:

Judge Edwards was appointed by President Carter. He has been a law professor at several Ivy League schools. It appears that he was strongly involved in the civil rights movement, or at least had close friends that were. Wikipedia also shows that Judge Edwards was heavily involved in the Committee on Identifying the Needs of the Forensic Science Community. The Committee published a report that did NOT simply follow the status quo, but instead recommended major changes. Judge Edwards’s biography strongly suggests that he will be fair and impartial and willing to consider change in our nation’s drug policy laws.

Judge Henderson worked for over 10 years as a prosecutor and was nominated to the federal bench by Ronald Reagan (trial level) and George H.W. Bush (appellate level). As compared to Judge Edwards, Judge Henderson appears much more conservative.

Last, Judge Garland. Appointed by Clinton. Clerked for Brennan (well-known as a very liberal Justice). Also spent substantial time as a prosecutor. It appears that Judge Garland is moderate, which is good. He will likely be fair and impartial about this issue.

Kravitz, whose issue of "standing" is under consideration, is also the executive director of Veterans For Medical Marijuana Access. His site provides this bg:

http://www.veteransformedicalmarijuana.org/content/about-vmma

A disabled United States Air Force Veteran, Michael Krawitz served from 1981 to 1986 and was injured in an accident in Guam that was
deemed "in the line of duty" although not in any way combat related.

Mr. Krawitz had 13 surgeries to put him back together including some done in the Air Force and some done by the Department of Veterans Affairs. His job title in the Air Force was Electronic Warfare Systems Technician.

In Guam he worked on avionics equipment onboard B-52's. Since his disability - separation he attended college at Virginia Tech and although attaining a 4.0 grade point average in his Junior year of Computer Engineering he had to leave
college because of his medical disability.

Since leaving college Mr. Krawitz tried to use his time well as an advocate and in 1997 he was part of a small team of activists that protected Virginia's longstanding medical marijuana law from being repealed. In 1998 he was able to be part of a United Nations drug summit. He gave testimony and presented information inside the UN General Assembly Hall on the basic right to access required medicine. In 1999 Mr. Krawitz presented testimony to the National Academy of Science, Institute of Medicine and his story and that of a patient he advocated for were both chosen as reference patient stories and published in the reports written.

[felix_numinous]

3. Thanks for the updates

what an important case.

[RainDog]

4. I have no idea how it's going to go

but I'm glad we continue to see groups bring this up with federal agencies who are stuck in the 1930s.

thanks for the thanks!