Boulder attorney Andrew Reid of the law firm Springer & Steinberg, on behalf of Nederland area resident Kathleen Chippi and the Patient and Caregiver Rights Litigation Project (PCRLP), has filed an amicus curiae (“friend of the court”) brief to the Colorado Supreme Court containing arguments that might finally end the doctrine that that federal law overrides state medical marijuana laws. In a bold contention, Reid claims that medical marijuana is not covered by the federal Controlled Substances Act (CSA), because Congress never intended it to be.
The Colorado Supreme Court’s review of this issue, in the case of Coats v. Dish Network, should bring much-needed clarity to the rights of medical marijuana patients in Colorado. If successful, Reid and Chippi claim that their arguments could have a national impact by stopping the federal Drug Enforcement Administration (DEA) from prosecuting medical marijuana use and distribution in all states where these activities are protected by local law.
Brandon Coats, a paralyzed medical marijuana patient, was fired from his job at Dish Network after testing positive for THC on a random drug screening. Coats, through his attorney Michael Evans, argued that since he was a legal medical marijuana patient under the Colorado Constitution, his offduty use of medical marijuana was covered under the “Colorado Lawful Off-Duty Activities Statute” (CLODAS). Therefore Dish Network could not legally fire him.
The Colorado Court of Appeals ruled that Coats’ use of medical marijuana is not covered by CLODAS, even though medical marijuana is protected in the state Constitution, because marijuana is illegal under federal law.
The Coats’ case highlights the doctrine of “federal preemption,” which means that federal law usually overrides or “preempts” state law. Federal preemption is at the heart of thousands of cases throughout the country where the federal government has prosecuted medical marijuana patients for activity that is legal under their own state laws.
In his amicus brief, Reid attacks the issue of federal preemption at its core by presenting a novel legal theory. He argues that the U.S. Congress never intended to ban medical marijuana when they listed marijuana in the federal CSA. When the CSA was enacted in 1970,
Congress listed marijuana as a Schedule 1 drug, meaning it has a “high potential for abuse” and “no currently accepted medical use in treatment in the United States.” However, its listing was supposed to be only temporary, until the Nixon administration’s National Commission on Marihuana and Drug Abuse (also known as the Shafer Commission) could complete its investigation into the harm and benefits of marijuana.
When the Commission released its final report on marijuana in 1972, they found that marijuana was safe and recommended that it be decriminalized altogether. Nixon, of course, chose to ignore those findings and instead officially started the War on Drugs (which Chippi calls “the longest-running war in U.S. history”.)
According to Reid, the issue of whether medical marijuana should be included in the CSA along with nonmedical use of marijuana was never properly decided. Reid writes: “A decision upon the temporary scheduling of cannabis in Schedule I has never been made by the Attorney General as required by the CSA, although over 40 years have passed since it was first listed.”
Constitutional law is Reid’s specialty, and he has been studying the issue of federal preemption as it relates to medical marijuana for years. Although other cases have argued federal preemption with regards to medical marijuana, Reid claims that his arguments are unique and that this is a case of “first impression” for the Colorado Supreme Court. Reid writes, “Neither the United States Supreme Court, this Court, nor any other high court has as yet engaged in a proper and full Preemption Doctrine analysis to determine whether the Congress, the drafters of the federal CSA, ever intended to include state recognized medical uses of marijuana in the CSA’s Schedule 1 listing of marijuana, or whether the listing was intended to be limited to non-medical uses.”
Reid contends that patients will be harmed if the Court of Appeals ruling in the Coats case “that federal CSA criminalization of marijuana covers the lawful use and possession of medical marijuana under state law” is allowed to stand. Reid maintains that dozens of “occupations, occupational licenses, permits, and state benefits” will be denied to thousands of legal medical marijuana patients because “their possession and consumption of their medication” would be considered illegal.
Reid says that it is only because of the “largesse” of President Obama that thousands of patients and medical marijuana providers are not being prosecuted for federal marijuana crimes. “In two years when we have a new president, the current federal leniency on medical marijuana could easily end,” he says.
The Colorado Supreme Court is expected to rule by July. The amicus brief can be found online at www. CannabisLawsuits.com.
— Laura Kriho is a member of the Cannabis Press Association.