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Michael S. Hiller (MH 9871) Joseph A.

Bondy (JB 6887)


HILLER,PC LAW OFFICES OF JOSEPH A. BONDY
Pro Bono Attorneys for Plaintiffs Pro Bono Attorneys for Plaintiffs
600 Madison Avenue 1841 Broadway, Suite 910
New York, New York 10022 New York, New York 10023
(212) 319-4000

David C. Holland (DH 9718)


LAW OFFICES OF DAVID CLIFFORD HOLLAND, P.C.
Member, New York Cannabis Bar Association
Pro Bono Attorneys for Plaintiffs
Biltmore Plaza
155 East 29th Street I Suite 120
New York, New York 10016

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK
----------------------------- X
MARVIN WASHINGTON; DEAN
BORTELL, as Parent of Infant ALEXIS
BORTELL; JOSE BELEN; SEBASTIEN
COTTE, as Parent of Infant JAGGER
COTTE; and CANNABIS CULTURAL
ASSOCIATION, INC.,

Plaintiffs,

- against - 17 Civ. 5625

JEFFERSON BEAUREGARD SESSIONS, :


III, in his official capacity as United States
Attorney General; UNITED STA TES
DEPARTMENT OF JUSTICE; CHARLES
"CHUCK" ROSENBERG, in his official
capacity as the Acting Director of the Drug
Enforcement Administration; UNITED
STATES DRUG ENFORCEMENT
ADMINISTRATION; and the
UNITED STATES OF AMERICA,

Defendants.
----------------------------- X

PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO


DEFENDANTS' MOTION TO DISMISS
TABLE OF CONTENTS

PRELIMINARY STATEMENT .................................................. 1

SUMMARY OF ARGUMENT ................................................... 3

FACTS ASSUMED TRUE FOR PURPOSES OF THIS MOTION ...................... 12

ARGUMENT ................................................................ 29

POINT I THE AMENDED COMPLAINT SATISFIES THE


PLAUSIBILITY STANDARD UNDER RULE 12(b)(6) ............ 29

POINT II PLAINTIFFS' FIRST CAUSE OF ACTION STATES A CLAIM


FOR VIOLATION OF SUBSTANTNE DUE PROCESS ........... 35

A. THE CASE LAW UPON WHICH DEFENDANTS RELY IS


OUTDATED, RENDERING THE APPLICATION OF
STAREDECISISINAPPROPRIATE ..................... 37

B. THE CASE LAW UPON WHICH DEFENDANTS RELY,


IN ADDITION TO BEING OUTDATED, IS ALSO
INAPPLICABLE ..................................... 42

C. DEFENDANTS' ARGUMENT THAT CONGRESS IS


EXEMPT FROM MAKING A FINDING THAT THE
THREE SCHEDULE I REQUIREMENTS APPLY IS PURE
BUNK ............................................. 44

D. DEFENDANTS' ARGUMENT THAT ANY RATIONALE


OFFEREDINSUPPORTOFTHECSACANINSULATEIT
FROM CONSTITUTIONAL CHALLENGE SIMPLY HAS
NO MERIT ......................................... 46

POINT III PLAINTIFFCCAHAS STANDING AND STATES A CLAIM FOR


VIOLATION OF EQUAL PROTECTION ....................... 51

A. THE CCA HAS STANDING ........................... 52

1. Background of the CCA .......................... 53

2. The CCA Meets the Requirements of Organizational


Standing ...................................... 54

1
B. THE SECOND CAUSE OF ACTION STATES A CLAIM
FOR RELIEF ........................................ 57

1. The Equal Protection Claim Articulates Allegations of


Intentional Discrimination Against African Americans
and Other Persons of Color ....................... 57

2. The Allegations of the Second Cause of Action Are


Neither Conclusory Nor Threadbare ................ 59

3. Defendants' Argument That the Nixon


Administration's Racial Animus is Irrelevant to the
Equal Protection Claim Fails to Consider the Role of
the Executive in the Modem-Day Presidency, and
Overlooks Particular Actions ofNixon Administration
Officials in Passing and Implementing the CSA ....... 60

POINT IV THE SIXTH CAUSE OF ACTION STA TES A CLAIM FOR


VIOLATION OF PLAINTIFFS' FUNDAMENTAL RIGHT TO
PRESERVE THEIR HEALTH AND LIVES AND THEIR RIGHTS
UNDER THE FIRST AMENDMENT .......................... 66

A. THESTANDARDOFREVIEWFORPLAINTIFFS' SIXTH
CAUSE OF ACTION ................................. 66

B. THE CONSTITUTION PROTECTS THE INDIVIDUAL'S


RIGHT TO PERSONAL AUTONOMY~ TO PRESERVE
HER HEALTH AND HER LIFE ......................... 67

C. THE CSA, ALTHOUGH CONTENT-NEUTRAL,


INFRINGES UPON PLAINTIFFS' FUNDAMENTAL
RIGHT TO FREE SPEECH, AND IS THUS RENDERED
UNCONSTITUTIONAL UNDER APPLICABLE LEVELS
OF JUDICIAL SCRUTINY ............................. 72

1. The Sixth Cause of Action States a Claim Under the


0 'Brien Analysis ............................... 73

2. Defendants Cannot Meet the Requirements of the


Ward Analysis ................................. 77

3. Defendants' Argument That No Free-Speech Rights


Are Implicated Herein Has No Merit ................ 79

ii
D. DEFENDANTS CANNOT SUBJECT ALEXIS AND JOSE
TO A ROBSON'S CHOICE OF RELINQUISHING ONE
FUNDAMENTAL RIGHT IN ORDER TO EXERCISE
ANOTHER ONE ..................................... 85

POINTY PLAINTIFFS' THIRD CAUSE OF ACTION STATES A CLAIM


FOR VIOLATION OF PLAINTIFFS' FUNDAMENTAL RIGHT TO
TRAVEL ................................................. 86

A. THE CLASSIFICATION OF CANNABIS AS A


SCHEDULE I DRUG UNCONSTITUTIONALLY DENIES
PLAINTIFFS OF THEIR FUNDAMENTAL RIGHT TO
TRAVEL ........................................... 86

B. THE CASE LAW CITED BY DEFENDANTS IS


INAPPOSITE ........................................ 89

POINT VI THE FEDERAL GOVERNMENT LACKS THE POWER TO


ENACT AND ENFORCE THE CSA UNDER THE COMMERCE
CLAUSE ................................................. 91

A. CONGRESSIONAL COMMERCE POWER TO


REGULATE STATE-LEGAL CANNABIS ACTIVITY IS
VOID UNDER THE DOCTRINE OF DESUETUDE ......... 91

B. CONGRESS LACKS AUTHORITY UNDER THE


COMMERCE CLAUSE TO ENACT LEGISLATION TO
REGULATE INTRASTATE, NON-COMMERCIAL
CANNABIS ACTIVITY ............................... 95

C. PLAINTIFFS' ACTIVITIES FALL OUTSIDE THE SCOPE


OF THE COMMERCE CLAUSE ........................ 96

D. THECOURTSHOULDREJECTGONZALEZv. RAICHAS
BAD LAW .......................................... 98

POINTVII PLAINTIFFS' AMENDED COMPLAINT COMPLIES WITH RULE


8(a)(2) AND SHOULD NOT BE DISMISSED .................. 101

POINT VIII DEFENDANTS' RULE 12(B)(l) ARGUMENT FAILS AS A


MATTER OF LAW ........................................ 103

CONCLUSION ....................................................... 109

111
TABLE OF AUTHORITIES

Abigail Alliance for Better Access to Dev 't. Drugs v.


Von Eschenbach,
495 F.3d 695(D.C. Cir. 2007) ................................................... 71

Allen v. Cty. ofLake,


2015 U.S. Dist. LEXIS 12091 (N.D. Cal. Feb. 2, 2015) ............................... 43

Allied Stores o_f Ohio, Inc. v. Bowers,


358 U.S. 522 (1959) ........................................................... 47

Alternative Cmty. Health Care Coop., Inc. v. Holder


2012 U.S. Dist. LEXIS 28878 (S.D. Cal. Mar. 5, 2012) .............................. 105

Amguard Ins. Co. v. Getty Realty Corp.,


147 F. Supp. 3d 212 (S.D.N.Y. Nov. 20, 2015)..................................... 30

Anthony v. Franklin County,


799 F.2d 681 (11th Cir. 1986) ................................................... 35

Arcara v. Cloud Books, Inc.


478 U.S. 697 (1986) ........................................................... 81

Arista Records LLC v. Doe,


604 F.3d 110 (2d Cir. 2010).................................................... 30

Ashcroft v. Iqbal,
556 U.S. 662 (2009) ........................................................ 30, 31

Atherton v. FDIC,
519 U.S. 213 (1997) ........................................................... 63

Barnhart v. Sigmon Coal Co.,


534 U.S. 438 (2002) ........................................................... 46

Bell Atl. Corp. v. Twombly,


550 U.S. 544 (2007) .................................................. 29, 30, 31, 34

Bery v. City o_fNew York,


97 F .3d 689 (2d Cir. 1996) ...................................................... 74

IV
Bison Capital Corp. v. ATP Oil & Gas C01p.,
2010 U.S. Dist. LEXIS 62836 (S.D.N.Y. June 24, 2010) ... . ............ .. ... . . .. ..... 31

Bizzarro v. Miranda,
394 F.3d 82 (2d Cir. 2005) ... . .... . ............ .... ....................... . ..... 58

Borden's Farm Products Co. v. Baldwin,


293 U.S. 194 (1934) ................ ............ ............................... 41

Boyce Motor Lines, Inc. v. United States,


342 U.S. 337 (1952) .. . .................. .. . .. . ..... .. .... . .................... 43

Brown v. City ofJacksonville,


2006 U.S . Dist. LEXIS 8162 (M.D. Fla. Feb. 17, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 83

Brown v. Hovatter,
516 F:-.S·ttpp. 2d 547-(D. Mel 2007), ..
aff'd. in part and rev 'd. in part on other grounds,
561 F.3d 357 (4th Cir. 2009) ...... . . ............... ...... .. .. ......... .. .... .... 41

Brown v. United States,


256 U.S. 335 (1921) .. .................. .. . .............................. ..... . 70

Buckley v. Valeo,
424 U.S. 1 (1976) . .. ..... .. .. . ....... . ............. . ............ . .... . . . ..... . 61

Burstyn v. Wilson,
343 U.S. 495 (1952) .... .... . . ......... . .............................. .... ..... 74

Caldwell v. Crossett,
2010 U.S . Dist. LEXIS 56573 (S.D.N.Y. May 24, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31

Carter v. McGinnis,
351 F. Supp. 787 (W.D.N.Y. Nov. 21, 1972) . ... . ....... ... . ..... . .. .. ....... ...... 86

Chapman v. NY State Div. for Youth,


546 F.3d 230 (2d Cir. 2008) ........ . ... .. .. .... . .... ..... ...... ... .. ............ 31

Chastleton Corporation v. Sinclair,


264 U.S. 543 (1924) .... ... ..................................... ......... ...... 41

City ofNew Orleans v. Dukes,


427 U.S. 297 (1976) ................. . .... . . .. .. .... ..... ...................... 35

V
Cohen v. California,
403 U.S. 15 (1971) ......................................................... 73, 74

Colautti v. Franklin,
439 U.S. 379 (1979) ........................................................... 72

Conway Import Co. v. United States,


311 F. Supp. 5 (E.D.N.Y. 1969) ................................................. 93

Cousins v. Teny,
721 F. Supp.426(N.D.N.Y. Sep.22, 1989) ....................................... 88

Cramer v. Skinner,
931 F.2d 1020 (5th Cir. 1991) ................................................... 91

Crandall v. Nevada,
73 U.S. 35 (1868) .......................................................... 88, 89

Cruzan v. Missouri,
497 U.S. 261 (1990) ........................................................ 69, 72

Cyr v. Addison Rutland Supervisory Union,


60 F. Supp. 3d 536 (D. Vt. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 78, 83, 84

Doe v. Bolton,
410 U.S. 179 (1973) ........................................................ 70, 72

Doe v. Salvation Army in the United States,


685 F.3d 564 (6th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Doran v. NY. State Dep't ofHealth Office of the Medicaid Inspector Gen.,
2017 U.S. Dist. LEXIS 29727 (S.D.N.Y. Mar. 2, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . 103, 104

Dias v. City & County ofDenver,


567 F.3d 1169 (10th Cir. 2009) ............................................ 37, 40, 41

Dunn v. Blumstein,
405 U.S. 330 (1972) ........................................................... 88

E. Conn. Citizens Action Grp. v. Powers,


723 F.2d 1050 (2d Cir. 1983) .................................................... 74

East-Bibb Twiggs Neighborhood Ass'n v.


Macon-Bibb Planning & Zoning Comm 'n,
662 F. Supp. 1465 (M.D. Ga. 1987) .............................................. 36

VI
Edelman v. Jordan,
415 U.S. 651 (1974) ........................................................... 88

Edwards v. California,
314 U.S. 160 (1941) ........................................................ 88, 90

England v. Louisiana State Board ofMedical Examiners,


259 F.2d 626 (5th Cir. 1958) ................................................... 70

Flying J Inc. v. City ofNew Haven,


549 F.3d 538 (7th Cir. 2008) .................................................... 37

Fortress Bible Church v. Feiner,


694 F.3d 208 (2d Cir. 2012) ..................................................... 36

Fountain v. Karim,
838 F.3d 129 (2d Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Gallien v. P&G Pharms.,


2010 U.S. Dist. LEXIS 21051 (Mar. 4, 2010) ................................ 30, 31, 34

Gately v. Massachusetts,
2 F.3d 1221 (1st Cir. 1993) .................................................... 37

Gibbons v. Ogden,
22 U.S. 1 (1824) ............................................................. 102

Gibson v. Berryhill,
411 U.S. 564 (1973) ....................................................... passim

Giglio v. Dunn,
732 F.2d 1133 (2d Cir. 1984) .................................................. 108

Gillibeau v. Richmond,
417F.2d426(9thCir.1969) ................................................... 103

Gobeille v. Liberty Mut. Ins. Co.,


136 S. Ct. 936 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Gonzales v. Carhart,
550 U.S. 124 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Gonzalez v. Raich,
545 U.S. 1 (2005) ......................................................... passim

Vil
Grider v. City & Cty. ofDenver,
No. 10 Civ. 722,
2012 WL 1079466 (D. Colo. Mar. 30, 2012) ....................................... 91

GulfCaribe Mar. v. Mobile County Revenue Comm'r,


802 So. 2d 248 (Ala. Civ. App. Ct. 2001) .......................................... 94

Halebian v. Berv,
644 F.3d 122 (2d Cir. 2011) ..................................................... 31

Hannemann v. S. Door Cty. Sch. Dist.,


673 F.3d 746 (7th Cir. 2012) ................................................. 89, 91

Hayden v. Paterson,
594 F.3d 150 (2d Cir. 2010).................................................... 58

Hodgkins v. Peterson
355 F.3d 1048 (7th Cir. 2004) ............................................... passim

Hope/or Families & Cmty. Serv. v. Warren,


2008 U.S. Dist. LEXIS 17107 (M.D. Ala. Mar. 5, 2008) .............................. 47

Huminski v. Corsones,
396 F.3d 53 (2d Cir. 2004) .................................................. passim

Hunt v. Wash. State Apple Adver. Comm'n,


432 U.S. 333 (1977) ........................................................... 53

Ill. League ofAdvocates for the Developmentally, Disabled v. Quinn,


2013 U.S. Dist. LEXIS 145246 (N.D. Ill. Oct. 3, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

lmbruce v. Am. Arbitration Ass 'n,


2016 U.S. Dist. LEXIS 130579 (S.D.N.Y. Sep. 22, 2016) ....................... 30, 31, 34

In re DES Cases,
789 F. Supp. 552 (E.D.N.Y. 1992) ............................................... 93

Jankowski-Burczyk v. Immigration and Naturalization Service,


291 F.3d 172 (2d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Jeno's, Inc. v. Comm 'r. ofPatents & Trademarks,


1985 U.S. Dist. LEXIS 20097 (D. Minn. May 6, 1985) .............................. 37

John v. Whole Foods Mkt. Grp., Inc.,


858 F.3d 732 (2d Cir. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

vm
Kadonsky v. Lee,
Dkt. No. A-3324-14T4 (App. Div. Oct. 31, 2017) ............................... 32, 42

Kalderon v. Finkelstein,
495 Fed. Appx. 103 (2d Cir. 2012) .............................................. 105

Knapp v. Hanson,
183 F.3d 786 (8th Cir. 1999) .................................................... 47

Kohn v. Davis,
320 F. Supp. 246 (D. Ver. Oct. 26, 1970) .......................................... 88

Komlosi v. NY. State Office of Mental Retardation & Dev. Disabilities,


1990 U.S. Dist. LEXIS 2659 (S.D.N.Y. Mar. 12, 1990) ......................... 103, 104

Kosak v. United States,


465 U.S. 848 (1984) ........................................................ 63, 66

Krumm v. Holder,
2009 U.S. Dist. LEXIS 52748 (D.N.M. May 27, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Lawrence v. Texas,
539 U.S. 558 (1995) ........................................................... 50

Leaphart v. Prison Health Servs.,


2010 U.S. Dist. LEXIS 135435 (M.D. Pa. Nov. 22, 2010) ............................. 69

Leary v. United States,


395 U.S. 6 (1969) ............................................................. 14

Leebaert v. Harrington,
332 F.3d 134 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Liverman v. Comm. on the Judiciary,


United States House ofRepresentatives,
51 Fed. Appx. 825 (10th Cir. Oct. 23, 2002) ........................................ 83

Lowery v. Carter,
No. 07 Civ. 7684 (SCR),
2010 WL 4449370 (S.D.N.Y. Oct. 21, 2010) .................................... 89, 91

Lujan v. Deft. of Wildlife,


504 U.S. 555 (1992) ........................................................... 53

lX
Marino v. New York,
629 F. Supp. 912 (E.D.N.Y. 1986) ............................................... 83

Mathews v. Diaz,
426 U.S. 67 (1976) ................................................... 106, 107, 109

McCarthy v. Madigan,
503 U.S. 140 (1992) ....................................................... passim

McCullen v. Coakley,
134 S. Ct. 2518 (2014) ................................................... 74, 79, 80

McDonough v. Smith,
2016 U.S. Dist. LEXIS 135380 (N.D.N.Y. Sep. 30, 2016) ........................ 103, 104

McNeese v. Board ofEducation,


373 U.S. 668 (1963) .......................................................... 107

Memorial Hospital v. Maricopa County,


415 U.S. 250 (1974) ........................................................... 88

Metca/f v. Zou/las,
2012 U.S. Dist. LEXIS 6254 (S.D.N.Y. Jan. 19, 2012) ............................. 30, 34

Metromedia, Inc. v. City ofSan Diego,


453U.S.490(1981) ........................................................... 74

Miller v. Reed,
176 F.3d 1202 (9th Cir. 1999) ................................................... 91

Mi/not Co. v. Richardson


350 F. Supp. 221 (S.D. Ill. 1972) ................................................. 41

Minn. State Bd. for Cmty. Colleges v. Knight,


465 U.S. 271 (1984) ........................................................... 83

Minneapolis Star & Tribune Co. v. Minn. Comm 'r ofRevenue,


460 U.S. 575 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

Mixon v. State of Ohio,


193 F.3d 389 (6th Cir. 1999) .................................................... 44

Montana v. Egelhoff,
518 U.S. 37 (1996) ............................................................ 71

X
Moore v. City ofE. Cleveland,
431 U.S. 494 (1977) ........................................................... 70

Mouse's Case,
12 Co. Rep. 63 (K.B. 1609) .................................................... 71

Murphy v. Lynn,
118 F.3d 938 (2d Cir. 1997) .................................................... 88

Nat'/. Org. for R~form ofMarijuana Laws v. Bell,


488 F. Supp, 123 (D.D.C. 1980) ................................................. 40

Natanson v. Kline,
186 Kan. 393 (Kan. 1960) ...................................................... 71

New York State NOW v. Terry,


886 F.2d 1339 (2d Cir. 1989) .................................................... 88

New York State NOW v. Terry,


704 F. Supp. 1247 (S.D.N.Y. Jan 18, 1989) ........................................ 88

NY State Rifle & Pistol Ass 'n v. City ofNew York,


86 F. Supp. 3d 249 (S.D.N.Y. 2015) .............................................. 91

Olsen v. Holder,
610 F. Supp. 2d 985 (S.D. Iowa Apr. 27, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Palko v. Connecticut,
302 U.S. 319 (1937) ........................................................... 70

Parham v. JR.,
442 U.S. 584 (1979) ........................................................... 69

Pers. Adm 'r ofMass. v. Feeney,


442 U.S. 256 (1979) ........................................................... 58

Planned Parenthood v. Casey,


505 U.S. 833 (1992) ........................................................... 71

Planned Parenthood of Central Mo. v. Danforth,


428 U.S. 52 (1976) ............................................................ 72

Ploofv. Putnam,
81 Vt. 471 (1908) ............................................................. 71

XI
Pollack v. D11ff,
793 F.3d 34 (D.C. Cir. 2015) .................................................... 91

Quill v. Vacca,
80 F.3d 716 (2d Cir. 1996) ...................................................... 93

R.S. v. Bedford Cent. Sch. Dist.,


2011 U.S.Dist.LEXIS41573(S.D.N.Y.Mar.17,2011) ......................... 107, 109

Reedv. Town of Gilbert,


135 S. Ct. 2218 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Reilly v. Noel,
384 F. Supp. 741 (D.R.l. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

Reno v. ACLU,
521 U.S. 844 (1997).................................. . . . . . . . . . . . . . . . . . . . . . . . . 52

Resolution Trust Corp. v. Cityfed Fin. Corp.,


57 F.3d 1231 (3d Cir. 1995) ..................................................... 63

Ricciotti v. Warwick School Committee,


319F. Supp. 1006 (D.R.I. Nov. 6, 1970) ................................. 107,108,110

Riley v. Nat'! Fed'n ofBlind


487 U.S. 781 (1988) ........................................................... 84

Roe v. Wade,
410U.S.113 (1973) ........................................................ 71, 72

Rojas v. AG of the United States,


728 F.3d 203 (3d Cir. 2013) ..................................................... 49

Romer v. Evans,
517 U.S. 620 (1996) ........................................................... 50

Saenz v. Roe,
526 U.S. 489 (1999) ........................................................ 88, 90

Salahuddin v. Cuomo,
861 F.2d 40 (2d Cir. 1988) ..................................................... 105

Schaejjler Grp. USA, Inc. v. United States,


786 F.3d 1354 (Fed. Cir. 2015) ............................................... 35, 48

Xll
Scheuer v. Rhodes,
416 U.S. 232 (1974) ........................................................ 30, 31

Schiller v. Duthie,
2017 U.S. Dist. LEXIS 137937 (S.D.N.Y. Aug. 28, 2017) ........................ 103, 104

Schuh v. HCA Holdings, Inc.,


947 F. Supp. 2d 882 (M.D. Tenn. 2013) ........................................... 63

Shapiro v. Goldman,
2017 U.S. App. LEXIS 16163 (2d Cir. 2017) . .. . . . .. .. . .. . .. . . . .. . . .. . .. .. .. . . 88, 105

Shapiro v. Thompson,
394 U.S. 618 (1969) ........................................................... 88

Simmons v. United States,


390 U.S. 377 (1968) ........................................................... 87

Smith v. fllinois Bell Telephone Co.,


270 U.S. 587 (1926) .......................................................... 106

Sorrell v. IMS Health Inc.,


564 U.S. 552 (2011) ........................................................... 82

Stenberg v. Carhart,
530 U.S. 914 (2000) ........................................................ 71, 72

Terminiello v. Chicago,
337 U.S. 1 (1949) ............................................................ 74

Texas v. Johnson,
491 U.S. 397 (1989) ........................................................... 74

Thomas v. Trump,
2017 U.S. Dist. LEXIS 22278 (W.D.N.C. Feb. 16, 2017) ............................. 105

Thornburgh v. American College of


Obstetricians and Gynecologists,
476 U.S. 747 (1986) ........................................................... 72

Torraco v. Port Auth. ofNY & NJ,


615 F.3d 129 (2d Cir. 2010) ..................................................... 91

Town ofSoutholdv. Town ofE. Hampton,


477 F.3d 38 (2d Cir. 2007) ...................................................... 91

Xlll
United States v. Burton,
894 F.2d 188 (6th Cir. 1990) ................................................ 40, 105

United States v. Carolene Products Co.,


304 U.S. 144 (1938) .......................................................... 41

United States v. Daniel,


813 F.2d 661 (5th Cir. 1987) .................................................... 65

United States v. Elliott,


266 F. Supp. 318 (S.D.N.Y. 1967) ............................................. 93, 94

United States v. Fogarty,


692 F.2d 542 (8th Cir. 1982) .................................................... 40

United States v. Gordon,


580 F.2d 827 (5th Cir),
cert. denied, 439 U.S. 1051 (1978) ............................................... 65

United States v. Green,


222 F. Supp. 3d 267 (W.D.N.Y. Dec. 7, 2016) ...................................... 40

United States v. Greene,


892 F.2d 453 (6th Cir. 1989) .................................................... 40

United States v. Guest,


383 U.S. 745 (1966) ........................................................ 88, 90

United States v. Guzman,


591 F.3d 83 (2d. Cir. 2010) ..................................................... 97

United States v. Heying,


2014 WL 5286153 (D. Minn. Aug. 2014) ....................................... 61, 65

United States v. Hill,


2017 U.S. App. LEXIS 15678 (4th Cir. Aug. 18, 2017) ............................... 43

United States v. Kane,


691 F. Supp. 341 (N.D. Ga. 1988) ............................................... 65

United States v. Kiffer,


477 F.2d 349 (2d Cir. 1973) ................................................. passim

United States v. Lopez,


514 U.S. 549 (1995) ....................................................... passim

XIV
United States v. Lott,
912 F. Supp. 2d 146 (Dist. Vt. 2012) .............................................. 98

United States v. McIntosh,


833 F.3d ll63 (9th Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

United States v. McIntosh,


2017 U.S. Dist. LEXIS 39920 (N.D. Ca. 2017) ...................................... 95

United States v. Morrison,


529 U.S. 598 (2000) ..................................................... 97, 98, 99

United States v. Morrison,


596 F. Supp. 66l(E.D.N.Y. 2009) ............................................ 93, 99

United States v. O'Brien,


391 U.S. 367 (1968) .................................................. 74, 75, 76, 78

United States v. Oakland Cannabis Buyers' Coop.,


532 U.S. 483 (2001) .................................................. 5, 46, 52, 91

United States v. Pickard,


100 F. Supp. 3d 981 (C.D. Ca. 2016) .......................................... 46, 47

United States v. Rue,


2015 U.S. Dist. LEXIS 110850 (S.D. Tex. July 29, 2017) ............................ 43

United States v. Strake,


800 F.3d 570 (D.C. Cir. 2015) ................................................... 63

United States v. Stein,


495 F. Supp. 2d 390 (S.D.N.Y. July 16, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

United States v. Story,


891 F.2d 988 (2d Cir. 1989) .................................................. 63, 66

United States v. Suquet,


551 F. Supp. 1194 (N.D. Ill. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

United States v. Vaid,


2017 U.S. Dist. LEXIS 143495 (S.D.N.Y. Sep. 5, 2017) .............................. 43

United States v. Womack,


654 F.2d 1034 (5th Cir. 1981),
cert. denied, 454 U.S. 1156 (1982) ............................................... 65

xv
United States Dep't ofAgric. v. Moreno,
413 U.S. 528 (1973) ........................................................... 50

Upper Hudson Planned Parenthood, Inc., v. Doe,


1991 U.S. Dist. Lexis 13063 (N.D.N.Y. Sep. 12, 1991) ............................... 88

Vasquez v. Haus. Auth.,


271 FJd 198 (5th Cir. 2001) ................................................. 74, 81

Vitek v. Jones,
445 U.S. 480 (1980) ........................................................... 69

Walker v. Southern R. Co.,


385 U.S. 196 (1966)................................................. 106, 107, 110

Welch v. United States,


2017 U.S. Dist. LEXIS 139771 (W.D. Vir. Aug. 30, 2017) ........................... 105

Western International Hotels v. Tahoe Regional Planning Agency,


387 F. Supp. 429, 434, vac'd in part, on other grounds, sub. nom.
Jacobson v. Tahoe Regional Planning Agency,
566 F.2d 1353 (9th Cir. 1977) ...................................... 106, 107, 108, 109

Wickard v. Filburn
317U.S.111 (1942) ...................................................... 101, 102

Williams v. Town a/Greenburgh,


535 FJd 71 (2d Cir. 2008) ................................................... 89, 91

Wroblewski v. City of Washburn,


965 F.2d 452 (7th Cir. 1999) .................................................... 37

Zappia Middle E. Constr. Co. v. Emirate ofAbu Dhabi,


215 F.3d 247 (2d Cir. 2000) .................................................... 53

Zwickler v. Koota,
290 F. Supp. 244 (E.D.N.Y. 1968) ............................................... 94

Other Authorities

2016 Rescheduling Denial,


81 Fed. Reg. 53 (Aug. 12, 2016) ................................................ 44

XV!
Regulations

21 C.F.R. § 312.34(b)(3) ....................................................... 21

Rules and Statutes

18 U.S.C. §1956 ............................................................. 28

21 u.s.c. §801(2) ............................................................ 48

21 U.S.C. §812 ................................................................ 2

21 U.S.C. §812(b)(l)(A)-(C) .................................................... 45

21 U.S.C. §812(c) ...................................................... 79, 89, 92

21 U.S.C. §843(b) ............................................................ 34

35 u.s.c. §101 ............................................................... 26

The Controlled Substances Act,


Pub. L. No. 91-513, 84 Stat. 1249 .......................................... 79, 89, 92

Patient Protection and Affordable Care Act,


Pub. L. 111-148, 124 Stat. 119 .................................................. 62

Fed. R. Civ. P. 8 .............................................................. 30

Fed. R. Civ. P. 8(a)(2) ............................................ 102, 103, 104, 105

Fed. R. Civ. P. 12(b)(l) ....................................................... 105

Fed. R. Civ. P. 12(b)(6) .................................................... passim

Fed. R. Civ. P. 12(c)(l) ........................................................ 44

United States Constitution

U.S. Const. amend. I .......................................................... 72

U.S. Const. amend. V .......................................................... 69

U.S. Const. amend. XN, §1 .................................................... 57

U.S. Const. amend. XXVI ...................................................... 76

XVll
U.S. Const., Art. I, §8 ........................................................ 100

U.S. Const., Art. I, §9 ........................................................ 100

U.S. Const., Art. II, §3 ......................................................... 60

Legislative History

Comprehensive Drug Abuse Prevention and Control Act of 1970,


H.R. Rep. 91-1444, 91st Cong. (2d Sess. 1970) ..................................... 63

Secondary Sources

American Universities Offering Cannabis Classes This Fall,


Forbes (Sept. 2, 2017) .......................................................... 2

B. Jessie Hill, The Constitutional Right to Make Medical


Treatment Decisions: A Tale of Two Doctrines,
86 TEX. L. REV. 277, 291 (2006) ................................................ 70

Carol Hardy Vincent, Laura A. Hanson, and Carla N. Arguet,


FEDERAL LAND OWNERSHIP: OVERVIEW AND DATA,
CRS REPORT (Mar. 3 2017) ..................................................... 88

Comparison of Bills to Regulate Controlled Dangerous Substances


and to Amend the Narcotic and Drug Laws,
Staff ofH. Comm. Ways and Means (Aug. 8, 1970) .................................. 63

Curtis A. Bradley and Eric A. Posner,


Presidential Signing Statements and Executive Power,
23 CONST. COMMENT. 307, 362 (2006) ........................................... 62

Note, Desuetude, 119 Harv. L. Rev. 2209 (2006) .................................... 92

Douglas Kmiec, Gonzalez v. Raich: Wickard v. Filburn, Displaced,


CATO SUP. CT. REV., 2004-2005 71 (Mark K. Muller Ed., 2005) ..................... 101

Drug Abuse Control Amendment-1970:


Hearings on H.R. 11701 and H.R. 13743 Before the Subcomm.
on Public Health and Welfare of the H. Comm.
on Interstate and Foreign Commerce,
91st Cong. 80 (2d Sess. 1970) ................................................ 15, 63

xvm
George C. Christie,
"The Defense of Necessity Considered from the Legal and Moral Points of View,"
48 DUKE L.J. 975 (1996) ... . .............. . .................. . ................ 70

Hans W. Baade, "Original Intent" in Historical Perspective:


Some Critical Glosses,
69 TEX. L. REV. 1001 (1991) . ... . ........ . .. . ... . ...... . . . ... .. ................. 62

Ilya Somin, Gonzales v. Raich:


Federalism as a Casualty of the War on Drugs,
Cornell Journal of Law and Public Policy, Vol. 15, No. 3 (2006) ......... . .. . ........... 94

Street Authority, Invest In Marijuana Stocks?, NASDAQ (Jan. 18, 2016) ................. . 24

J. Richard Broughton,
The Inaugural Address as Constitutional Statesmanship,
2-8 ~trlNNlPtAe b-REV.-265-Ez010) . ...................... . ... ... ..... .. ...... .. . 6-1

JAMES L. SUNDQUIST,
THE DECLINE AND RESURGENCE OF CONGRESS 33
(Brookings Inst. 1981) ...... . .......................... . ...................... 61

Joseph Misulonas, These Charts Show the Evolution of


America's Marijuana Laws Over Time, CIVILIZED (Aug. 31 , 2017) . ..................... 24

Kathleen Burke, These parents are fighting to give


pot to their kids, MARKET WATCH (Dec. 8, 2015) ... . ................................ 88

Matt Thompson, The Mysterious History Of 'Marijuana',


NPR (July 22, 2013) ........................... . .... . .. ... ... . ............ . ... 15

Michael A. Fitts, The Parodox ofPower in the Modern State:


Why A Unitary, Centralized Presidency May Not Exhibit
Effective or Legitimate Leadership,
144 U. PA. L. REV. 827 (1996) .. . ............ . ............ . . . . . ..... ... .......... 61

Ronald Reagan, President's Message to the Congress Transmitting


Proposed Legislation to Combat International Terrorism,
PUB. PAPERS, 3-4 (Apr. 26, 1984) ................... . ............ .. .............. 62

Robert McNamara, US. v. Windsor: Rational Basis Review


Should Not Preclude Unconstitutionality,
JURIST (Apr. 2, 2013) ......... . ............ . .................. . ...... ........ . 50

RESTATEMENT OF TORTS§ 197 (1934) . ...... ..... . ............ . ........... . .. 70

XIX
Samuel Adams, The Rights of the Colonists:
Report of the Committee of Correspondence to the Boston Town Meeting,
7 Old South Leaflets 417 (No. 173) (B. Franklin) (1772) ............... . .......... . ... 69

Sean Cockerham, Pot's legal in California.


So why are people still getting busted in Yosemite?,
THE SACRAMENTO BEE (Jan. 9, 2017) ...... . ........... ......... ........ .. . .... 87, 88

Richard Nixon, Special Message to the Congress on Control of


Narcotics and Dangerous Drugs, July 14, 1969
PUB PAPERS 513 (1969) . ....... .... . ... .. . ... .... . . . ........................... 63

Steven A. Ramirez, The Chaos of 12 US. C. Section 1821 (k):


Congressional Subsidizing o,fNegligent Bank Directors and Officers?,
65 FORDHAM L. REV. 625 (1996) ...................... . ... . ........... .... ....... 62

The A-ssoeiated--Press;--Marijuana busts-on federal-lands-


highlight challenges for pot-friendly states,
N.Y. DAILY NEWS (Sep. 16, 2013) . .................. .. .......... . ....... . .... 87, 88

The Federalist No. 45 . . ............... . .......... . .... . ....................... 100

U.S. Department of Justice, Statement of U.S. Att'y Gen. John N. Mitchell Before the Subcomm.
on Juvenile Delinquency of the S. Comm. on the Judiciary on S. 2637, "Controlled Dangerous
Substances Act of1969" at 1 (Sept. 15, 1969) ................................. . . 63, 64

Vasan Kesavan & J. Gregory Sidak, The Legislator-in-Chief,


44 WM. & MARYL. REV. 1 (2002) . ...... .... ... ................ .... ..... .... .. . . 61

William Blackstone, 1 Commentaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Who builds and maintains roads, airports and transit systems in the US.?
ARTBA ..................................... . .. . ... ....... .. ..... . ....... .. 87

xx
PRELIMINARY STATEMENT

In purported support of their motion to dismiss, defendants have crafted a neatly-appointed,

55-page legal brief ("Moving Brief') in which they disregard the facts, ignore the evidence

referenced in the Amended Complaint, mis-characterize the claims set forth therein, and mis-state

the law governing their disposition. Because they cannot fairly argue the facts or the law, defendants

attempt to make the Amended Complaint into something it's not - a regurgitation of prior claims,

made by different litigants, who relied upon arguments and claims Plaintiffs herein do not make,

under different circumstances, in many instances more than 20 years ago. From this faulty premise,

defendant-s--proceed to-cite-a series of-prior decisions-which-have little-and, in-moshn-st-ances;-n - +-


similarity to the facts and claims at bar, and then pile on an avalanche of inapplicable case law

(which defendants regularly and regrettably mis-characterize) to create the appearance that this entire

lawsuit is simply a retread of prior litigations in which the Federal Government has always prevailed.

As demonstrated below, defendants' tactics have no place in this litigation.

Worse, the Moving Briefmakes plain that the Federal Government continues to maintain the

absurd fiction that there exists a raging scientific debate over the medical efficacy and safety of

Cannabis, and that, on that basis, defendants are within their rights to continue enforcing the

Controlled Substances Act (" CSA") against anyone who were to violate it because deference

afforded congressional enactments purportedly immunizes absurd legislation from substantive due

process challenges. Defendants ignore the repeated pronouncements by the Federal Government

acknowledging that two of the three threshold requirements for classification of Cannabis as a

Schedule I drug under the CSA ("Three Schedule I Requirements") can never be met.

The Three Schedule I Requirements under the CSA are that the drug (in this case, Cannabis):

(1) has a high potential for abuse; (2) has no medical use; and (3) cannot be tested, even under strict
medical supervision. 21 U.S.C. §812; see also Amended Complaint if255. 1 Yet, authorized

representatives of the Federal Government have repeatedly admitted that Cannabis does constitute

a safe and medically-effective therapeutic drug for the treatment of disease. Indeed, just a few

months ago, the White House Press Secretary announced that President Trump agrees that medical

Cannabis is medically-effective and thus should be made available to patients.2 Members of

Congress have concurred, acknowledging that designating Cannabis a Schedule I drug simply makes

no sense. 3

Defendants also completely disregard the assortment ofmedical Cannabis programs instituted

by the-Federal 6-evernment-whieh-are basecl-11pon its elear reeognit-ion-4hat-medical Gannabi-s-is safe

and effective. To be clear- this is not a lawsuit designed merely to persuade the Court that scientific

advancement has changed the manner in which the medical profession regards Cannabis; that would

be akin to filing a lawsuit to convince the Court that aspirin can be used for the treatment of

headaches.4 Instead, as shown below, this is a lawsuit, inter alia, to establish that, through the

passage oftime, we have been able to uncover evidence (which defendants largely ignore) that the

Federal Government has known for decades that Cannabis constitutes a safe and therapeutic

treatment for disease, and, as such, its classification as a Schedule I drug cannot be regarded as

rational. In addition, we offer evidence (which defendants also largely ignore) that the CSA was

1
Hereinafter, the Amended Complaint shall be cited as "AC ,r_."
2
http://www.newsweek.com/jeff-sessions-sued-marijuana-policy-l2-year-old-girl-708951. See
accompanying Video with Sean Spicer (at .6-.22 seconds).
3
https://www.youtube.com/watch ?v=v_ 1V cPt-8y8.
4
Indeed, medical schools are now offering Cannabis classes to students. See, e.g., American
Universities Offering Cannabis Classes This Fall, Forbes (Sept. 2, 2017).
https:/ /www. for bes .com/sites/j ulieweed/201 7/09/02/physicians-and-budtenders-taking-cannabis-classes-t
his-fall/#2b9afl354429.

2
enacted with substantial participation by, and at the urging of, the Nixon Administration, to oppress

racial minorities and suppress the First Amendment rights of political protestors.

Defendants ' efforts to mis-characterize this lawsuit and belittle the issues raised by it adds

insult to the injuries inflicted upon millions of Americans every day, as they struggle to treat their

medical conditions without access to the drug that the Federal Government's medical establishment

knows will offer them a cure and/or other relief. For these and the reasons set forth below,

defendants' motion to dismiss must be denied.

SUMMARYOFARGUMENT

First;although-referencing-part-ofthe legal standard:--by-which--mot-ions to-dismiss-are-to b,,,..e- -

considered, defendants promptly ignore it. They purport to distill Plaintiffs '.entire 97-page Amended

Complaint into a single paragraph (Moving Br. 7), blandly characterizing Plaintiffs as "four

individuals and a nonprofit corporation who have varying interests in the use of marijuana" (Id.).

In that connection, defendants characterize Alexis Bortell (" Alexis") merely as "a child who suffers

from a medical condition that she treats by using medical marijuana" (id.)- as if she were casually

using Cannabis to cure something as innocuous as a cold. In fact, Alexis is a 12-year old girl who

has medically-resistant intractable epilepsy which, for years, caused her to suffer multiple seizures

per day, threatening her very life - until she began treating with medical Cannabis, which is the only

medicine that stops her seizures (AC if49). Alexis's doctor has already submitted uncontested

evidence herein that this seizure activity was threatening to kill her (Dkt. No. 26, ifll). For

defendants to suggest, notwithstanding the above allegations, that Alexis merely treats with

Cannabis, without acknowledging its central importance to the preservation of her health and life is

to deny the very factual basis upon which many of her claims are based. And this is but one

representative example of the facts which defendants purport to assume true, but which they simply

3
disregard.

Other critical facts that defendants ignore are that the Federal Government has known for

decades that Cannabis constitutes a safe and effective medical treatment for illness and disease and

that the CSA was enacted as a pretext to harm political and racial minorities; however, again,

defendants respond as if these allegations were not true, violating the very standard they purport to

apply. Assuming facts to be true for purposes of a motion to dismiss requires that defendants

actually acknowledge those facts. Under the well-established standard announced by the Supreme

Court, Plaintiffs' claims state causes of action and are not subject to dismissal (Point 1).5

- -Seeond, defenclants-argtte-that~Pfaintiff-sLFirst Eattse c-f-Aeticm (violation-of substantive-due

process) purportedly fails because, according to opposing counsel, the very enactment of the CSA

supposedly satisfies rationality review. The lynchpin of defendants' argument is premised

principally upon a mis-characterization of the CSA and the case law interpreting it. In particular,

defendants argue that, under the CSA, the necessity to ensure that the Three Schedule I Requirements

have been met applies only to actions of the Attorney General - not Congress (Moving Br. 4).

According to opposing counsel, Congress can designate a substance a Schedule I drug without a

showing that, inter alia, the drug has no medical use and is too dangerous to test (Id.) . From this

false premise, defendants seek to avoid the overwhelming weight of evidence that the Federal

Government knows that Cannabis does constitute a safe and therapeutic treatment of disease which,

under the CSA, necessarily disqualifies the classification of Cannabis as a Schedule I drug; in

essence, defendants contend that, because Congress is supposedly excused from ensuring that the

5
The Amended Complaint is annexed to the Declaration of Michael S. Hiller. For the Court's
convenience, the exhibits that were annexed to the Amended Complaint upon filing have, instead, been
separately attached to the Hiller Declaration and numbered consecutively, as they appear in the Amended
Complaint.

4
Three Schedule I Requirements are present, its classification can never be questioned, irrespective

of the evidence which reflects that at least two of the Three Schedule I Requirements (lack of

medical efficacy and an inability to test it even under strict medical supervision) cannot be rationally

met. Defendants are wrong. The text of the CSA makes clear that the Three Schedule I

Requirements are not relaxed for Congress. Furthermore, the case law upon which defendants rely

in support of their meritless argument - United States v. Oakland Cannabis Buyers' Co-op., 5 32 U.S.

483 (2001)- does not support defendants ' interpretation either. Because the Federal Government

has repeatedly acknowledged over the years that Cannabis cannot rationally meet at least two of the

Three-Schedule 1-R:equirements;-the-GSA- does-nct-satisfy-even ratiemal-relati<m review.

In a further effort to avoid the evidence of the CSA's irrationality, defendants mis-

characterize the claims comprising the Amended Complaint and the principles oflaw governing their

disposition. Principal among defendants' mis-characterizations is the suggestion that Plaintiffs

commenced this action to engage in a policy debate over the medical efficacy and safety of Cannabis.

There is no such debate. As referenced above and demonstrated in detail below, the Federal

Government has already acknowledged repeatedly that Cannabis constitutes a medically-efficacious

and safe drug for the treatment of disease. And since the Federal Government has repeatedly

acknowledged that Cannabis has an accepted medical purpose and is safe, its classification as a

Schedule I drug cannot rationally meet the Three Schedule I Requirements. To sidestep this obvious

point, defendants, rather than addressing their admissions, simply ignore them. Thus, defendants

fail to address that, inter alia: (i) the United States Surgeon General, America's chief medical officer,

announced publicly that Cannabis constitutes a safe medicine for the treatment of disease (AC

,r,r3 36-3 7); (ii) the Federal Government obtained U.S . and International Patents, the applications for
which contain representations and affirmations from the Federal Government that Cannabis

5
constitutes, inter alia, an effective treatment of auto-immune diseases, Alzheimer's, HIV-Induced

Dementia and Parkinson's Disease (Id. iJiJ315-320, citing Ex. 6 thereto ); 6 (iii) the Federal

Government has entered into agreements, licensing its patented medical Cannabis formula for profit

to third parties, allowing defendants to exploit Cannabis economically across the world, while

depriving Americans of lifesaving cures here at home (Id. ,i,is, 392); and (iv) the Federal

Government, for the last approximately 40 years, has been providing Cannabis to patients for the

treatment of their diseases and other medical conditions, as part of the IND Program (Id. iJiJ259-79).

In all, we identify 21 sources of evidence, confirming that the Federal Government knows that

Cannabis constitutes a safe and therapeutic treatment for disease - all of which such evidence

defendants ignore in their motion. Because it is plausible and thus must be assumed true for

purposes of this motion that the Federal Government knows that Cannabis constitutes a safe and

therapeutic treatment for disease and thus cannot rationally meet the Three Schedule I Requirements,

defendants' motion to dismiss the First Cause of Action must be denied.

Meanwhile, the decisional authority upon which defendants purport to rely in support of

dismissal of Plaintiffs' First Cause of Action is completely inapposite. Defendants largely cite to

criminal cases, in which the allegations of the CSA's unconstitutionality are not only not deemed

true, but further, are presumed to be false. Thus, defendants' citations to criminal cases for the

proposition that the CSA is constitutional do not apply. The handful of civil cases to which

defendants refer are generally outdated and were decided years (in many instances, decades) before

America experienced substantial, seismic changes in the scientific and legal landscape as it pertains

to Cannabis. In any event, given that this case is an "as applied" challenge, prior determinations on

the issue of the CSA' s constitutionality, made with respect to different litigants, carry limited weight.

6
https ://patentscope. wipo. int/search/en/detail.j sf?docld=WO 19990 53 91 7&redirectedID=true.

6
It is well-established that the doctrine of stare decisis does not apply when the circumstances

underlying the cited court' s decision have substantially changed, particularly with respect to "as-

applied challenges" in which the litigants are not similarly situated (Point II).

Third, defendants' argument that the Second Cause of Action (denial of equal protection)

interposed by Plaintiff Cannabis Cultural Association ("CCA") fails to state a cause of action is

predicated upon the notion that, if the executive branch of government ushers through Congress,

legislation that is designed to discriminate against African Americans and other persons of color, it

may nonetheless pass muster under the rigors of the Fifth and Fourteenth Amendments, as long as

Congress-can-offer a-non--discriminatory-pretex-Hherefor. 'Fhe--predieate--for defendants.2_arg11ment

is that it matters only if Congress acts with racial animus - that if a President ushers through

Congress, legislation designed to oppress political and racial minorities, there is no constitutional

violation. As shown below, defendants' argument fails to recognize the role of the Executive Branch

in the modern-day Presidency and the Nixon Administration's substantial role in drafting and

promoting the CSA. While the constitutional authority to pass laws is vested in the Legislative

branch of government, no one can genuinely deny the role of the President in the process of law

making; nor can they deny the role of President Nixon in the law-making process of the CSA. And,

in this instance, Plaintiffs have alleged, based upon evidence from key members of the Nixon

Administration who were present at the time, that the sole reasons for classifying Cannabis a

Schedule I drug were to oppress African Americans and deny them and other Americans the

opportunity to protest the Vietnam War (AC if263). 7 Because these allegations, having been

7
1n view of the Affidavit of Roger Stone (Dkt. No. 26), and the allegations of the Amended
Complaint identifying who was responsible for ushering the CSA through Congress on behalf of the
Nixon Administration and approximately when, defendants' reference to the Second Cause of Action as
having been couched in conclusory assertions is utterly frivolous . This point will be addressed briefly in
the Statement of Facts and in Point ill, infra.

7
supported by members of the Nixon Administration, must be assumed true, defendants are thus

resigned to arguing that, even if these allegations are true (and they are), such would not constitute

a constitutional violation. If defendants were correct (and they are not), the Equal Protection Clause

would be a dead letter (Point ill). 8

Fourth, defendants contend that Plaintiffs' Sixth Cause of Action should be dismissed

because, according to opposing counsel, Plaintiffs have suffered no First Amendment violation. In

this connection, defendants also devote six pages to arguing that there is no constitutional right to

treat with medical Cannabis (Moving Br. 22-27) - a claim Plaintiffs do not make. As demonstrated

below;--defendants-have-fund-amentally m.isapprehended-P-laintiffs '--Sixth-Gause-0f-Aet-i0n-. By the

Sixth Cause of Action, Plaintiffs contend that the Federal Government, through its threatened

enforcement of the CSA, unconstitutionally imposes upon them a Robson's Choice; they must

relinquish either their First Amendment rights to free speech and free expression on the one hand,

or their fundamental rights to personal autonomy and to preserve their health and lives on the other.

As to the First Amendment, defendants argue that free speech is not implicated by Plaintiffs' claim

because: (i) the CSA does not regulate expression on its face; (ii) the right to in-person advocacy

supposedly does not exist; and (iii) the Petition Clause does not extend to the activities in which

Plaintiffs wish to engage. Apparently, defendants require a primer on the First Amendment. But

before providing an overview of this point, we emphasize that this claim, arising under the First

Amendment, is governed by strict scrutiny, not rational-relation review.

As further demonstrated below, merely because the CSA does not regulate expression on its

face does not suggest ipso facto that there is no constitutional violation. If that were the case, "as

applied" challenges would not exist. If, for example, Congress were to pass a law restricting people

8
We further demonstrate below that the CCA has standing to prosecute this claim.

8
from entering the Capitol mall while wearing a head-covering, the statute might seem facially

neutral, but it would also succeed in preventing those whose religious practices require them to wear

Yarmulkes and Hijabs from marching on Washington. Defendants' suggestion that such "as

applied" challenges automatically lack merit reflects defendants' fundamental misapprehension of

constitutional jurisprudence.

Moreover, defendants' argument that Plaintiffs have the opportunity to engage in remote

advocacy by telephone and satellite link mistakenly presupposes that in-person advocacy is not

protected under the Free Speech Clause. As shown below, defendants, who studiously avoid the

decisional authority we cited on the Order to Show Cause for a TRO, are just wrong on the law. And

lastly with respect to the First Amendment claims, defendants mis-characterize Plaintiffs' Petition

Clause claims.

Anticipating the weakness of their arguments on this point, defendants argue alternatively

that, even ifremote speech were not a substitute for the exercise ofin-person advocacy (and it isn't),

there is no reason why Alexis, Jose and Jagger cannot simply travel without their medical Cannabis

to the Capitol to meet with members of Congress. Such an argument, however, requires a dedicated

disregard of the allegations of the Amended Complaint, in which Alexis, Jose and Jagger allege that

they need their medical Cannabis to live (Point N).

Fifth, defendants argue that Plaintiffs' Third Cause of Action should be dismissed because,

according to opposing counsel, the CSA does not impair Plaintiffs' right to travel. In this regard,

defendants contend that the right to travel is not implicated by the CSA because: (i) making travel

less attractive does not rise to the level of a constitutional violation; and (ii) the CSA merely imposes

a requirement that people not travel with illegal substances. The predicate for defendants' arguments

is the notion that treatment with medical Cannabis is optional; it isn't - at least not for three of the

9
Plaintiffs and millions of other Americans. As reflected in the allegations of the Amended

Complaint, which we emphasize, must be assumed true, Alexis, Jagger Cotte ("Jagger") and Jose

Belen ("Jose") will die without their medical Cannabis, a genuine medical treatment for their

conditions. Thus, a law that proscribes Plaintiffs from carrying their medication does not merely

render travel less attractive for them; it makes travel impossible. The CSA forces upon Plaintiffs

the choice of relinquishing their right to travel or their fundamental rights to preserve their health

and lives. It is well established that the Federal Government cannot require people to relinquish one

right in order to exercise another. Because this is precisely what the CSA accomplishes, as applied

to Plaintiffs, it is unconstitutional (Point V).

Sixth, as to Plaintiffs' claims under the Commerce Clause (Fourth Cause of Action),

opposing counsel is generally correct that the Supreme Court in Gonzalez v. Raich ruled that

Congress has the power to regulate pmely intra-state possession and use of Cannabis. See 545 U.S.

1 (2005). However, the Raich decision was issued before the Federal Government effectively ceded

its responsibility to regulate Cannabis to the States. As demonstrated below, at the time Raich was

argued and decided, 10 States had legalized medical Cannabis; today, three times as many States

have done so, including eight that have granted legalization for all purposes (not merely medical

purposes). Today, nearly two in three Americans live in ajmisdiction in which Cannabis is legal

for some purpose. And, since 2005, when Raich was decided, the Federal Government has

essentially granted permission, and in many instances, encouraged those in State-legal Cannabis

jurisdictions, to engage in business, research, development, cultivation, extraction, marketing,

distribution, sale and use of Cannabis for an assortment of purposes - all, provided that such

activities are consistent with State law (see, e.g., Cole and Ogden Memoranda issued by the DOJ,

Exs. 7 and 8, and the FinCEN Guidance, issued by the Department of Treasury, Ex. 9). Under such

10
circumstances, the suggestion that the Federal Government still has authority under the Commerce

Clause to enact and enforce restrictions against, and prosecute those involved in, the cultivation, sale

and use of Cannabis makes as much sense as a police officer who waives drivers through a red light

with a warning that there is a distinct possibility that, upon crossing the intersection, they may be

stopped and given a ticket. Simply put- the Federal Government cannot simultaneously exalt its

power under the Commerce Clause to enact and enforce the CSA, while allowing and encouraging

people to rely upon State law to regulate their activities. Congress can no longer legitimately argue

that the CSA is constitutional as having been enacted under its commerce power which the Federal

- Govermmmt has €-f:f@cti:vel3/ aGkn.0wledg@<i the ~tat-es-am-free to ignGr~-EPoint VI).

Seventh, defendants argue that Plaintiffs Fifth Cause of Action ( denial of procedural and

substantive due process) fails to state a claim because the CSA includes a re-scheduling procedure.

However, defendants ignore that Plaintiffs allege in the Amended Complaint that the re-scheduling

procedure is a rigged process that deprives claimants of the opportunity to obtain the "approved-of'

research necessary to obtain rescheduling - a fact which the Court is required to accept as true.

Defendants then argue (also in reference to the Fifth Cause of Action) that the Court lacks

subject matter jurisdiction because Plaintiffs supposedly did not exhaust their administrative

remedies - specifically, the petitioning process. In purported support of this argument, defendants

falsely profess to rely upon the allegations of the Amended Complaint (~~450-60), completely

ignoring the predicate allegations for the claim, which appear at ,r,r3 54 to 3 70 and comprise six pages

of the Amended Complaint, including a table listing every rescheduling petition ever filed (AC pp.

71-77). As demonstrated below, the allegations and pages of the Amended Complaint which

defendants ignore, anticipate and repudiate the very argument defendants attempt to make.

Specifically, the allegations, which again must be assumed true, support the conclusion that the

11
petitioning process constitutes an illusory remedy (AC i[359), insofar as the Federal Government

delays the review process of the average petition by nine (9) years (AC i[i[354-57). Alexis, Jagger

and Jose would all be dead before the Federal Government got around to deciding a re-scheduling

petition they might file. Because the re-scheduling procedure is futile (another allegation that must

be assumed true), Plaintiffs were not required to exhaust the administrative review process (Point

VII).

Eighth, defendants seek dismissal based upon the length of the Amended Complaint. As

demonstrated below, defendants ' argument on this point fails as a matter of law.

As reflected in the well-annotated Amended Complaint, Cannabis has been utilized in a

multitude of ways by diverse groups and societies all over the world for the last 10,000 years,

frequently with a listing of its curative properties in medical treatises independently published in

cultures ranging from Ancient Egypt, China, V enetia and Greece, to 16th and 17th Century Britain,

to Colonial and Post-Civil War America (AC ,r,r129-96).9

Among the colonists who cultivated and/or used hemp in pre-Revolutionary War America

were George Washington, Thomas Jefferson, Benjamin Franklin and one of America's richest

colonists, Robert "King" Carter (Id. i[166). Indeed, George Washington specifically grew Cannabis

with high THC concentrations - the very substance that today, would subject him to prosecution and

incarceration under the CSA (Id. ,rt 74). Some of the Founding Fathers, including Thomas Jefferson
and James Madison, also smoked Cannabis (known at that time as "hemp" or " sweet hemp") for

both medicinal and other purposes (Id. ,r,r172, 175-76).

9
All citations to the Amended Complaint incorporate by reference the evidentiary annotations
referenced and footnoted in the Amended Complaint.

12
Medical Use of Cannabis Becomes Widely Accepted by American
Physicians and Pharmaceutical Companies in 19th Century America

During the early 19th Century, Cannabis enjoyed widespread acceptance as an effective

medicine for the treatment of illness and disease and was listed in multiple medical treatises,

including, inter alia, the widely-distributed United States Pharmacopoeia, a highly selective listing

of America's most widely taken medicines (AC ,r,r182-90). By the latter half of the 19th century,

"every pharmaceutical company [in America was] ... busy manufacturing [C]annabis-based patent

cures," including E.R. Squibb & Sons, Parke-Davis, and Eli Lily (Id. ,rI91). During the latter half

of the 19th Century and the beginning of the 20th Century, Cannabis was also commonly used to

treat asthma in the United States (Id. ,r,r192-93).

Cannabis, Widely Used as an Effective Medicine in the 19th Century, Becomes the
Subject of Racially and Ethnically Xenophobic Legislation in the Early 20th Century

The history of Cannabis regulation, as distinct from other medicines, began in the early 20th

Century, when the Mexican Revolution resulted in a wave of Mexican immigrants to America' s

Southern border States in 1910; articles in the New York Sun, Boston Daily Globe and other papers

decried the "evils of ganjah smoking" and suggested that some immigrants used it "to key

themselves up to the point of killing" (AC ,r198). The-vast majority of stories urging the public to

fear the effects of "marijuana" appeared in newspapers published by William Randolph Hearst, a

man who had financial interests in the lumber and paper industries, and therefore, saw the hemp

industry as competition and an obstacle to his path to economic success (Id. ,r199).

As a result of the false hysteria created by the above-referenced fabricated horror stories

published by pro-paper entrepreneurs, Cannabis became associated with Mexican immigrants, who,

with Cannabis, became vilified across the country (Id. ,r200). This xenophobia precipitated anti-

Cannabis legislation on the State level across America (Id ,r20l), the first effort to proscribe

13
Cannabis in the history of the United States. This domino effect was worsened by the spread, in the

1890s, of false, racist and bigoted horror stories regarding alleged marijuana-induced violence (Id.

if203). These circumstances were further exacerbated by Harry J. Anslinger ("Anslinger"), an

avowed racist who was also the first Commissioner of the Federal Bureau ofNarcotics (AC ,r,r2os-

208).

This anti-Cannabis propaganda ultimately resulted in the passage of the Marijuana Tax Act

("MTA") (Id. if2 l 0), which effectively outlawed Cannabis by requiring physicians and pharmacists

to register and report use of the plant, as well as pay an excise tax for authorized medical and

industri-al- uses- (Jd:- ,r2-l 1). Despite enaet.m.ent- of-the- McfA, the United States--DepartmeRt-ef

Agriculture ("USDA") and the New York Academy of Medicine ("NYAM") both continued to

recognize the beneficial uses of Cannabis (Id. if215). In 1944, NYAM issued the "LaGuardia

Report," concluding that, "use of marijuana did not induce violence, insanity or sex crimes, or lead

to addiction or other drug use" (Id. if217). In the 1960s, reports requested by Presidents Kennedy

and Johnson also concluded that Cannabis was not a "gateway drug" nor did its use induce violence

(Id. if221). In 1969, the United States Supreme Court, inLearyv. United States, 395 U.S. 6 (1969)

struck down the MTA, suggesting an end to the persecution of those treating with medical Cannabis

(AC if222).

The Nixon Administration Urges Passage of the CSA/or the Purpose of


Suppressing the Rights of those Regarded by the Administration as the
Political Opposition

After the Supreme Court decision in Leary, the Nixon Administration urged Congress to

enact legislation that would classify drugs under separate schedules according to their medical utility,

dangerousness, and addictive potential (Id. if223). As shown infra, members of the Nixon

Administration actually drafted the CSA, including the designation of Cannabis as a Schedule I drug.

14
Congress adopted the CSA at the President's request by passing it on October 27, 1970 (Id.). At the

request of the Nixon Administration and upon the temporary recommendation of the Department

of Health, Education, and Welfare ("HEW"), Congress placed "Marihuana" under Schedule I,

thereby "subject[ing Cannabis] to the most stringent controls under the bill" (Id. 1224). 10

While "[t]here is almost total agreement among competent scientists and physicians that

marihuana is not a narcotic drug like heroin or morphine ... [and to] equate its risks ... with the risks

inherent in the .use of hard narcotics is neither medically or legally defensible[,]" 11 Congress

nonetheless listed Cannabis or "Marihuana" under the same schedule as the most dangerous

- narcotics known-to-man-(AC 11-2--5--)-:12---The-placement of-Garmabis-uncl.er- Sehecl-ule+was-intemlecl

by Congress to be temporary and subject to further research (Id. 1226). 13 This "further research" was

to be conducted by the National Commission on Marihuana and Drug Abuse - a commission

established by the CSA for the purpose of studying, inter alia, Cannabis's pharmacological makeup

and the relationship (if any) of its use to the use of other drugs (Shafer Commission, defined

hereafter) (Id. 1227). Upon completion of its research, the Shafer Commission was to be required

10
The tenn "'[M]arijuana' came into popular usage in the U.S. in the early 20th century because
anti-cannabis factions wanted to underscore the drug's 'Mexican-ness.' It was meant to play off of
anti-immigrant sentiments." Matt Thompson, The Mysterious History Of'Marijuana', NPR (July 22,
2013 ); www.npr.org/sections/codeswitch/20 I 3/07/14/201981025/the-mysterious-history-of-marijuana.
1
JDrug Abuse Control Amendment-1970: Hearings Before the Subcomm. on Public Health and
Welfare, 91st Cong. 179 (1970) (Statement of Dr. Stanley F. Yolles).

12
Under the CSA, "The term 'marihuana' means all parts of the plant Cannabis sativa L., whether
growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound,
manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin." Pub. L. No.
91-513, 84 Stat. 1244.
13
It should be noted that HEW recommended that Cannabis remain under Schedule I only "until
the completion of certain studies now underway to resolve this issue." H.R. Rep. 91-1444 at 2111
( 1970). However, despite HEW' s temporary recommendation, President Nixon and his Administration
subsequently ignored the CSA-required report (discussed infra).

15
under the CSA to submit a comprehensive report to the President and to Congress (Id. ,r228). The

report was to consist of the Shafer Commission' s findings as well as its recommendations and

proposals for legislation and administrative actions with respect to Cannabis (Id. ,r229).

President Nixon thereafter appointed Raymond Shafer to Chair the National Commission on

Marihuana and Drug Abuse ("Shafer Commission") (Id i!230). The Shafer Commission conducted

"more than 50 projects, ranging from a study of the effects of marihuana on man to a field survey

of enforcement of the marihuana laws in six metropolitan jurisdictions" (Id. i!231 ). Despite efforts

by members of the Nixon Administration to put their proverbial "thumbs on the scale" (discussed

- i-nfra-), he S-hafer e ommission conc-luded- that- Cannabis-was-not- harmfu.-1-and-should be- de-

scheduled. In this regard, the Shafer Commission' s findings include that:

(a) ''No significant physical, biochemical, or mental abnormalities could be attributed


solely to ... marihuana smoking."

(b) ''No verification is found of a causal relationship between marihuana use and
subsequent heroin use."

( c) " [T]he weight of the evidence is that marihuana does not cause violent or aggressive
behavior; if anything, marihuana serves to inhibit the expression of such behavior."

(d) ''Neither the marihuana user nor the drug itself can be said to constitute a danger to
public safety."

( e) "Most users, young and old, demonstrate an average or above-average degree of


social functioning, academic achievement, and job performance."

(f) "Marihuana's relative potential for harm to the vast majority of individual users and
its actual impact on society do[] not justify a social policy designed to seek out and
firmly punish those who use it."

(g) "Despite the media's portrayal ofVietnam War protesters as being violent while high
on Cannabis, the vast majority of those protesters were peaceful and the few who
were violent were not under the influence of Cannabis."

(h) "The actual and potential harm of use of the drug is not great enough to justify
intrusion by the criminal law into private behavior, a step which our society takes
only with the greatest reluctance."

16
(i) "[A ]11 policy-makers have a responsibility to consider our constitutional heritage
when framing public policy ... we are necessarily influenced by the high place
traditionally occupied by the value of privacy in our constitutional scheme.
Accordingly, we believe that government must show a compelling reason to justify
invasion of the home in order to prevent personal use of marihuana. We find little in
marihuana's effects or in its social impact to support such a determination."

(AC '1[232) (collectively "Shafer Commission Findings and Recommendations").

The Shafer Commission recommended that possession of Cannabis for personal use be de-

criminalized on both the State and Federal levels (Id. '1[233). Unfortunately, the Nixon

Administration refused to accept the findings and recommendations by the Shafer Commission

because they were inconsistent with: (i) the pre-ordained outcome the Nixon Administration

demanded; and (ii) the Administration's agenda with respect to Cannabis, which was focused on

racism and suppression of political and civil rights. Specifically, John Ehrlichman, who served as

the Nixon Administration's Domestic Policy Chief and was one of the President's closest political

advisors, confirmed that the enactment and enforcement of the CSA criminalizing Cannabis was

directed toward political suppression and racial discrimination. In this regard, Mr. Ehrlichman said:

You want to know what this was really all about? The Nixon
campaign in 1968, and the Nixon White House after that, had two
enemies: the antiwar left and black people. You understand what I'm
saying? We knew we couldn't make it illegal to be either against the
war or black, but by getting the public to associate the hippies with
marijuana and blacks with heroin and then criminalizing both heavily,
we could disrupt those communities. We could arrest their leaders,
raid their homes, break up their meetings, and vilify them night after
night on the evening news. Did we know we were lying about the
drugs? Of course we did.

AC '1[236 (quoting NY. Daily News, A. Edelman, Nixon Aide: "War on Drugs" was tool to target

"black people" (March 23, 2016) (Ex. 4); see also Harper's Magazine, D. Baum, Legalize it All:

How to Win the War on Drugs (April 2016) (Ex. 5) ("Nixon's invention of the war on drugs as a

political tool was cynical ... ").

17
Roger Stone, another key member of the Nixon Administration, corroborated Mr.

Ehrlichman' s account of the bigotry and efforts at political suppression underlying enactment of the

CSA:

Working with the Nixon Administration afforded me constant contact with


Administration officials, both inside and outside the White House. One of the
officials with whom I was in regular contact was Myles Ambrose, who, at the time,
was involved in President Nixon' s "War on Drugs" and eventually became the first
"Drug Czar." I remember that, in the winter of 197 1, I met Mr. Ambrose at "The
Exchange," then a popular hangout for politicos in Washington, DC. Over drinks,
Mr. Ambrose and I began to discuss the President's agenda. Not surprisingly, he
spoke most favorably of the President' s plan to "win" the War on Drugs. In
particular, Mr. Ambrose said to me: " We gotta do this drug stuff. We gotta get rid
of the ' niggers ."' He proceeded to explain that those associated with the President
- associated-A:frican- Ameri-cans and hippies--protesting- the- V-ietnam- W11r- with
marijuana, which the President and Mr. Ambrose believed was the drug of choice for
these two groups. I remember this conversation well, because it shocked and
offended me.

See Stone Aff. ,r7 (Dkt. No. 26). Mr. Stone continued:

I came to find out, and, as is known to history, those associated with the President felt
that war protestors and those with whom they associated were a threat to the Nation
in its fight against communism. He also had mixed emotions toward African
Americans, whom he may have associated with the anti-war left. No legislation could
be focused directly at these two groups, as the Administration recognized that such
would draw objections based upon, among other things, constitutional grounds. The
alternative strategy developed by the Administration was to use the War on Drugs -
and, in particular, the efforts to criminalize and prosecute possession and use of
cannabis - to marginalize war protestors and African Americans and "get them offthe
streets." To convert these viewpoints into policy, the President, members of his
Administration, and those whom he entrusted to liaise with Congress dedicated
themselves to enacting and administering a legislative agenda directed toward
prosecuting, in particular, war protestors and African Americans for use of cannabis.

Id. ,rs. The accounts of Messrs. Stone and Ehrlichman are corroborated by diary entries of H.R.

Haldeman, another senior member of the Nixon Administration (discussed infra).

The irrationality of the Nixon Administration's support for enactment of the CSA and

rejection of the Shafer Commission Findings and Recommendations is further revealed by tape

18
recordings made by the former President of his Oval Office conversations. Although supposedly

established for the purpose of properly educating lawmakers about Cannabis, the Shafer Commission

became the focus of an effort by the Nixon Administration to convert it into the equivalent of a

bureaucratic, kangaroo court (AC i!239). Nixon repeatedly made clear that the real purpose of the

Shafer Commission was to justify what he had already decided to do with respect to Cannabis,

ultimately linking support for its de-criminalization to Jews, whom Nixon irrationally claimed were

mostly psychiatrists:

NIXON: Now, this is one thing I want. I want a Goddamn strong


statement on marijuana. Can I get that out of this sonofabitching, uh
Domestic Council?

HALDEMAN: Sure.

NIXON: I mean, one on marijuana that just tears the ass out of
them. I see another thing in the news summary this morning about it.
You know, it's a funny thing - every one of the bastards that are out
for legalizing marijuana is Jewish. What the Christ is the matter with
the Jews, Bob? What's the matter with them? I suppose it's because
most of them are psychiatrists, you know (AC i!240).

In September 1971, before his Commission's report was issued, Chair Shafer visited the

White House to speak with Nixon about a morale problem he was experiencing on the Connnission

- specifically, that the members of the Shafer Commission were concerned that it was "put together

by a President to merely toe the party line" (Id. i!241 ). In response, Nixon made absolutely clear that

he did not care what the Shafer Connnission' s conclusions were (Id. i!242). During Shafer's meeting

with Nixon, the latter proceeded to direct the Shafer Commission to ignore the obvious differences

between Cannabis, and heroin and other dangerous, addictive drugs (Id. i!243). When Chair Shafer

tried to assure Nixon that the Connnission would not go "off half-cocked," Nixon responded tersely,

"Keep your Commission in line!" (Id. i!244). Nixon threatened Shafer with public recriminations,

19
asserting that conclusions contrary to Nixon's demands "would make your Commission just look as

bad as hell" (Id. ,r245).

Nixon's threats were not limited to Shafer and his Commission. When Nixon became aware

that Bertram Brown, then-director of the National Institute of Mental Health, called for de-

criminalization of Cannabis, Nixon demanded that he be fired (Id. ,r246). In that same conversation,

Nixon again tied protesters to use of Cannabis (Id. ,r247), corroborating the accounts of Messrs.

Ehrlichrnan, Stone and Haldeman. The so-called "radical demonstrators" to whom Nixon was

referring were those opposed to the Vietnam War, which, at the time, deeply divided the Country.

Whent-he-S-haferGommission-Findings--andRecommendat-ions-were-issued;-cont-rovert-ing-t-he

Nixon Administration's preordained conclusions and agenda against African Americans and war

protesters, Nixon responded, predictably, announcing his continued support for the Schedule I

classification of Cannabis (Id. ,r249).

If incarceration of antiwar protestors and African Americans constitutes the measure of the

War on Drugs' success, the Nixon Administration' s efforts must be characterized as "successful" (AC

,r250). According to the New York Daily News, "by 1973, about 300,000 people were arrested under

the law [the CSA] - the majority of whom were African American" (Ex. 4). The Nixon

Administration's anti-Cannabis policies thus were manifested in two distinct, but related, efforts -

to usher the CSA through Congress and then to use the law as a tool to incarcerate, harass and

undermine those whom members of the Nixon Administration considered hostile to their interests

(AC ,r223-52).

20
THE INDISPUTABLE FACT THAT THE FEDERAL GOVERNMENT DOES
NOT AND CANNOT GENUINELY BELIEVE THAT CANNABIS MEETS
THE THREE SCHEDULE I REQUIREMENTS

The Federal Government Subsidizes andAdministers a Program Pursuant


to Which the Federal Government Has Provided Medical Cannabis to
American Patients Since 19 78

The Federal Government does not genuinely believe that Cannabis meets the Three Schedule

I Requirements. In addition to the Shafer Commission Findings and Recommendations, in or about

1978, the United States instituted a program pursuant to which medical patients were provided with

Cannabis by the Federal Government through the Investigational New Drug Program ("IND

Program-9 (A~ 2-§9..a60}. -etabl-y, the FDA fil:e-ludes drugs frem the--INl)--Ihegram wh@w.-(1 )--th@
-

FDA believes that there is no "reasonable basis" to conclude that drugs are effective; or (2) granting

the request for inclusion in the IND Program "[w]ould ... expose the patient[] ... to an unreasonable

and significant additional risk of illness or injury" (21 C.F.R. §312.34(b)(3)). The FDA has never

excluded Cannabis from the IND Program. To the contrary, at least 13 patients have participated in

the IND Program (AC ,r262-64), and received Cannabis from the Federal Government for treatment

of an assortment of diseases and-conditions (Id.; see also Missoula Study, Ex. 7). Indeed, the Federal

Government continues to sponsor and/or provide medical Cannabis to patients pursuant to the IND

Program (AC i!264). None of the patients who have participated in the IND Program have suffered

any serious side effects from their Cannabis treatments (Id. ,r,r268, 270-79; see also Missoula Study,

Ex. 7).

The Federal Government Does Not Contest the Findings of a Federal


Administrative Law Judge Who Determined that Cannabis is Safe,
Therapeutic and Effective in Treating Disease

In 1988, Federal Administrative Law Judge Francis Young, In the Matter ofMarijuana

Rescheduling, DEA Docket No. 86-22, issued a determination in which he concluded, based upon

21
"overwhelming" evidence, that:

marijuana has a currently accepted medical use in treatment in the


United States for nausea and vomiting resulting from chemotheraphy
treatments in some cancer patients. To conclude otherwise, on this
record, would be unreasonable, arbitrary and capricious.

(Ex. 5 at 34; AC 1289). Judge Young proceeded to analyze the record with respect to the use of

medical Cannabis for the treatment of multiple sclerosis, spasticity and hyperparathyroidism (Ex. 5

at 40-55; AC 11291, 294). After reviewing the extensive record, Judge Young concluded:

[M]arijuana has a currently accepted medical use in treatment in the


United States for spasticity resulting from multiple sclerosis and other
causes. It would be unreasonable, arbitrary and capricious to find
otherwise.

See Ex. 5 at 54; AC 1292.

After concluding that Cannabis does, in fact, have currently-accepted medical uses, Judge

Young turned to the issue of whether it may be used or tested safely under medical supervision - the

third of the Three Schedule I Requirements (Ex. 5 at 56; AC 1296). Judge Young then ruled in a

series of enumerated paragraphs that, not only is Cannabis not dangerous; it is extraordinarily safe.

In this regard, Judge Young ruled:

4. Nearly all medicines have toxic, potentially lethal effects. But


marijuana is not such a substance. There is no record in the extensive
medical literature describing a proven, documented cannabis-induced
fatality.

5. This is a remarkable statement. First, the record on marijuana


encompasses 5,000 years of human experience. Second, marijuana is
now used daily by enormous numbers of people throughout the world.
Estimates suggest that from 20 million to 50 million Americans
routinely, albeit illegally, smoke marijuana without the benefit of
direct medical supervision. Yet, despite this long history of use and
the extraordinarily high numbers of social smokers, there are simply
no credible medical reports to suggest that consuming marijuana has
caused a single death.

22
6. By contrast, aspmn, a connnonly-used, over-the-counter
medicine, causes hundreds of deaths each year.

Ex. 5 at 56-57; AC if297. Judge Young thereafter concluded that:" In strict medical terms, marijuana

is far safer than many foods we commonly consume (Ex. 5 at 58; AC if299).

If these findings were not sufficiently danming to the CSA's mis-classification of Cannabis

as a Schedule I drug, Judge Young made it even more clear when he wrote:

Marijuana, in its natural form, is one of the safest therapeutically


active substances known to man. By any measure of rational analysis,
marijuana can be safely used within a supervised routine of medical
care.

Ex. 5 at 58-59; AC if300. Judge Young thereafter reconnnended that Carmabis be removed from

Schedule I of the CSA (Ex. 5 at 66; AC if301). The DEA did not accept Judge Young's findings or

reconnnendation (AC if302).

As discussed below, the ALJ's Decision was issued years before 30 States, two U.S. territories

and the District of Columbia legalized Carmabis for medical use; and before eight States plus the

District of Columbia legalized Carmabis for recreational use.

The Federal Government Permits States to Enact Their Own Medical Cannabis Programs

In 1996, California became the first State to legalize Carmabis for medical use, followed by

Oregon, Alaska and Washington (State) (AC ifif304-05). Today, the following States have legalized

Carmabis for medical and/or recreational use:

California, Oregon, Alaska, Washington (State), Maine, Hawaii,


Colorado, Nevada, Montana, Vermont, New Mexico, Michigan, New
Jersey, Arizona, Massachusetts, New York, Maryland, Minnesota,
Florida, Delaware, Ohio, Pennsylvania, Illinois, North Dakota,
Arkansas, Connecticut, New Hampshire, Rhode Island, West Virginia
and Louisiana (AC if306).

In addition to these States, Puerto Rico, Guam and the District of Columbia have legalized

23
Cannabis for medical and recreational uses (Id. ,I307).

Although initially barring Washington, DC from implementing a medical Cannabis program

in or about 1998, Congress took no action to prevent enactment of a medical legalization program in

our Nation 's Capitol in 2011 (Id. at p. 61 , n. 150). Thus, Washington, DC was permitted to institute

a medical Cannabis program in 2011 (Id.). Thereafter, in 2014, Washington, DC approved a

decriminalization program for Cannabis. Although subjected to a mandatory 30-day review period

to be undertaken by Congress under the District of Columbia Home Rule Act, Congress took no

action. Thus, although afforded the opportunity to stop implementation of Washington, DC 's

decriminalizat-ion-program;-Gongress-decided-not to-do-so (fd. ).

As of 2016, 62% of Americans live within a jurisdiction in which Cannabis is legal to

consume for medical and/or other purposes (AC ,I309). 14 And State-legal Cannabis has been legally

available to millions of Americans for decades (Id. ,I311 ). Cannabis has also been available illegally

(i.e., on the "black market") to millions of Americans for approximately 100 years (Id. ,I3 l 2). Despite

its widespread availability and use (both legally and illegally), no credible medical report has

confirmed a single fatality in the United States from the consumption of Cannabis (Id. ,I313; Ex. 5

at 56-57). By contrast, according to the following reports, most of which were issued by agencies of

the Federal Government, the following "legal" substances have caused the following number of

deaths in the United States on an annual basis:

(a) tobacco - 480,000 deaths per year; 15

14
Joseph Misulonas, These Charts Show the Evolution ofAmerica's Marijuana Laws Over Time,
CIVILIZED (Aug. 31, 2017), https://www.civilized.life/articles/evolution-america-marijuana-laws-charts/;
StreetAuthority, Should You Invest In Marijuana Stocks?, NASDAQ (Jan. 18, 2016),
http://www.nasdaq.com/article/should-you-invest-in-marijuana-stocks-cm566991.
15
https ://www.cdc.gov/tobacco/data_statistics/fact_ sheets/health_effects/tobacco_related_mortali
ty/index.htm

24
(b) alcohol- 88,000 deaths per year; 16

(c) pharmaceutical opioid analgesics - 18,893 per year; 17

(d) acetaminophen- 1,500 deaths from 2001 to 2010 (AC 1314). 18

The Federal Government Acquires Cannabis Patents, Formally Acknowledging


that Cannabis Constitutes an Effective Treatment for Disease

In or about 1999, the United States Government, listed as "Applicant," filed a patent

application ("WIPO Cannabis Patent") with the World Intellectual Property Organization ("WIPO")

entitled:

CANNABINOIDS AS ANTI-OXIDANTS AND NEUROPROTECTANTS 19

In its WIPO Cannabis Patent, the Federal Government claimed that Cannabis provides

medical benefit to, and thus has medical uses for, patients suffering with an assortment of diseases

and conditions. In this regard, the Federal Government asserted that:

Cannabinoids have been found to have antioxidant properties, unrelated to NMDA


receptor antagonism. This new found property makes cannabinoids useful in the
treatment and prophylaxis of wide variety of oxidation associated diseases, such as
ischemic, age-related, inflanunatory and autoimmune diseases. The cannabinoids are
found to have particular application as neuroprotectants, for example, in limiting
neurological damage following ischemic insults, such as stroke and trauma, or in the
treatment ofneurodegenerative diseases, such as Alzheimer's Disease, Parkinson's
Disease, and HIV Dementia (Id. at p. 1, Abstract).

As part of its WIPO Cannabis Patent, the Federal Government also specifically "claim[ed]"

that Cannabis constitutes:

16
https://www.niaaa.nih.gov/alcohol-health/overview-alcohol-consumption/alcohol-facts-and-stat
istics.
17
https://www.cdc.gov/nchs/data/factsheets/factsheet_drug_poisoning. pdf.
18
http://www.huffingtonpost.com/2013/09/24/tylenol-overdose_ n_3976991.html. This does not
include the 78,000 Americans who are rushed to emergency rooms annually, or the 33,000
hospitalizations in the United States each year, all due to ingestion of acetaminophen. Id.
19
https://patentscope. wipo .int/search/en/detail.j sf?docld=WO 19990 5391 7&redirected!D=true.

25
1. A method of treating diseases caused by oxidative stress,
comprising administering a therapeutically effective amount of a
cannabinoid to a subject who has a disease cause by oxidative stress.

Id. at 30. Thereafter, the Federal Government made a series of claims, vouching for the medical

effectiveness of Cannabis (Id.).

The Federal Government made identical claims and representations in a separate U.S.

Cannabis Patent (Ex. 6; AC ,r,r3 l 5-l 8), citing a series of studies and academic papers supporting its

conclusion that Cannabis does, in fact, provide medical benefits (Id.). Insofar as a U.S. patent cannot

issue in the absence of a representation of utility (35 U.S.C. §101), it is simply inescapable that it is

~ Ire-p-crsitiurrofthe-Fe-dera:h'tovermnenrthat-eannabis-cunstituteSaireffective---nredicai-treatmen:+-=
- ,-----

period. The Federal Government cannot logically maintain on its U.S. and WIPO Cannabis Patents

that Cannabis safely provides medical benefits to patients suffering from disease while also

simultaneously "finding" under the CSA that Cannabis has no medical application whatsoever (AC

,r320).

The Federal Government Implements National Policy to Permit State-


Legal Medical Cannabis Use, Notwithstanding the Provisions ofthe CSA

As State-legal Cannabis legislation and other approvals ofmedical Cannabis continued to pass

throughout the United States, the Federal Government was confronted with a problem - under the

CSA, the cultivation, sale, possession and use of Cannabis were (and are) illegal; however, States

were granting their citizens full access to Cannabis for medical purposes (AC ,r321). On or about

October 19, 2009, defendant DOJ, while professing the importance of enforcing the CSA as it

pertains to Cannabis, acknowledged the existence of State laws authorizing the use of "medical

marijuana," and directed that United States Attorneys:

should not focus federal resources in your States on individuals whose


actions are in clear and unambiguous compliance with existing State

26
laws providing for the medical use of marijuana. For example,
prosecution of individuals with cancer or other serious illnesses who
use marijuana as part of a recommended treatment regimen consistent
with applicable State law, or those caregivers in clear and
unambiguous compliance with existing state law who provide such
individuals with marijuana, is unlikely to be an efficient use oflimited
federal resources.

("Ogden Memorandum") (Ex. 7; see also AC i1322). Thus, notwithstanding the provisions of the

CSA prohibiting cultivation, sale, possession and use of Cannabis, as a drug so dangerous that it

cannot be tested even under strict medical supervision, the DOJ expressly discouraged United States

Attorneys from using federal resources to prosecute violations of the CSA by users of Cannabis for

medical purposes in State-legal jurisdictions (AC i1323).

On or about August 29, 2013, defendant DOJ promulgated a series of enforcement priorities

in what has come to be known as the "Cole Memorandum" (Ex. 8; AC i1324). Under the Cole

Memorandum, the DOJ, consistent with the Ogden Memorandum, officially recognized that patients

using State-legal medical Cannabis, in accordance with the laws of the States in which they reside,

and businesses cultivating and/or selling State-legal Cannabis for medical purposes, are not

appropriate targets for federal investigation, prosecution and/or incarceration (Ex. 8 at 3; AC ,r,r325-

28).

On February 14, 2014, the Financial Crimes Enforcement Network ("FinCEN"), a division

of the United States Department of Treasury, issued a Memorandum (Ex. 9 at 1; AC ,r,r327-28) "in

light ofrecent state initiatives to legalize certain marijuana-related activity and related guidance by

the DOJ [i.e., the Cole Memorandum] concerning marijuana-related enforcement priorities" (Id.).

By its Guidance, FinCEN advised banks and other financial institutions as to how they could service

clients engaging in conduct that is illegal under both the CSA and 18 U.S.C. §1956 (laundering of

monetary instruments). In this regard, the FinCEN Guidance states:

27
The Financial Crimes Enforcement Network ("FinCEN") is issuing guidance to clarify
Bank Secrecy Act ("BSA") expectations-for financial institutions seeking to provide--
services to marijuana-related businesses. FinCEN is issuing this guidance in light of
recent state initiatives to legalize certain marijuana-related activity and related
guidance by the U.S . Department of Justice ("DOJ") concerning marijuana-related
enforcement priorities. Tltis FinCEN guidance clarifies !tow financial institutions
can provide services to mariiuana-related businesses consistent with tlteir BSA
obligations, and aligns tlte information provided by financial institutions in BSA
reports with federal and state law enforcement priorities. This FinCEN guidance
sltould enhance tlte availability of financial services for, and the financial
transparency of. mariiuana-related businesses.

See FinCEN Guidance at 1 (Ex. 9; AC ,r331) (emphasis added).

The Ogden Memorandum, Cole Memorandum and FinCEN Guidance each state that the CSA

has-n0t-0een-supeFseElea-and-Femams i-n--e--ffectt--howe-ver, eaeh-als0-m-akes---eleaF----t hat- the---P ederal

Government should not enforce the CSA as against medical Cannabis businesses or the patients who

treat with medical Cannabis, provided that such businesses and patients act in conformity with the

laws of the States in which they are located (Exs. 7-9; AC ,r334). The Ogden Memorandum, Cole

Memorandum and FinCEN Guidance cannot be reconciled with the classification of Cannabis as a

Schedule I drug - i.e., so dangerous that it has no medical purpose and cannot be tested even under

strict medical supervision (AC ,r335).

Tlte U.S. Surgeon General Acknowledges that Cannabis Provides Medical Benefits,
and tlte DEA Changes Its Website

On or about February 4, 2015, then-United States Surgeon General and America's Chief

Medical Officer, Dr. VivekMurthy, appeared on national television and acknowledged that Cannabis

can provide bonafide medical benefits to patients ("Surgeon General' s Acknowledgment") (AC

,r,r336-37). Correspondingly, the defendant DEA, earlier this year, in response to a petition filed by

Americans for Safe Access claiming that the DEA website contained dishonest representations

pertaining to Cannabis in violation of the IQA (Ex. 10), suddenly removed from its website all

28
references to Cannabis: (i) as a supposed "gateway drug;" (ii) as a drug that supposedly causes

"permanent brain damage;" and (iii) as a drug that allegedly leads to psychosis ("DEA's Website

Revision") (AC ifif338-44). In 2015, the FDA also abandoned the false notion that Cannabis

constitutes a gateway drug (Id. at p. 69, n. 157).

Congress De-Funds the Defendants DOJ and DEA from Enforcing the
CSA Against State-Legal Cannabis Businesses and Patients

Beginning in December 2014 (and in every year since), Congress started including funding

riders to an omnibus appropriations legislation, expressly prohibiting the DOJ and DEA from using

federal monies to prosecute Cannabis offenses in States where cultivation, possession and sale are

legal ("Funding Riders") (AC ifif345-51). The Funding Riders, however, do not include a similar

prohibition against prosecution of medical Cannabis patients on federal property (Id.).

ARGUMENT

POINT I

THE AMENDED COMPLAINT SATISFIES THE PLAUSIBILITY


STANDARD UNDER RULE 12(b)(6)

Defendants acknowledge that, "in considering a motion to dismiss pursuant to Rule l 2(b)(6),

a court must accept as true the well-pleaded factual allegations set forth in the complaint and draw

all reasonable inferences in the plaintiffs favor" (Moving Br. 8). 20 Thereafter, however, defendants

downshift into a series of assertions regarding supposed "threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements" - as if Plaintiffs' 97-page, thoroughly annotated

Amended Complaint, with its IO exhibits and 166 footnotes reciting the evidence upon which

20
See also Bell At/. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); Imbruce v. Am. Arbitration
Ass'n, 2016 U.S. Dist. LEXIS 130579, at *6 (S.D.N.Y. Sep. 22, 2016); Metcalfv. Zou/las, 2012 U.S.
Dist. LEXlS 6254, at *17 (S.D.N.Y. Jan. 19, 2012) (Hellerstein, J.); Gallien v. P&G Pharms., 2010 U.S.
Dist. LEXlS 21051, at *2 (Mar. 4, 2010).

29
allegations are based could somehow be confused with a conclusory, threadbare pleading.

Defendants' shopworn legal arguments have no application to this lawsuit and should be disregarded.

Instead, the Court is respectfully directed to a fuller statement of the legal standard (set forth below)

on Rule 12(b)(6) motions to dismiss.

The pleading standard under Rule 12(b)(6) is one of "plausibility" rather than "probability." 21

Under the plausibility standard set by Twombly, a "claim has facial plausibility when the plaintiff

pleads factual content that allows the Court to draw the reasonable inference that the defendant is

liable for the misconduct alleged."22 This plausibility standard is not a heightened pleading I
I
standard:2L .A:nd;-accordmgto-the-Supreme-e ourt-;-¾.-well--pleaded-c0mplaint--may-proeeed-even-i-f it _J_

strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote

and unlikely. "'24 Thus, a complaint will be dismissed only if it fails to articulate sufficient factual

allegations which state a claim for relief that is "plausible on its face. " 25

Moreover, "[i]n considering the motion, the Court may also consider documents attached to

21
See e.g., Twombly, 550 U.S. at 556; Metcalf,' 2012 U.S. Dist. LEXIS 6254, at *17; see also
Caldwell v. Crossett, 2010 U.S. Dist. LEXIS 56573, at *4-6 (S .D.N.Y. May 24, 2010) (citing Scheuer v.
Rhodes, 416 U.S. 232,236 (1974)) ("The issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the claims").
22
Metcalf, 2012 U.S. Dist. LEXIS 6254, at *17 (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
23
Twombly, 550 U.S. at 570; see also Arista Records LLC v. Doe, 604 F.3d 110, 119-20 (2d Cir.
2010) ("[T]he notion that Twombly imposed a heightened standard that requires a complaint to include
specific evidence, factual allegations in addition to those required by Rule 8, and declarations from the
persons who collected the evidence is belied by the Twombly opinion itself ... Nor did Iqbal heighten the
pleading requirements. Rather, it reiterated much of the discussion in Twombly"); Amguard Ins. Co. v.
Getty Realty Corp ., 147 F. Supp. 3d 212, 218 (S.D.N.Y. 2015) (accord).
24
Twombly, 550 U.S. at 556 (citing Scheuer, 416 U.S. at 236).
25
Gallien, 2010 U.S. Dist. LEXIS 21051, at *3.

30
the complaint as exhibits and documents incorporated by reference in the complaint. " 26 Yet,"[e]ven

after Twombly and Iqbal, the Court's role in deciding a motion to dismiss is merely to assess the legal

feasibility of the complaint, not to assay the weight of the evidence which might be offered in support

thereof.'m

Defendants would have this Court apply their narrow and skewed version of the plausibility

standard under Rule 12(b)(6) to their distorted recitation ofPlaintiffs' claims - a recitation which fails

to acknowledge most of the allegations upon which Plaintiffs' claims are premised, and wrongly

portrays Plaintiffs as merely having "varying interests in the use of marijuana" (Moving Br. 7).

Defendants-al-sc i-gncre---t-he-central premises--cf-PlaintiffsLFi-rst eause--e.,f Aetiem- that:-(r)-the-F-edera-1

Government's mis-classification of Cannabis as a Schedule I drug was pretextual, and (ii) the Federal

Government does not and cannot believe, and for decades has not believed, that Cannabis satisfies

the Three Schedule I Requirements, thus rendering the classification wholly irrational ("Irrationality

Allegation") (AC ,r,r256-301, 307 n.150, 315-53, 371-405; Exs. 5-10). This Irrationality Allegation

must be assumed true for purposes ofthis motion (Moving Br. 8).

Defendants do not argue that the allegations contained in the Amended Complaint are

implausible - only that, even assumed true, they supposedly do not support any valid claim for relief

(Moving Br. 8). Of course, reaching such a conclusion is possible for defendants only because they

have refused to actually address the allegations of the Amended Complaint. It is one thing for

defendants to acknowledge the test for deciding Rule 12(b)(6) motions; it is quite another thing for

26
See Jmbruce, 2016 U.S. Dist. LEXIS 130579, at *7 (S.D.N.Y. Sep. 22, 2016) (citing Halebian
v. Berv, 644 F.3d 122, 130 n.7 (2d Cir. 2011) and Chapman v. NY State Div.for Youth, 546 F.3d 230,
234 (2d Cir. 2008)); Caldwell, 2010 U.S. Dist. LEXIS 56573, at *4.
27
Bison Capital Corp. v. ATP Oil & Gas Corp., 2010 U.S. Dist. LEXIS 62836, at *14 (S .D.N .Y.
June 24, 2010) (internal citations omitted); Caldwell, 2010 U.S. Dist. LEXIS 56573 , at *4 (accord);
Gallien, 2010 U.S. Dist. LEXIS 21051, at *3 (accord).

31
them to apply it in good faith, assuming the facts to be true and then explaining why they fail to state

a claim. This, defendants do not even try to accomplish.

To the extent that defendants attempt to interpose an argument for the first time on reply that

the facts are implausible -- which would be impermissible - it is respectfully submitted that the

evidence annexed to and otherwise referenced in the Amended Complaint, even without the benefit

of any discovery from defendants, confirms that the Plaintiffs' lrrationality Allegation is, not only

plausible, but probable. The reasons for this conclusion are manifold.

As a preliminary matter, although not determinative, it is worthy of note that, on the motion

for a TRO, this Court, after considering Plaintiffs' lrrationality Allegation and some of the evidence

supporting it, observed:

the documents presented by the plaintiffs presented in exhibits are


persuasive that there is now a medical use of [] marijuana.

See Tr. at53-54 (Dkt. No. 34); see alsoKadonskyv. Lee, Dkt. No. A-3324-14T4 (N.J. App. Div. Oct.

31, 2017) (Appendix B) (reaching the same conclusion). Thus, this Court observed that the allegation

that the Federal Government cannot meet the second of the Three Schedule I Requirements is, at the

very least, plausible.

Leaving aside the Court's observation, it is plain that the nature of the allegations made, and

the evidence annexed to the Amended Complaint, confirm the vitality of the Irrationality Allegation.

Generally, the facts comprising the Irrationality Allegation include, inter alia, that the Federal

Government, despite its effort in this lawsuit to validate its mis-classification of Cannabis, has: (i)

repeatedly acknowledged that Cannabis has medicinal value and can be safely administered under the

supervision of a medical professional (thus negating two of the Three Schedule I Requirements); and

(ii) created and implemented national policy in accordance with those acknowledgments, in direct

32
contravention of the CSA (AC ifif256-301, 307 n.150, 315-53, Exs. 5-10).

Yet, in their Moving Brief, defendants misconstrue and/or fail to address the facts and

evidence supporting the Irrationality Allegation, including, inter alia, that:

• Cannabis has been safely used throughout recorded history (AC ififl29-96);

• the NYAM concluded that Cannabis is safe and medically therapeutic (Id. if215);

• throughout the Kennedy and Johnson Administrations, studies conducted on behalf


of the Federal Government consistently confirmed that Cannabis is safe and effective
(Id. if221);

• in the Shafer Commission Findings and Recommendations, the Federal Government


acknowledged that Cannabis is harmless (Id. if232);

• since 1978, the Federal Government has been subsidizing the IND Program, pursuant
to which the Federal Government has provided, and continues to provide, Cannabis
to patients who have not experienced any serious side effects (Id. ,r,r259-79);

• in 1988, Administrative Law Judge Francis Young, In the Matter of Marijuana


Rescheduling, DEA Docket No. 86-22, concluded, based upon the extensive record
before him (which was undisputed by the DEA), that Cannabis has currently accepted
uses for medical treatment in the United States and that it may safely be administered
under medical supervision (Id. ,r,r280-301; Ex. 5);

• in its U.S. and International Cannabis Patents, the Federal Government represented
to the USPTO and WIPO that Cannabis is medically useful in the treatment of disease
(AC ifif3 l 5-20; Ex. 6);

• the Federal Government has been licensing its Cannabis Patents and exploiting them
economically for decades (ACifif8, 392);

• the DOJ, since 2009, has adopted a policy of explicitly dissuading U.S. Attorneys
from utilizing federal resources to prosecute, under the CSA, medical Cannabis users
acting in compliance with State law (Id. ifif321-26; see also Exs. 7-8);

• since 2011 Congress has permitted Washington, DC to operate a medical Cannabis


program and a Cannabis decriminalization program, respectively, despite Congress's
authority to block those programs from implementation (AC if307, n.150);

• in 2014, the Treasury Department issued the FinCEN Guidance, advising banks,
lenders and other fmancial institutions as to how to transact with Cannabis businesses

33
(AC ,r,r327-33; Ex. 9); 28

• in February 2015, the United States Surgeon General, while appearing on CBS This
Morning, publically acknowledged that Cannabis can safely provide medical benefits
to patients (AC ,r,r336-37);

• earlier this year, the DEA and the FDA, consistent with the Surgeon General's
statement, and in response to a petition alleging that the DEA's website contained
false information, removed from their website all references to Cannabis as a
purported "gateway drug;" as a drug that causes "permanent brain damage;" and as a
drug that leads to psychosis (Id ,r,r338-44); and

• since 2014, Congress has consistently enacted the Funding Riders (in connection with
its omnibus appropriations bills), each prohibiting the DOJ and DEA from utilizing
the appropriated funds to prosecute, under the CSA, the use, distribution, possession
and/or cultivation of medical Cannabis in States where such activities are legal (Id
,r,r345-51)

(collectively, the "Facts and Evidence Establishing Irrationality"). This Court must accept as true the

Facts and Evidence Establishing Irrationality and draw all reasonable inferences therefrom in

Plaintiffs' favor. 29

Defendants, by their purposeful disregard ofthe allegations ofthe Amended Complaint, would

have this Court ignore the Facts and Evidence Establishing Irrationality. In so doing, defendants

invite this Court to commit reversible error. Id The Court, as defendants reluctantly acknowledge

in their Moving Brief, is required to accept the Irrationality Allegation as true (i.e., it is a fact that the

Federal Govermnent does not and cannot believe that the factual predicate for classification of

Cannabis as a Schedule I drug has ever been met, and that the CSA, as it pertains to Cannabis, was

28
Under the CSA, the Federal Government's issuance of advice concerning how to engage in
business transactions with Cannabis companies constitutes the crime of aiding and abetting a violation of
the CSA, and arguably could be construed as facilitation or solicitation of a felony. See 21 U.S.C.
§843(b).

29
Twombly, 550 U.S. at 555-56; Jmbruce, 2016 U.S. Dist. LEXIS 130579, at *6; Metcalf, 2012
U.S. Dist. LEXIS 6254, at *17; Gallien, 2010 U.S. Dist. LEXIS 21051, at *2. See also Moving Br. 8.

34
enacted as a pretext to discriminate). Similarly, the underlying Facts and Evidence Establishing

Irrationality, must also be assumed true, resigning defendants to arguing that they are simply right on

the facts and Plaintiffs are wrong - a clear issue of fact that precludes dismissal. What is required

now is a trial. Indeed, the Court herein, in response to opposing counsel's argument that Plaintiffs

were required to make a better showing that the CSA is irrational, responded:

The plaintiff has done that amply. There is a need now to cross-
examine and examine on all the issues that are relevant and to
understand better the context of which things are done (Dkt. No. 34,
Tr. 56-57).

POINT II

PLAINTIFFS' FIRST CAUSE OF ACTION STATES A CLAIM FOR


VIOLATION OF SUBSTANTIVE DUE PROCESS

The constitutional right to due process "may not require that Congress's actions reflect

'mathematical exactitude' in fitting means to ends, 30 butthe connection between means and ends must

be grounded on something more than an unreasonable, hypothetical connection that the United States

has expressly disclaimed in related proceedings."31 Equally applicable is the principle that, in

responding to rational relation review, a purported justification for legislation cannot be manufactured

by the governrnent accused of wrongdoing; rather, the governrnent' s rational relation argument must

be earnest and not pretextual. 32 Defendants do not dispute these principles of law. Nonetheless,

3
°City ofNew Orleans v. Dukes, 427 U.S. 297, 303 (1976).
31
Schaejjler Grp. USA, Inc. v. United States, 786 F.3d 1354, 1368 (Fed. Cir. 2015) (Wallach, J.,
concurring).
32
Fortress Bible Church v. Feiner, 694 F.3d 208 (2d Cir. 2012) (town zoning board's denial of
application on pretextual grounds cannot satisfy rational relation review, irrespective of the narrative
manufactured in its support); cf Anthony v. Franklin County, 799 F.2d 681, 684 (11th Cir. 1986) ("The
substantive due process doctrine proscribes "deprivation of a property interest for an improper motive
and by means that were pretextual, arbitrary and capricious, and ... without any rational basis");
accord East-Bibb Twiggs Neighborhood Ass'n v. Macon-Bibb Planning & Zoning Comm'n, 662 F. Supp.
1465, 1468 (M.D. Ga. 1987).

35
defendants assert that the facts recited in the Amended Complaint, even when assumed true, do not

establish that the CSA is unconstitutionally irrational, making an assortment of bogus arguments

including, inter alia, that: (i) Second Circuit case law and other precedent supposedly preclude this

action (Moving Br. 9-15); (ii) the Three Schedule I Requirements set forth in the CSA purportedly

do not apply to Congress - only to the Attorney General- and that, therefore, the Facts and Evidence

Establishing Irrationality are "immaterial" (id 4, 19-22); (iii) even if the Three Schedule I

Requirements were to apply to Congress, according to opposing counsel, any allegedly articulable

basis for the CSA insulates it from constitutional challenge, including that its purpose could have

been to prevent minors from consuming Cannabis (id. 16-19); and (iv) there is no fundamental right

to use Cannabis (Id. 22-2 7).

As demonstrated below, none of defendants' arguments have merit. Before addressing those

arguments, it is important to emphasize that, while rationality review accords Congress deference in

its enactment of legislation that does not infringe upon fundamental rights or make suspect

classifications:

the rational basis standard ... cannot defeat the plaintiffs benefit of the
broad Rule l 2(b )( 6) standard. To reconcile these standards, "the
solution is to 'take as true all of the complaint's allegations and
reasonable inferences that follow, [and then] apply the resulting 'facts'
in light of the deferential rational basis standard.'"'

As the Court in fl/. League further explained:

A plaintiff must foresee this dilemma and must allege facts snfficient
to overcome the presumption of rationality that applies to government
classifications.

33
fll. League ofAdvocates for the Developmentally Disabledv. Quinn, 2013 U.S. Dist. LEXIS
145246 at *17 (N.D. Ill. Oct. 3, 2013) (motion to dismiss denied) (citing Wroblewski v. City of
Washburn, 965 F.2d 452, 459 (7th Cir. 1999) and Flying J Inc. v. City ofNew Haven, 549 F.3d 538, 546
(7th Cir. 2008) (internal citations omitted).

36
Id. As shown below, Plaintiffs herein did foresee "this dilemma" and pled facts, and relied upon

evidence, that render absurd any suggestion that the Federal Government genuinely believes, and

objectively could believe, that Cannabis meets the Three Schedule I Requirements.

A. THE CASE LAW UPON WHICH DEFENDANTS RELY IS


OUTDATED, RENDERING THE APPLICATION OF STARE DEC/SIS
INAPPROPRIATE

The doctrine of stare decisis has limited application under circumstances in which the factual

predicates for the decision have changed or been determined never to have existed. Dias v. City &

County of Denver, 567 F.3d 1169 (10th Cir. 2009) (in denying defendants' motion to dismiss the

plaintiff's substantive due process challenge as to the rationality of a statute, tbe court rejected 20

years of precedent from courts "across the country" because the facts had changed); Gately v.

Massachusetts, 2 F.3d 1221, 1226 (1st Cir. 1993) ("a decision may properly be overruled if seriously

out of keeping with contemporary views or passed by in development of the law or proved to be

unworkable") (citation omitted); Jeno's, Inc. v. Comm 'r. ofPatents & Trademarks, 1985 U.S. Dist.

LEXIS 20097, at* 8 (D. Minn. May 6, 1985) ("Nor does the doctrine of stare decisis apply to tbe

present action ... Contrary to tbe [defendant's] reasoning, there is a strong possibility that plaintiff can

show changed circumstances").

As reflected in the Amended Complaint, the CSA was enacted, and Cannabis was classified

as Schedule I drug, in 1970 (AC '1[223-24). Since then, facts and circumstances have been uncovered

dramatically changing the alleged predicates for tbe classification of Cannabis. In particular, the

following facts and evidence were not known to the public at the time Cannabis was mis-classified

as a Schedule I drug:

• the Nixon Administration in 1970 ushered the CSA through Congress, not to stop the
spread of dangerous drugs, but to suppress political dissent and oppress African
Americans (AC '1['1[235-52);

37
• the 1973 Shafer Commission Report announced that scientific studies confirm that
Cannabis should be de-criminalized because it poses no health risk (id. ,r,r232-33);

• since 1978 and continuing to present day, the Federal Government has been
subsidizing and supplying medical Cannabis to patients throughout the United States
through the IND Program (id. ,r,r259-71);

• the Missoula Study has confirmed that the participants in the Federal Government's
IND Program have not suffered any adverse health impacts associated with long-term
Cannabis use (id. ,r,r272-79);

• Judge Young determined that " [m]arijuana, in its natural form, is one of the safest
therapeutically active substances known to man. By any measure of rational analysis,
marijuana can be safely used within a supervised routine of medical care" (id. ,r300);

• the Federal Government filed its International Cannabis Patent (1999), in which it
----annonneed- that- Gannabi-s-constitutes-an- effective- medi-cine-for-the-treatment-of-
disease· 34
'
• the Federal Government filed its U.S. Cannabis Patent (2002), in which the United
States announced that Cannabis constitutes an effective medicine for the treatment of
disease (id. ,r,r315-18, 391);

• the Federal Government has licensed its patented medical Cannabis formula to third
parties for use in the treatment of disease (id. ,r,r8, 392);

• defendant DOJ issued the Ogden and Cole Memoranda, in 2009 and 2013,
respectively, thereby greenlighting State-legal Cannabis businesses to cultivate,
extract, market and sell, and patients to treat with, medical Cannabis (id. ,r,r322-26);

• the U.S. Department of Treasury, in 2014, issued the FinCEN Guidance, encouraging
and advising banks and other financial institutions as to how to transact safely with
State-legal Cannabis businesses (id. ,r,r327-34);

• the Federal Government's Chief Medical Officer announced in 2015 that Cannabis
constitutes an effective and safe medicine for the treatment of disease (id. ,r,r336-37);

• 30 States, beginning in 1996, legalized Cannabis for an assortment of uses (id. ,r,r304-
11 );

• eight (8) States, beginning in 2012, legalized Cannabis for recreational use (id. ,r303);

• two territories and/or protectorates of the United States, beginning in 2015, have

34
https ://patentscope. wipo.int/search/en/detail.j sf?docld=WO 199905 391 7&redirectedID=true.

38
approved legalized Cannabis (id. if307);

• approximately 200 million people, more than 62% of Americans, live in States in
which Cannabis is legal for medical and/or recreational use (id. ,r,r13, 309, 386);

• more than 72 Million Americans today live in States, territories and protectorates in
which Cannabis is legal for recreational use - approximately 25% of the Country's
population;

• members of Congress have been openly questioning the rationality of the CSA as it
pertains to Cannabis;35

• in response to litigation, defendant DEA, in 2017, removed the inaccurate propaganda


from its website that Cannabis is a supposed "gateway drug" that leads to mental
illness and other health problems (id. if338);

- ·- - ---jcl-',engress-has-eensistent-ly-issuecl-the-Ftmding-R:ider-s-si-nee-2-0-l 4-fi-¾1lif-346=5-l-}~nd

• most recently, the White House Press Secretary, on President Trump' s behalf,
acknowledged the medical efficacy of Cannabis (at .6 to .22 seconds) ("The President
understands the pain and suffering that people [experience]. .. and the President
recognizes the comfort medical marijuana provides for people")36

(Hereinafter, the "New Facts").37

As explained by the 10th Circuit in Dias, in which the Court disregarded 20 years of precedent

to deny the defendants' motion to dismiss a rational-review challenge to a law proscribing ownership

of pitbull dogs:

Pointing to the cases where courts across the country have rejected
substantive due process challenges to pit bull bans, Denver argues that
the Ordinance is rational as a matter of law. This argument
misconceives the nature of the plaintiffs' challenge. Specifically, the
plaintiffs contend that, although pit bull bans sustained twenty years
ago may have been justified by the then-existing body of lmowledge,
the state of science in 2009 is such that the bans are no longer rational.

35
https://www.youtube.com/watch ?v=v_ 1V cPt-8y8.
36
http://www.newsweek.com/jeff-sessions-sued-marijuana-policy- l2-year-old-girl-708951 .
37
These New Facts essentially consist of the Facts and Evidence Establishing Irrationality that
have been revealed since 1970, when the CSA was enacted.

39
Dias, 567 F.3d at 1183. The same principle oflaw applies here, except Plaintiffs' claims herein are

much stronger than those interposed in Dias for one especially significant reason - in Dias, the

argument was that science had changed; in the present action, the claim is that the science has been

revealed, along with the disclosure that the Federal Government has known for decades that Cannabis

is safe and medically therapeutic (AC ,r,r253-303, 315-26, 336-44, 352-53, 377-98, 401-04, 444).

Meanwhile, most of the case law upon which defendants rely in their Moving Brief is old,

outdated decisional law from decades ago, based upon out-dated science and propaganda that the

Federal Government has plainly abandoned. See, e.g., United States v. Kiffer, 477 F.2d 349 (2d Cir.

- 1-9?j-), Narl-:-f)rg:for keform-ofMm·tjrranrrL-av1r ~B-elt;-4-8-8-F:-Supp-;-I-z-3-f.B .D. e:-1-9·80), United

States v. Fogarty, 692 F.2d 542 (8th Cir. 1982), United States v. Greene, 892 F.2d 453 (6th Cir.

1989), and United States v. Burton, 894 F.2d 188 (6th Cir. 1990). Case law that precedes the

disclosure that the Federal Government recognizes ( and has long recognized) the safe and therapeutic

nature of Cannabis has no application in 2017. Dias, 567 F.3d at 1183.

A corollary to the principle is that, irrespective of the case law, a statute may be recognized

as irrational based upon the discovery and development of additional facts and evidence through the

passage ohime. United States v. Carolene Products Co. , 304 U.S. 144, 153 (1938) ("Where the

existence of a rational basis for legislation whose constitutionality is attacked depends upon facts

beyond the sphere ofjudicial notice, such facts may properly be made the subject of judicial inquiry,

and the constitutionality of a statute predicated upon the existence of a particular state of facts may

be challenged by showing to the court that those facts have ceased to exist") ( citing Chastleton

Corporation v. Sinclair, 264 U.S. 543 (1924) ("A law depending upon ... [a] certain state of facts to

uphold it may cease to operate if the .. .facts change even though valid when passed") (citation

omitted) and Borden's Farm Products Co. v. Baldwin, 293 U.S. 194 (1934)); see also Brown v.

40
Hovatter, 516 F. Supp. 2d 547 (D. Md. 2007), aff'd. in part and rev 'd. in part on other grounds, 561

F.3d 357 (4th Cir. 2009) ("While there may have been a rational basis in preserving economic

investments in 1963, it is now questionable whether the legitimate state interest in preserving

economic investments of original owners is rationally furthered by the current statutory scheme").

That a statute may be declared irrational and thus unconstitutional under principles of

substantive due process based upon the discovery and development of new facts is not limited to

United States Supreme Court jurisprudence. For example, in Milnot Co. v. Richardson, the Southern

District Court of fllinois ruled that it was entirely appropriate to declare the Filled Milk Act

11Beonsti-t uti0nal-a-s irr-atienal aBa-thus a-vi0lat-i0n-0f s-ubstaBtive--due proces-s,Hotwithsta-n.ding-t-we - - - -

U.S. Supreme Court decisions sustaining the constitutionality of the statute, and notwithstanding the

plaintiffs' prior convictions thereunder. 350 F. Supp. 221 , 224-25 (S.D. Ill. 1972).

Here, the New Facts, which by rule must be accepted as true (Point I, supra), confirm that the

CSA is irrational. Indeed, as the New Jersey Appellate Division very recently recognized in a case

addressing the classification of Cannabis in New Jersey' s State-law version of the CSA:

While there may have been "no accepted medical use in treatment in
the United States" for marijuana when the CDSA [New Jersey' s
version of the CSA] became effective, any argument suggesting that
premise is still valid in the post-CUMMA era [New Jersey' s State-
legal medical Cannabis statute] strains credulity beyond acceptable
boundaries. Medical benefits from the use of marijuana not known in
1971, when the CDSA became effective, or in 1986, when Tate was
decided, and [yet] impediments to its lawful use as a result of its
Schedule I classification, are abundant and glaringly apparent now.

See Kadonsky, supra Appendix B. The Court herein came to a similar preliminary conclusion on the

Order to Show Cause for a TRO (See Tr. at 53-54 (Dkt. No. 34). And it bears repetition that the

Court in Kadonsky and this Court reached their conclusions without the benefit of any discovery from

defendants.

41
The New Facts, which, we repeatedly emphasize, must be accepted as true, demonstrate that

reliance upon outdated case law and the doctrine of stare decisis is inappropriate, and that Cannabis

simply cannot meet the Three Schedule I Requirements.

B. THE CASE LAW UPON WHICH DEFENDANTS RELY, IN


ADDITION TO BEING OUTDATED, IS ALSO INAPPLICABLE

Defendants cite dozens of cases in their Moving Brief. It would require an impossible

diversion ofresources, not to mention a 200-page brief, to separately address and distinguish each one

of them. Nonetheless, common threads among them make plain that none of the decisional authority

upon which defendants' rely supports dismissal of this action.

First, defendants repeatedly rely upon criminal cases to which the Federal Rules of Civil

Procedure, including Rule 12(b)( 6) and the case law construing it, do not apply. Indeed, on motions

to dismiss indictments, including those in which constitutional issues are raised, the government's

allegations are accepted as true. 38 And the statutes pursuant to which criminal defendants are

prosecuted are presumed to be constitutional. 39 By contrast, in this civil litigation, the allegations

underlying the unconstitutionality of relevant statutes (here, the CSA, as it pertains to Cannabis), are

deemed true (Point I, supra). Because the facts challenging the constitutionality of the CSA in the

criminal cases cited by opposing counsel were not assumed true (and indeed, presumed false), such

38
Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, n.16 (1952); See also United States v.
Hill, 2017 U.S. App. LEXIS 15678, at *3 (4th Cir. Aug. 18, 2017)("[A] challenge to the sufficiency of
the indictment ... is ordinarily limited to the allegations contained in the indictment," and a court accepts
the allegations as true) (internal citation omitted); United States v. Vaid, 2017 U.S. Dist. LEXIS 143495,
at *7 (S.D.N.Y. Sep. 5, 2017) ("In deciding the facial sufficiency of an indictment, a court assumes the
indictment's factual allegations are true"); United States v. Rue, 2015 U.S. Dist. LEXIS 110850, at *4
(S.D. Tex. July 29, 2017) (facts alleged in indictment deemed true, even though the defendant therein
argued that the statute with which he had been charged was unconstitutional).
39
Hill, 2017 U.S. App. LEXIS 15678, at *3.

42
case law is inapplicable to the resolution of defendants' l 2(b)(6) motion. 40 Therefore, the 11 criminal

cases cited on pages 14-15 of the Moving Brief are completely irrelevant to the disposition of this

motion.41

Second, the civil cases cited by opposing counsel have limited application here as well, insofar

as none of the litigants in those cases interposed the same claims and allegations as those set forth in

this action. We have prepared a chart of the civil cases upon which defendants rely for the false

proposition that the CSA is rational and thus constitutional (Appendix A). Appendix A shows that

none of the plaintiffs in the 14 decisions in civil cases cited by defendants for the proposition that the

es-A- ±s-ratiorrah:rrade-the IrrationaHty-Allegatiorr:-Nordid-the-courts-therein-addressihe same-Facts l


and Evidence Establishing Irrationality as Plaintiffs have pled herein (Appendix A). Opposing

counsel cannot reasonably argue that case law disposing of claims, allegations and arguments

demonstrably different from those claimed herein by Plaintiffs is somehow binding on them.42

One final point on this issue before turning to the next of defendants' arguments - opposing

40
Allen v. Cty. ofLake, 2015 U.S. Dist. LEXIS 12091, at *21 (N.D . Cal. Feb. 2, 2015) (case law
arising out of criminal prosecution, in which Rule 12(b)(6) was not applied, "is clearly inapposite" to the
civil litigation therein).
41
Moreover, none of the criminal cases cited by defendants herein involved same claims, facts
and evidence as cited by Plaintiffs herein. In particular, none relied upon the Irrationality Allegation or
all of the Facts and Evidence Establishing Irrationality.
42
Notably, defendants argue in footnote 6 of their Moving Brief that the DEA's "reasoning" cited
in 2016 Rescheduling Denial, 81 Fed. Reg. 53,767 (Aug. 12, 2016) may be considered on the motion to
dismiss because, according to opposing counsel, Plaintiffs supposedly "incorporated the Denial in by
reference" in the Amended Complaint. Defendants' argument on this point is disingenuous at best, and
frivolous at worst. The Amended Complaint (Table at p. 76) does not reference the reasoning set forth in
the aforesaid 2016 Rescheduling Denial; in fact, the Amended Complaint does not cite to the Denial at
all. Rather, Plaintiffs included a table in the Amended Complaint, listing the date of every re-scheduling
petition ever filed and merely the dates on which such petitions were denied, and then computed the
Federal Government's delay in deciding them. Plaintiffs did not (and would have had no reason to) rely
upon the so-called "reasoning" contained in the 2016 Rescheduling Denial. Unf01tunately, this mis-
characterization by defendants is typical of the litany of mis-statements (both on the law and facts)
replete throughout the Moving Brief.

43
counsel contends that Mixon v. Ohio, 193 F .3d 3 89, n. 9 (6th Cir. 1999), supports the proposition that,

in cases challenging the constitutionality of statutes as irrational, the court need not permit any

discovery before granting Rule 12(b)(6) motions. Importantly, however, the Court in Mixon decided

the motion therein pursuant to Rule 12.Gilil}, not Rule 12(b)(6). Mixon, 193 F.3d at 400.

Furthermore, the Court in Mixon did afford the plaintiff discovery therein. Id 11. 9 ("Plaintiffs argue

that the district court erred by not allowing further discovery before making its ruling;" "[W]e dismiss

Plaintiffs' argument that additional discovery is warranted"). Accordingly, the decision in Mixon --

the only case upon which defendants rely for the proposition that discovery need not be conducted

before consideration of 12(b)(6) motions -- does not support defendants' argument.

C. DEFENDANTS' ARGUMENTTHATCONGRESSISEXEMPTFROM
MAKING A FINDING THAT THE THREE SCHEDULE I
REQUIREMENTS APPLY IS PURE BUNK

Defendants argue that, because the CSA supposedly does not require Congress to make a

finding that Schedule I drugs have no medically-accepted purpose - that such a requirement is

imposed only upon the Attorney General-that the Three Schedule I Requirements are irrelevant for

purposes of evaluating a constitutional challenge (Moving Br. 4 ). Defendants are wrong.

With regard to the language of the CSA, defendants invoke 21 U.S.C. §812(b)(l)(A)-(C) for

the proposition that the statutory threshold for classification under Schedule I - i.e., the Three

Schedule I Requirements - does not apply to Congress. However, §812(b)(l)(A)-(C), cited by

defendants, states:

Except where control is required by United States obligations under an


international treaty, convention, or protocol, in effect on October 27,
1970, and except in the case of an immediate precursor, a drug or
other substance may not be placed in any schedule unless the findings
required for such schedule are made with respect to such drug or
other substance. The findings required for each ofthe schedules are
as follows:

44
(1) Schedule I.-

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has no currently accepted


medical use in treatment in the United States.

(C) There is a lack of accepted safety for use of the drug or


other substance under medical supervision.

21 U.S.C. §812(b)(l)(A)-(C). Nothing in the provision cited by defendants suggests that the clause

which states "a drug or other substance may not be placed in any schedule unless the findings required

for such schedule are made with respect to such drug or other substance" -- pertains only to the

orney-6eneral~ And-the-Supreme-eourtiras-consistently-rul-ed-thar,in-the-contexrof-stamtozy-

construction, "[t]he inquiry ceases if the statutory language is unambiguous," 43 as is the case here.

Because the text of the CSA unambiguously creates a single set of criteria for the classification of

Schedule I drugs, and does not suggest disparate standards to be used by Congress and the Attorney

General, no further inquiry is necessary. The Three Schedule I Requirements apply to both Congress

and the Attorney General.

Furthermore, the case law cited by opposing counsel for the notion that the CSA includes

bifurcated provisions for the classification of Schedule I drugs does not support defendants either.

In particular, defendants purport to summarize, not quote from, the decision in Oakland Cannabis

Buyers' Co-op. in arguing that the CSA has two standards for classifying Schedule I drugs. In fact,

the excerpt to which opposing counsel refers in Oakland Buyers ' Co-op pertains to the Supreme

Court's paraphrasal of the Appellants' position therein--notthe Court's holding. Then, immediately

after paraphrasing the Appellants' argument on this issue, the Supreme Court re;ectedthe suggestion

that the Attorney General and Congress are subject to differing standards when classifying Schedule

43
Barnhart v. Sigmon Coal Co., 534 U.S. 438,450 (2002) (internal quotation mark omitted).

45
I drugs. In this regard, the Supreme Court observed:

We are not persuaded that this distinction has any significance to our
inquiry ... Nothing in the statute [] suggests that there are two tiers of
schedule I narcotics, with drugs in one tier more readily available than
drugs in the other.

Oakland Buyers' Co-op, 532 U.S. at 492 (emphasis added). Thus, the very distinction upon which

opposing counsel relies was rejected by the Supreme Court. This likely explains why, in United

States v. Pickard, 100 F. Supp. 3d 981, 1006 (C.D. Ca. 2016)-upon which defendants expressly and

repeatedly rely in their brief -- the Court therein engaged in a rationality analysis that began with a

discussion of whether Congress could rationally have concluded that the Three Schedule I

Requirements were met before classifying Carmabis as a Schedule I drug. 44

D. DEFENDANTS' ARGUMENTTHATANYRATIONALEOFFEREDIN
SUPPORT OF THE CSA CAN INSULATE IT FROM
CONSTITUTIONAL CHALLENGE SIMPLY HAS NO MERIT

Defendants, citing.Jankowski-Burczykv. Immigration and Naturalization Service, 291 F.3d

172, 178 (2d Cir. 2002) and Knapp v. Hanson, 183 F .3d 786 (8th Cir. 1999), argue that, under

rational-basis review, any conceivable reason to justify enactment oflegislation will suffice as long

as it is rational, even if there is no evidence that that particular rationale was considered by Congress

prior to passage (Moving Br. 10-12). That principle oflaw applies only under circumstances in which

the legislature has not expressly provided its own rationale in the legislation. Hope for Families &

Cmty. Serv. v. Warren, 2008 U.S. Dist. LEXIS 17107, at *32-33 (M.D. Ala. Mar. 5, 2008). When

the legislature has outlined its stated reasons in a statute, its actual reason becomes the focus of the

constitutional challenge; the defendant cannot manufacture a new rationale in lieu of that which has

44
While the Court ruled in favor of the Federal Goverrunent in Pickard, it bears emphasis that
such a finding, which was made in the context of a criminal prosecution, has no application on a Rnle
12(6)(6) motion to dismiss a civil lawsuit. See Point II(B), supra.

46
already been articulated by the legislature. Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 530

(1959) ("Having themselves specifically declared their purpose, the Ohio statutes left no room to

conceive of any other purpose for their existence"). 45

Because Congress specifically outlined its supposed reasons for enacting the CSA, defendants

are, in effect, stuck with those reasons. Those reasons supposedly focus on the spread of illicit drugs

which, according to the CSA, allegedly has "a substantial and detrimental effect on the health and

general welfare of the American people." 21 U.S.C. §801(2). Such an allegation has no application

when one considers that the Federal Government: (i) as reflected in the FinCEN Guidance, is actively

- -em.~-01mrgingiTankS1D1-d-otherlemlirrginstitutiunsiutransa:ctwitlreamra:bi-s-bu-s:inessestEx:-9);-(ii-)-ha

prohibited the use of federal funds to prosecute cultivation, distribution, sale and use of Cannabis in

State-legal jurisdictions (AC ifif346-51 ); (iii) has re-directed law enforcement not to prioritize

enforcement of the CSA in States where Cannabis businesses and use are legal (Exs. 7 and 8); (iv)

is cunently permitting approximately 200 million Americans regular access to medical Cannabis in

30 States and two territories, plus Washington, DC (AC if306-l 1); (v) is acquiescing to recreational

use in eight States, two territories and Washington, DC, with a combined population of more than 72

Million people; (vi) applied and was approved for U.S. and International Cannabis Patents, in which

45
Moreover, even if it were true that the "any rationale" were to apply under circumstances in
which the legislature has already stated its purpose in enacting legislation (and it does not), the Eighth
Circuit in Knapp, upon which defendants rely, limited its holding to instances in which there was no
evidence of ulterior, darker motivations for the statute in question:

The Constitution presumes that, absent some reason to infer antipathy,


even improvident decisions will eventually be rectified by the democratic
process and that judicial intervention is generally unwarranted no matter
how unwisely we may think a political branch has acted.

Knapp, 183 F.3d at 314 (emphasis added). As reflected in the Amended Complaint, there is plenty of
reason to infer that Federal Government enacted and has enforced the CSA, not to regulate an allegedly
illicit and dangerous drug, but rather to harass and oppress political opponents and African Americans
(AC ,r,r114-18, 232-52; Exs. 3, 4; Stone Aff. ,r,r7-8, Dkt. 26).

47
the Federal Government represented that Cannabis provides a safe and effective cure for disease; and

(vii) is licensing its U.S. and International Cannabis Patents (Id. ,r,rs, 392 and supra note 34, 39).
These actions are, not only inconsistent with the supposed rationale underlying classification of

Cannabis as a Schedule I drug, but further, they directly controvert that rationale, rendering it

unsustainable as a defense. Schaejjler Grp., 786 F.3d at 1368 (Wallach, J. , concurring) (the supposed

rationale for legislation "must be grounded on something more than an unreasonable, hypothetical

connection that the United States has expressly disclaimed in related proceedings").

Furthermore, even assuming arguendo that it were appropriate for defendants to manufacture

a7:rewrationalriordassifyirrg-eannabi-s-mnr Schedule I-drug-=-arrd-irisrrt - -the-uewreasoning-

offered by opposing counsel does not make sense. Opposing counsel argues that the racist

classification of Cannabis may be justified by the notion that the government has an interest in

preventing its distribution to minors (Moving Br. at 13). However, such a "rationale" could make

sense only if the Federal Government were similarly to classify tobacco products (e.g., cigarettes,

chewing tobacco, etc.) and alcohol - which, together, cause more than a half-million deaths per year

- as Schedule I drugs (AC if3 l 4). And yet, tobacco and alcohol products are expressly excluded from

the CSA altogether. Rojas v. AG ofthe United States, 728 F.3d 203,209 (3d Cir. 2013). By contrast,

Cannabis has been classified as a Schedule I drug, despite never causing a single death (ALJ Decision

at 56-57, Ex. 5). Moreover, the suggestion that the classification of Cannabis can be justified by a

desire to prevent use by minors is rendered completely absurd, when one considers that the Federal

Government, since adoption of the Cole and Ogden Memoranda, has never prosecuted any parents

for allowing their children to treat with medical Cannabis, particularly those with seizure disorders.46

46
Alexis' s understandable fear of losing her parents is based upon her concern that they could be
arrested were she to travel across State lines or onto federal lands - circumstances which are outside the
"protections" set forth in the Cole and Ogden Memoranda.

48
Defendants also imply that the classification of Cannabis could be rationalized as a method

of preventing intoxicated driving (Moving Br. 13). But, if Congress's purpose in enacting and

enforcing the CSA's classification of Cannabis as a Schedule I drug was to prevent Dills, how can

the Federal Government explain why Cocaine, Methadone, Amphetamines, and F entanyl are all

classified Schedule II drugs ; or why Phencyclidine (PCP, otherwise known as "angel dust"), assorted

levels of Codeine, and Anabolic Steroids have been classified Schedule III drugs ; or why alcohol,

which, according to the Federal Government, causes 28 DUI deaths per day (one every 51 minutes),47

is somehow not scheduled under the CSA at all? Alcohol and the above-referenced Schedule II and

IH- drugs-;-al.1-of-which cause-thousands-of ·deaths-eaclryear;-cannot-seri-ously-be--regardeda:s-I-es·,.,--- -

intoxicating and dangerous than Cannabis.

While the Federal Government asks this Court to accept as gospel that the CSA could

rationally be justified upon the pretext that it is necessary to prevent use of Cannabis by minors or to

stop DUis, rationality review imposes no such requirement on the judiciary. Merely because the

government articulates a bogus rationale underlying an irrational law does not require this Court to

accept it. Gonzales v. Carhart, 550 U.S. 124, 165 (2017) ("[u]ncritical deference to Congress' factual

findings," on the issue of medical necessity, is "inappropriate" where the supposed "findings" by

Congress were factually wrong).

For example, in Romer v. Evans, the Supreme Court, applying rationality review, rejected the

argument by Colorado that a State Constitutional Amendment authorizing discrimination against gays

was somehow permissible because it prevented creation of special rights for homosexuals. 517 U.S.

620, 626 (1996). Similarly, in United States Dep't ofAgric. v. Moreno, 413 U.S. 528,535 (1973),

the Supreme Court rejected the Federal Government' s argument that the need to reduce welfare fraud

47
https://www.cdc.gov/motorvehiclesafety/impaired_ driving/impaired-drv_factsheet.html .

49
justified a law requiring that co-habiting persons receiving public assistance be related to one another.

And in Lawrence v. Texas, 539 U.S. 558, 582 (1995), the Court rejected the notion that a law

proscribing homosexual sodomy was somehow justified by the State's claimed desire to legislate

morality, observing that such a "rationale" fails in the absence of a law prohibiting heterosexual

sodomy (O'Connor, J. concurring).

While defendants would have this Court conclude that every constitutional challenge

grounded, in part, upon an allegation of irrationality, is supposed to result in an automatic win for the

government, the fact is that one in five such challenges since 1970 has been successful. 48 "This alone

tells us that characterizing the rational basis test as one where 'the government always wins' is

false." 49 Furthermore, opposing counsel's reliance upon some of the "sweeping dicta" suggestive

of unlimited congressional discretion occasionally seen in rational-review case law "simply can't be

squared with the many cases in which the Court has applied the test and found the government

wanting. " 50

As explained in Rationality Basis Review Should Not Preclude Unconstitutionality:

plaintiffs win these cases because, despite the sweeping commentary


about how deferential the rational basis test is, the [Supreme] Court
does not actually treat the test as a requirement that it abandon its basic
judicial function. The Court looks to see whether a purported rational
basis for a law can be squared with the real facts in the record. 51

Here, the real facts in the record demonstrate that the classification of Cannabis as a Schedule

48
Robert McNamara, US. v. Windsor: Rational Basis Review Should Not Preclude
Unconstitutionality, JURIST (Apr. 2, 2013),
http://jurist.org/hotline/2013/03/robert-mcnamara-rational-basis-windsor.php.

sold.

50
·-'- I drug -- one which, by definition, cannot have any medical efficacy and is so dangerous that it can't

even be tested under strict medical supervision - isn't merely irrational; it's idiotic. The Facts and

Evidence Establishing Irrationality firmly support the Irrationality Allegation that the Federal

Government knows, and for decades has known, that Cannabis is both safe and medically effective.

Assuming these facts true, as is required for Rule 12(b)(6) motions (Point I, supra), the First Cause

of Action easily survives dismissal. 52

POINT Ill

PLAINTIFF CCA HAS STANDING AND STATES A CLAIM FOR


- VJeb\-rl-0N-eF-E~B-A::L- PR0rE-€--'f-l-0N

For the reasons set forth below, defendants' motion to dismiss CCA's equal protection claim

should be denied. The only issues raised by defendants' motion to dismiss, as it pertains to CCA's

Second Cause of Action are whether: (A) the CCA has standing; and (B) the Federal Government's

classification of Cannabis as a Schedule I drug, at the insistence of President Nixon for the purpose

of suppressing the civil rights of African Americans and other political minorities, states a colorable

claim under the Equal Protection Clause. As demonstrated below, both issues must be resolved in

the affirmative. And given the importance of the constitutional challenges that the CCA raises, the

CCA should be provided with the opportunity to develop a complete factual record which will

confirm the full extent of the many ham1s created by the classification of Cannabis as a Schedule I

drug, and to contest the faulty assertions made by the defendants. See, e.g., Reno v. A.C.L. U , 521 U.S.

844, 849 (1997) (factual "findings provide the underpinnings of the legal issues" for constitutional

52
Defendants also argue, citing the decision in Oakland Buyers' Co-op, that Plaintiffs' claims do
not meet the requirements of the medical necessity defense (Moving Br. 6). However, Plaintiffs have not
filed a claim based upon the medical necessity defense. Accordingly, we do not address opposing
counsel' s arguments on this point.

51
challenge). Accordingly, for these and the reasons set forth below, defendants' motion to dismiss the

Second Cause of Action should be denied.

A. THE CCA HAS STANDING

"To satisfy the irreducible constitutional minimum of standing, a plaintiff must have: (1)

suffered an injury in fact; (2) that is fairly traceable to the challenged conduct of the defendant; and

(3) that is likely to be redressed by a favorable judicial decision." John v. Whole Foods Mkt. Grp.,

Inc., 858 F.3d 732, 736 (2d Cir. 2017) (internal quotation marks omitted). The "alleged injury in fact"

must be both "concrete and particularized" and "actual or irmninent, not conjectural or hypothetical."

Lujan v. Deft. ofWildl/fe, 504 U.S. 555,560 (1992) (citations and internal quotation marks omitted).

An organization satisfies the requirements for associational standing when: (a) its members

would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are

germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested

requires the participation of individual members in the lawsuit. Hunt v. Wash. State Apple Adver.

Comm'n, 432 U.S. 333,343 (1977).

Defendants do not dispute the allegations of the Amended Complaint pertaining to standing.

Instead, defendants merely contend that the Amended Complaint is vague and conclusory (Moving

Br. 30-32). Defendants are wrong. The Amended Complaint repeatedly articulates the connection

between the CCA and the Second Cause of Action (AC '1['1[106-10, 407-421). Nonetheless, to avoid

any doubt on the issue, we submit herewith affidavits from three members of the CCA, confirming

that each of the requirements of organizational standing is satisfied. 53

53
Plaintiffs are entitled to submit affidavits in response to defendants' motion to dismiss, given
that it was filed pursuant to 12(b)(l) of the Federal Rules of Civil Procedure, challenging the CCA's
standing to bring an equal protection claim. Fountain v. Karim, 838 F.3d 129, 134 (2d Cir. 2016) (citing
Zappia Middle E. Constr. Co. v. Emirate ofAbu Dhabi, 215 F.3d 247,253 (2d Cir. 2000)) ("In resolving

52
L Background oftlte CCA

The CCA is, and since 2015 has been, a non-profit organization that conducts seminars and

educational workshops in various jurisdictions (Bondy Aff. ,r,r6-8). Its members are of all races,
genders and orientations, and include, inter alia, veterans deprived of federal benefits, 54

State-authorized medical Carmabis patients, and individuals who have been convicted of federal

marijuana offenses (Id. if6; Motley Aff. if7; Bridgewater Aff. ifl O; Nesbitt Aff. ,r,r1, 3). On March 28,

2017, the CCA was approved as a 501 (c )(3) and achieved public charity status under Internal Revenue

Code ("IRC") 509(a)(2) (Bondy Aff. if7).

The CCA participates in the public policy debate over Carmabis policy that affects tens of

millions of adult Americans who use Cannabis responsibly for medical and recreational purposes (Id.

if7). The CCA advocates for the legalization of Carmabis, including endorsing state regulations (Id.

if9). The CCA has supporters in multiple States and a grassroots network of activist members who

oppose the criminal prohibition of marijuana throughout the Country (Id. ,r,rI 0-11 ). The CCA

supports policies that would permit seriously ill patients to treat with Carmabis as a medicine with

a recommendation from their physician, and of responsible adult use; the CCA opposes illegal use

of Carmabis by children and adolescents (Id. if7). Particular to the equal protection claim, the CCA

is designed to promote diversity and the inclusion of minority participants in the legal Cannabis

industry; minorities are grossly under-represented in the Carmabis space except when it comes to

a motion to dismiss under Rule l 2(b )(I), the district court must take all uncontroverted facts in the
complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting
jurisdiction... [T]he court may resolve the disputed jurisdictional fact issues by referring to evidence
outside of the pleadings, such as affidavits, and if necessary, hold an evidentiary hearing").
54
As further evidence of the importance of these issues to our national community, a recent poll
conducted on behalf of the American Legion found that one in five veterans use marijuana to alleviate a
medical or physical condition. http://norml.org/images/_pdJJAmerican_Legion_Poll_Nov_2_2017 .pdf.

53
. arrest and prosecution (AC iJ107).

2. The CCA Meets the Requirements of Organizational Standing

As reflected in the annexed affidavits ofKordell Nesbitt, Leo Bridgewater, Thomas Motley

and Joseph Bondy, the CCA meets all of the requirements for organizational standing. First, the

members of the CCA would have standing to sue in their own right. In particular, Mr. Nesbitt, a

member of the CCA, is African American (Nesbitt Aff. iJl). He was formerly a federal law

enforcement officer, employed by the Department of Homeland Security (DHS) (Id.). Mr. Nesbitt

pied guilty to a federal marijuana felony, and was sentenced to time served, followed by three years

of supervised release with the special condition that he serve 45 weekends in a half-way house (Id.

iJiJ3-4). Most recently, he was denied employment after failing a backgrouud check due to his federal

marijuana felony conviction (Id. iJ9).

As reflected in the Amended Complaint, persons of color are four times more likely to be

subjected to arrest, prosecution, conviction and incarceration by reason of their involvement with

Cannabis (AC ,i,i5, 108). The circumstances underlying the CSA and its classification of Cannabis

as a Schedule I drug, rendering its cultivation, sale, distribution and use illegal, reflect that the Federal

Government intended to use this legislation, not to avoid the distribution of illicit drugs, but to

suppress the civil and political rights of, inter alia, African Americans (Id ,i,it 0, 236, 243, 250).

Unquestionably, Mr. Nesbitt, as an African American who was targeted for arrest, prosecution and

incarceration uuder the CSA for an alleged Cannabis offense, suffered a concrete injury which, to this

day, continues to plague his life (AC iJiJ236, 407-21; Nesbitt Aff. iJ8).

Similarly, Leo Bridgewater, another member of the CCA, is African American (Bridgewater

Aff. ,it 0). He is a United States Army Veteran and telecommunications specialist, and was deployed

54
to Iraq four times (Id. ,r,rl-2). After the Army, he worked in the Pentagon for the Department of the

Army, and maintained secret level security clearances with the Department of Defense, United States

Department of State, the North Atlantic Treaty Organization, and the National Security Agency (Id.

,r3). Thereafter, Mr. Bridgewater worked for Total Army Communications, Southwest Central Asia

& Afghanistan (TACSWCAA) in Baghdad, Iraq, and maintained the same security classifications (Id.

,r4). He became a medical Cannabis patient in New Jersey in 2015 (Id. ,r7). As a result of his

treatment with medical Cannabis, Mr. Bridgewater cannot renew his security clearances (Id. ,r9). But

for this fact, he would be working within his area of expertise as a telecommunications specialist in

the private contracting community (Id.).

More to the point, Mr. Bridgewater rightly lives in constant apprehension that, as an African

American who treats with medical Cannabis, he may be arrested, prosecuted and convicted of

violating the CSA. Although residing in New Jersey (where treatment with medical Cannabis is legal

under State law), Mr. Bridgewater would be subject to arrest and prosecution under the CSA in any

State in which medical Cannabis has not been legalized, or if he were to step foot on any federal

lands. Even the Cole and Ogden Memoranda (Exs. 7-8) and the Funding Riders restricting use of

federal funds by the DOJ and DEA to prosecute those using medical Cannabis (AC ,r,r322-26, 345-51)

would not insulate Mr. Bridgewater from potential criminal exposure under such circumstances - a

genuine and serious risk, in view of the color ofhis skin (AC ,r407-21 ). Mr. Bridgewater is, therefore,

also threatened with a concrete injury. And because of his treatment with medical Cannabis, he has

already been subjected to harm in the form of a denied security clearance, which restricts his ability

to obtain employment in the field for which he is best suited. Plainly, Messrs. Nesbitt and

Bridgewater have experienced, and are threatened with, concrete and particularized injuries arising

55
from an equal protection violation.·

Mr. Motley, a member ofCCA (Motley Aff. if7), was convicted of a marijuana-related offense

under the CSA and sentenced to six months in prison, followed by a tlnee-year term of supervised

release (Id. if3). He rightly believes that the CSA is disproportionately enforced against persons of

color (Id. if4). He would like to participate in a minority-business enterprise program but believes his

felony conviction renders him ineligible and otherwise unlikely to receive any federal grant (Id. if6).

As for the second prong of the test for organizational standing, it is undeniable that the equal

protection claim and the objectives of this lawsuit are germane to the CCA's purpose. As reflected

supra, the CCA, a non-profit organization, was founded, inter alia, to advocate on behalf of persons

of color in connection with inequitable and unconstitutional enactment of the CSA, and its

disproportionate enforcement against, among others, African Americans (Bondy Aff. ifS)-precisely

the claim that is interposed in this lawsuit (AC ,r,r406-21).

As for the third prong, defendants do not interpose any substantive argument that the

individual members of the CCA are necessary parties for purposes of maintaining the Second Cause

of Action. Regardless, there is no suggestion in the Amended Complaint that the relief requested -

a declaratory judgment and injunction against enforcement of the CSA - requires the individual

members of the CCA to be named parties. Indeed, to add such parties would strain judicial resources

and render this case virtually non-justiciable, as scores of individual plaintiffs would have to be

added, absurdly increasing the cost and logistical complexity of this litigation.

For these reasons, the CCA meets the requirements of organizational standing relative to its

equal protection .claim.

56
B. THE SECOND CAUSE OF ACTION STATES A CLAIM FOR RELIEF

The Equal Protection Clause provides that no State shall "deny to any person within its

jurisdiction the equal protection of the laws." U.S. Const. amend XIV,§ 1. That provision "bars the

government from selective adverse treatment of individuals compared to other similarly situated

individuals if 'such selective treatment was based on impermissible considerations such as race,

religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith

intent to injure a person."' Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005).

Defendants request dismissal of the CCA's equal protection claim on two grounds: (i) the

allegations of the Amended Complaint are supposedly conclusory; and (ii) evidence that the Nixon

Administration ushered the CSA through Congress for discriminatory and other unconstitutional

reasons is irrelevant because the Executive Branch of government does not enact legislation (Moving

Br. 32-34). As demonstrated below, defendants are wrong on the facts and the law. But, before

proceeding with the substantive arguments on those issues, it is necessary to address defendants'

contention, buried in footnote 12 of the Moving Brief, that intentional discrimination against African

Americans may be evaluated under rationality review - an absurd legal proposition.

I. The Equal Protection Claim Articulates Allegations of Intentional


Discrimination Against African Americans and Other Persons of Color

In their Moving Brief, defendants acknowledge that a statute that "affects a 'suspect class' or

fundamental right" is subject to heightened scrutiny (Moving Br. n. 12); see also Pers. Adm 'r of

Mass. v. Feeney, 442 U.S. 256,272 (1979);Hayden v. Paterson, 594 F.3d 150, 162-64 (2d Cir. 2010).

However, after acknowledging that heightened scrutiny applies to claims involving allegations of

discrimination against members of a suspect class, defendants proceed to suggest that the Amended

Complaint does not contain a single assertion that the members of the CCA could be part of a suspect

57
class (Id.). Respectfully, even a cursory review of the Amended Complaint confirms that defendants'

argument is preposterously wrong, which may explain its relegation to the status of a footnote.

Specifically, in the Amended Complaint, the CCA alleges that (i) its membership includes

African Americans and other persons of color (AC ,rl 10), (ii) who have been disproportionately

singled out for harassment and prosecution under the CSA (id. ,r,r108-09), (iii) which was enacted to

suppress the rights of African Americans (id. i!236) and war protestors (id. i!247), (iv) both of which

such groups Nixon claimed were politically hostile to his administration (id. ,rl 0), while (v) knowing

all along that Cannabis was wrongly classified to achieve the Nixon Administration's unconstitutional

objectives of suppressing dissent and punishing persons of color (Id. ,r243).

Hardly conclusory, the foregoing allegations of the Amended Complaint, which defendants

completely ignore, are supported by statements made by John Ehrlichman, Nixon's former White

House Counsel and Chief Domestic Policy Advisor (id. ,r24 7), and an affidavit of Roger Stone,

another key member of the Nixon Administration (Stone Aff. Dkt. 26, ,r,r?-8). In addition, Nixon

himself acknowledged his hostility towards African Americans and war protestors in his tape-

recorded conversations (id. i!247), and made plain the complete irrationality underlying his animus,

at one point contending that Jews mostly supported drug use because they are all psychiatrists (AC

i1240).

Indeed, the bigotry rampant throughout elements within the Nixon Administration, and the

manner in which such bigotry surreptitiously infected matters of policy, is not a mere allegation, but

rather an historical fact. For example, Bob Haldeman, a senior policy advisor to Nixon, recorded in

his diary that:

{Nixon[ emphasized that you have to (ace the fact that the whole
problem is really the blacks. The key is to devise a system that

58
recognizes this while not appearing to [be doing so]. 55

Mr. Haldeman's diary entry is particularly relevant to this litigation, insofar as Plaintiffs have

consistently maintained that the mis-classification of Cannabis as a Schedule I drug was a subterfuge

to erect a racially-discriminatory policy of harassing, prosecuting and isolating African Americans

by using the pretext of generic, across-the-board legislation that does not mention them as a group,

but which is designed to affectthem the most (AC if236). And, unfortunately, Nixon was disturbingly

successful (AC if250; see also Ex. 3)

To be clear - the Amended Complaint alleges intentional, invidious discrimination against

African Americans and other persons of color, supported by detailed allegations, and citations to

evidence in the public record, as well as attached Exhibits. How opposing counsel could claim that

the allegations of the Amended Complaint lack reference to discrimination against suspect class

members is a genuine mystery.

2. The Allegations ofthe Second Cause ofAction Are Neither Conclusory Nor
Threadbare

While conclusory and threadbare allegations of discrimination cannot set forth an equal

protection claim, the Amended Complaint herein bears no resemblance to the pleading opposing

counsel purports to describe. Opposing counsel cherry-picks a few paragraphs, purports to paraphrase

them as conclusory, and jumps to his conclusion that the Amended Complaint lacks particularity

(Moving Br. 32-34). Opposing counsel is wrong. But rather than repeating the allegations set forth

in Point III(B)(l) supra and those recited in the Statement of Facts, we respectfully refer the Court

to the Amended Complaint, including its 4 74 enumerated paragraphs, 166 footnotes, and 10 exhibits,

55
http://www.nytimes.com/1994/05/18/us/haldeman-diary-shows-nixon-was-wary-of-blacks-and-j
ews.html.

59
. __ j
which detail with particularity the-manner in-whi-ch assorted members of the Nixon Administration::::-=---

(including Nixon himself, Mr. Haldeman, Mr. Ehrlichman and Myles Ambrose, America's first drug

czar) ushered the CSA through Congress in order suppress the political and civil rights of, inter alia,

African Americans and other persons of color.

3. Defendants' Argument That the Nixon Administration's Racial Animus is


Irrelevant to the Equal Protection Claim Fails to Consider the Role of the
Executive in the Modern-Day Presidency, and Overlooks Particular Actions
of Nixon Administration Officials in Passing and Implementing the CSA
I

Citing a single opinion -- United States v. Heying, 2014 WL 5286153, 2014 U.S. Dist. LEXIS

l-4-'.:J-49-9 EE>-;-Minn-;-Attg-;----2014) --- Elefefld-aflts- eentend-that,i.n the-e011te-~t-0f- the-C-----SA '-s-mis-


j
classification of Cannabis, evidence of racial animus by high-ranking members of the Nixon

Administration, including the former President himself, is irrelevant because the Executive Branch

of government supposedly was not the decision-maker - Congress was (Moving Br. 33-34). The

opinion in Heying is comprised of a magistrate' s report and recommendation from a Minnesota

District Court, in a criminal case. The Heying Report and Recommendation has never been cited for

the proposition oflaw for which defendants offer it. And, in any event, because it was a criminal case

(unlike Plaintiffs' civil case here), the allegations underlying the claim therein that the CSA is

unconstitutional were not assumed true, rendering the opinion in Heying inapposite (Point IA, supra).

Moreover, defendants' argument fails to take into consideration the role of the modem-day

Executive in the context of law making. As originally devised, the President's sole participation in

the legislative process was to sign or veto legislation. Buckley v. Valeo, 424 U.S. 1, 121 (1976); 56

however, as the role of the Executive Branch has evolved, " [t]he President of the United States has

56
The Constitution also provides that the President may "recommend" to Congress for "their
consideration such measures as he shall judge necessary and expedient." U.S. Const. Art. II, §3.

60
grown into a position of overmastering-influence over the legislative department of the govermnent

... Congress is subservient to his will; its independence is in eclipse." Michael A. Fitts, The Paradox

ofPower in the Modern State: Why A Unitary, Centralized Presidency May Not Exhibit Effective or

Legitimate Leadership, 144 U. PA. L. REV. 827, 828 n.2 (1996) (citing JAMES L. SUNDQUIST, THE

DECLINE AND RESURGENCE OF CONGRESS 33 (Brookings lnst. 1981) (internal citation omitted); see

also J. Richard Broughton, The Inaugural Address as Constitutional Statesmanship, 28 QUJNNIPIAC

L. REV. 265,270 (2010) ("The presidency now occupies not just an important role but also a preferred

place in the creation, development, and enactment of national legislation") (citation omitted); Vasan

Kesavan & J. Gregory Sidak, The Legislator-in-Chief, 44 WM. & MARYL. REV. 1, 48 & n.196 (2002)

("Today much if not most legislation 'originates' in the Office of the President; [i]n modem times,

the 'executive communication' has become a prolific source of legislative proposals"). Indeed,

nowadays, major legislation is so personally associated with the President who introduces a bill into

Congress that the proposed bill or law is often unofficially named after the President. See, e.g.,

"ObamaCare" (Pub. L. 111-148) and "TrurnpCare" (H.R. 1628-2017).

As a result ofthe modem-day Executive's expanded role in the legislative process, the animus

of the Executive Branch in proposing legislation is by no means irrelevant, as defendants' incorrectly

argue, but to the contrary, is highly probative in determining a statute's purpose. This view is shared

by many scholars and courts alike. As one author explained:

The President and the executive branch subject to his direction are, of
course, regular participants in the pre-enactment legislative process.
Legislation might be initiated pursuant to presidential message; its
contents might be shaped in important part by the overt or implied
threat of presidential veto. Most technical legislation can no longer be
prepared without intensive assistance by government departments, and
not infrequently consists, in substance, of executive drafts enacted into
law with minor revisions by Congress. All of such pre-presentment

61
input ofthe executive branch into the legislative process is part o(the · · ·
legislative history offederal statutes, and must be consulted whenever
resort to legislative history is appropriate.

Hans W. Baade, "Original Intent" in Historical Perspective: Some Critical Glosses, 69 TEx.L. REV.

1001, 1100 (1991) (citations omitted) ( emphasis added). See also Curtis A. Bradley and Eric A.

Posner, Presidential Signing Statements and Executive Power, 23 CONST. COMMENT. 307,362 (2006)

("courts do routinely rely on statements issued by the executive branch regarding legislation under

consideration") (citation omitted); Steven A. Ramirez, The Chaos of 12 US.C. Section 182J(k):

Congressional SubsidizingofNegligent Bank Directors and Officers?, 65 FORDHAML. REV. 625,678

(1996) ("Presidential intent seems particularly appropriate as a tool of statutory analysis in those

circumstances where the President is substantially involved in promoting legislation") (citation

omitted). For these reasons, courts regularly consider statements and communications by members

57
of the Executive Branch in determining the purpose and meaning of a statute.

Here, President Nixon and his Administration were substantially involved in the enactment

of the CSA. In particular, members of the Executive Branch were the "draftsmen" of the CSA and

57
See e.g., Kosak v. United States, 465 U.S. 848, 857 n.13 (1984) (report prepared by Special
Assistant to the Attorney General that was submitted to Congress was considered in interpreting FTCA,
despite that the report was not introduced into the public record, because "it seems to us senseless to
ignore entirely the views of its draftsman"); United States v. Sto,y, 891 F.2d 988, 994 (2d Cir. 1989)
("President Reagan's views are significant here because the Executive Branch participated in the
negotiation of the compromise legislation"); Resolution Trust Corp. v. Cityfed Fin. Cmp., 57 F.3d 1231,
1239 (3d Cir. 1995), vacated sub. nom. Atherton v. FDIC, 519 U.S. 213 (1997) (relying on statements
made by the President in a news conference to determine purpose oflegislation). See also United States
v. Strake, 800 F.3d 570, 586 (D.C. Cir. 2015) ("When President Reagan proposed the bill that ultimately
became the Act, he declared that it would "send a strong and vigorous message to friend and foe alike
that the United States will not tolerate terrorist activity against its citizens") (citing President's Message
to the Congress Transmitting Proposed Legislation to Combat International Terrorism, Pub. Papers,
Admin. ofRonald Reagan 3-4 (Apr. 26, 1984) (emphasis added)); Schuh v. HCA Holdings, Inc., 947 F.
Supp. 2d 882, 889 (M.D. Tenn. 2013) (referencing President Clinton's proposed "Balanced Budget
Act"); Doe v. Salvation Army in the United States, 685 F.3d 564, 572 (6th Cir. 2012)( citing President
Reagan's submission of the Restoration Act for review by Congress).

62
major participants of the "enacting coalition" in the legislative process. The CSA was first initiated

by President Nixon through his "Special Message to the Congress" on July 14, 1969, in which he

stated that the United States Attorney General would be "forwarding to the Congress a comprehensive

legislative proposal to control [supposedly dangerous] drugs" and "urge[d] the Congress to take

favorable action on this bill." Richard Nixon, Special Message to the Congress on Control of

Narcotics and Dangerous Drugs -July 14, I 969," PUB PAPERS 513 (1969); see also Comprehensive

Drug Abuse Prevention and Control Act of 1970, H.R. Rep. 91-1444, 91st Cong. at 2052 (2d Sess.

1970). The Nixon Administration then sent Congress its legislative directives with respect to the

CSA, including classifying Cannabis a Schedule I drug, which were originally introduced as bills in

the Senate as S.2637 and in the House of Representatives as H.R. 13742 and H.R. 13743. See

Comparison of Bills to Regulate Controlled Dangerous Substances and to Amend the Narcotic and

Drug Laws, Staff ofH. Comm. Ways and Means (Aug. 8, 1970). Furthermore, Nixon's Attorney

General John Mitchell testified before a Senate Subcommittee, stating that he was pleased to discuss

"S.2637. which is this Administration's bill" regarding federal drug laws, and referred back to

President Nixon's "Special Message" in July. United States Department ofJustice, Statement ofU.S.

Att'y. Gen. John N. Mitchell Before the Subcomm. on Juvenile Delinquency of the S. Comm. on the

Judiciary on S. 263 7, "Controlled Dangerous Substances Act of1969" at 1 (Sept. 15, 1969) ("Mitchell

Senate Statement") (emphasis added). 58

As further evidence that members of the Nixon Administration spearheaded the enactment

58
See also Drug Abuse Control Amendment-1970: Hearings on H.R. 11701 and H.R. 13743
Before the Subcomm. on Public Health and Welfare of the H. Comm. on Interstate and Foreign
Commerce, 91st Cong. 80 (1970) (statement of John Mitchell, Att'y. Gen. of the U.S.) ("the
administration sent to Congress the proposed 'Controlled Dangerous Substances Act.' This is the
proposal the President referred to in his message [from July 1969]. .. the Administration supports it
wholeheartedly.").

63
ofthe CSA, its legislative history demonstrates that Congress relied upon the Executive Branch

specifically in setting the classification of Cannabis as a Schedule I Drug. Specifically, in his Senate

subcommittee testimony, Attorney General Mitchell stated that, under the proposed legislation,

Cannabis would be classified a Schedule I drug (Mitchell Senate Statement at 10). Subsequent

legislative history further shows that "in the bill as recommended by the Administration and as

reported by the committee, marihuana {Cannabisl is listed under Schedule I." H.R. Rep. 91-1444

at 2063 (emphasis added). See also AC~224-25 and n.116 (Cannabis classified under Schedule I

upon the request of the Nixon Administration and the recommendation of the Department ofHousing

Education and Welfare (HEW)) (citing H.R. Rep. 91-1444 at 2111 ). 59

This explains why the courts have specifically recognized the legislative authority of the

President in the context of classifying drugs under the CSA. See, e.g., United States v. Kane, 691 F.

Supp. 341, 346 (N.D. Ga. 1988) ("It is true that in certain limited, specialized areas, Congress has

properly delegated its law-making authority in criminal matters to the Executive) (citing United States

v. Daniel, 813 F.2d 661 (5th Cir. 1987) (separation of powers not violated by delegation to Attorney

General of power to reclassify controlled substances, even though such reclassification affected

maximum penalty for distribution of substances), United States v. Womack, 654 F.2d 1034 (5th Cir.

1981), cert. denied, 454 U.S. 1156 (1982), and United States v. Gordon, 580 F.2d 827,840 (5th Cir),

cert. denied, 439 U.S. 1051, 58 L. Ed. 2d 711, 99 S. Ct. 731 (1978)). Given the substantial and highly

influential role of the Nixon Administration in enacting the CSA, and the specifically-recognized

legislative authority of the President in classifying drugs under the CSA, coupled with the

contemporaneous statements of President Nixon and those of Messrs. Ehrlichman, Haldeman and

59
None of this evidence as to congressional reliance on the Nixon Administration in passing the
CSA is addressed in Heying, 2014 WL 5286153.

64
_. Stone; there can-be no doubt as to the plausibility of the allegations underlying the· CCA's equal

protection claim. See Story, 891 F.3d at 994; Kosak,465 U.S. at 857 n. 13.

Thereafter, the discriminatory animus continued following enactment of the CSA. When the

Shafer Commission Findings and Recommendations proposed de-criminalizing Cannabis as an

essentially harmless substance (id if232), the Executive Branch, to which the responsibility was

assigned by Congress to re-schedule Cannabis, refused to take action (id. if249). Instead, the Nixon

Administration persisted in the mis-classification of Cannabis as a Schedule I drug, again, not to

preserve the Country's health and safety, but to harass and punish persons of color and others

protesting the Vietnam War (id. ,r,rto, 108-09, 236, 243, 247) - a policy that achieved disturbing

success (Id. if250). Thus, the issue here is not whether elements of the Nixon Administration ushered

the CSA through Congress with the intention of using the mis-classification of Cannabis to harass,

prosecute and incarcerate African Americans and other persons of color; that is a fact that must be

assumed true, and which has been proven true based upon the evidence annexed to the Amended

Complaint. Instead, the issue here is whether a President can take such racially divisive action and

insulate the Federal Government from constitutional challenge based upon the fiction defendants seek

to perpetuate: that, in the context of intentionally discriminatory legislation, the only motivation that

matters consists of the declared statements of intention by Congress.

At a time when our Country's racial divide appears to be closer to the breaking point than at

any other time since the I 960s, the prospect of insulating legislation from constitutional challenge

because it was engineered by the White House rather than Congress would set a dangerous and

potentially catastrophic precedent; this is especially problematic and troubling due to the fact that the

modern-day President plays, and is expected to play, such a substantial role in proposing, promoting,

65
and drafting legislation, as discussed above. Simply put- when theExecutiveBranch;-acting with

a clear racial animus, proposes legislation that subsequently becomes law, it must be actionable -

otherwise, the Equal Protection Clause would be rendered nugatory.

POINT IV

THE SIXTH CAUSE OF ACTION ST ATES A CLAIM FOR VIOLATION OF


PLAINTIFFS' FUNDAMENTAL RIGHT TO PRESERVE THEIR HEALTH
AND LIVES AND THEIR RIGHTS UNDER THE FIRST AMENDMENT

The CSA does not, on its face, expressly proscribe individuals from exercising their free-

speech rights under the First Amendment or their rights to preserve their health and their lives;

however, as demonstrated below, the CSA, as applied, requires Plaintiffs to sacrifice the former in

order to exercise the latter, representing a clear constitutional violation. And given the heavy burden

defendants must meet to justify legislation that has this effect (see Point IV(A) below), the motion

to dismiss the Sixth Cause of Action must be denied.

A. THESTANDARDOFREVIEWFORPLAINTIFFS'SIXTHCAUSEOF
ACTION

In their Moving Brief, defendants interpose legal arguments pertaining to Plaintiffs' Sixth

Cause of Action without regard to any standard of review (Moving Br. 44-49). The proper standard

under circumstances in which a statute infringes upon a fundamental right, heightened scrutiny,

generally requires the govermnent to bear the burden of proving that the complained-of restriction is

justified by the alleged existence of a compelling state interest, and has been narrowly tailored to

ensure achievement of only that interest and is thus not overly broad. 60

60
Leebaert v. Harrington, 332 F.3d 134, 140 (2d Cir. 2003) ("Where the right infringed is
fundamental, strict scrutiny is applied to the challenged governmental regulation"); United States v.
Stein, 495 F. Supp. 2d 390,412 (S.D.N.Y. 2007) (a "substantive due process challenge ... is analyzed
first by determining whether it impinged upon a fundamental right and, if it did, by then considering
whether it was narrowly tailored to serve a compelling governmental interest").

66
- · Irr the First Amendment context, where legislation burdens the right of free expression, the

Courts employ strict or intermediate scrutiny, depending upon the nature of the conduct or property

that is being regulated. See e.g., Reed v. Town of Gilbert, 135 S. Ct. 2218, 2228 (2015) ("[S]trict

scrutiny applies ... when the purpose and justification for the law [pertaining to free speech

restrictions] are content based"); Hodgkins v. Peterson, 355 F .3d 1048, 1057 (7th Cir. 2004) (stating

that intermediate scrutiny applies to "time, place, and manner" regulations as well as content-neutral

legislation "directed at activity with no expressive component but which nevertheless imposes a

disproportionate burden on those engaged in protected First Amendment activity"); Cyr v. Addison

Rutland Supervisory Union, 60 F. Supp. 3d 536 (D. Vt. 2017) (applying strict scrutiny review to a

"time, place, and marmer" restriction that had the effect of categorically banning all speech in a public

forum); Brown v. City ofJacksonville, 2006 U.S. Dist. LEXIS 8162, at *7 (M.D. Fla. Feb. 6, 2006)

(internal citations omitted) ("[I]n balancing a citizen's right to express her opinion on public property

against the government's interest in limiting the use of its property, the Courts have established that

a city may enforce a reasonable regulation of the time, place, and manner of expression whenever the

excluded speech is content-neutral provided it is narrowly tailored to serve a significant government

interest and it leaves open ample alternative channels of communication") (emphasis added).

As shown below, defendants do not come close to meeting any of these standards on their

motion to dismiss.

B. THE CONSTITUTION PROTECTS THE INDIVIDUAL'S RIGHT TO


PERSONALAUTONOMY-TOPRESERVEHERHEALTHANDHER
LIFE

The Constitution guarantees that "[e]very human being of adult years and sound mind shall

have the right to determine what shall be done with his own body ... " Cruzan v. Missouri, 497 U.S.

67
'--26-1,-269 (1990} As explained by the-Court in C1:uzan--::.- , --::::·r:

no right is held more sacred, or is more carefully guarded, by the common law, than
the right of every individual to the possession and control of his own person, free from
all restraint or interference of others, unless by clear and unquestionable authority of
law ... Justice Cardozo, while on the Court of Appeals of New York, aptly described
this doctrine: "Every human· being of adult years and sound mind has a right to
determine what shall be done with his own body."

Id. (quotation omitted). Indeed, even convicted prisoners are possessed of the constitutional right to

maintain their own personal autonomy, particularly in matters relating to maintenance of one' s health

and life. 61 Owing to its central importance to personal liberty and freedom, "the right to

- - - -- self=determination-ordinar-ily tnttweighs-any eountervail-i-n-g-state--fnt-erest-sf?- Gruzan,--499-0:-8:-at 2 7-3

(quotation omitted).

In operation, these principles have generated decisions confirming that medical treatment

generally cannot be administered against a patient's will. See, e.g., Vitekv. Jones, 445 U.S. 480,494

(1980). This doctrine applies equally to circumstances involving medical interventions forcibly

imposed upon children. See, e.g., Parham v. JR. , 442 U.S. 584,600 (1979)("[A] child, in common

with adults, has a substantial liberty interest in not being confined unnecessarily for medical

treatment").

In their Moving Brief, defendants failed to analyze the Sixth Cause of Action in the context

of the rights of Plaintiffs to exercise personal autonomy and to preserve their health and lives. This

is a critical omission, requiring denial of the motion to dismiss with respect to the Sixth Cause of

Action on this basis alone.

Leaving aside opposing counsel's failure to contest the Sixth Cause of Action, there is no

61
Leaphart v. Prison Health Servs., 2010 U.S. Dist. LEXIS 135435 (M.D. Pa. Nov. 22, 2010)
(motion to dismiss claim by prisoner that his rights to personal autonomy were unconstitutionally
infringed when prison authorities performed an unwanted medical procedure on him, denied).

68
denying that Alexis, Jose and Jagger have a fundamental-constitutional right to be free from restraints

imposed by the Federal Government that would prevent them from continuing medical treatment that

has, for years, maintained their health and lives. See e.g., Doe v. Bolton, 410 U.S. 179,219 (1973)

(Douglas, J., concurring); see also Englandv. Louisiana State Board ofMedical Examiners, 259 F .2d

626, 627 (5th Cir. 1958) ("the State cannot deny to any individual the right to exercise a reasonable

choice in the method of treatment of his ills"). This fundamental right is "deeply rooted in this

Nation's history and tradition" (Moore v. City ofE. Cleveland, 431 U.S. 494, 503 (1977), and "is

implicit in the concept of ordered liberty." Id. (quoting Palko v. Connecticut, 302 U.S. 319, 325

(1937)).

That such a fundamental right exists is reflected, not only in the case law above, but in the

plain language of the Due Process Clause itself, which states that:

No person shall be ... deprived oflife, liberty or property without due


process of law.

U.S. Const. amend. V. And that language did not emerge from an abyss, but rather was the product

of centuries of common law tradition, recognizing the rights of self-preservation and personal

autonomy. 62 Thereafter, American common law adopted this tradition that has consistently

62
Dating back to the 1700s, William Blackstone wrote of three "principal or primary articles"
historically comprising "the rights of all mankind." First among these was "[t]he right of personal
security ... in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, [and] his
health." WiJliam Blackstone, 1 Commentaries *129. Blackstone described the guarantee of"[t]he
preservation of a man's health from such practices as may prejudice or annoy it." Id. at *134. This right
included the right to self-defense and the right to self-preservation. "For whatever is done by a man to
save either life or member, is looked upon as done upon the highest necessity and compulsion." Id. at *
130. Indeed, "Anglo-American law starts with the premise of thorough-going self determination."
Natanson v. Kline, 186 Kan. 393,350 P.2d 1093, 1104 (Kan. 1960). Further, after imbuing American
colonists with the British tradition of protecting human life, Samuel Adams, 15 years before adoption of
our Constitution, referred to "the duty of self preservation" as "the first law of nature." Samuel Adams,
The Rights of the Colonists: Report of the Committee of Correspondence to the Boston Town Meeting, 7
Old South Leaflets 417 (No. 173) (B. Franklin 1970) (1772).

69
recognized and emphasized the right to presei:veone' s life and the lives of others under the doctrines

of self-defense63 ( even by use of deadly force) and defense of others, indeed, even if doing so requires

trespass onto the property of others.64

Tbis common law tradition has been ensconced into our Nation's constitutional jurisprudence.

It is well established that, in Roe v. Wade, 410 U.S. 113 (1973), Planned Parenthood v. Casey, 505

U.S. 833 (1992), and their progeny, the Supreme Court has repeatedly ruled that, under circumstances

in which a statute regulating abortion would require a woman, in her third trimester, to continue her

pregnancy, such statute must include an exception to preserve the life and health of the mother. As

explained by the Supreme Court in Stenberg v. Carhart:

the governing standard requires an exception "where it is necessary, in appropriate


medical judgment for the preservation of the life or health of the mother," for this
Court has made clear that a State may promote but not endanger a woman's health
when it regulates the methods of abortion.

530 U.S. 914, 931 (2000) 65 (quoting Casey, 505 U.S. at 879 and citing Thornburgh v. American

College a/Obstetricians and Gynecologists, 476 U.S. 747, 768-769 (1986), Colauttiv. Franklin, 439

63
Brown v. United States, 256 U.S. 335, 343-44 (1921); cf Montana v. Egelhoff, 518 U.S. 37, 56
(1996) (plurality opinion).
64
Ploofv. Putnam, 81 Vt. 471, 71 A. 188, 189 (1908) ("This doctrine of necessity applies with
special force to the preservation of human life .... One may sacrifice the personal property of another to
save his life or the lives ofhis fellows") (citation omitted); Mouse's Case, 12 Co. Rep. 63, 77 Eng. Rep.
1341, 1342 (K.B. 1609) (deciding that it is lawful to throw overboard property of another for safety of
lives of passengers); RESTATEMENT OF TORTS§ 197 (1934). See generally George C. Christie, "The
Defense ofNecessity Considered from the Legal and Moral Points of View," 48 DUKE L.J. 975 (1996).
65
Although Stenberg concerns the separate issue of a woman's right to have an abortion,
Stenberg differs significantly in its analysis from other abortion-rights cases such as Roe and Casey in
that the Cami in Stenberg effectively held that the absence of a health exception in the law infringed on
a woman's "right to choose the particular method of abortion, or [in other words] ... [her] right to make
medical treatment choices" as distinct from the burden it would have on a woman's right to choose to
become a parent. B. Jessie Hill, The Constitutional Right to Make Medical Treatment Decisions: A Tale
of Two Doctrines, 86 TEX. L. REV. 277,291 (2006) (emphasis added).

70
· U.S. 379, 400 (1979), PlannedParenthoodofCentral-Mo. v, Danforth, 428 U.S. 52, 76-79 (1976),

and Doe v. Bolton, 410 U.S. 179, 197 (1973)).

Here, Alexis, Jose and Jagger seek to preserve their health and lives, not by the extraordinary

means that the Courts have long since sustained -- e.g., aborting a viable fetus or killing in self

defense -- but simply by continuing the use of a medication that, for years, has preserved their health

and lives without any side effects. 66 Because the Supreme Court has consistently recognized the

individual's fundamental right to preserve his or her own health and life, the CSA, which needlessly

would endanger the lives of Alexis, Jose and Jagger, is unconstitutional. 67

One final point - defendants devote five pages of their Moving Brief to arguing that Plaintiffs

have no constitutional right to use Cannabis (Moving Br. 22-27) - a claim which Plaintiffs do not

make herein. In making this argument, defendants are conflating Plaintiffs' fundamental

constitutional right to preserve their health and lives on the one hand, with the manner by which they

exercise it on the other. Defendants tactic is akin to an effort to defeat the free-speech claim raised

in Cohen v. California, 403 U.S. 15 (1971) by arguing that the plaintiff therein had no constitutional

"'Notably, this claim does not ask the Court to direct the government to engage in active conduct
to make Cannabis or any other drug available to Plaintiffs, as was the case in Abigail Alliance for Better
Access to Dev 't. Drugs v. Von Eschenbach, 495 F.3d 695 (D.C. Cir. 2007); rather, Plaintiffs seek merely
to, inter alia: (i) continue using medication (medical Carmabis) that is widely available throughout the
United States because the Federal Govermnent has established national policy permitting such use in
State-legal jurisdictions (Ogden and Cole Memoranda, Bxs. 7-8; FinCEN Guidance, Ex. 9; Funding
Riders (AC ,r,r345-51); and its implementation as part of the IND Program beginning in 1978 and
continuing to present day (id. ,r,r259-71); and (ii) continue using medication (medical Cannabis) that the
Federal Government has acknowledged in writing is safe and effective (U.S. and International Cannabis
Patents, Ex. 6 and supra note 40). The distinction between permitting medical intervention to end life
(i.e., a change in the status quo), and the exercise of govermnental restraint to continue the status quo in
order to preserve life is one that the Supreme Court has recognized, and in such instances, the Court has
ruled in favor of maintaining the status quo to preserve life. See, e.g., Cruzan v. Dir. ofMissouri Dep 't.
of Health, 497 U.S. 261,283 (1990).
67
The term "needlessly" is included herein because, as set forth in Point II supra, the Federal
Govermnent knows that Cannabis is safe and medically effective.

71
rightto wear a jacket scrawled with profanity. Alexis;cfagger and Jose need medical Cannabisto live.

If they were to discontinue their medications, they would likely die. To prevail in this lawsuit,

defendants must establish that this allegation by Plaintiffs isn't true - something that cannot be done,

and certainly not on a 12(b)(6) motion to dismiss.

C. THE CSA, ALTHOUGH CONTENT-NEUTRAL, INFRINGES UPON


PLAINTIFFS' FUNDAMENTAL RIGHT TO FREE SPEECH, AND IS
THUS RENDERED UNCONSTITUTIONAL UNDER APPLICABLE
LEVELS OF JUDICIAL SCRUTINY

As is well known to the Court, the First Amendment to the Constitution of the United States

confirms that:

Congress shall make no law ... abridging the freedom of speech ... or
the right of the people to ... petition the Government for a redress of
grievances.

U.S. Const. amend. I. "[F]reedom of speech, though not absolute ... is nevertheless protected against

censorship or punishment, unless shown likely to produce a clear and present danger of a serious

substantive evil that rises far above public inconvenience, annoyance, or unrest .... There is no room

under our Constitution for a more restrictive view. For the alternative would lead to standardization

of ideas either by legislatures, courts, or dominant political or community groups." Terminiello v.

Chicago, 337 U.S. 1, 4-5 (1949) (emphasis added) (internal citations omitted). Indeed, free speech,

as a means of exercising the right to communicate freely with one's fellow citizens and with the

government on issues of public importance, is "a cornerstone of our American polity." E. Conn.

Citizens Action Grp. v. Powers, 723 F.2d 1050, 1051 (2d Cir. 1983). The guarantees enshrined in the

First Amendment are thus designed to ensure the "unrestricted flow of information into the market

place of ideas." Vasquez v. Haus. Auth., 271 F.3d 198,202 (5th Cir. 2001).

These First Amendment protections have long been recognized to include speech exercised

72
. in an assortment of ways. See, e;g., Texas v. Johnson, 491 U.S. 397 (1989) (political protest through ·

burning the American flag constitutes protected speech under the First Amendment); Cohen v.

California, 403 U.S. 15 (1971) (displaying profanity on a jacket to question the propriety of military

conscription deemed protected under the First Amendment); Burstyn v. Wilson, 343 U.S. 4 9 5 ( 195 2)

(motion pictures constitute a protected form of expression under the First Amendment, even if the

films are alleged to be sacrilegious).

Laws which facially target conduct rather than speech, but which nonetheless have the effect

of unduly burdening speech are subject to heightened scrutiny, under either the O'Brien four-prong

analysis or the Ward "time, place, and manner" analysis. See, e.g., McCullen v. Coakley, 134 S. Ct.

2518, 2535 (2014); Metromedia, Inc. v. City ofSan Diego, 453 U.S. 490,559 (1981); United States

v. O'Brien, 391 U.S. 367, 377 (1968); Hodgkins, 355 F.3d at 1057; Huminski v. Corsones, 396 F.3d

53, 89 (2d Cir. 2004); Bery v. City of New York, 97 F.3d 689, 697 (2d Cir. 1996). Here, Plaintiffs

state a claim regardless of which analysis (O'Brien or Ward) is applied.

1. The Sixth Cause ofAction States a Claim Under the O'Brien Analysis

Under the O'Brien analysis, a content-neutral government regulation that infringes upon the

freedom of speech can be justified only if: (1) it is within the constitutional power of the Government;

(2) it furthers an important or substantial governmental interest; (3) the governmental interest is

uurelated to the suppression of free expression; and (4) the restriction on alleged First Amendment

freedoms is no greater than is essential to the furtherance of that interest. O'Brien, 391 U.S. at 377.

The CSA meets none of these requirements.

First, as reflected in the Amended Complaint, the CSA, as it applies to Cannabis, violates

Substantive Due Process (Point 11, supra), the Equal Protection Clause (Point IlI, supra), the Right

73
to Travel (Point V, infra), and the Commerce Clause (Point VI, infi'a). Thus, under any theory of .

recovery, the Federal Government lacked the power to designate Cannabis a Schedule I drug under

the CSA -- the very classification that unconstitutionally infringes upon the First Amendment rights

of Plaintiffs and millions of other Americans who rely on medical Cannabis for the preservation of

their health and lives. See O'Brien, 391 U.S. at 377.

Second, the classification of Cannabis under Schedule I of the CSA does not further an

important or significant government interest, let alone a rational one, as demonstrated by the Facts

and Evidence Establishing Irrationality (Point II, supra). Any important interest the Federal

Government may have in protecting the health and welfare of the American public by prohibiting

and/or restricting access to dangerous and addictive substances, such as heroin or LSD, cannot

rationally extend to Cannabis when the Federal Government has itself repeatedly acknowledged its

medicinal benefits and is actively encouraging its further use and distribution throughout the country

(Id.). See also O'Brien, 391 U.S. at 377.

More importantly, defendants cannot genuinely maintain that there is a compelling or even

a significant national interest in preventing people from treating with medical Cannabis (or even using

Cannabis recreationally) in view of the national policy, implemented by the Federal Government, as

reflected in the Ogden and Cole Memoranda (Exs. 7 and 8, respectively), FinCEN Guidance (Ex. 9)

and the Funding Riders (AC 11345-51 ), all of which have facilitated the legal distribution of Cannabis

to approximately 200 Million Americans on a daily basis throughout the United States. Indeed, as

reflected in the Amended Complaint, Congress twice had the opportunity to prevent Washington, DC

from enacting legal Cannabis programs (one medical, one recreational), and in both instances,

Congress declined to take action, paving the way for legalized Cannabis use on non-federal lands in

74
the Nation's Capitol{AC p. 62, n.150). Under these circumstances, defendants cannotseriously

maintain that the Federal Govermnent has a compelling or even a significant interest in preventing

Americans from obtaining access to medical Cannabis, when its established policy is to permit

cultivation, sale, possession and use in 30 States, two territories and our Nation's Capitol.

Third, independent of whatever interest defendants may claim they are addressing by the

classification of Cannabis as a Schedule I drug under the CSA, one of the central premises of the

claims comprising the Amended Complaint is that the Federal Govermnent designated Cannabis a

Schedule I drug to oppress, inter alia, those protesting the Vietnam War (AC ,i,i10-12, 249-251, and

408-12). This allegation, which reflects a content-specific effort to suppress speech, is deemed true

for purposes of this motion (Point I, supra). Thus, while the Federal Govermnent may purport to

have valid interests in classifying Cannabis under Schedule I of the CSA, defendants' argument on

this point is relegated to an issue of fact, which cannot be decided on this motion.

Fourth, the CSA's classification of Cannabis categorically prohibits all medical Cannabis

patients, including Plaintiffs, from exercising any speech or expressive conduct on all federal lands

while in possession of their medically-necessary Cannabis (AC ,i,i22, 461-71). Specifically, as

reflected supra, Alexis, Jose and Jagger all need their medical Cannabis to survive (AC i!i!42-49, 71-

84, 92-101). Because the CSA bars possession of Cannabis on federal lands even though used for

medical purposes, Alexis, Jose and Jagger cannot meet with elected representatives and other public

officials in Congress or congressional office buildings without committing a felony (AC i!i!55-57, 85-

87). In this way, Alexis, Jose and Jagger (and every other American who needs medical Cannabis

to live (literally, millions of other voices across the Country) are foreclosed from exercising the rights

readily available to other Americans and participating in the "marketplace of ideas" - a particularly

75
troubling:circumstance, especially-for Alexis and Jagger. As minors, Alexis and Jaggercannot vote,

U.S. const. amend. XXVI. The only direct impact that Alexis and Jagger can have on the democratic

process is their ability to lobby members of Congress to encourage them to recognize their plight and

enact legislation authorizing their possession and treatment with medical Cannabis - an act which

none of the Plaintiffs is permitted to take, since they are barred from entering federal lands with the

medication that keeps them alive.

The CSA' s infringement upon free speech, not only harms Plaintiffs, but worse, it undermines

the democratic process. Members of Congress are currently considering legislation to re-schedule

or de-schedule Cannabis;" however, these legislators can never receive the testimony of the very

individuals who are most directly affected by the mis-classification of Cannabis under the CSA.

Instead, Congress is relegated to hearing one perspective which is so completely unsupported by

prevailing scientific evidence that the Federal Government informally changed its National Cannabis

policy. Relegating members of Congress to hearing from only anti-Cannabis advocates is akin to

confining members of Congress who are considering re-mapping the western United States to

receiving testimony only from a group of flat-Earthers.

The CSA' s burden on free speech, with respect to individuals who need medical Cannabis to

68
Such initiatives include, inter alia: The 2017 Marijuana Justice Act (SB 1689) (Booker D-NJ);
The Ending Marijuana Prohibition Act (HR 1227) (Thomas R-VA); Veterans Equal Access Amendment
(Senate Appropriations Conunittee ); The Marijuana Revenue and Regulation Act/ Regulate Marijuana
Like Alcohol (SB 776 and HB 1841 / HC 1823) (Wyden (D-OR)(Polis D-CO) (Blumenauer D-OR);
Veterans Equal Access Act (HR 1820) (Blumenauer D-OR); The Cannabis Access, Research, Expansion,
and Protect States (CARERS) Act (SB 1374 and HR 2920) (Cohen D-TN); The HR Compassionate
Access Act (HR 715) (Morgan R-VA); States' Medical Marijuana Property Rights Protection Act (HR
33 I) (Lee D-CA); The Small Business Tax Equity Act of 2017) (S 777) (Wyden D-OR) (HR I 8 I 0)
(Curbelo R-FL); Medical Marijuana Research Act of2017 (HR 3391) (Harris R-MD); SAFE Act of 2017
(HR 22 I 5) (Perlmutter D-CO); State Marihuana And Regulatory Tolerance Enforcement Act (HR 3534)
(De!Bene D-WA); Responsibly Addressing the Marijuana Policy Gap Act of2017 (Blumenauer D-OR);
and Industrial Hemp Farming Act of 2017 (HR 3530) (Komer R-KY).

76
sUNive;-is"far greater "than is essential to the furtherance" of any interest defendants might concoct,

(0 'Brien, 391 U.S. at 377; Cyr, 60 F. Supp. 3d at 548 ("[A] categorical ban on speech is not tailored

at all, as it entirely forecloses a means of communication")), and frankly, severely undermines our

democracy. Based upon the foregoing, Plaintiffs have stated a viable claim for a violation of the First

Amendment under the O'Brien analysis.

2. Defendants Cannot Meet the Requirements of the Ward Analysis

Even assuming arguendo that the classification of Cannabis as a Schedule I drug were not an

effort to suppress free speech based upon content (although it plainly was), and further assuming that

it were merely an incidental "time, place, and manner" restriction, the CSA cannot survive scrutiny

even under the more relaxed Ward analysis. The Ward analysis varies depending upon the nature of

the location on which free speech is being regulated (i.e., whether it is a public or non-public forum).

See Huminski, 396 F.3d at 89; Hodgkins, 355 F.3d at 1057. Where the property at issue has been

historically open to the public or affirmatively opened to it by the government, the legislation must

be "(1) content neutral, (2) narrowly tailored to serve a significant governmental interest, and (3)

allow for ample alternative channels for the expression." Hodgkins, 355 F.3d at 1059 (emphasis

added); see also McCullen, 134 S. Ct. at 2535; Huminski, 396 F.3d at 89. Traditionally public

property constitutes "those places which by long tradition or by government fiat have been devoted

to assembly and debate ... [including] streets, sidewalks, and parks." Huminski, 396 F.3d at 89

(internal citations omitted). In addition, designated public property is that which the government

opens "for use by the public at large for assembly and speech, for use by certain speakers, or for the

discussion of certain subjects." Id

With respect to nonpublic property, "governmental restrictions on expressive conduct or

77
- --- speech are·constitutional so long as they are reasonable in light of the use to.which the forum is

dedicated and are not an effort to suppress expression merely because public officials oppose the

speaker's view." Id at 90 (internal quotation marks omitted). "Reasonableness" is considered in

"light of the purpose of the forum and all the surrounding circumstances." Id Furthermore, "[t]he

existence of reasonable grounds for limiting access to a nonpublic forum ... will not save a regulation

that is in reality a facade for viewpoint-based discrimination." Id

Here, both public and nonpublic properties are at issue, as the CSA prohibits possession of

Cannabis on all federally-owned properties, which necessarily includes streets, sidewalks, and parks

(i.e., public properties), as well as the interior of federally-owned buildings such as the Capitol (i.e.,

non-public property). See 21 U.S.C. §§812(c),841; The Controlled Substances Act, Pub. L. No.

91-513, 84 Stat. 1249, 1260-61; see also Huminski, 396 F.3d at 89. Thus, both strict scrutiny and

reasonableness review apply. Id. However, the classification of Cannabis under the CSA violates the

First Amendment under either standard.

First, as set forth supra, the classification under the CSA was not content-neutral, but rather

the product of viewpoint-based discrimination (AC ,r,rl0-12, 249-251, and 408-412). Accordingly,

defendants cannot meet the first prong of either Ward analysis. Second, as set forth supra, the Federal

Government has no significant interest in preventing the possession and use of Cannabis (Point

IV(B)(l), supra). Third, even assuming the Federal Government were to have a significant interest

in precluding the possession and use of Cannabis, the CSA's classification of Cannabis is not

"narrowly tailored" to that interest (whatever it might be). For example, assuming that the Federal

Government were genuine in its supposed interest in preventing children from abusing Cannabis,

defendants could easily tailor the CSA to meet that interest by preventing the use of non-medical

78
·-- , Cannabis on federal lands. Fourth, the classification of Cannabis does not allowfor any; much less

"ample alternative channels" for expression as sacred as in-person advocacy. See McCullen, 134 S.

Ct. at 2536 ("[W]hile the First Amendment does not guarantee a speaker the right to any particular

form of expression, some forms . .. have historically been more closely associated with the

transmission of ideas than others ... one-on-one communication is the most effective, fundamental,

and perhaps economical avenue of political discourse") (internal citations omitted); Huminski, 396

F.3d at 89.

3. Defendants' Argument That No Free-Speech Rights Are Implicated Herein


Has No Merit

Defendants contend that we have not identified a single "cognizable effect" that the CSA has

on expression (Moving Br. 44). Defendants are wrong. One need only review the Amended

Complaint to discern the serious and profound impact that the CSA has had, and continues to have,

on Plaintiffs' rights to free speech. Defendants interpose three arguments in response, none of which
. .
1s persuasive.

First, defendants contend that the free speech guarantees are not relevant to this action

because the CSA does not restrict free speech on its face (Moving Br. 44). Were defendants correct,

the Federal Government could severely circumscribe First Amendment protections simply by cleverly

wording a statute to avoid a direct attack on free expression. (Indeed, former Nixon Administration

officials have admitted that the CSA represents a prime example of this tactic.) For this reason, the

Courts have consistently ruled that facially-neutral statutes which have the effect of restricting free

speech and other forms of expression are unconstitutional as applied and thus void. See, e.g.,

Minneapolis Star & Tribune Co. v. Minn. Comm'r. ofRevenue, 460 U.S. 575,592 (1983) ("We have

long recognized that even regulations aimed at proper governmental concerns can restrict unduly the

79
exercise of rights protected by the First Amendment"); Hodgkins, 355 F.3d at 1064-65 ( enjoining

enforcement of a curfew law which prohibited minors from being in public during late hours of the

day, because, despite the statute's exemption for a minor's engagement in First Amendment activities,

the statute, which threatened arrest, indirectly "chilled" a minor's willingness to exercise their right

to free speech); Huminski, 396 F.3d at 64, 89-93 (notice of trespass, prohibiting plaintiff from

entering courthouse property, which had the indirect effect of indefinitely and completely banning

plaintiffs expressive activities in or around non-public spaces, violated plaintiff's right to freedom

of expression under the First Amendment); Vasquez, 271 F.3d at 206 (trespass statute, prohibiting

visits to a housing authority by non-residents had the indirect effect of barring political candidates

from distributing literature to residents, deemed void as a violation of the free speech protections of

the First Amendment). 69

Second, defendants, citing a series of cases, contend that a statute that merely makes Plaintiffs

"less likely" to exercise their free-speech rights does not constitute a violation of the First

Amendment (Moving Br. 45). While we agree with this principle oflaw, opposing counsel's reliance

69
Strangely, opposing counsel cites Sorrell v. IMS Health Inc., 564 U.S. 552 (201 I) for the
proposition that laws that impose incidental burdens on speech are permissible. The Court in Sorrell
struck the statute in question as violative of the First Amendment precisely because its effect was to
severely burden expression. Morever, here, the allegation is not that the burden on speech is "incidental;"
rather, it is repeatedly alleged that the classification of Cannabis as a Schedule I drug was for the purpose
of suppressing the free-speech activities of political protestors and African Americans (AC ,r,rl 0-12, 249-
251, and 408-412). Thus, the decision in Sorrell does not support defendants; it supports Plaintiffs.
Additionally, defendants' reliance on Arcara v. Cloud Books, Inc. is also misplaced as the Court
explicitly noted that it has "applied First Amendment scrutiny to some statutes which, although directed
at activity with no expressive component, impose a disproportionate burden upon those engaged in
protected First Amendment activities." 478 U.S. 697, 704 (1986). InArcara, the Court ruled that the
state's closure of a bookstore, where unlawful, sexual activity took place, did not violate respondents'
First Amendment rights since, among other things, respondents were "free to sell the same materials at
another location" and their rights were, therefore, not unduly burdened. Id. at 705. The CSA, by contrast,
imposes a "disproportionate burden upon those engaged in protected First Amendment activities" as it
categorically and indefmitely prohibits Plaintiffs, who need medical Cannabis to live, from exercising
their fundamental right to engage in in-person advocacy. Id. at 704.

80
upon it is a mystery. No Plaintiff herein is suggesting thaHhe CSA merely makes it"less likely" for

Plaintiffs to exercise their rights to free expression. Plaintiffs maintain that it is impossible for

Alexis, Jose and Jagger to exercise their rights to free speech on federal lands - where their voices

would likely be the most powerful- impossible (AC ,i,i55-57, 85-87, 102-04). 70

Third, defendants contend that in-person advocacy does not constitute protected expression

or 1s otherwise not a fundamental right (Moving Br. 45-46). To reach this false conclusion,

defendants erroneously conflate the right to engage in in-person advocacy (Plaintiffs' claim herein)

with the claimed "rights" to testify before, or otherwise be listened to by, public officials ( claims

which are not part of this lawsuit). To be clear, the cases upon which defendants rely for these

propositions are completely inapposite and irrelevant to this lawsuit. 71

This is not a lawsuit to require members of Congress to grant an audience with Plaintiffs.

Indeed, Plaintiffs have already been invited by members of Congress to meet on Capitol grounds (AC

70
Moreover, the mere threat of arrest is enough to unlawfully "chill" the exercise of one's First
Amendment rights. See Hodgkins, 355 F .3d at I 063. Additionally, legislation that imposes unreasonable
conditions upon the right to exercise free speech (i.e., requiring medical Cannabis patients to leave their
medicine at home in order to engage in expressive conduct on federal lands) is presumptively invalid. See
Reilly v. Noel, 384 F. Supp. 741, 748 (D.R.I. 1974) ("By giving plaintiffs the option ofconverting their
protest into a more acceptable form or leaving the building, the defendant is engaging in a form of prior
restraint. A wealth of Supreme Court decisions makes it abundantly clear that First Amendment freedoms
command a preferred position and that there is a heavy presumption against the validity of a prior
restraint").
71
See, e.g., Minn. State Ed.for Cmty. Colleges v. Knight, 465 U.S. 271 (1984) (in which the
Supreme Court ruled that a law affording employee-representatives of a union certain collective
bargaining rights to meet and confer with public officials, did not infringe upon the free-speech rights of
those who were not part of the union because the law did not bar speech, but rather "simply restricted the
class of persons to whom [the legislature] will listen in its making of policy"); Liverman v. Comm. on the
Judiciary, United States House ofRepresentatives, 51 Fed. Appx. 825 (10th Cir. Oct. 23, 2002) (the
House of Representatives has the right to ignore a petition filed by an individual who demands a hearing
in Congress); Marino v. New York, 629 F. Supp. 912 (E.D.N.Y. 1986) (civil service employees who
object to a policy that granted rights to provisional employees do not have the right to require members
of the State Legislature to invite them to a hearing and listen to their concerns).

81
if55). This lawsuit challenges the systematic exclusion from federal lands (including the Capitol) of .

all individuals who treat with the only medication that preserves and sustains their health and lives

- even those individuals whose testimony and other forms of speech members of Congress want to

receive. Thus, the cases cited by defendants do not apply.

Furthermore, the ability to visit personally with, and engage in advocacy in the presence of,

public officials and representatives constitutes a critical fiber in the bundle of rights comprising the

Free Speech guaranteed by the First Amendment. See, e.g., Cyr v. Addison Rutland Supervisory

Union, 60 F. Supp. 3d 536 (D. Vt. 2017) (school district's ban on attendance at school board meetings

deemed a violation of the First Amendment); Brown v. City ofJacksonville, 2006 U.S. Dist. LEXIS

8162, at *25 (M.D. Fla. Feb. 17, 2006) (Court enjoined enforcement of rule depriving the plaintiff

from attending City Council meetings; preliminary injunction, granted).

As explained by the Court in Cyr:

physical participation in ... meetings is a form oflocal governance, and


to the extent that Mr. Cyr cannot be present at these meetings to
communicate directly with elected officials, his First Amendment right
of free expression is violated.

Cyr, 60 F. Supp. 3d at 547-48.

As further explained by the United States Supreme Court in Riley v. Nat'! Fed'n ofBlind:

[T]he government, even with the purest of motives, may not substitute
its judgment as to how best to speak for that of speakers and listeners;
free and robust debate cannot thrive if directed by the government.

487 U.S. 781, 791 (1988).

Furthermore, the availability of other channels of communication, such as e-mails, letters or

telephone calls, does not constitute a substitute for in-person advocacy. As explained by the Court

in Brown:

82
Although the City's directive e*pressly allows the Plaintiff to "direct
[herJcommunications to the City Council through e-mails or letters,
or have her messages to the Council delivered by other persons," such
alternative channels do not amount to "ample" alternatives that would
be comparable to the same degree as her own passionate deliverance
of her messages in person.

2006 U.S. Dist. LEXIS 8162 at *13. Similarly, as the Seventh Circuit remarked in Hodgkins v.

Peterson:

There is no Internet connection, no telephone call, no television


coverage that can compare to attending a political rally in person,
praying in the sanctuary of one's choice side-by-side with other
worshipers, feeling the energy of the crowd as a victorious political
candidate announces his plans for the new administration, holding
hands with other mourners at a candlelight vigil, or standing in front
of the seat of state government as a legislative session winds its way
into the night.

355 F.3d 1048, 1063 (7th Cir. 2004).

This Court recognized the strength of this point during oral argument of the application for

aTRO:

THE COURT: So, although she could make those arguments remotely using,
for example, TV screens and feeds, she has no mobility and it
is not easy to get other people to watch those screens, those
who are assembled to listen, will listen and watch, but those
who need to be persuaded are not likely to be there. That's their
argument.

MR. DOLINGER: Well, your Honor --

THE COURT: It is a good argument (Dkt. No. 34 at 44).

Senator Cory Booker also made this very point, in the context of the effort by defendant

Sessions to resume enforcement of the CSA as it pertains to medical Cannabis patients:

I dare him [Sessions J to sit down with families and listen to their

83
stories and then pursuea-policy-like he's advocating for now_72

Plainly, Senator Booker's comment distills in a practical sense, what the case law has recognized in

the context of constitutional jurisprudence-in-person meetings and advocacy are far more effective

than written and remote forms of communication. The loss of this critical right threatens to undercut

a critical component of Plaintiffs' First Amendment rights to Free Speech and to Petition the

Government. This affects millions of people. 73

Defendants also argue that Plaintiffs have not been prevented from meeting with their

representatives in their home states (Moving Br. 48). However, congressional offices, even in

representatives' and senators' home states, are often placed on federal property, rendering Plaintiffs

entry thereon a federal crime under the CSA. Nonetheless, even if congressional offices did not

constitute federal property - and they often do - defendants are implying that in-person advocacy

should be permissible only in the presence of a handful of members of Congress - the individual

representatives who reside in Plaintiffs' districts and the senators representing their States. For

legislation to pass the House of Representatives, 218 votes are required; and at least 51 votes are

necessary for passage oflegislation in the Senate. Relegating Plaintiffs to forego in-person advocacy

for the overwhelming majority of members of Congress resigns Alexis, Jagger and Jose (and millions

of Americans throughout the Country) to second-class status and all-but ensures that they can never

influence the passage of legislation that saves and improves their lives.

72
http://www.rollcall.com/news/politics/bipartisan-medical-marijuana-legislation-reintroduced.
73
Defendants argue that Plaintiffs have not demonstrated that they have been deprived of a
uniquely valuable or important method of communication (Moving Br. 47). Such an argument is
possible only by completely ignoring the preceding case law cited herein.

84
D. DEFENDANTS---GANNOT· SUBJECT ALEXIS AND JOSE TO A
ROBSON'S CHOICE OF RELINQUISHING ONE FUNDAMENTAL
RIGHT IN ORDER TO EXERCISE ANOTHER ONE

Opposing counsel contends that Alexis and Jose are not prohibited from visiting Capitol Hill

and meeting with, and/or advocating in proximity to (i.e., in the same zip code as), their

representatives and other public officials on federal lands; according to opposing counsel, Alexis and

Jose could simply leave their medications behind (Moving Br. 44). Defendants' argument

presupposes that Alexis, Jose and Jagger can survive without their medical Cannabis; as pied in the

Amended Complaint, they cannot. Thus defendants are really insisting that these Plaintiffs risk their

health and lives in order to ensure their rights under the First Amendment.

As a matter of law, the Federal Government cannot require a person to sacrifice one

fundamental right in order to preserve another. Simmons v. United States, 390 U.S. 3 77, 394 (1968)

("[W]e find it intolerable that one constitutional right should have to be surrendered in order to assert

another"); Carter v. McGinnis, 351 F. Supp. 787, 794 (W.D.N.Y. Nov. 21, 1972) ("The choice ... of

sacrificing one fundamental right as a price for exercising another is repugnant to our notions of due

process") (internal citations omitted). Yet, that is exactly what defendants are seeking to impose on

Plaintiffs, constituting a clear Constitutional violation. See Dkt. No. 34, Tr. at 46 ("it is a Hobson's

Choice .... I am told that if she doesn't have her marijuana on hand, she could go into a seizure ... ").

Thus, contrary to the ruminations by opposing counsel, Alexis, Jose and Jagger cannot simply leave

their medication behind-- not without risking sickness and/or death and, in so doing, forfeiting their

constitutional rights to preserve their health and their lives (Id.). The Constitution does not permit

defendants to impose that Hobson's Choice on Plaintiffs, warranting the declaratory and injunctive

relief they seek. Simmons, 390 U.S. at 394; Carter, 351 F. Supp. at 794.

85
POINTY

PLAINTIFFS' THIRD CAUSE OF ACTION STATES A CLAIM FOR


VIOLATION OF PLAINTIFFS' FUNDAMENTAL RIGHT TO TRAVEL

In their motion, defendants argue that: (i) the CSA does not affect any of the components of

the right to interstate travel; and (ii) supposedly applicable case law forecloses Plaintiffs' travel

claims. Defendants are again wrong.

A. THE CLASSIFICATION OF CANNABIS AS A SCHEDULE I DRUG


UNCONSTITUTIONALLY DENIES PLAINTIFFS OF THEIR
FUNDAMENTAL RIGHT TO TRAVEL

Courts have long-recognized that the United States Constitution guarantees citizens a

fundamental right to interstate travel. 74 This component of the right to travel is rooted in the very

foundation of our Federal Union and in constitutional concepts of personal liberty. 75 Furthermore,

74
See Saenz v. Roe, 526 U.S. 489, 498 (1999); Memorial Hospital v. Maricopa County, 415 U.S.
250,254 (1974); Dunn v. Blumstein, 405 U.S. 330,338 (1972); Shapiro v. Thompson, 394 U.S. 618,629
(1969), overruled on other grounds, Edelman v. Jordan, 415 U.S. 651 (1974); United States v. Guest,
383 U.S. 745, 757 (1966); Crandall v. Nevada, 73 U.S. 35, 48-49 (1868); Murphy v. Lynn, 118 F.3d 938,
945 (2d Cir. 1997); New York State NOWv. Terry, 886 F.2d 1339, 1360 (2d Cir. 1989); Cousins v. Teny,
721 F. Supp. 426, 429 (N.D.N.Y. 1989); New York State NOW v. Terry, 704 F. Supp. 1247, 1259
(S.D.N.Y. 1989); Upper Hudson Planned Parenthood, Inc., v. Doe, 1991 U.S. Dist. Lexis 13063, at *52-
53 (N.D.N.Y. Sept. 12, 1991). The right to interstate travel contains three different components,
consisting of, inter alia, "the right of a citizen of one State to enter and to leave another State." Saenz v.
Roe, 526 U.S. at 500. This component of the right to interstate travel includes "the right to cross state
borders while en route" and the "right to travel freely to and from" the 50 states and to "use highway
facilities and other instrumentalities of interstate commerce." Id (citing Edwards v. California, 314 U.S.
160. (1941) and United States v. Guest, 383 U.S. 745, 757 (1966)).
75
See e.g., Shapiro, 394 U.S. at 629 ("This Court long ago recognized that the nature of our
Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free
to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which
unreasonably burden or restrict this movement"); Guest, 383 U.S. at 757 ("The constitutional right to
travel from one State to another, and necessarily to use the highways and other instrumentalities of
interstate commerce in doing so, occupies a position fundamental to the concept of our Federal Union");
Crandall, 73 U.S. at 48-49 ("For all the great purposes for which the Federal government was formed we
are one people, with one common country. We are all citizens of the United States, and as members of
the same community must have the right to pass and repass through every part of it without interruption,
as freely as in our own States").

86
"[t]he right to travel is an unconditional-personal right, a right whose exercise may not be- 0

conditioned." Dunn, 405 U.S. at 341 (internal citations omitted) (emphasis in the original). As made

clear by the Court in Dunn, "It has long been established that [legislation] may not impose a penalty

upon those who exercise a right guaranteed by the Constitution .... 'Constitutional rights would be

oflittle value if they could be ... indirectly denied"'); see also Simmons, 390 U.S. at 394; Carter,

351 F. Supp. at 794. Legislation which unduly burdens the right to interstate travel is, therefore,

subject to strict scrutiny review and "absent a compelling state interest," the government may not

burden the right to travel by forcing an individual to choose between the right to travel and other

constitutional rights); Id at 342; see Memorial Hospital, 415 U.S. at 258-59 (holding that the

government could not condition access to medical care on one's willingness to give up their right to

travel without a compelling interest) (citing Harman v. Forssenius, 380 U.S. 528, 540 (1965));

Shapiro, 394 U.S. at 634; Kohn v. Davis, 320 F. Supp. 246,251 (D. Vt. 1970).

As pied in the Amended Complaint, the mis-classification of Cannabis precludes Alexis,

Jagger, and Jose from traveling freely. They cannot, without risk of seizure of their meilicine, arrest,

prosecution, incarceration, and the loss of precious civil rights attendant to the same,76 carry their

medical Cannabis while traveling: (i) through the use of federally-regulated modes of transportation,

including airplanes and Amtrak (AC ,r,r16-l 7, 36-105, 422-34); 77 (ii) into federal buildings (id.); 78 or

76
See 21 U.S.C. §§812(c),841; Pub. L. No. 91-513, 84 Stat. 1249, 1260-61; Sean Cockerham,
Pot's legal in California. So why are people still getting busted in Yosemite?, Tiffi SACRAMENTO BEE
(Jan. 9, 2017).
77
See 21 U.S.C. §§812(c),841; The Controlled Substances Act, Pub. L. No. 91-513, 84 Stat. 1249,
· 1260-61; Governing Law, supra; McClure, supra; ARTBA, supra.
78
See 21 U.S.C. §§812(c),841; Pub. L. No. 91-513, 84 Stat. 1249, 1260-61; Cockerham, supra;
The Associated Press, Marijuana busts on federal lands highlight challenges for pot-friendly states, N.Y.
DAILY NEWS (Sep. 16, 2013)

87
(iii) into nationaLparks; or onto federal military bases, national monuments or any other federallands,

including the Capitol and the Southern District Courthouse (AC '1['1[54-58, 84-87, 101-05). 79 For

Alexis and Jagger, in particular, their travel could result in the loss of their parents' parental rights,

depriving Alexis and Jagger of the opportunity to be reared by their biological parents (Id. '1['1[464-

65). 80 In many ways, Alexis, Jagger, and Jose are prisoners in their own states.

Ignoring these allegations, defendants argue that the CSA simply makes it unlawful to travel

with an illegal substance, thereby only making travel less attractive, as opposed to foreclosing travel

altogether (Moving Br. 37-40). The central premise for defendants' argument is the false implication

(once again) that Alexis, Jagger, and Jose have alternatives to treating with medical Cannabis. But

79
See 21 U.S.C. §§812(c),841; Pub. L. No. 91-513, 84 Stat. 1249, 1260-61; Cockerham, supra;
Marijuana busts, supra. Defendants' argument that Plaintiffs are not entitled access to a particular place
is ofno moment (Moving Br. 41-42). Indeed, the CSA's classification of Cannabis would prohibit
Plaintiffs from accessing a all federally-owned lands, which amounts to "roughly 640 million acres,
about 28% (of the total/ acres ofland in the United States." CAROL HARDY VINCENT, LAURA A.
HANSON, AND CARLAN. ARGUET, FEDERAL LAND OWNERSHIP: OVERVIEW AND DATA, CRS REPORT
(Mar. 3 2017), https://fas.org/sgp/crs/misc/R42346.pdf. In support of their argument, defendants rely
upon Williams, Hannemann, and Lowery, which are all distinguishable as they involved local rules (as
opposed to federal rules) which barred only a single individual or a small class of people from entering a
discrete area ofland. See Williams, 535 F.3d 71; Hannemann, 673 F.3d 746; Lowery, No. 07 Civ. 7684
(SCR), 2010 WL 4449370. Furthermore, none of these cases concern individuals seeking to enter federal
buildings for the purpose of exercising their fundamental right to petition the government for grievances
as is the case herein (AC ifif55-58, 85-87, 102-105, 428,464). See Crandall, 73 U.S. at 44 (ruling that a
law which infringed on one's right to travel outside of their state was unconstitutional as an American
citizen "has the right to come to the seat of government to assert any claim he may have upon that
government, or to transact any business he may have with it. To seek its protection, to share its offices, to
engage in administering its functions. He has a right to free access to its sea-ports, through which all the
operations of foreign trade and commerce are conducted, to the sub-treasuries, the land offices, the
revenue offices, and the courts of justice in the several States").
0
'See 21 U.S.C. §§812(c),841; Pub. L. No. 91-513, 84 Stat. 1249, 1260-61; Kathleen Burke,
These parents are fighting to give pot to their kids, MARKET WATCH (Dec. 8, 2015),
http://www.marketwatch.com/story/meet-the-unlikely-advocates-for-legal-medical-marijuana-2015-11-12
("State child protection agencies have the authority to take children out of situations deemed dangerous,
such as environments with controlled substances, according to experts. If marijuana is ... bought legally
by a parent and then administered to a child, protection agencies could intervene ... 'It's a legal minefield
parents walk across on a daily basis"').

88
as alleged-i11theAmended Complaint - the allegations of which must be presurned-true~Alexis;

Jagger, and Jose each must treat with medical Cannabis or they will die (AC ,r,rl6-17, 36-105, 422-

34). They are thus faced with a Robson's Choice: travel freely, or risk their health and lives (other

fundamental rights). As addressed in Point IV supra, the requirement that Alexis, Jagger, and Jose

make this impossible choice constitutes an independent ground upon which this Court should

invalidate the classification of Cannabis as a Schedule I drug. 81

B. THE CASE LAW CITED BY DEFENDANTS IS INAPPOSITE

To support their argument that Plaintiffs' travel claim fails, defendants rely upon a myriad of

cases, none of which involve a nationwide, categorical ban on medication necessary to sustain the

lives of millions of Americans including especially, Alexis, Jose and Jagger. Furthermore, none of

the cases upon which defendants rely imposed upon the litigants therein the Hobson's Choice of

foregoing their fundamental right to travel or their fundamental right to preserve their health and

lives. 82

81
In their brief, citing to Saenz v. Roe, 526 U.S. at 500-501, defendants also argne that the right to
interstate travel does not protect citizens against federal laws like the CSA (Moving Br. 41 ). In this
regard, defendants completely misconstrue the Supreme Court's holding in Saenz. The Court in Saenz
never espouses any such proposition; the Court therein merely cites to cases - which happen to involve
state laws - in order to explain the component of the right to travel, which the Court pointed out, protects
"the right of a citizen of one State to enter and to leave another State." Id. (citing Edwards, 314 U.S. 160
and Guest, 383 U.S. at 757). There is no rule that limits application of the right to travel to state laws,
nor do defendants cite to any other case that demonstrates otherwise.
82
1n fact, none of the cases to which defendants cite involve a restriction on traveling with
medicine and all of them involve restrictions that are far more minor in scope than the restriction at issue
here. See e.g., Town of Southold v. Town ofE. Hampton, 477 F.3d 38, 53 (2d Cir. 2007) (involving a law
that banned a specific type of ferry from traveling to a specific destination in New York); Pollack v. Duff,
793 F.3d 34, 46 (D.C. Cir. 2015) (involving a residency requirement for employment consideration);
Torraco v. Port Auth. ofNY & NJ, 615 F.3d 129, 140 (2d Cir. 2010) (involving a firearm restriction
that merely delayed the plaintiff "a little over one day"); NY State Rifle & Pistol Ass 'n v. City ofNew
York, 86 F. Supp. 3d 249,264 (S.D.N.Y. 2015) (involving a challenge to a local rule restricting travel
outside of the city with firearms); Oakland Cannabis Buyers' Co-op., 532 U.S. at 494 (doesn't involve
the right to travel at all; it concerns the lack of a medical necessity defense under the CSA, which is not

89
· ·,.,,cln addition, none of the cases cited by defendants address the legal and regulatocy,]andscape

concerning medical Cannabis in the United States, In an unprecedented state of affairs, the Federal

Government is maintaining broad-sweeping legislation, enacted for the purported purpose of creating

a unified legal framework by which to prohibit certain conduct, while simultaneously encouraging

States, businesses, and individuals to engage in that very conduct, in direct contravention of that very

framework (see Ac,r,rs, 259-303, 307 n.150; 315-20, 321-51, 392; Ogden Memorandum, Ex. 7; Cole

Memorandum, Ex, 8; FinCEN Guidance, Ex, 9; Funding Riders (AC ,r,r345-35l),

Specifically, the Federal Government continues to maintain a blanket prohibition of Cannabis

(outside the IND Program) (AC ,r,r253-54), 83 At the same time, however, as Plaintiffs also allege in

their Complaint, the Federal Government has effectively abandoned its owu classification of Cannabis

as a Schedule I drug (See Points II, N), and is actively expanding the medical Cannabis industry by,

inter alia, (i) inducing banking institutions to increase their provision of financial services to

Cannabis businesses (Ex, 9); (ii) prohibiting the DOJ from using federal funds to prosecute those in

compliance with their state laws ("Federal Government's Inducement") (AC ,r,r345-51); and (iii)

issuing a series of Memoranda (i.e., the Ogden and Cole Memoranda), discouraging the arrest and

prosecution of those who participate in the medical cannabis industry in full compliance with

implicated here, since Plaintiffs have not raised it);Williams v. Town of Greenburgh, 535 F.3d 71, 75 (2d
Cir. 2008) (involving a right to intrastate travel, not interstate travel); Hannemann v. S. Door Cty. Sch.
Dist., 673 F.3d 746, 757 (7th Cir. 2012) (accord); Lowery v. Carter, No. 07 Civ. 7684 (SCR), 2010 WL
4449370, at *3 (S.D.N.Y. Oct. 21, 2010) (accord); Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999)
(rejecting the claim that there is a fundamental right to drive a motor vehicle); Cramer v. Skinner, 931
F.2d 1020, 1031 (5th Cir. 1991) (involving a minor restriction prohibiting only certain travelers outside a
particular airport's area from flying into that airport); Grider v. City & Cty. of Denver, No. 10 Civ. 722,
2012 WL 1079466, at *7 (D. Colo. Mar. 30, 2012) (involving a local ordinance prohibiting the
possession of certain dog breeds).
83
See 21 U.S.C. §§812(c), 841; The Controlled Substances Act, Pub. L. No. 91-513, 84 Stat.
1249, 1260-61.

90
-'applicable state law EExs. 7-8).

Consequently, 30 states plus Washington, D.C. and two U.S. Territories have heeded the

government's call, and legalized medical Cannabis (i!13). 84 Thus, as a result of the Federal

Government's Inducement, more than 62% of Americans live in states where physicians may, and

often do, recommend medical-grade Cannabis to patients suffering from a variety of severe illnesses

(id.). In other words, millions of Americans (like Plaintiffs Alexis, Jagger, Jose, and members of the

CCA), are currently treating their severe conditions with medical Cannabis, in reliance on the Federal

Government's Inducement (see AC i!i!321-335, 345-51; Exs. 7-9).

Because the legal and regulatory context under which Plaintiffs' travel claims are brought is

completely unprecedented, defendants' arguments, which are predicated upon inapplicable case law

completely distinguishable from the unique facts herein, are unpersuasive.

POINT VI
THE FEDERAL GOVERNMENT LACKS THE POWER TO ENACT AND
ENFORCE THE CSA UNDER THE COMMERCE CLAUSE

As demonstrated below, the Federal Government has the power neither to enforce nor enact

the CSA, as it pertains to Cannabis.

A. CONGRESSIONAL COMMERCE POWER TO REGULATE STATE-


LEGAL CANNABIS ACTIVITY IS VOID UNDER THE DOCTRINE
OF DESUETUDE

Congress lacks the authority to regulate Plaintiffs' intrastate, State-legal Cannabis activity via

84
1n the Amended Complaint, Plaintiffs allege that the number of States legalizing Cannabis was
fixed at 29. Since the filing, however, another State (Louisiana) has adopted legalization legislation,
bringing the number to 30. The number is likely to continue. In fact, the number of U.S. States that have
passed medical Cannabis Jaws has more than doubled since only 2009 - the year in which the DOJ issued
the Ogden Memorandum, more than suggesting that the Federal Government's initial, formal acceptance
of State laws legalizing medical Cannabis has encouraged other States to pass their own legislation. See
http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx (showing that 16 states, D.C.,
Puerto Rico, and Guam each legalized medical Cannabis after 2009).

91
the Commerce Clause, as the classification-of cannabis as a Schedule I drug under the CSA is void

under the doctrine of desuetude. Desuetude is "rooted in eliminating laws which, due to a lack of

enforcement, have essentially become 'obsolete' or 'serve no modem purpose."' cf United States v.

Morrison, 596 F. Supp. 661, 702-703 (E.D.N.Y. 2009) (quoting Note, Desuetude, 119 Harv. L. Rev.

2209 (2006)). It is a civil law doctrine, rendering a statute abrogated by reason of its "long and

continued non-use." US. v. Elliott, 266 F. Supp. 318,325 (S.D.N. Y. 1967). While declining to apply

the doctrine in Morrison, the Eastern District nonetheless found that the doctrine may "breathe life"

in the [Second] Circuit under circumstances where "a statute's obsolescence is indicative of a shift

in public morality." 85

Here, as described below, to the extent that the CSA purports to govern (and criminalize)

State-legal Cannabis activity, it has become obsolete, consistent with a clear shift in public morality.

For years, the regulation of State-legal Cannabis activity under the CSA has waned, and ultimately,

the Federal Government has ceded the entire enforcement of State-legal Cannabis activity exclusively

to the States, creating an intrastate market that falls outside the confines of the federal commerce

power.

85
Morrison, 596 F. Supp. at 702-703; see also Quillv. Vacca, 80 F.3d 716, 735 (2d Cir. 1996)
(concurring, "[t]he enforcement of the Jaws themselves has fallen into virtual desuetude ... enough to cast
doubt on whether ... a prosecutor would prosecute or a jury would convict. And this fact by itself
inevitably raises doubts about the current support for these laws"); In re DES Cases, 789 F. Supp. 552,
568 (E.D.N.Y. 1992) (expressing concern that laws could fall into desuetude); cf Conwcry Import Co. v.
United States, 311 F. Supp. 5, 16 (E.D.N.Y. 1969) (acknowledging Jaw void under deseutude); Zwick/er
v. Koota, 290 F. Supp. 244, 246-7 (E.D.N.Y. 1968) (contrasting statute at issue with one that "lapsed into
'innocuous desuetude' through a legislature's prolonged disregard and 'prosecutorial paralysis' so that
the issue of its constitutionality is not , , . justiciable"); United States v. Elliott, 266 F. Supp. 318, 326
(S.D.N.Y. 1967) (noting that "[d]esuetude is a civil law doctrine rendering a statute abrogated by reason
of its Jong and continued non-use"); GulfCaribe Mar. v. Mobile County Revenue Comm'r, 802 So. 2d
248, 259 (Ala. Civ. App. Ct. 2001) (Dissenting: federal "home port doctrine" inapplicable to govern
taxation of vessels used in interstate commerce under theory of desuetude; such taxation properly
reserved for the non-domiciliary states through which such vessels travel).

92
Beginning in 1996, various States, starting with California, instituted regulations-to legalize

medical Cannabis (AC ,r,r304, 306, 385). Today, 30 States, plus the District of Columbia have

legalized medical Cannabis (Id '11306). And beginning in 2016, various States, starting with

Colorado, instituted regulations to legalize adult-use, or "recreational" Cannabis (Id '11306). Today,

approximately 62% of the country lives in a State in which medical and/or adult use Cannabis has

been legalized at the State level (AC '1113), including the State of California - the fifth largest

economy in the world (after Great Britain). 86 And in the court of public opinion, industry data reflects

that nearly 94% of Americans support legalization of medical Cannabis, and 60% support full

legalization and decriminalization (Id ,r4, n.4).


This trend of legalization and regulation is no accident. The increasing number of States to

legalize medical and/or adult-use Cannabis, and the corresponding increasing number of individuals

who engage in the State-legal Cannabis market, have been guided- and encouraged - by the Federal

Government, which has abandoned its enforcement of the CSA against State-legal businesses and

patients treating with Cannabis (Id ,r,r3 04-314, 324-326); see also discussion supra.
As a corollary to this dynamic, Congress has shifted enforcement responsibility to prevent

interstate drug trafficking to the States, and thus assured, among other things, that State-legal activity

be conducted purely on an intrastate level. Those who do not comply with the priorities set forth in

the Cole Memorandum (i.e., those who engage in interstate trafficking), remain vulnerable to federal

prosecution under the CSA.

After issuance of the Cole Memorandum, the United States Treasury Department issued

FinCen Guidance in 2014, which,"as discussed supra, authorized and encouraged FDIC-insured

86
http://www.independent.eo.uk/news/business/news/brexit-pound-value-uk-economy-califomia-
fifth-place-rankings-a 734 7696.html

93
financial institutions to provide banking services to Cannabis businesses that operate in compliance

with the Cole Memorandum (i.e., those businesses which strictly abide by State law, which such laws,

by virtue of the Cole Memorandum, necessarily preclude interstate Cannabis trafficking) (AC '1['1[327-

333).

Beginning in 2014 (and in every year since), Congress has enacted the Funding Riders, which

prohibit defendants DOJ and DEA from spending any federal funds to prevent states' implementation

of their medical Cannabis laws (Id. '1['1[345-3 51 ). These Funding Riders, as updated, precludes federal

enforcement of the CSA as against participants in the State-legal (medical) Cannabis industry, as a

matter of law. United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016); lv. to move for reconsid.

denied, United States v. McIntosh, 2017 U.S. Dist. LEXIS 39920, *4 (N.D. Ca. 2017).

In this regulatory system - designed and promoted by the Federal Government - there is no

such thing as State-legal, interstate, Cannabis activity. Current federal policy reflects a lack of concern

with respect to the alleged "dangers" to public safety that may be associated with those drugs

classified as Schedule I (policies underlying the CSA's interstate jurisdictional predicate ). 87 If the

Federal Government were truly concerned with such "risks" or "dangers," it would not allow 62%

of the country to have State-legal access to Cannabis. The expansion and popularity of State

regulation under the Cole and Ogden Memoranda, together with the banking protocols instituted by

FinCEN reflect the Federal Government's unwillingness to commit federal resources to the

87
States, too, are seemingly unconcerned with the potential for State-legal Cannabis activity to
negatively impact the interstate market; not a single State government submitted an amicus briefs
supporting the Federal Government's ban on medical cannabis in Raich, the most recent Supreme Court
case to address State-legal Cannabis in view of the Commerce Clause. Ilya Somin, Gonzales v. Raich:
Federalism as a Casualty of the War on Drugs, CORNELL J.L. & PUB. POL"Y, Vol. 15, No. 3, at 542
(2006).

94
~. prosecution of State-compliant individuals and businesses... Accordingly, the classification of

Cannabis as a Schedule I drug, as it pertains to state-legal Cannabis, has become void through non-use

and through the transfer of authority to the States. Defendants' Motion should be denied on this basis

alone.

B. CONGRESS LACKS AUTHORITY UNDER THE COMMERCE


CLAUSE TO ENACTLEGISLATIONTO REGULATE INTRASTATE,
NON-COMMERCIAL CANNABIS ACTIVITY

Federal regulation under the Commerce Clause of Plaintiffs' homegrow, possession, and/or

consumption of Cannabis (collectively, "Plaintiffs' Non-Economic Cannabis Activities"), would

transcend even the most hyper-elastic construction of Congress' power to regulate commerce,

constituting unconstitutional congressional overreach.

In their motion, defendants allege that some ofthe Plaintiffs' "precise" claims were considered

and rejected by the Supreme Court's decision in Gonzalez v. Raich, which held, inter alia, that the

CSA constitutes a valid exercise of Congress' power under the Commerce Clause (Moving Br. 35).

Defendants, in a further effort to foreclose this Court's analysis of Plaintiffs' Commerce Clause

claims, also cite to the portion of the decision in Raich, in which the Supreme Court ruled that the

Commerce Clause was constitutional "as applied" to the "separate and distinct" class of activities in

which the plaintiffs were engaged (i.e., the "intrastate, non-commercial cultivation, possession and

use of marijuana for personal medical purposes on the advice of a physician and in accordance with

state law"). Id. (citing Raich, 545 U.S. at 26-27). This Court should reject defendants' efforts.

As explained below, the principles articulated in Raich simply can no longer be reconciled

with governing precedent. And, if Raich were to be sustained, congressional power to regulate

commerce would be limitless, obliterating fundamental tenets of federalism that were designed to

95
safeguard State sovereignty under the Tenth Amendment, defying traditional notions of"commerce"

and "economics," and offending the plain text and structure of the Constitution.

C. PLAINTIFFS' ACTIVITIES FALL OUTSIDE THE SCOPE OF


THE COMMERCE CLAUSE

After decades of refusing to restrict congressional authority under the Commerce Clause, the

Supreme Court articulated finn limits to congressional commerce power in United States v. Lopez,

514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000), which properly guide the

Court's analysis in this Circuit. United States v. Guzman, 591 F.3d 83, 89-90, (2d. Cir. 2010)

(citations omitted); see also Morrison, 529 U.S. at 608 ("even under our modern, expansive

interpretation of the Commerce Clause, Congress' regulatory authority is not without effective

bounds") (citing Lopez, 514 U.S. at 557).

The Court in Lopez identified three categories of activity which Congress may regulate under

the Commerce Clause: (i) to regulate the use of the channels ofinterstate commerce; (ii) to regulate

and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce,

even though the threat may come only from purely intrastate activities; and (iii) to regulate those

activities having a substantial relation to interstate commerce. Lopez, 514 U.S. at 558-59 (citations

omitted). 88 Critical to the analysis as to whether activities bear a "substantial relation to interstate

commerce" is that "Congress may only regulate conduct that is actually economic in nature." United

States v. Lott, 912 F. Supp. 2d 146, 155 (D. Vt. 2012) (citations omitted); see also, Morrison, 529

U.S. at 614 (" ... thus far in our Nation's history our cases have upheld Commerce Clause regulation

88
Defendants do not assert that Plaintiffs' conduct (ostensibly including Plaintiffs' Non-
Economic Cannabis Activities) falls into any particular category under Lopez. Rather, defendants rely
solely upon Raich, which considered only the third factor, i.e., whether the activities at issue bear a
"substantial relation" to interstate cmmnerce (Moving Br. 35). Accordingly, we focus our analysis on
this third factor.

96
of intrastate activity only where that activity.is economic in nature").

Further, to support federal regulation under the Commerce Clause, "the Constitution requires

a distinction between what is truly national and what is truly local." Morrison, 529 U.S. at 617-19.

1n particular, Congress lacks power to exert control over purely local matters that have traditionally

fallen within the province of State power. Id.; see also Lopez (challenged Act properly held

unconstitutional, as it "forecloses the States from experimenting and exercising their own judgment

in an area to which States lay claim by right of history and expertise, and does so by regulating an

activity beyond the realm of commerce in the ordinary and usual sense of that term") (Kennedy, J.

concurring).

Here, Plaintiffs' Non-Economic Cannabis Activities fall well outside the scope of the federal

commerce power and instead, lie squarely within the province of the States. As with the

unconstitutional statute struck down in Lopez, which purported to regulate mere possession (not sale)

of firearms in school zones (an area of traditional State autonomy), Plaintiffs' Non-Economic

Cannabis Activities herein include mere possession of State-legal Cannabis; "it has nothing to do with

'commerce' or any sort of economic enterprise, however broadly one might define those terms." See

Lopez, 514 U.S. at 561 (to uphold the Govermnent's contentions, "we would have to pile inference

upon inference in a manner that would bid fair to convert congressional authority under the

Commerce Clause to a general police power of the sort retained by the States").

Similarly, as with the unconstitutional statute struck down in Morrison, which purported to

regulate violence against women that is not directed at commerce, Plaintiffs' Non-Economic

Cannabis Activities herein have always fallen within the province of States' power (by federal design,

as shown in Point VI(A), supra). See Morrison, 529 U.S. at 617-619 (the distinction between what

97
is local and what is national constitutes ''one of the few principles that has been consistent since the

[Commerce] Clause was adopted"); Lopez, 514 U.S. at 583 ("[t]he tendency of this [unconstitutional]

statute to displace State regulation in areas oftraditional State concern is evident"); see also, Gobeille

v. Liberty Mui. Ins. Co., 136 S. Ct. 936, 948 ("if the Federal Government were 'to take over the

regulation of entire areas of traditional State concern,' including 'areas having nothing to do with the

regulation of commercial activities," then "the boundaries between the spheres of federal and state

authority would blur and political responsibility would become illusory") (Thomas, J., concurring)

(citations omitted).

To the extent that the CSA is purported to regulate purely Non-Economic Cannabis Activities,

occurring entirely within State boundaries (as is plainly the case herein), defendants have violated,

and are continuing to violate, the Constitution, by exercising authority well outside the confines of

the Commerce Clause. As such, the CSA is unconstitutional as applied.

D. THE COURT SHOULD REJECT RAICH AS BAD LAW

Defendants' entire argument regarding Plaintiffs' claims under the Commerce Clause rests

upon the Supreme Court's decision inRaich (Moving Br. 3 5). As explained below, this Court should

decline to follow Raich in its analysis of Plaintiffs' Non-Economic Cannabis Activities.

First, Plaintiffs' Non-Economic Cannabis Activities should not be evaluated under the

"rationality" test promulgated in Raich. The majority in Raich, citing Lopez, stated: "[w]e need not

determine whether respondents' activities, taken in the aggregate, substantially affect interstate

commerce in fact, but only whether a "rational basis" exists for so concluding." Raich, 545 U.S. at

22 (citing Lopez, 514 U.S. at 557). Respectfully, this was error. The Court in Lopez did not establish

"rationality" as the appropriate measure of congressional power. Lopez, 514 U.S. at 558-59. The

98
Court in Morrison, too, declinedto apply a"rationality'' standard in striking down the statute at issue

in that case. 529 U.S. at 613-14. By inserting "rationality" into the standard by which Commerce

Clause claims are to be addressed, Raich constitutes a significant departure from the very cases which

guide this Court's analysis.

Second, Plaintiffs' Non-Economic Cannabis Activities should not be "aggregated" for

purposes of determining whether they have a "substantial effect" on interstate commerce. In this

regard, the majority in Raich mistakenly considered the plaintiffs' non-economic activity in the

aggregate. Raich, 545 U.S. at 22. This was also error. Central to the decision in Lopez was that the

statute at issue, restricting possession of firearms near schools, was purely non-economic in nature,

and thus could not be sustained under cases "upholding regulations of activities that arise out of or

are connected with a commercial transaction, which viewed in the aggregate, substantially affects

interstate commerce." Lopez, 514 U.S. at 561. Committed to the economic/non-economic

distinction, the Supreme Court in Morrison similarly ruled:

[w ]hile we need not adopt a categorical rule against aggregating the effects of any
non-economic activity in order to decide these cases, thus far in our Nation's history
our cases have upheld Commerce Clause regulation of intrastate activity only where
that activity is economic in nature.

To support the application of"aggregation" in Raich, the Court relied predominately upon the

Supreme Court's decision in Wickard v. Filburn, 317 U.S. 111 (1942), commonly viewed as the

"most far reaching" example of Commerce Clause authority. Lopez, 514 U.S. at 560. But even

though both respondents in Raich and Wickard were cultivating, for home consumption, a commodity

for which there existed "an established, albeit illegal, interstate market," the Court in Wickard, unlike

in Raich, was faced with an economic emergency- the pricing of wheat in view of a global surplus.

There was no "economic emergency" to support aggregating the plaintiffs' activities in Raich. To

99
the extent that Raichrelies upon the doctrine 6f aggregation, particularly insofar as non-economic_

activities are concerned, it should be overruled. 89

Lastly, to adopt the holding in Raich would offend the very structure and text of the

Constitution itself. The Constitution's structure supports a much more narrow interpretation of the

"Commerce Clause" than divined by the Supreme Court in Raich. Article I, §8 of the Constitution

lists Congress' enumerated powers, while Article I, §9, comprises a comparable delineation ofpowers

specifically denied Congress. In this connection, the Court in Lopez stressed that "the powers

delegated by the[] Constitution to the Federal Government are few and defined. Those which are to

remain in the State governments are numerous and indefinite." Lopez, 514 U.S. at 552 (citing The

Federalist No. 45) (emphasis added). "The enumeration presupposes something not enumerated; and

that something, if we regard the language or the subject of the sentence, must be the exclusively

internal commerce of a State." Id. It is thus clear that the Framers anticipated that certain matters

would be beyond the reach of Congress - a notion with which the decision in Raich is plainly

incompatible.

In addition, the text of the Constitution provides Congress with the power to "regulate

commerce with foreign nations, among the states, and with Indian tribes." U.S. Constitution, Article

I, §8 (emphases added). The notion that "commerce among the several states" necessarily includes

every single activity if there were a rational basis upon which to believe that there might be a

"substantial effect" on commerce, even if such activity does not involve a single economic transaction

either with nations and Indian Tribes, or among the States (as the Court ruled in Raich ), would render

89
Furthermore, to the extent that Wickard cannot be limited in its application to circumstances
involving economic emergencies - or, at the very least, activities which are economic in nature -
Wickard, too, should be overruled.

100
the Framers' conception ofjnterstate commerce, and the distinction among the various-types of

co=erce, meaningless. As the Court pointed out in Lopez, "comprehensive as the word 'among'

is, it may very properly be restricted to that co=erce which concerns more States than one." 514

U.S. at 553 (citing Gibbons v. Ogden, 22 U.S. 1, 9 (1824)); see generally, Douglas Kmiec, Gonzalez

v. Raich: Wickard v. Filburn Displaced, CATO SUPREME COURT REV. (2004-2005).

The inapplicability (and unconstitutionality) ofRaich renders it inapplicable to Plaintiffs' case

here, requiring this Court's denial of defendants' motion.

POINT VII

PLAINTIFFS' AMENDED COMPLAINT COMPLIES WITH RULE 8(a)(2)


AND SHOULD NOT BE DISMISSED

Defendants' last-ditch effort to convince this Court to dismiss Plaintiffs' Amended Complaint

(or, in the alternative, strike portions thereof) as violative of Rule 8(a)(2) of the Federal Rules of Civil

Procedure fails as a matter oflaw. "[T]he principal function of pleadings under the Federal Rules is

to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare

for trial." 90 While Rule 8(a)(2) requires only a "short" statement, it does not impose a blanket

prohibition on lengthier pleadings, especially in cases involving multiple parties and complex issues

where detailed factual allegations and background information are necessary. 91 Moreover, courts will

90
McDonough v. Smith, 2016 U.S. Dist. LEXIS 135380, at *29 (N.D.N.Y. Sep. 30, 2016).
91
Id at 30 (denying defendant's motion to dismiss, under Rule 8(a)(2), a "1220 paragraph, 174
page" complaint "with 50 additional pages of attached exhibits" because, inter alia, the "allegations span
an approximately four year period and implicate ten separate defendants and countless other individuals
who played a role in the underlying events giving rise to this action"); see also Schiller v. Duthie, 2017
U.S. Dist. LEXIS 137937, at *33 (S.D.N.Y. Aug. 28, 2017) (refusing to dismiss in its entirety, and/or
strike portions from, a I 09-page pleading and 38 pages of exhibits "given the number of Defendants, the
complex nature of the claims, and the length of the relevant time period"); Doran v. NY State Dep 't of
Health Office of the Medicaid Inspector Gen., 2017 U.S. Dist. LEXIS 29727, at *26 (S.D.N.Y. Mar. 2,
2017) (ruling that a 68-page complaint was not unnecessarily prolix "given the number of plaintiffs and
defendants and the span of events"); Komlosi v. NY State Office ofMental Retardation & Dev.

101
not dismiss' a,eomplaint pursuant to Rule 8(a)(2) unless the complaint "is so confused, ambiguous,

vague, or otherwise unintelligible that its true substance, if any, is well disguised. " 92

Defendants irrationally contradict themselves by arguing, on the one hand, that Plaintiffs'

Amended Complaint purportedly consists of"threadbare recitals" and conclusory allegations which

fail to state a claim in violation of Rule 12(b)(6) (see Points L III supra; Moving Br. 8-9), and, on the

other hand, that the Amended Complaint is supposedly too long and detailed in contravention of Rule

8(a)(2) (Moving Br. 53-55). 93 In addition to contradicting themselves, defendants are plainly wrong

on the law - the Amended Complaint does not violate Rule 8(a)(2). First, the level of detail

contained in Plaintiffs' Amended Complaint is necessary to adequately plead Plaintiffs claims'

because this action involves: (i) five Plaintiffs, each suffering from distinct injuries; (ii) four

defendants, each causing Plaintiffs' injuries by their various unlawful actions; (iii) seven causes of

action, each premised on a variety of legal theories; and (iv) a long and complex historical

background integral to understanding the Plaintiffs' claims. 94 Furthermore, Plaintiffs' factual

Disabilities, 1990 U.S. Dist. LEXIS 2659, at *6 (S.D.N.Y. Mar. 12, 1990) ("[M]erely because defendants
find tbe complaint too long and complex it cannot be stricken ... [g]iven tbe number of parties, the type of
investigation, tbe Jong period of time, tbe complex nature of plaintiffs claims and the extent and variety
of plaintiffs alleged injuries").
92
McDonough, 2016 U.S. Dist. LEXIS 135380, at *30 (citing Gillibeau v. Richmond, 417 F.2d
426,431 (9tb Cir. 1969)).
93
See McDonough, 2016 U.S. Dist. LEXIS 135380, at *31 ("If Plaintiff had opted to state a
Jess-detailed version of the alleged events giving rise to his claims, Defendants would undoubtedly argue
that Plaintiff had failed to present enough factual support to sustain his action under Rule 12(b)( 6)").
94
See AC. See also Schiller, 2017 U.S. Dist. LEXIS 137937, at *33; Doran, 2017 U.S. Dist.
LEXIS 29727, at *26; McDonough, 2016 U.S. Dist. LEXIS 135380, at *30-32; Komlosi, 1990 U.S. Dist.
LEXIS 2659, at *6.

102
allegationsar.e "written in concise separate paragraphs that each provide ... relevanLinformation."95
0

Second, Plaintiffs' seven causes of action are "well pied and succinctly stated."96 Indeed, defendants'

contention that "it is difficult to discern what theories Plaintiffs advance" or the relief they seek

(Moving Br. 54) is completely belied by defendants' own papers, which demonstrate that defendants

understand Plaintiffs' claims "enough to present colorable arguments and defenses in opposition,"

however weak those arguments are. See Moving Br. 9-45. Clearly, Plaintiffs' Amended Complaint

does not violate Rule 8 and defendants' argument to the contrary must therefore be rejected, 97

POINT VIII

DEFENDANTS' RULE 12(B)(l) ARGUMENT FAILS AS A MATTER OF LAW

Defendants erroneously argue that because Plaintiffs did not file a re-scheduling petition with

the DEA before bringing this suit, Plaintiffs supposedly failed to exhaust their administrative

remedies, depriving this Court of subject matter jurisdiction (Moving Br. 49-53). Defendants are

95
McDonough, 2016 U.S. Dist. LEXIS 135380, at *31. In support of their baseless argument that
Plaintiffs' factual allegations are irrelevant to their claims, defendants point only to the factual
background section of the Amended Complaint which details the history of Cannabis use in the U.S. and
abroad- a history which, despite defendants' claims to the contrary, provides necessary context to
Plaintiffs' Irrationality Allegation. See Point I, supra; AC ,r,r297, 393. See also Komlosi, 1990 U.S. Dist.
LEXIS 2659, at *6; Doran, 2017 U.S. Dist. LEXIS 29727, at *26; Schiller, 2017 U.S. Dist. LEXIS
137937, at *33.
96
McDonough, 2016 U.S. Dist. LEXIS 135380, at *31.
97
1n support of their meritless argument, defendants cite to a handful of cases which are factually
distinguishable from the case at hand. See e.g., Shapiro v. Goldman, 2017 U.S. App. LEXIS 16163, at *3
(2d Cir. 201 7) (affirming the lower court's dismissal of plaintiffs complaint because, inter alia, plaintiff
repeatedly violated Rule 8(a)(2), despite being given three opportunities to amend); Kalderon v.
Finkelstein, 495 Fed. Appx. 103, 105 (2d Cir. 2012) (upholding the lower court's decision to strike
portions of plaintiffs 126-page complaint which contained factual allegations that were "inconsistent,
and contradicted by documents referenced within it"); Salahuddin v. Cuomo, 861 F.2d 40, 43 (2d Cir.
1988) (ruling that while the complaint was overly prolix, in violation of Rule 8(a)(2), because, among
other things, it "contain[ ed] explicit descriptions of 20-odd defendants [and] their official positions,"
dismissal without leave to amend was an abuse of discretion as the complaint was "neither vague nor
incomprehensible"). Since the Amended Complaint herein does not suffer from such defects, defendants'
cited cases are inapplicable herein. See AC.

103
wrong,_ fa_ support of their argument, defendants-rely upon a myriad of caseidhat are factually~-

distinguishable and, therefore, inapposite herein. 98 Because the re-scheduling procedure is futile,

Plaintiffs were not required to exhaust the administrative review process.

The doctrine of exhaustion generally requires parties to exhaust "prescribed administrative

remedies before seeking relief from the federal courts." McCarthyv. Madigan, 503 U.S. 140, 144-46

(1992). However, "federal courts are vested with a virtually unflagging obligation to exercise the

jurisdiction given them." Id. (internal citations omitted). Thus, "[aJdministrative remedies need not

be pursued if the litigant's interests in immediate judicial review outweigh the government's interests

in the efficiency or administrative autonomy that the exhaustion doctrine is designed to further." Id.

at 146. This balancing test is "intensely practical ... because attention is directed to both the nature

of the claim presented and the characteristics of the particular administrative procedure provided."

Id.

In balancing these interests, the Courts recognize at least three exceptions, any of which defeat

98
In fact, in the cases upon which defendants rely, the parties therein requested that the court re-
schedule Cannabis under the CSA - a task which the court is admittedly not authorized to undertake. See
e.g., United States v. Burton, 894 F.2d 188, 189, 192 (6th Cir. 1990) (rejecting a criminal defendant's
request that the court reschedule Cannabis because reclassification is not a task for the court); Krumm v.
Holder, 2009 U.S. Dist. LEXIS 52748, at *25-26 (D.N.M. May 27, 2009) (holding that the court is not
authorized to reclassify Cannabis); Olsen v. Holder, 610 F. Supp. 2d 985, 995 (S.D. Iowa Apr. 27, 2009)
(ruling that because plaintiff did exhaust "his administrative remedies by petitioning the DEA to
reschedule marijuana, [his] only recourse is to pursue an appeal of the DEA's adverse decision to the
appropriate Court of Appeals") (emphasis added); Welch v. United States, 2017 U.S. Dist. LEXIS
139771, at *9 (W.D. Va. Aug. 30, 2017) (emphasis added) (accord); Thomas v. Trump, 2017 U.S. Dist.
LEXIS 22278, at *3 (W.D.N.C. Feb. 16, 2017) (accord); United States v. Suquet, 551 F. Supp. 1194,
(N.D. Ill. 1982) (denying criminal defendant's request that the court reclassify cocaine under the CSA).
Plaintiffs herein, on the other hand, are not seeking to compel the reclassification of Cannabis under the
CSA; Plaintiffs instead chalJenge the constitutionality of the CSA as it applies to Cannabis - a task
which, as further discussed infra, is outside the scope of the Attorney General's authority under the CSA.
In addition, defendants cite to Alternative Cmty. Health Care Coop., Inc. v. Holder, but this case does not
discuss exhaustion of administrative remedies at alJ. 2012 U.S. Dist. LEXIS 28878 (S.D. Cal. Mar. 5,
2012).

104
,the administrative-exhaustion requirement. Id,at 146-48. These exceptions arisewhere: (i) resort to

the administrative remedy would cause "undue prejudice to subsequent assertion of a court action"

due to, for example, "an unreasonable or indefinite timeframe for administrative action;" 99 (ii) there

is doubt as to "whether the agency was empowered to grant effective relief' such as when the agency

"lacks institutional competence" to determine the constitutionality of a statute;" 100 and (iii) the

administrative body is shown to be biased or has otherwise predetermined the issue before it. 101 Id

Here, each of the three exceptions to the exhaustion requirement applies. First, requiring

99
See e.g., Walker v. Southern R. Co., 385 U.S. 196, 198 (1966) (possible delay of 10 years in
administrative proceedings makes exhaustion unnecessary); Smith v. lllinois Bell Telephone Co., 270
U.S. 587, 591-92 (1926) (claimant "is not required indefinitely to await a decision of the rate-making
tribunal before applying to a federal court for equitable relief'); United States v. Kiffer, 477 F.2d 349,
3 51 (2d Cir. 1973) (denying the government's exhaustion argument because "the administrative route for
these appellants [under the CSA] would at best provide an uncertain and indefinitely delayed remedy");
see also Gibson v. Berryhill, 411 U.S. 564, 575 n. 14 (1973) ("[A]dministrative remedies have been
deemed inadequate by federal courts, and hence not subject to the exhaustion requirement, ... [m]ost
often ... because of delay by the agency").
100
See e.g., Gibson v. Berryhill, 411 U.S. at 575 n. 14; Mathews v. Diaz, 426 U.S. 67, 76 (1976)
("[T]he only issue before the District Court was the constitutionality of the statute ... this constitutional
question is beyond the Secretary's competence"); Western International Hotels v. Tahoe Regional
Planning Agency, 387 F. Supp. 429,434, vac'd in part, on other grounds, sub. nom. Jacobson v. Tahoe
Regional Planning Agency, 566 F.2d 1353 (9th Cir. 1977) ("[P]etitioners assert that respondents have
been and are depriving them of rights protected by the Fourteenth Amendment ... Such claims are entitled
to be adjudicated in the federal courts"); Ricciotti v. Warwick School Committee, 319 F. Supp. 1006,
1010-11 (D.R.!. Nov. 6, l970)(citing McNeese v. Board ofEducation, 373 U.S. 668,674 (1963)("[T]he
challenge to the constitutionality of the Land Use Ordinance as a whole placed the issues of the suit
outside the scope ofTRPA's administrative powers. Remedies are clearly inadequate in such a case"). In
this regard, exhaustion is not required "where the challenge is to the adequacy of the agency procedure
itself, such that 'the question of the adequacy of the administrative remedy ... [is] for all practical
purposes identical with the merits of [the plaintiff's] lawsuit."' McCarthy, 503 U.S. at 148 (quoting
Bany, 443 U.S. at 63, n. 10 and Gibson, 411 U.S. at 575).
101
See Gibson, 411 U.S. at 575 n. 14 ("[A]dministrative remedies have also been held inadequate,
however, where the state administrative body was found to be biased or to have predetermined the issue
before it"); Western International Hotels, 387F. Supp. at 434 ("If an administrative body has ... has
made definite statements opposed to plaintiffs position, it is not required that the plaintiff proceed before
the administrative body prior to seeking judicial review"); R.S. v. Bedford Cent. Sch. Dist., 2011 U.S.
Dist. LEXIS 41573, at *7-9 (S.D.N.Y. Mar. 17, 2011) (waiving the exhaustion requirements on the
grounds that the decision-maker was shown to be bias towards plaintiff).

105
• ·
0
•• ·-Plaintiffs tcrpetition the DEA to re-schedule Cannabis under the CSA would unduly prejudice

Plaintiffs because, as alleged in the Amended Complaint, the rescheduling process is severely delayed

by an average of 9 years (AC i!i!354-357, Table atpp. 74-77). Consequently, Alexis, Jose, and Jagger

in particular, would suffer severe health consequences including death if they were forced to submit

to such an uncertain process. 102

Second, Plaintiffs bring this action challenging the constitutionality of the CSA; they are not

asking for the Court to reschedule Cannabis or to compel the DEA to do so. Thus, neither the

Attorney General nor the DEA are empowered to resolve issues of constitutionality - that is a task

for the judiciary alone to perform. 103 Relatedly, exhaustion is not required here because the issue

concerning the adequacy of the administrative remedy is synonymous with the merits of Plaintiffs'

Fifth Cause of Action. See McCarthy, 503 U.S. at 148; Barry, 443 U.S. at 63, n. 10; Gibson, 411 U.S.

at 575. Indeed, Plaintiffs' Fifth Cause of Action alleges that the classification of Cannabis as a

Schedule I drug deprives Plaintiffs, and other medical cannabis patients, of their right to liberty under

the Due Process Clause of the Fifth Amendment (AC i!457). Furthermore, Plaintiffs allege that the

DEA's re-scheduling process fails to provide Plaintiffs with an adequate post-deprivation remedy

because the administrative process is: (i) inherently biased against Cannabis legalization as members

of the DEA and the DOJ have made clear their disdain for Cannabis and the individuals who treat

with it; (ii) unduly delayed as the DEA takes an average of9 years to decide re-scheduling petitions;

and (iii) intentionally obstructed by rules which make it effectively impossible to conduct the type of

102
Gibson, 411 U.S. at 575 n. 14; Walker, 385 U.S. at 198; Smith, 270 U.S. at 591-592; Kiffer,
477 F.2d at 351.
10
'.'i'ee e.g., Gibson, 411 U.S. at 575 n. 14; Mathews, 426 U.S. at 76;Western International Hotels,
387 F. Supp. at 434; Ricciotti, 319 F. Supp. at 1010-11.

106
researeh that the DEA requires in order to re-schedule Cannabis (AC ifif354-70, 450-60). 104

Third, as alleged in the Amended Complaint, the exhaustion of administrative remedies would

be futile in light of the glaring institutional bias of the Attorney General - the decision-maker

overseeing the rescheduling process (AC ifif361-68). Defendant Sessions once said that "he thought

the KKK 'were [sic] OK unti!I found out they smoked pot'" (Id. ifif361-62). Importantly, however,

defendant Sessions, in condemning medical Cannabis and those who recommend and/or use it, was

not speaking from experience or an in-depth medical or scientific understanding of the chemical

properties of Cannabis and its impact on the body's metabolic systems and processes; rather, his

opinions are based upon political (not scientific) distinctions (Id. if368). Indeed, the institutional bias

rampant throughout the Federal Government's reclassification process was recently recognized by

members of Congress. 105 As such, it would be futile for Plaintiffs to petition the DEA to reclassify

Cannabis, as the decision-makers in that process have clearly made up their minds about Cannabis

104
To the extent that defendants argue that Plaintiffs have failed to state a procedural due process
claim because the rescheduling process provides Plaintiffs with adequate due process, they are wrong.
As demonstrated supra and in the Amended Complaint, the rescheduling process is severely delayed,
inherently biased, and otherwise fundamentally flawed (AC ifif354-70, 450-60), failing to provide
Plaintiffs, who have been deprived of their liberty, with an adequate post-deprivation remedy, in
violation of their Fifth Amendment rights. See Giglio v. Dunn, 732 F.2d 1133, 1138 (2d Cir. 1984) (a
post-deprivation remedy must give "plaintiff ... a meaningful opportunity to be heard").
105
In fact, according to Congressman Gerry Connolly, the National Institute on Drug Abuse
("NIDA"), upon which the Federal Govermnent has historically relied in setting its national drug policy
agenda, is a biased agency, which predetermines the outcome of its so-called "research" to make
"fmdings" hostile to legalization irrespective of the facts.
See https://www.youtube.com/watch?v=v_ 1V cPt-8y8 ("Hearing Video" Beginning at 3 :39). In this
regard, Congressman Connolly stated:

Nobody thinks NIDA is an objective neutral place to go to look at the good, the bad and
the indifferent about marijuana. It [NIDA] doesn't have that credibility.

Id at 3:50.

107
without looking at any of the scientific evidence. 106 ,

In their moving papers, defendants unsuccessfully attempt to distinguish Kiffer (Moving Br.

49), a Second Circuit decision in which the Court waived the criminal defendant's exhaustion

requirement on the ground that the CSA' s reclassification process was too "uncertain" and

"indefinitely delayed." See Kiffer 477 F.2d at 351. Defendants assert that this Court should not

follow Kiffer because: (i) it is a criminal case; and (ii) the circumstances rendering the reclassification

process delayed at that time supposedly no longer exist. Both of these arguments are erroneous.

First, the fact that Kiffer is a criminal case is of no moment in view of the number of civil cases in

. which Courts also waived the exhaustion requirement where countervailing interests weighed in favor

of the litigant. 107 Second, contrary to defendants' argument, the reclassification is undoubtedly still

"uncertain" and "unduly delayed," as evinced by its 9-year delay (AC if354-70, 450-60). See Kiffer

477 F.2d at 351. Based upon the foregoing, it evident that Plaintiffs need not have exhausted their

administrative remedies as those remedies are wholly inadequate, rendering exhaustion a futile

endeavor.

CONCLUSION

For all ofthe foregoing reasons, defendants' motion to dismiss should be denied in its entirety.

106
See Gibson, 411 U.S. at 575 n. 14; Western Intern 'l Hotels, 387 F. Supp. at 434; R.S., 2011
U.S. Dist. LEXIS 41573, at *7-9.
107
McCarthy, 503 U.S. at 148; Gibson, 411 U.S. at 575 n. 14; Walker, 385 U.S. at 198; Smith,
270 U.S. at 591-592; Mathews, 426 U.S. at 76;Western International Hotels, 387 F. Supp. at 434;
Ricciotti, 319 F. Supp. at 1010-11.

108
· · Dated: New York, New York -· :,: ~ _.._-----J~ -- - · . ::. .
December 1, 2017

10022

Michael S. Hiller (MH 9871)


Lauren A. Rudick (LR 4186)
Jason E. Zakai (JZ 0785)
Fatima Afia (FA 1817) 108

A-nd-l!i!o-Bono-Co-Gounsel-for J!laintijfs

LAW OFFICES OF DAVID CLIFFORD HOLLAND, P.C.


Member, New York Cannabis Bar Association
Biltmore Plaza
155 East 29th Street I Suite 12G
New York, New York 10016

By: s/ David C. Holland


David C. Holland (9817)

LAW OFFICES OF JOSEPH A. BONDY


1841 Broadway, Suite 910
New York, N.Y. 10023

By: s/ Joseph A. Bondy


Joseph A. Bondy (JB 6887)

108
Admission to the Southern District pending.

109