Against Paul Armentano and NORML’s bogus federal lawsuit

Last year, attorneys from the National Organization for the Reformation of Marijuana Laws filed a federal lawsuit challenging the Department of Justice’s crackdown on the California medical marijuana industry. Though I support efforts at checking federal law enforcement over-reach, this lawsuit is so inept that I thought it was worth writing about. First, here’s the link to yesterday’s story on the NORML blog about the latest dismissal of the case. You should read it if you are not already familiar with the case.

I want to make a few points. First, NORML’s attorneys base the entirety of their lawsuit on the claim that the Ogden memo somehow represents a promise or a statement made in court to a federal judge. However, the Ogden memo is literally just a memo that the DOJ released, and was never, so far as I know, represented in a federal court as a promise or a statement that the judiciary can hold the DOJ to. For NORML to make this claim flies in the face of reason. No wonder the judge dismissed this claim without a hearing. There was nothing to hear.

Second, the NORML claim is laughably spurious in attempting to relitigate the Commerce Clause issues the Supreme Court decided in Raich v. Gonzales (2006). NORML basically says “We know the Supreme Court decided this question already, but can you please check and see if they got it wrong?” Aside from being a completely wrong way to get the court to re-evaluate a decision, it is lazy, because there NORML makes NO argument as to why this question should be relitigated. No new constitutional claim, no spiffy new
argument, zilch. NORML’s claim is literally just a claim without warrant. Also, NORML’s lawyers seem completely unaware of the impact of the Bond v. US line of cases and the implications that this decision might have forsuch a challenge to the federal authority (tip: you might want to incorporate Bond).

If you were really interested in relitigating Raich, you would file an amicus brief in the Supreme Court litigation scheduled for this month against Obama’s Affordable Care Act, because that is where we can get the Supreme Court to meaningfully restrict Congress’s Commerce Clause powers in a way that would lay the foundation for challenging the constitutionality of the Controlled Substances Act. However, I have yet to hear NORML whisper a word about this topic.

There are other problems with this lawsuit, but those are the worst. I want to state plainly that it is intellectually dishonest for NORML to claim that a judge ruled that the federal crackdown is unconstitutional. What the judge actually did was dismiss a lawsuit that was so facially deficient that it didn’t warrant the court’s time for a hearing. NORML should not
promote its lawsuit as a legitimate, viable claim against the federal crackdown either. It’s dishonest and misleading to ordinary laypeople who don’t know the difference.

What’s the takeaway? For someone like me who supports marijuana reform, it is that Paul Armentano and the NORML media wing are not reliable sources of information, particularly about their own lawsuits and legal capabilities. They either don’t have the ability to correctly judge these issues, or they’re willing to dishonestly present a false narrative to the people who support and fund their organization. Neither possibility should be comforting.

A 2L from Thomas Cooley could write a better lawsuit. Seriously.

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20 thoughts on “Against Paul Armentano and NORML’s bogus federal lawsuit

  1. Dan Viets says:

    We would make more progress if we focused more on our enemies,
    the prohibitionists, and less on attacking and criticizing our allies.
    The 3 attorneys who filed these suits are very competent and experienced
    and volunteered their time. They were not paid by anyone.
    We are all fighting an uphill battle. It is often important to fight even the
    losing battles in order reach our goals.

  2. Jay Saxon says:

    In the hope that the author reads and appreciates responses to his efforts, I would ask but two question… Why are you publicizing your criticism of activists who are working to achieve ideals you purport to support? Couldn’t you be better utilizing your professed expertise by aiding their efforts to achieve the desired end? If you believe you’re right, submit the brief and write about your experience. I sincerely wish you success.

  3. Eapen Thampy says:

    Fair questions. First, I’m not an attorney, nor do I have the time, money, or resources to do this work myself. Second, I make my criticism public because I believe that Armentano is either woefully inept or intentionally misleading people on this issue. How do you suggest I aid their efforts? Perhaps they could aid my efforts by funding the marijuana ballot initiative I organized in Missouri.

    • Mr. K S says:

      Insulting people is an odd way of asking them for money. Stupider, still, than filing a lawsuit that had little hope of succeeding.

  4. Jay Saxon says:

    I appreciate your consideration of my questions and your response. For clarification, In my lay opinion, I find your ideas encouraging. My only negative takeaway from your article is in your indicting the NORML attorneys as inept or duplicitous. I’ve linked to your story on the NORML discussion thread associated with their link you cited above. Hopfully your words will inspire discussion & advance the ideas into action.

  5. I am an attorney and I believe that Mr. Therapy makes some valid criticisms of this court case. I never read a single article about this court case because the moment I came to the understanding that it claimed that the Ogden memo restricted the powers of government conferred by a federal statute, I decided that nothing would come of it. It is all fine and well that hree attorneys volunteered their time to prosecute their claim. But I think they wasted their money on the court fees. I can think of a lot better things to do with free legal talent and court fees than to prosecute that lawsuit. Finally, if you don’t speak up when you see something wrong, don’t expect change or your life to get any better.

  6. Marla James says:

    I think the intention of these attorneys is great, but they are suing using the wrong premise. The Ogden memo is just that a memo as the AG guidelines are just guidelines. I am not a lawyer either, but a patient advocate. I too am suing the Federal Government trying to obtain a TRO against the DEA. We are suing under the ADA using the 10th amendment as the voters of California did pass 215 and under the 14th amendment as Congress is allowing medical marijuana (which the DEA insists does not exist) in Washington DC. Our hearing is March 26th in Santa Ana Federal Court.

  7. Eapen Thampy says:

    You may also consider posting this Armentano gem from last year, where he says that this lawsuit is the #1 event shaping marijuana policy in 2011. That tells you everything you need to know about his competence or intellectual honesty.

  8. Paul Armentano says:

    Hey Eapen: Any time you want to compare CVs with me, be my guest. I’ve been published over 1,000 times with op/eds in practically every major newspaper there is, and my work has appeared in over a dozen textbooks. I co-wrote a book that appeared on Amazon’s best-sellers list. I’ve been a legal expert and/or authored affidavits in court more times than I can count.

    I see your personal bias of me has seriously clouded your judgment. Did you even read the suit? The Ogden memo was only one partly the basis of one single claim; there were several others, including 9th, 10th, and 14th amendment challenges, as well as the issue of judicial estoppel. I simply summarized the fact that a federal judge dismissed these challenges and that the plaintiffs would appeal. Why not direct your apparent vitriol at the lawyers themselves, since you seem to believe they are incompetent. No worries, I’ll be sure to share your non-legal opinion with them. I’m sure they will find your insight invaluable.


    Ah yes, now it’s apparent: the ‘NORML isn’t sufficiently funding my effort so I’ll trash them routine.’ Great strategy. I’m sure you’ll have your measure qualified for the ballot in no time.

  9. Eapen Thampy says:

    I’m not up to compare CV’s.You can write as many essays or op-eds as you want, that doesn’t make them accurate or correct. I didn’t write this post as a way to ask for money either, so let’s dispense with that claptrap.

    I want to simply note that it is you who said that this inane lawsuit is the #1 event shaping marijuana policy in 2011. That’s ridiculous. On that basis alone I’d call your judgement suspect.

  10. Eapen Thampy says:

    I’ve criticized your thinking before when you wrote your piece about the Columbia, MO SWAT raid. YOu should read that too.

  11. Carl Olsen says:

    Hi Eapen,

    I agree with your legal assessment of the case, but strongly disagree with your suggestion about litigating this issue in the Affordable Health Care Act case, Florida v. Department of Health and Human Services. What NORML’s attorneys should be doing is suing the State of California for failure to challenge federal classification. In Gonzales v. Oregon, 546 U.S. 243 (2006), the U.S. Supreme Court explained in detail that federal regulations cannot be used to make accepted medical use in a state illegal under federal law. The federal classifications of controlled substances are nothing but ordinary federal regulations. They do not carry the same weight as a federal statute, as was the issue in Gonzales v. Raich, 545 U.S. 1 (2005).

    • Eapen Thampy says:

      That’s a fair reply. Thanks. I’ll look into that.

    • hoam rogh says:

      Carl, if this regulation carries less weight than a statute–would a state permitting a certain form of medicine provide a right to access that medicine? The federal regulation creates an undue burden on the rights of the individual. The Californian enjoys greater liberty than a person in Iowa when it comes to making treatment decisions that could mean life or death in fighting their cancer.

      I think NORML was wrong to implicate the 9th amendment instead of the 5th. Use due process. The 9th forecloses too effortlessly when any government power authorizing the action is found. Liberty cannot exist if the state may prevent a patient from conferring with his or her doctor as to the proper course of treatment, only to be stymied by the most tenuous of rational basis. It was the 5th amendment, not the 9th.

      On the 14th amendment, they failed to adequately plead invidious discrimination and again ran into a provision of the CSA that enables “experimental” treatments like Irv Rosenfeld has been smoking for 30 years.

      I didn’t even see them make a rational basis test. When does that test happen? A rational basis based upon outdated facts is no basis, which is why they needed to plead the three facts required to upend stare decisis, but they didn’t.

      They were excited about judicial estoppel–and in an age when common law theories usurp statutes like the Cubs rack up World Series trophies, that was poor judgment.

      • Carl Olsen says:

        My first reaction was like Eapen’s. I don’t see any cause of action in federal court. The federal scheduling is the status quo. If the states don’t agree with federal scheduling, they have to say so. California has not said anything to the federal government. If they had, we’d have a decision from a federal court like Gonzales v. Oregon, 546 U.S. 243 (2006). This case should have been filed in a California court, not a federal court. It should have been a writ of mandamus to force the state to demand federal reclassification. Anything else is futile. These NORML attorneys have not shown the federal court why it should interfere. If California likes the federal scheduling, then California must enjoy the federal raids. I don’t know why they even bothered to enact a medical marijuana law if they won’t defend it against federal scheduling.

  12. hoam rogh says:

    WIcked comment posting board. Paul even chimed in. Come on, buddy. If you’re that good, don’t remind people. They’ll already know. And the memo in and of itself was not the argument. It was the dismissal of a case based on official representations by members of the justice department. It would be like playing monopoly and picking a Chance card–but when you don’t like it, you just pick another one.

    I still think that the same fundamental right that protects a woman in making a medical decision with her doctor, or with a competent person refusing medical treatment, is the same fundamental right a person living in a medical marijuana state enjoys when making a treatment decision that directly impacts his or her self determination. And no mere rational basis about a debate from 40 year old science can obstruct that.

    (Also, Eapen, your writing style is pretentious and turns off people that read it. Just make it breezy. Smart is elegant.)

  13. hoam rogh says:

    If i’m not, Hemingway and that Einstein quote about simplicity are bastards. Do you think that was really Paul? Or just some troll?

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