February 14, 2018
Army veteran Jose Belen says the horrors of the Iraq War left him with post-traumatic stress disorder, and the drug that helped him cope best with the symptoms was one his Veterans Affairs doctors could not legally prescribe: cannabis.

“Once I did use cannabis, immediately I felt the relief,” said Belen, who is now working with other medical cannabis patients to mount a court challenge to federal laws criminalizing the drug.

The 35-year-old father of two is one of five plaintiffs in a lawsuit claiming that the government’s decision to classify cannabis as dangerous is irrational, unconstitutional and motivated by politics, not hard science. Belen and his fellow plaintiffs are pushing to have the Schedule I classification of cannabis ruled illegal.

Their lawsuit, filed in July 2017, received its long-anticipated courtroom debut earlier today in New York City. So many supporters, spectators, and media members showed up that U.S. District Judge Alvin Hellerstein’s courtroom was packed to capacity. The crowd nearly filled two overflow rooms as well.

Under review today was the federal government’s pre-trial motion to dismiss the lawsuit.


Dean Bortell, front left, kisses his daughter, Alexis, a medical cannabis refugee from Texas who now lives in Denver. Alexis Bortell is one of five plaintiffs in a lawsuit against the federal government over the scheduling of cannabis. (David Zalubowski/AP)

Petition the DEA, Say the Feds

Assistant US Attorney Samuel Dolinger spoke for the federal government.

Dolinger argued that the case should be dismissed, citing precedents in which judges previously upheld the constitutionality of existing cannabis laws.

The federal government also argued that the plaintiffs have not petitioned the Drug Enforcement Agency to reclassify marijuana. That would be the proper channel, Dolinger said, rather than using a federal lawsuit to force a change.

“Any person can submit a petition to the DEA,” Dolinger said.

Lawyers for the five plaintiffs said that was true—but the administrative process takes an average of nine years.

Dolinger also spoke of the potential abuse of cannabis by minors as a public safety issue.

He referenced a Congressional act passed in 1970 that opposed the drug’s use to “protect the health and welfare” of the people, and another 1998 measure that acted out of concern for “public safety.”

“How can you say that?” Hellerstein asked. “You say ‘There is no currently accepted medical use in the United States,’” Hellerstein added. “Your argument doesn’t hold.”

The judge asked: “Have there been any studies?”

That elicited a collective laugh from the gallery, which was packed with medical cannabis supporters.

“Mr. Dolinger,” the judge later said, “your argument is not getting anywhere.”

The courtroom gallery broke out in laughter on more than one occasion in reaction to Hellerstein’s cutting remarks.


Cannabis Should Not Be a Schedule I Drug

The judge said that cannabis does not meet the criteria to be a Schedule 1 drug, because it does have medical use. Hellerstein pointed out that prescription drugs that have caused the “opioid scourge,” as he called it, are classified as Schedule II—in other words, considered less dangerous than cannabis.

Hellerstein discussed various aspects of the government’s scheduling classifications, and mentioned that sales and distribution of marijuana could still be considered criminal if it were classified as Schedule V, so there was no reason for it to be a Schedule I.

“We recognize that there are medical issues that can be treated with medical marijuana, such as pain,” the judge said.

The judge asked Dolinger if any federal agencies involved in the scheduling of cannabis have a fast track for people whose lives are at stake without access to medical marijuana. Dolinger admitted that such a track does not exist.

Saving the Lives of Children

Attorney David Holland, representing Americans for Safe Access, was one of many lawyers for the plaintiffs. Holland told the court that the ASA represents people who need medical marijuana access to live, including plaintiff Alexis Bortell.

Bortell is a 12-year-old Texas girl who moved to Colorado in order to receive medical cannabis to treat her epileptic seizures. Her fellow plaintiff, 7-year-old Jagger Cotte, uses medical cannabis to control Leigh’s Disease, which is often fatal. Since beginning his cannabis regimen, the lawsuit contends, Cotte “has stopped screaming in pain, has been able to interact with his parents, and has prolonged his life by more than two years.”

Holland stated that the federal government has no process for expedited review of the Schedule I classification of cannabis in the case of life-threatening situations. Previous challenges to the scheduling of cannabis have stretched on for years. He explained that advocacy groups like Patients out of Time were created because children like Bortell will die without access to medical cannabis. She and many others are “medical refugees” because they were forced to move to a state where medical cannabis is legal.

No Agency Response, No Fast Track

The judge asked: “When basic human life is at stake, what would happen if there is no response from an agency?”

Dolinger, the government attorney, responded: “Such decisions do not come.” The administrative review and petition process, he said, is too lengthy in life-threatening situations.

Addressing Dolinger, the government attorney, Judge Hellerstein said, “You can’t argue there is no medical uses. How can you say that?”

“It’s saved a life,” the judge said, speaking of Alexis Bortell. “She has no more epileptic seizures. If there is an accepted medical use your argument doesn’t hold.”

Though Hellerstein seemed sympathetic to the plaintiffs’ cause today, he also expressed reservations about the lawsuit’s legal grounds. It’s not clear, he said, whether he has the power to rule on the place of cannabis on the federal government’s drug schedule.

A decision from Hellerstein regarding the government’s motion to dismiss the case is expected within the next few days.

Plaintiff Jose Belen emerged from the courthouse feeling vindicated.

“Irregardless of the ruling, in my eyes we won today,” he said. “The sheer fact that we were given the attention we received, it was a win. We are now one step closer to hope and victory.” No matter how Judge Hellerstein rules on today’s motion, Belen and his fellow plaintiffs vow to continue their legal fight. The matter will likely be appealed to the U.S. Court of Appeals for the Second Circuit, then the U.S. Supreme Court.

“This is a dry run for what will come next,” said Belen. “We are not going to stop.”

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