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US: New Call to Legalize Cannabis

Pubdate: Tue, 21 Jul 1998 Source: The Legal Intelligencer (daily legal newspaper in Philadelphia, PA) Contact 1: Contact 2: . Website: Author: Shannon P. Duffy ( U.S. Courthouse Correspondent


Local Attorney Launches Grassroots Effort With Class Action

Demanding that laws prohibiting the medical use of marijuana be struck down as unconstitutional, a group of 164 people from 49 states has filed a groundbreaking lawsuit in U.S. District Court here that essentially demands a peaceful surrender in one of the major battles in the war on drugs.

"The right to consume, ingest or smoke a plant that grows wild in nature, such as cannabis, is antecedent to and more fundamental than the right to vote," attorney Lawrence Elliott Hirsch writes.

"There can be no more cruel and unusual punishment than to deprive a seriously ill or disabled person of the only remedy that has been found to work. To compound that punishment by incarcerating that person and forcing him to take debilitating pharmaceuticals is precisely the sort of crime against humanity committed in the late Soviet Union in which dissidents were confined to psychiatric institutions and forcibly given drugs."

Unlike most class-action lawsuits where just a handful of typical plaintiffs represent a group of hundreds or thousands, the approach taken Kuromiya v. The United States of America is to present the stories of each of the 164 plaintiffs who claim to represent 97 million Americans who could benefit from the therapeutic effects of cannabis.

The term "cannabis" is clearly the term preferred by Hirsch. "Defendant (the government) refers to cannabis as 'marijuana,' the most dangerous drug in America," he writes.

One-by-one, the lawsuit describes the experiences of the plaintiffs, beginning with Philadelphia resident Kiyoshi Kuromiya, a 55-year-old man who has been battling AIDS since 1988 who insists that cannabis is the best medication for dealing with his "wasting syndrome" because it not only suppresses nausea, but enhances his appetite.

The list of maladies that the plaintiffs claim cannabis can ameliorate grows long as one reads on in the testimonials - everything from glaucoma, an eye disorder long known to benefit from cannabis, to spinal cord injuries, depression, pre-menstrual syndrome, chronic pain, Lou Gehrig's disease, and even alcoholism and asthma.

Many detail frustrations with prescription drugs that never worked or caused debilitating side effects. A consistent theme in the stories is the discovery of the wonders of cannabis and its one pleasant side effect, bliss.

But many also detail their run-ins with the law or their constant fears of being arrested. While most attest that they currently smoke cannabis on a daily basis, several say they only wish they could, but that the specter of a long prison sentence keeps them from doing so.

"Categorically, cannabis as a medicine is the safest therapeutic substance known to man," Hirsch writes. "There has never been one recorded incidence of overdose associated with cannabis while aspirin kills 1,000 to 1,500 people a year in the United States."

White-haired and sporting a close-cropped beard, starched white shirt and American flag-motif tie, Hirsch seems at ease straddling the fence between the establishment forces he plans to wage legal warfare against and the counterculture forces, such as the National Organization for the Reform of Marijuana Laws, that are sure to rally by his side.

The class action suit for cannabis rights is the main effort currently being handled by his newly formed Hirsch & Caplan Public Interest Law Firm.

But the plaintiffs in the suit were clearly chosen to represent Middle America and to present compelling tales of the need for the drug.

Prohibition of therapeutic cannabis, Hirsch argues, "is an arrogant legislative act, far exceeding any legitimate power of Congress. The People aver that Prohibition is enforced to protect and advance special interests who believe that cannabis, produced from the land by farmers and The People as a medicine, would negatively affect their corporate profits and dividends."

Hirsch said he firmly believes the conspiracy theory, which goes something like this: The government, the medical profession and the pharmaceuticals industry are in cahoots to spread lies about the dangers of "marijuana" because they know that cannabis is a miraculous curing agent that promises no profits since users can grow it themselves.

But that's not the argument Hirsch plans to use to win the case, according to the suit.

The lawsuit is almost purely based on the Constitution and the Bill of Rights.

"Enactment of prohibition laws without Constitutional Amendment is unconstitutional," Hirsch writes.

"The People have been converted to criminals if they possess cannabis, even cannabis seeds; or if they cultivate or market cannabis. The People cannot freely discuss cannabis without the threat of prosecution for conspiring to violate the prohibition. The People have been the targets of a ruthless campaign of lies, cover-ups, and pervasive propaganda to retain the prohibition of cannabis, which The People contend is this country's most valuable natural resource."

Hirsch argues that the federal government's classification of cannabis as a drug or a narcotic "is arbitrary and without scientific merit." To the contrary, he says, cannabis, or hemp, is simply a plant, and more specifically an herb.

"Just as it is not a crime to smoke tobacco, or to ingest caffeine, or to have a beer to relax after a hard day's work, neither can it be construed a crime to use cannabis. It is no different than using other herbal remedies like aloe vera, cayenne, chamomile, chasteberry, echinacea, ephedra, garlic, ginger, ginkgo, ginseng, goldenseal, hawthorn, hops, licorice, milk thistle, nettle, passion flower, peppermint, St. John's wort, senna and Witch Hazel."

Hirsch argues that the drafters of the Constitution also understood the promises made in the Declaration of Independence and that they "undertook to secure conditions favorable to the pursuit of happiness."

In the Bill of Rights, he argues, the founding fathers "recognized the significance of man's spiritual nature, of his feeling and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations."

To accomplish that goal, Hirsch says, the Constitution "conferred, as against the government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men."

Once it was decided that there would be a strong, central, federal government, Hirsch says, many people - notably Thomas Jefferson, James Madison and, later, John Adams - wanted to make sure that the power of that government was severely limited.

"They wanted to be certain that the government did what it needed to do, and nothing more," he argues. "Other than defending the borders, establishing treaties, settling disputes, keeping a level playing field for commerce, and ensuring the free flow of goods and ideas, they wanted to make sure the government left the people blessedly alone."

To protect that right today, Hirsch argues, "every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of both the First and the Fourth Amendments."

Even before reading some of the over-the-top rhetoric, the lawsuit itself stands out from the crowd, weighing in at 128 single-spaced pages packed with more than 78,000 words - hardly a model of compliance with Rule 9(b) of the Federal Rules of Civil Procedure which call on lawyers to draft lawsuits in the form of a "short, plain statement."

Hirsch's document, which verges on the length of a novel, arguably serves the purpose of a slew of papers one might find in a courthouse file after a case has been in litigation for many months, as well as some that are rarely found there.

In other words, it looks like it could function as a lawsuit, depositions, responses to a motion to dismiss, expert witness reports, and a brief in opposition to a summary judgment motion all wrapped up in one. Add to that a political manifesto, a closing argument, press releases, a few chapters from a history book, and a glossary of important terms.

The table of contents shows that the stories of the class plaintiffs make up most of the body of the lawsuit, running from page 3 to page 110.

Hirsch then goes on to offer some "Basic American History," followed by a history of cannabis use as both a drug and as hemp for rope, paper and other useful goods, and scientific explanations of the cannabis plant, its seed and its oil.

The suit then attacks the THC pill, also known as Marinol, for being much less effective than the whole plant.

The history of the prohibition on marijuana is explained next, beginning with the Reefer Madness of the 1920s and '30s, culminating in the Marijuana Tax Act of 1937 and leading to the current Controlled Substances Act of 1970.

Hirsch said he has served the suit on the Justice Department and is awaiting their response. He says he's ready for whatever they have.

When asked if the government will try to argue that marijuana is dangerous and that those who want to use it for therapeutic purposes can find safer more effective cures in drug stores, Hirsch says, "Let them try."

"I'm ready to put my experts up against their experts."

The lawsuit is available for viewing at Hirsch's Website by pointing an Internet browser to