Case Document 1 Filed 11/15/18 Page 1 of 44 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MATTHEW ROMAN, M.D. Plaintiff, v. NO. ACTING ATTORNEY GENERAL MATTHEW WHITAKER, and his successors and THOMAS E. BRANDON, DEPUTY DIRECTOR AND HEAD OF THE US BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, and his successors and CHRISTOPHER WRAY, DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION and his successors and THE UNITED STATES OF AMERICA Defendants. INTRODUCTION 1. This is an action, in law and equity, to uphold the constitutional right to keep and bear arms, including the right to acquire such arms, which extends to all law-abiding citizens. Case Document 1 Filed 11/15/18 Page 2 of 44 2. The Second Amendment ?guarantee[s] the individual right to possess? ?rearms and ?elevates above all other interests the right of law-abiding, responsible citizens to use arms in the defense of hearth and home.? District of Columbia 12. Heller, 554 US. 570, 128 S. Ct. 2783, 2797, 2821 (2008). 3. The Second Amendment explicitly states that it is a ?right of the people.? US. Const. amend. II. 4. In its opinion in District of Columbia v. Heller, the Supreme Court of the United 59 6? States carefully noted that, when the Constitution refers to ?the people, the term unambiguously refers to all members of the political community, not an unspeci?ed subset.? 554 US. at 644. The Court therefore began its analysis, ?with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.? Id. at 581 (emphasis added). 5. Contrary to the well-established right of law-abiding citizens to keep and bear arms, Defendants have prohibited a certain class of law-abiding citizens from exercising this right. Defendants have enacted, maintained, or otherwise perpetuated laws, regulations, and policies which have the speci?c intent of denying the Plaintiff, and those similarly situated, the individual right to keep and bear arms, as guaranteed under the Second Amendment. Speci?cally, these laws, regulations, and policies intentionally deny this right to those who have registered to use medical cannabis pursuant to state- sanctioned medical cannabis programs. 6. Defendants have intentionally denied those who have registered to use medical cannabis pursuant to state law the right to lawfully purchase ?rearms without providing any due process prior to depriving this class of individuals of their constitutional right. Case Document 1 Filed 11/15/18 Page 3 of 44 7. Based on its plain meaning, as well as Defendants? interpretation of the text, Subsections and of 18 U.S.C. 922?the federal statute governing the right to keep and bear arms?unconstitutionally prohibit law-abiding citizens who have enrolled in state medical cannabis programs from purchasing a ?rearm, ?the most popular weapon chosen by Americans for self-defense in the home.? Heller, 554 U.S. at 628?29. 8. This strict, rigid, blanket prohibition violates the fundamental constitutional rights of tens of thousands of non-violent, law-abiding citizens, and is thus violates the Second and Fifth Amendments of the Constitution. THE PARTIES 9. Plaintiff, Matthew Roman, MD Roman? or ?Plaintiff?), is an individual and natural citizen of the United States and the Commonwealth of Dr. Roman has attempted to acquire and intends to acquire a Smith Wesson Model 638 Revolver for self-defense within his home. The unconstitutional laws and policies described in this Complaint prohibit Dr. Roman from acquiring a ?rearm, however, due to his status as a patient in Medical Cannabis Program. 10. Defendant, ACTING ATTORNEY GENERAL MATTHEW WHITAKER (?Attorney General? or ?Mr. Whitaker?), and his successors, are sued in their of?cial capacity as the Acting Attorney General of the United States. As Acting Attorney General, Defendant Whitaker is responsible for executing and administering the laws, regulations, customs, practices, and policies of the United States. He is presently enforcing the laws, regulations, customs, practices, and policies complained of in this action. As Acting Attorney General, Defendant Whitaker is ultimately responsible for supervising the functions and actions of the United States Department of Justice, Case Document 1 Filed 11/15/18 Page 4 of 44 including the Bureau of Alcohol, Tobacco, Firearms and Explosives and the Federal Bureau of Investigation, which are arms of the Department of Justice. 11. Defendant, THOMAS E. BRANDON, and his successors, are the DEPUTY DIRECTOR AND HEAD OF THE U.S. BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES The ATF is a branch of the Department of Justice and is responsible for regulating the licensing, possession, sale, and transportation of firearms and ammunition in interstate commerce. The ATF is currently authorized to, and currently is, implementing and enforcing the federal laws complained of in this action. In his capacity as Deputy Director and Head of the ATF, Defendant Thomas E. Brandon is presently enforcing the laws, regulations, and policies described in this action. 12. Defendant, CHRISTOPHER WRAY, and his successors, are the current DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION The FBI is the principal law enforcement agency of the Federal Government, operating under the jurisdiction of the Department of Justice. The FBI is responsible for the maintenance, administration, and operation of the National Instant Criminal Background Check System (NICS). NICS is used by Federal Firearms Licensees (FFLs) to instantly determine whether a prospective buyer is eligible to buy ?rearms. Before ringing up the sale, cashiers call in a check to the FBI or to other designated agencies to ensure that each customer does not have a criminal record or is not otherwise ineligible to make a purchase. By its operation of the NICS program, in conjunction With the unconstitutionality of the laws complained of in this action, the FBI is currently authorized to, and currently is, implementing and enforcing the federal laws complained Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 5 of 44 of in this action. In his capacity as Director and Head of the FBI, Defendant Christopher Wray is presently enforcing the laws, regulations, and policies described in this action. 13. Defendant, THE UNITED STATES OF AMERICA, is a proper defendant in this action pursuant to 5 U.S.C. 702. JURISDICTION AND VENUE 14. This action concerns subject matter that is within the original and exclusive jurisdiction of the district courts of the United States of America, in that this action arises under the Constitution and laws of the United States, and therefore jurisdiction is founded on 28 U.S.C. 1331. 15. This action seeks relief pursuant to 28 U.S.C. 2201-02, 2412. 16. There is no administrative remedy available to Plaintiff.1 17. Pursuant to 28 U.S.C. 1343, this action seeks to enforce a right for which the United States District Courts have original jurisdiction to protect. 18. Defendants are subject to actions for relief in law and equity, such as this suit, pursuant to 5 U.S.C. 702. 19. The Court has the authority to award costs and attorney?s fees pursuant to 28 U.S.C. 2412, 1920 and 18 U.S.C. 925(a). 1 Pursuant 18 U.S.C. 925(c), an individual prohibited from acquiring a ?rearm may apply to the Attorney General for relief from the prohibition, which the Attorney General may grant if ?the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.? The ATF has promulgated a rule detailing the manner that a review under 18 U.S.C. 925(c) may be sought. See 27 C.F.R. 478.144. However, notwithstanding the provisions of 18 U.S.C. 925(0) and 27 478.144, which purport to provide a means to request relief for an individual prohibited from acquiring a ?rearm, since 1993, the United States Congress has speci?cally denied any funding ?to investigate or act upon applications for relief from Federal ?rearms disabilities under 18 U.S.C. The Consolidated Appropriations Act, 2018, Pub. L. No. 115?141, 132 Stat. 348. See also at 24. Due to the above lack of funding, ATF does not in fact provide any review under 18 U.S.C. 925(c) to provide relief from a federal prohibition on purchasing, possessing or utilizing a ?rearm. Because Defendant ATF does not provide a review for relief from a federal prohibition on acquiring or possessing a ?rearm, Plaintiff Roman cannot avail himself of any federal procedure to vindicate his Second Amendment rights on the basis that he does not present a threat to himself or others. Case Document 1 Filed 11/15/18 Page 6 of 44 20. Venue in the Eastern District of is proper pursuant to 28 U.S.C. 193 STATEMENT OF FACTS I. PLAINTIFF, MATTHEW A. ROMAN, MD, WAS DENIED HIS SECOND AMENDMENT RIGHT TO OWN A FIREARM 21. Plaintiff, Dr. Roman, was born on January 11, 1985. 22. Dr. Roman is a medical doctor who is certi?ed by the Commonwealth of to recormnend medical cannabis to qualifying patients. 23. Dr. Roman is also a medical cannabis cardholder and consumer, and is properly registered as such with the Commonwealth of 24. Dr. Roman was born and raised in the greater Philadelphia area. He grew up in a his mother and father?s bed and breakfast, which catered to brain-injured children attending The Institutes for the Achievement of Human Potential. 25. Dr. Roman is a strong proponent of legalizing medical cannabis, having personally reviewed the relevant medical literature, and having weighed the value of individual studies? results against one another. He has blogged about the potential bene?ts of cannabis for years, and has been a guest blogger on the Science-Based Medicine Blog, writing the ?rst ever analysis of the Patient Affordable Care Act?s effect on Complementary and alternative medicine (CAM). 26. Dr. Roman believes that overprescribing by today?s physicians has created an epidemic of narcotic dependence and drug diversion, and that Medical Cannabis is a valid solution to this nationwide problem. 27. In fact, Dr. Roman has found that opiate use among his patients has reduced by about ?fty percent as a result of their switching to Medical Cannabis. Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 7 of 44 28. In October 2017, Dr. Roman obtained a valid, state-sanctioned medical cannabis patient card in the State of Delaware, and in or about March 2018 he obtained a similar permit from the Commonwealth of Department of Health. 29. Pursuant to his status as a state-sanctioned medical cannabis patient, Dr. Roman has used, and continues to use medical cannabis for the purposes of treating his post- traumatic stress disorder. 30. Dr. Roman is a law?abiding citizen, who had no pr0pensity for violence before his use of medical cannabis, and who continues to have no propensity for violence after using medical cannabis to treat his illness. 31. On April 28, 2018, Dr. Roman went to a local gun store for the purpose of purchasing a Smith Wesson Model 638 Revolver. 32. Dr. Roman was driven by his friend, Mr. Bernard Wagenseller, who picked him up from his home at 4:00 pm. 33. At 4:06 Dr. Roman and Mr. Wagenseller arrived at the local gun store, Firing Lane, Inc., located at 1532 S. Front St., Philadelphia, PA 19147. Inside the store, there were some customers and a few staff members behind the counter helping others. 34. At 4:11 one of the staff members assisted Dr. Roman, who requested to purchase a Smith Wesson Model 638 Revolver. 35. The staff member proceeded to ask Dr. Roman a series of questions, one of which inquired as to whether Dr. Roman possessed a medical cannabis card. 36. Dr. Roman truthfully answered that he did have a medical cannabis card, and the staff member reSponded that it was not legal under federal law to have a medical cannabis card and purchase a weapon. Case Document 1 Filed 11/15/18 Page 8 of 44 37. At this point, a second staff member approached the two men and read aloud Question 11(e) on ATF Form 4473 the question about being a marijuana user) and its accompanying disclaimer, explaining that use by cannabis card holders is still considered illegal. 38. The staff member asked Dr. Roman if he would answer ?yes? to Question ll(e), to which Dr. Roman replied in the af?rmative. Dr. Roman was then told he could not purchase a weapon if such were the case. 39. Redirecting his attention to the ?rst staff member, Dr. Roman asked Whether, if he returned his medical cannabis card, he could then purchase the gun, to which the staff member replied, ?that would be 40. At 4:20 pm. Dr. Roman thanked the staff member for his time and exited the building with Mr. Wagenseller. 41. Medical cannabis dispensaries in the Commonwealth of offer a wide variety of medical cannabis products including those with very little tetrahydrocannabinol, the main component of the cannabis plant. 42. Medical Cannabis dispensaries in the Commonwealth of offer Medical Cannabis products with a cannabidiol to tetrahydrocannabinol ratio as low as ten parts CBD to one part THC 10:1). 43. Dr. Roman purchased and used Medical Cannabis with the above-referenced 10:1 ratio and felt no nor any otherwise motor-function-inhibiting effects. II. HISTORY OF SAFE CULTIVATION AND CONSUMPTION OF CANNABIS a. Cannabis in Colonial America and its Importance to Our Founding Fathers Case Document 1 Filed 11/15/18 Page 9 of 44 44. By the seventeenth century, Britain began colonizing much of the ?New World,? and the Americas in particular; a venture, the success of which, was built in part by the cultivation and use of hemp.2 45. The early colonists grew hemp for the production of rope, sails, and clothing.3 46. In fact, hemp was held to be so valuable that farmers were permitted to pay a portion of their taxes with the plant in certain colonies, such as in 1706.4 47. Among those who cultivated and or used hemp for both personal and commercial purposes were the Founding Fathers, including George Washington, Thomas Jefferson, and Benjamin Franklin.5 48. Thomas Jefferson received the ?rst United States patent for his invention of a machine that would begin the ?ber extraction process for cultivating hemp.6 Similarly, Benjamin Franklin, earned a substantial portion of his wealth cultivating hemp to use as raw material for his leading paper production company.7 49. Until 1883, 75-90% of all paper in the world was made with hemp fiber;8 in fact, early drafts of the Declaration of Independence and the United States Constitution were written on hemp-based paper.9 b. Early Medicinal Use of Cannabis in the Americas 2 Robert Deitch, Hemp American History Revisited: The Plant with a Divided History, 12 (2003). . .Britain encouraged its people to colonize America and they did that primarily because Britain?s Domestic hemp?based industry, the lifeblood of the economy, desperately needed a stable, reliable, and relatively cheap source of raw hemp.? Id. at 13 (emphasis added35. Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 10 of 44 50. Colonial America?s use of the cannabis plant was not merely restricted to manufacturing or industrial purposes, as ?colonial Americans were aware of the medicinal properties of Cannabis. It was one of the few medicines they had, and they used it as commonly as we use Aspirin today.?10 51. Some of the Founding Fathers, such as Thomas Jefferson, smoked Cannabis (also known as ?hemp? or ?sweet hemp? at the time) for both medicinal and recreational purposes.11 Thomas Jefferson mentioned in his diary that he smoked hemp as a remedy for his migraines. 12 52. Cannabis was of?cially introduced into Western Medicine in the 18305 by William Shaughnessy, a doctor for the British East India Company, who referred to the plant as an ?anti-convulsive remedy of the highest value,? that was highly effective in treating rheumatoid arthritis, spasticity, and pain in general.13 53. By 1850, the United States Pharmacopoeia listed Cannabis as a treatment for neuralgia, typhus, cholera, convulsive-inducing conditions, alcoholism, and opiate addiction, among others.14 Ten years later, the Ohio State Medical Society?s Committee on Cannabis Indica found the plant to be highly effective for more common ailments such as stomach cramps, coughs, venereal disease, post-partum depression, epilepsy, and asthma. 15 c. History of Cannabis Illegality in the United States ?0 Id. at 25. Id. at 25-26. ?2 Id. 13 Steve DeAngelo, The Cannabis Mant?esto: A New Paradigm for Wellness, at 48 (2015). 1: Martin Booth, Cannabis: A History, at 113?1 14 (2003). Id. 10 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 11 of 44 54. Prior to 1906, cannabis, like opiates and cocaine, was freely available at drug stores in liquid form and as hashish, a re?ned product. Cannabis was also a common ingredient in tum?of-the-century patent medicines, including over-the-counter concoctions brewed to proprietary formulas.16 55. The practice of smoking cannabis leaf in cigarettes or pipes was largely unknown in the United States until it was introduced by Mexican immigrants during the first few decades of the twentieth century. That introduction, in turn, generated a reaction in the United States, tinged with anti-Mexican xenophobia.17 56. The ?rst attempt at Federal regulation of cannabis came in 1906, with the passage of the Pure Food and Drug Act. The Act included cannabis among the various substances which patent medicine companies were required to list on their labels in order that worried customers could avoid it.18 The Act did not make cannabis illegal.19 57. After the Mexican Revolution of 1910, Mexican immigrants ?ooded into the United States, introducing to American culture the recreational use of cannabis, or as they called it, ?Marijuana.?20 The drug became associated with the fear and prejudice about these anish-s eaking newcomers. 21 Anti-drug cam ai ers warned a ainst the gn 16 Stephen Siff, Origins: Current Events in Historical perspective, Vol. 7, Issue 8. The Illegalz'zation of Marijuana: A Brief History (May 2014). 19 See id; see also Marijuana imeline, PBS. 20 Id. 21 Id. 11 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 12 of 44 encroaching ?Marijuana Menace,? and terrible crimes were attributed to marijuana and the Mexicans who used it.22 58. Due to the aforementioned xenophobia and prejudice, individual states began to outlaw cannabis, despite its legal status under federal law.23 59. Amid the rise of anti?immigrant sentiment fueled by the Great Depression, public of?cials from the Southwest and from Louisiana petitioned the Treasury Department to outlaw cannabis.24 60. Harry J. Anslinger, the commissioner of the Federal Bureau of Narcotics found his agency in jeopardy due to federal tax revenues dwindling under the economic crisis that was the Great Depression.25 61. Congress began to slash spending and there was discussion about eliminating the Federal Bureau of Narcotics; needless to say, Mr. Anslinger needed a compelling reason to justify his agency?s existence.26 62. Mr. Anslinger at ?rst doubted the seriousness of the problem and the need for Federal legislation, but soon he pursued the goal of a nationwide cannabis prohibition . . . 27 With 1ntense enthuSIasm. 22 PBS, supra Note 18; ?The prejudices and fears that greeted these peasant immigrants also extended to their traditional means of intoxication: smoking marijuana. Police of?cers in Texas claimed that marijuana incited violent crimes, aroused a ?lust for blood,? and gave its users ?superhuman strength.? Rumors spread that Mexicans were distributing this ?killer weed? to unsuspecting American schoolchildren. Sailors and West Indian immigrants brought the practice of smoking marijuana to port cities along the Gulf of Mexico. In New Orleans newspaper articles associated the drug with African?Americans, jazz musicians, prostitutes, and underworld whites. ?The Marijuana Menace,? as sketched by anti-drug campaigners, was personi?ed by inferior races and social deviants.? Eric Schlosser, Reefer Madness, The Atlantic (Aug. 1994). 994/0 8/reefer-madness/3 03476/ . 3 ?In 1914 El Paso, Texas, enacted perhaps the ?rst US. ordinance banning the sale or possession of marijuana; by 1931 twenty-nine states had outlawed marijuana, usually with little fanfare or debate.? Eric Schlosser, Reefer Madness, The Atlantic (Aug. 1994). ht . com/magazine/ archive/ 1 994/0 8/reefer?madness/ 3 O3 476/. .1 Id. 25 Bruce Barcott, Weed the People: The Future of Legal Marijuana in America, at 21 (2015). 26 Id. 12 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 13 of 44 63. Mr. Anslinger?s tirade against cannabis was littered with racist and xenophobic claims, and he has been quoted as saying the following: a. ?Reefer makes darkies think they?re as good as white men.? b. ?There are 100,000 total marijuana smokers in the US, and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing, result from marijuana usage. This marijuana causes white women to seek sexual relations with Negroes, entertainers and any others.? c. ?The primary reason to outlaw marijuana is its effect on the degenerate races.?28 64. Cannabis prOpaganda, its underlying racism and xenophobia, and rising state prohibition led to Congress passing the Marihuana Tax Act of 1937, effectively criminalizing cannabis by restricting possession of the drug to individuals who paid an excise tax for certain authorized medical and industrial uses.29 65. Under the act, ?anyone using the hemp plant for certain defined industrial or medical purposes was required to register and pay a tax of a dollar an ounce. A person using marihuana for any other purpose had to pay a tax of $100 an ounce on unregistered 27 Schlosser, supra Note 22 (?In public appearances and radio broadcasts Anslinger asserted that the use of this "evil weed" led to killings, sex crimes, and insanity. He wrote sensational magazine articles with titles like "Marijuana: Assassin of Youth"); Barcott, supra Note 24 (?Anslinger traveled the county offering demon-drug sermons to police agencies, civic clubs, religious groups, women?s organizations and editorial boards. . .His campaign became a self perpetuating machine. . . [and] inspired a Whole genre of pulp ?ction and exploitation ?lms, including the notorious Reefer Madness?). 28 Cannabisinfo, 15 most ridiculous quotes about ?marihuana' by Harry J. Anslinger (Apr. 19, 2017). :0 PBS supra Note 18. 13 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 14 of 44 transactions. Those who failed to comply were subject to large ?nes or prison for tax its purpose was to discourage recreational marihuana smoking.?0 66. During the 1937 hearings on the Act, W.C. Woodward, a representative of the American Medical Association, stood before the House Ways and Means Committee and pointed out that Congress had virtually no empirical medical proof that Cannabis was addictive, prominently used by adolescents, or causally connected to violent behavior, and that the evidence upon which they based the need for this legislation came in the form of newspaper articles, and not from medical sources.31 67. In support of his argument that Medical Cannabis should have less restriction, he said: a. ?There is nothing in the medicinal use of Cannabis that has any relation to Cannabis addiction. I use the word 'Cannabis? in preference to the word 'marihuana', because Cannabis is the correct term for describing the plant and its products. The term 'marihuana' is a mongrel word that has crept into this country over the Mexican border and has no general meaning, except as it relates to the use of Cannabis preparations for To say, however, as has been proposed here, that the use of the drug should be prevented by a prohibitive tax, loses sight of the fact that future investigation may show that there are substantial medical uses for - 32 Cannabls.? 30 See Lester Grinspoon, M.D. James B. Bakalar, Marihuana, the Forbidden Medicine, at 8 (1997). 31 . Id. (empha31s added). 32 ProCon.org., William C. Woodward, MD Biography (Dec. 22, 2011), available at: org/view. source.php? sourceID=01 12 8 0. 14 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 15 of 44 68. Despite the existence of valid studies indicating the Virtual harmlessness of cannabis, the lack of information travel in the 1930s, coupled with a strong, propaganda- based campaign against cannabis led to the ultimate passing of the Marihuana Tax Act of 1937.33 69. The Act?s supposed intention was aimed at eliminating recreational use of cannabis; however, the Federal Bureau of Narcotics began making it increasingly dif?cult to obtain cannabis for scienti?c studies, and when studies were possible, the Bureau would only accept as legitimate those studies painting a negative picture of cannabis.34 70. Shortly after passage of the Act, New York?s Mayor La Guardia formed a team of physicians and scholars to study the medical, social, and consequences of cannabis use in New York City.35 The report concluded that there was no proof that cannabis caused violent, aggressive behavior.36 71. The Journal of the American Medical Association published an editorial validating the La Guardia study as ?a careful study,? even noting a few of cannabis?s 33 Barcott, supra Note 24, at 23 (?In 1893 the British government commissioned a report on cannabis use in India. The Indian Hemp Drugs Commission spent years studying the issue before publishing an eight- Volume report that found ?the moderate use of hemp drugs is practically attended by no evil results at all.? In 1925 the US Army investigated cannabis use by soldiers in the Panama Canal Zone. . .The committee found no evidence that marijuana ?has any appreciably deleterious in?uence on the individuals using it. . .The Indian Hemp Drugs Commission Study and the Canal Zone report were available at only a handful of research libraries. A few government of?cials knew of their existence but had every reason to keep quiet.") 34 See Gregg A. Bilz, The Medical Use of Marijuana: The Politics of Medicine, 13 Hamline J. Pub. L. Pol?y 117, 120-21 (Spring, 1992). 35 Id. 36 Id. (emphasis added); ?The practice of smoking marihuana does not lead to addiction in the medical sense of the The use of marihuana does not lead to morphine or heroin or cocaine addiction and no effort is made to create a market for these narcotics by stimulating the practice of marihuana Marihuana is not the determining ?zctor in the commission of major The publicity concerning the catastrophic effects of marihuana smoking in New York City is unfounded." ProCon.org, History of Marijuana as Medicine 2900 BC to Present (last updated Jan. 30, 2017) (emphasis added). 15 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 16 of 44 potential medical uses.37 Mr. Anslinger quickly responded, writing a letter to the AMA Journal severely criticizing the La Guardia study.38 72. At that point, the American Medical Association ?made an extraordinary about- face and joined the Federal Bureau of Narcotics in the denunciation of the La Guardia Report,? thereafter publishing an editorial advising policymakers to disregard such an ?unscienti?c? study and to ?continue to regard marihuana as a menace wherever it is purveyed.?39 73. Mr. Anslinger?s racially and ethnically motivated crusade against cannabis, as opposed to factual evidence of its harm, led to the Federal Government taking a fervent anti-Cannabis policy approach well into the 1960s.40 74. The 1960s seemed to bring a glimmer of hOpe as to federal treatment of cannabis. The political and cultural climate re?ected a more lenient attitude towards cannabis, in part because use of the drug became widespread in the white upper middle class.41 Reports commissioned by Presidents Kennedy and Johnson found that marijuana use did not induce violence nor lead to use of heavier drugs.42 75. By 1970, however, the Nixon administration successfully revived prior negative attitudes towards cannabis and urged congress to enact legislation that would classify drugs under separate schedules according to their medicinal value, dangerousness, and addictive properties. Congress responded by passing the Controlled Substances Act 121?22. 40 See Grinspoon Bakalar, supra Note 29, at 13. 41 PBS, supra Note 18. 42 Id. (emphasis added). 16 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 17 of 44 October of 1970, placing cannabis in Schedule 1, thereby submitting it to the most restrictive controls under the Act.43 76. Despite ?almost total agreement among competent scientists and physicians that marihuana is not a narcotic drug like heroin or morphine. . . [and an acknowledgment that] equat[ing] its with the risks inherent in the use of hard narcotics is neither medically nor legally defensible,?44 Congress nonetheless included cannabis in the same Schedule as opiates and opiate derivatives.45 77. The Department of Health, Education, and Welfare recommended that cannabis remain under Schedule I only ?until the completion of certain studies now underway to resolve this issue.?46 78. Thereafter President Nixon appointed Raymond Shafer to Chair the National Commission on Marijuana and Drug Abuse, which would later come to be known as the a: 47 ?Shafer Commission. Under Shafer, the Commission conducted ?more than 50 projects, ranging from a study of the effects of marijuana on man to a ?eld survey of ,48 enforcement of the marijuana laws in six metropolitan jurisdictions.? 79. The Commission?s ultimate ?ndings included the following: 43 21 U.S.C.S. 812 (LexisNexis). 44 Drug Abuse Control Amendment 1970: Hearings Before the Subcomm. 0n Public Health and Welfare, 91 Cong. 179 (1970) (Statement of Dr. Stanley P. Yolles). 45 Supra Note 42. 46 HR. Rep. 91?1444 at 2111. 47 ProCon.org, supra Note 35. 48 National Commission on Marihuana and Drug Abuse, Marihuana: A Signal of Misunderstanding; First Report, Washington, DC, US. Government Printing Of?ce, 1972. l7 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 18 of 44 a. ?The 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.?49 b. ?Neither the marihuana user nor the drug itself can be said to constitute a danger to public safety.?50 80. President Nixon rejected the Shafer Commission ?ndings as they were inconsistent with his Administration?s cannabis related agenda, which was motivated by racism and suppressing the civil rights of certain classes of citizens. 81. John Ehrlichman, President Nixon?s former Domestic Policy Chief is quoted as saying the following: a. ?You want to know what this was really all about Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. . .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.?5 1 82. President Nixon had his mind made up about the issue of cannabis?s legal status well before the Shafer Commission report was even issued. In September 1971, Mr. 49 Id. (emphasis added). 50 Id. 51 Edelman, Adam, Nixon Aide: ?War on Drugs was tool to target ?blackpeOpIe (March 23, 2016). eople-article- 1 .2573 832. 18 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 19 of 44 Shafer contacted President Nixon to discuss his concern that the Commission was ?put together by a President to merely toe the party line.?52 83. President Nixon made it clear that he did not care about the ultimate conclusions drawn by the Commission, and urged Mr. Shafer to ignore the obvious differences between cannabis and other, more dangerous drugs.53 84. To this day, despite strong evidence supporting the fact that cannabis?s prohibition is rooted in racism and xenophobia, the substance remains a Schedule I narcotic under the Controlled Substances Act.54 d. Modern Medicinal Use of Cannabis in the United States of America 85. Beginning in 1976, the United States began subsidizing a program, known as the Investigational New Drug Program Program?), whereby certain individuals were provided with medical cannabis.55 The very ?rst of these individuals was Robert Randall who was arrested for growing cannabis on his back deck and had to prove that this medicine was essential in to prevent his progressive loss of vision from glaucomas'5 Mr. Randall ultimately won his case and subsequently the Federal Government allowed him access to the federal cannabis supply through the IND Pro gram.5 7 52 Tape Recording, September 9, 1971 (Oval Of?ce Conversation No. 568-4). 53 Id. think there's a need to come out with a report that is totally, uh, uh, oblivious to some obvious, uh, differences between marijuana and other drugs, other dangerous drugs, there are differences?). 54 Supra Note 42. 55 MedicalCannabis.com, Federal IND Patients. atientsCase 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 20 of 44 86. At its peak, there were about 15 patients receiving medical cannabis from the Federal Government, via the IND Program.58 The Program remains in existence to this day.59 87. Upon information and belief, none of the patients who have participated in the IND Program have suffered any serious side effects, nor any harm from their cannabis treatment. 88. The Missoula Chronic Clinical Cannabis Use Study investigated the therapeutic bene?ts and adverse effects of prolonged use of ?medical marijuana? in a cohort of seriously ill patients receiving federally sanctioned cannabis via the IND Program.60 89. The yielded the following ?ndings?: a. Cannabis smoking, even of a crude, low-grade product, provides effective relief of pain, muscle spasms, and intraocular pressure elevations in selected patients failing other modes of treatment. b. These clinical cannabis patients are able to reduce or eliminate other prescription medicines and their accompanying side effects. 0. Clinical cannabis provides an improved quality of life in these patients. d. The side effect pro?le of NIDA cannabis in chronic usage suggests some mild pulmonary risk. 53 Id. 59 US. Food and Drug Administration, Investigational New Drug (IND) Application. 60 Ethan Russo, Mary Mathre, A1 Byrne, Robert Velin, Paul J. Bach, Juan Sanchez-Ramos, Kristin A. Kirlin, Chronic Cannabis Use in the Compassionate Investigational New Drug Program: An Examination of Bene?ts and Adverse Effects of Legal Clinical Cannabis, at 3 (2002). 61 Id. at 51-52. 20 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 21 of 44 e. No malignant deterioration has been observed. f. No consistent or attributable or neurological deterioration has been observed. g. No endocrine, hematological or immunological sequelae have been observed. h. Improvements in a clinical cannabis program would include a ready and consistent supply of sterilized, potent, organically grown unfertilized female ?owering top material, thoroughly cleaned of extraneous inert ?brous matter. i. It is the authors? opinion that the Compassionate IND program should be reopened and extended to other patients in need of clinical cannabis. j. Failing that, local, state and Federal laws might be amended to provide regulated and monitored clinical cannabis to suitable candidates. 90. Despite the existence of scholarly support for the Federal IND Program and its expansion, the Federal Government has not sought to establish a more robust legal, medical cannabis program. 91. In 1996, California became the ?rst state to legalize cannabis for medicinal purposes.62 92. Since then, 28 more states have implemented state sanctioned medical cannabis programs, bringing the total to 29 states.63 93. It did not take long, however, for the Federal Government to realize cannabis?s true medical potential. 62 National Conference of State Legislatures, State Medical Marijuana Laws (Mar. 28, 2018). 1d. 21 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 22 of 44 94. In or about 1999, shortly after California passed its medical cannabis legislation, the United States ?led a patent application titled: ?Cannabinoids As Anti-Oxidants And Neuroprotectants.?64 95. The Application abstract provides as follows: a. ?Cannabinoids have been found to have antioxidant properties. . .This new found property makes cannabinoids useful in the treatment and prophylaxis of wide variety of oxidation associated diseases, such as ischemic, age-related, in?ammatory 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 of neurodegenerative diseases, such as Alzheimer's disease, Parkinson's disease and HIV dementia.?65 96. In November 2017, in the midst of a national opioid epidemic, a Colorado study found that ?legalization of cannabis in Colorado was associated with short-term reductions in opioid?related deaths.?66 97. Even more recently, members of the Federal Government have spoken out in support of legalizing cannabis and its related products. 64 United States Patent 6,630,507. arser? Sectl 1 &u=%2Fnetahtml 6630507 65 Id. 66 Livingston MD, Barnett TE, Delcher C, Wagenaar AC, Recreational Cannabis Legalization and Opioid- Related Deaths in Colorado, 2000-2015 (Nov. 2017) (Colorado's legalization of recreational cannabis sales and use resulted in a 0.7 deaths per month (b -0.68; 95% con?dence interval -1.34, ?0.03) reduction in opioid-related deaths. This reduction represents a reversal of the upward trend in opioid-related deaths in Colorado). 22 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 23 of 44 98. On April 12, 2018 Senate Majority Leader Mitch McConnell (R-KY), announced that he would be introducing a bill, along with the support of Senator Ron Wyden (D- OR) and Senator Jeff Merkley (D-OR), to legalize hemp, calling the bill ?legislation that will modernize federal law in this area and empower American farmers to explore this promising new market.?67 99. The following day, President Donald Trump gave his assurances to Senator Cory Gardner (P-CO) that he would back legislation that ?protects states? rights? on legalized cannabis.68 100. One week thereafter, Senate Minority Leader Chuck Schumer announced his plan to introduce legislation decriminalizing recreational cannabis at the federal level, saying: a. ?My thinking -- as well as the general population's views -- on the issue has evolved, and so I believe there's no better time than the present to get this done. It's simply the right thing to have] seen too many people?s lives ruined because they had small amounts of marijuana and served time in jail much too A staggering number of American citizens, a disproportionate number of whom are African American and Latino, continue to be arrested every day for something that most Americans agree should not be a crime. Meanwhile, those who are entering into the marijuana market in states that have legalized are set to 67 Lesley Clark, Mitch McConnell yes, that Mitch McConnell moves to legalize hemp across the country (Apr. 18, 2018). 68 Elizabeth Zwirz, rump ttm-z' bucks marijuana rtgt'rts? MN, .scnutw'suyx (Apr. 14, 2018). foxnews . com/politics/ 20 1 8/ 04/ says.html. 23 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 24 of 44 make a fortune. This is not only misguided, but it undermines the basic principles of fairness and equal opportunity that are foundational to the 3,69 American way of life. e. Lack of Causational Evidence to Support the Theory that Medical Cannabis Use Leads to Acts of Violence 101. Congress enacted the precursor to what is now 18 U.S.C. 922(g)(3) as part of the Gun Control Act of 1968, seeking ?broadly to keep ?rearms away from the persons [it] classi?ed as potentially irresponsible and dangerous.?70 102. The provision prevents anyone ?who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act)? from possessing a ?rearm.71 103. 18 U.S.C. 922(g)(3) has not gone without challenge, and the general consensus among courts has been that intermediate scrutiny applies to the analysis of a ?922(g)(3) challenge.72 104. The application of intermediate scrutiny to Section 922(g)(3) challenges, and in particular those involving the use of cannabis, is derived from prior courts applying the same test of scrutiny to a Section 922(g)(9) challenge.73 69 Sophie Tatum, Veronica Stracqualursi, Schumer to introduce bill to decriminalize marijuana (Apr. 20, 201 8). 70 United States v. Carter, 669 F.3d 411, 417 (4th Cir. 2012); see also Barrett v. United States, 423 US. 212, 218, 96 S. Ct. 498, 502 (1976). 7? 18 U.S.C. 922(g)(3) 72 United States v. Carter, 669 F.3d 411, 417 (4th Cir. 2012) (?Accordingly, as we did in Chester, we will apply intermediate scrutiny in evaluating Carter's claim. In reaching this conclusion, we join the other courts of appeals that have rejected the application of strict scrutiny in reviewing the enforcement of 922(g)(3), or, for that matter, any other subsection of see also Bindemp v. AG of United States, 836 F.3d 336, 398 (3d Cir. 2016) (Adopting the holding of Carter in applying intermediate scrutiny to ?922(g) challenges and stating that, ?[t]he decisions of several other circuits are in accor 24 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 25 of 44 105. 18 U.S.C. 922(g)(9) prohibits those ?who ha[ve] been convicted court of a mrsdemeanor crime of domestic Violence,? from possessmg a ?rearm.7 106. Essentially equating cannabis use with domestic violence, courts have determined that in order for Section 922(g)(3) to pass constitutional muster, ?the government still bears the burden of showing that limited imposition on Second Amendment rights proportionately advances the goal of preventing gun violence.?75 107. In United States v. Carter, 750 F.3d 462, 470 (4th Cir. 2014), the court upheld the constitutionality of Section 922(g)(3) as ?advanc[ing] the government's legitimate goal of preventing gun violence.?76 108. In its determination, the Court relied on purely correlational evidence and no evidence tending to prove that cannabis use was causally related to gun violence.77 73 Carter, 669 F.3d at 417 (Adopting the analysis of Chester, and applying intermediate scrutiny to ?922(g)(3) challenges); see also United States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010) (Applying intermediate scrutiny to ?922(g)(9) challenges). 74 18 use. 922 75 Carter, 669 F.3d at 419 (with emphasis). 76 United States v. Carter, 750 F.3d 462, 470 (4th Cir. 2014). 77 Id. at 467-69 (?We have little trouble concluding that the studies presented to the district court by both the government and Carter indicate a strong link between drug use and violence. A study by Carrie Oser and colleagues, offered by the government, found that probationers who had perpetrated violence in the past were signi?cantly more likely to have used a host of drugs marijuana, hallucinogens, sedatives, and heroin -- than probationers who had never been involved in a violent episode. A 2004 survey of prisoners by the Bureau of Justice, again offered by the government, found that almost 50% of all state and federal prisoners who had committed violent felonies were drug abusers or addicts in the year before their arrest, as compared to only 2% of the general population. That survey also found that inmates who were dependent on drugs or abusing them were much more likely to have a criminal history. The government also presented a study by Lana Harrison and Joseph Gfroerer, which found that individuals who used marijuana or marijuana and cocaine, in addition to alcohol, were signi?cantly more likely to engage in violent crime than individuals who only used alcohol. And ?nally, the government presented a study by Virginia McCoy and colleagues, which found that chronic cocaine and opiate users were more likely than nonusers to engage in robbery and violence. . .We have emphasized that, under intermediate scrutiny, the ?t between the regulation and the harm need only be reasonable, not perfect. . . The correlational evidence put forward by the parties in the present case easily clears that bar?). 25 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 26 of 44 109. Other studies suggest that cannabis use is not causally related to gun violence, or violence in general, and that studies suggesting the contrary are purely correlative ?ndings which fail to take into account certain key variables associated with cannabis?s illegality.78 110. A recent study conducted by Dr. Robert G. Morris, an Associate Professor of Criminology in the School of Economic, Political Policy Sciences (EPPS) at the University of Texas at Dallas, yielded the following ?ndings: a. ?Most researchers who have examined the relationship between marijuana use and crime report that these laws do not have an effect on violent crime.? b. ?The raw number of homicides, robberies, and aggravated assaults also appear to be lower for states passing [Medical Marijuana Legalization] as compared to other states, especially from 1998?2006. These preliminary results suggest [Medical Marijuana Legalization] may have a crime- reducing effect.? 0. ?Research has also shown that marijuana use is not related to violent crime when measured at the individual-level (citation omitted). Once drug charges are controlled for, Pedersen and Skardhamar (citation omitted) reported that the relationship between marijuana and crime was not signi?cantly different from zero.? 78 Morris RG, TenEyck M, Barnes C, Kovandzic TV, The Effect of Medical Marijuana Laws on Crime: Evidence ?om State Panel Data, 1990-2006 (2014) (?These studies provide evidence to the notion that marijuana use is at a minimum correlated with an increase in violent or aggressive behaviors. What remains unclear is whether these ?ndings imply a causal link between marijuana use and violence or whether the relationship is driven by an uncontrolled variable(s) a spurious correlation). Along these lines, it could be argued that the relationship between violence and marijuana use is primarily due to its illegality and thus would not exist in an environment in which marijuana use, at least medicinally, is legalized?). 26 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 27 of 44 111. d. ?The central ?nding gleaned from the present study was that [Medical Marijuana Legalization] is not predictive of higher crime rates and may be related to reductions in rates of homicide and assault. Interestingly, robbery and burglary rates were unaffected by medicinal marijuana legislation, which runs counter to the claim that dispensaries and grow houses lead to an increase in victimization due to the opportunity structures linked to the amount of drugs and cash that are present.? ?In sum, these ?ndings run counter to arguments suggesting the legalization of marijuana for medical purposes poses a danger to public health in terms of exposure to violent crime and property crimes. To be sure, medical marijuana laws were not found to have a crime exacerbating effect on any of the seven crime types. On the contrary, our ?ndings ?79 indicated that MML precedes a reduction in homicide and assault. Once a medical marijuana law is implemented, spending on prescription drugs for which medical marijuana can serve as a clinical alternative falls signi?cantly. One study has estimated that such savings in Part Medicare expenditures equal or exceed $165,000,000 per year.80 79 Id 80 Bradford, ?Medical Marijuana Laws Reduce Prescription Medication Use In Medicare Part Health A?airs 35 No. 7 (2016), 1230-1236, doi: 10.1377/hlthaff.2015.1661. 27 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 28 of 44 112. Medical marijuana exposes drug traf?cking organizations and their af?liated gangs to legitimate competition, reducing their pro?ts, decreasing violent crimes and reducing the consumption of illegal drugs such as cocaine.81 113. State medical marijuana law also may be correlated with a reduction in homicide and assault rates.82 114. Utilizing FBI records, a study has established that legalization of medical marijuana reduces robbery, larceny, and burglary.83 115. State medical marijuana laws may be associated with decreased prescription opioid use, fewer prescription opioid-related hospitalizations, lower rates of opioid overdose, and reduced national health care expenditures related to prescription opioid overdose and misuse.84 116. The results of the aforementioned studies, along with the racist and xenophobic history surrounding Cannabis?s illegality, call into question the true governmental interest sought to be advanced by maintaining this policy. f. Medical Marijuana Act 117. Medical Marijuana Act, 35 PS. 10231.101 et seq., became effective on May 17, 2016. 81 Gavrilova, et a1., ?Is Legal Pot Crippling Mexican Drug Traf?cking Organizations? The Effect of Medical Marijuana Laws on US Crime,? The Economic Journal (June, 2017), 11 I!ecoj.12521. 32 Morris, of al., ?The Effect ofMedical Marijuana Laws on Crime: Evidence from State Panel Data, 1990-2006,? ONE e92816. 83 Huber, er a1., ?Cannabis Control and Crime: Medicinal Use, Depenalization and the War on Drugs,? BE J. Econ. Anal. Policy 2016; 20150167, DOI 0167. 84 Vyas, et al., ?The Use of Cannabis in Response to the Opioid Crisis: A Review of the Literature,? Nursing Outlook 66 (2018), 56-65, 28 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 29 of 44 118. Under the Medical Marijuana Act and Controlled Substance, Drug, Device and Cosmetic Act, 35 PS. 780-101 et seq., use or possession of medical marijuana, in accordance with that Act, is lawful within the Commonwealth of 35 PS. Use or possession of marijuana, in any form, is otherwise generally prohibited by law. 119. The Medical Marijuana Act strictly regulates the growth, processing, distribution and sale of medical marijuana within the Commonwealth of 120. In order to lawfully possess and use medical marijuana, a patient must ?rst qualify with the Department of Health; must then receive a recommendation to use medical marijuana from a physician who is also quali?ed by the Department of Health to make such recommendations; and must obtain his or her medical marijuana from a distributor licensed and inspected by the Department of Health, which in turn obtained the medical marijuana from a producer licensed and inspected by the Department of Health. Each of these transactions is recorded, in ?ne detail, in a database which is supervised by the Department of Health. Each of the entities involved in the process is subject to periodic inspection and licensing by the Department of Health. 121. therefore has perhaps the strongest medical marijuana law in the nation. FIRST CAUSE OF ACTION VIOLATION OF THE SECOND AMENDMENT 122. The foregoing paragraphs are incorporated herein by reference. 123. Subsections and of 18 U.S.C. 922, along with 27 C.F.R. 478.11, ban federally licensed ?rearms dealers from selling ?rearms to any person who is 29 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 30 of 44 an unlawful user of or addicted to any controlled substance (as de?ned in section 102 of the Controlled Substances Act (21 U.S.C. 802), and prevent such restricted class of people from purchasing the same. 124. Defendants have implemented, and continue to enforce, maintain, and operate a policy whereby any person who has validly obtained a medical cannabis card pursuant to state law, and who has no other record of violence, criminal activity, or mental disorder, is prevented from exercising the basic, fundamental rights afforded to him or her under the Second Amendment. 125. In fact, the ATP has explicitly warned federal ?rearms licensees that ?[A]ny person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing ?rearms or ammunition.? Arthur Herbert, Open Letter to All Federal Firearms Licensees (Sept. 21, 2011), available at 126. By operation of the aforementioned statutes and regulations, any person who possesses a validly issued medical marijuana card, and who uses medical marijuana for the purposes of treating an approved illness enumerated under state law, is absolutely prevented from purchasing a ?rearm. 18 U.S.C. 922(g)(3); 27 C.F.R. 478.11. 127. Similarly, by operation of the aforementioned statutes and regulations, any federally licensed ?rearms dealer, faced with a potential buyer who is also a medical marijuana patient, is absolutely prevented from selling a ?rearm to such buyer without committing a federal offense under 18 U.S.C. 922(d)(3). 30 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 31 of 44 128. As a result of 18 U.S.C. 922(g)(3), and 27 C.F.R. 478.11, and Defendants? enforcement of the same, the Plaintiff has been denied his Second Amendment right to obtain and possess a ?rearm, despite having no record of violence, criminal activity, or mental disorder. 129. These laws have the speci?c purpose of infringing upon, and imposing an impermissible burden upon, the Plaintiff?s right to keep and bear arms, as guaranteed by the Second Amendment. 130. In the alternative, the foregoing presents an unconstitutional violation of the Second Amendment right to possess a ?rearm in one?s home, for the purpose of self- defense, as it applies to this individual Plaintiff. 131. As a direct and proximate result of the aforementioned laws and policies implemented, maintained, and enforced by the Defendants, the Plaintiff has and continues to suffer damages, and is precluded from exercising the rights afforded to him under the United States Constitution. 132. The Plaintiff has incurred attorney?s fees and costs as a direct result of prosecuting the present action, in addition to suffering injury in law and equity. SECOND CAUSE OF ACTION VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FIFTH AMENDMENT 133. The foregoing paragraphs are incorporated herein by reference. 134. Subsections and of 18 U.S.C. 922 ban federally licensed ?rearms dealers from selling ?rearms to any person who ?is an unlawful user of or addicted to any controlled substance (as de?ned in section 102 of the Controlled 31 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 32 of 44 Substances Act (21 U.S.C. 802),? and prevent such restricted class of pe0ple ?om purchasing the same. 135. By operation of the aforementioned statutes and regulations, any pers0n who possesses a validly issued medical marijuana card, and who uses medical marijuana for the purposes of treating a statutorily enumerated illness, is absolutely prevented from purchasing a ?rearm without committing a federal offense under 18 U.S.C. 922(g)(3). 136. Similarly, by operation of the aforementioned statutes and regulations, any Federally licensed ?rearms dealer, faced with a potential buyer who is also a medical marijuana patient, is absolutely prevented from selling a ?rearm to such buyer without committing a federal offense under 18 U.S.C. 922(d)(3). 137. As a result of 18 U.S.C. 922(g)(3), and 27 C.F.R. 478.11, and Defendants? enforcement of the same, the Plaintiff is being treated differently than similarly situated individuals. 138. Speci?cally, Plaintiff is being treated differently from similarly situated persons, with the same medical conditions as those of the Plaintiff, who choose to pursue different methods of treatment for those particular medical conditions. Plaintiff lawfully purchased and used medical marijuana for the purposes of treating post-traumatic stress disorder. Other individuals with post-traumatic stress disorder have obtained treatment through the use of Ambien.35 Ambien is known to have and/or motor- function-inhibiting effects, which may have a greater impact on human motor function 85 Nick Wing, Matt Ferner, Veterans Can Get All Of These Prescription Drugs 0 reat PT SD, But Not Weed (Dec. 6, 2017). 1 5/ 06/ 32 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 33 of 44 than medical marijuana.86 Plaintiff, by operation of his choice of medical treatment, is unable to lawfully purchase a ?rearm from a federally licensed ?rearms dealer. On the contrary, another individual, similarly situated, who uses Ambien to treat his or her illness, is not so precluded. Therefore, Plaintiff is being treated differently than similarly situated persons, with the same medical conditions as those of the Plaintiff, who choose to pursue different methods of treatment for those particular medical conditions. 139. Furthermore, Plaintiff is being treated differently than similarly situated persons, who have no history of violence, nor a criminal record, who partake in the occasional or recreational consumption of federally legal substances that, when ingested, inhibit human motor function and/or have effects, such as alcohol. The rules complained of in this action contain no speci?c prohibition, restriction, or limitation on the purchase or sale of a ?rearm to an individual who occasionally and/or recreationally consumes alcohol. On the contrary, the rules speci?cally prohibit individuals who use marijuana for medical purposes from owning a ?rearm, by marijuana?s classi?cation as a Schedule I narcotic under the Controlled Substances Act. Therefore Plaintiff is being treated differently than similarly situated persons, who have 86 Food and Drug Administration NDA 19908 8027: Highlights of Prescribing Information, Ambien? (zolpidem rartrate) tablets (Apr. 23, 2008) variety of abnormal thinking and behavior changes have been reported to occur in association with the use of sedative/hypnotics. Some of these changes may be characterized by decreased inhibition aggressiveness and extroversion that seemed out of character), similar to effects produced by alcohol and other CNS depressants. Visual and auditory hallucinations have been reported as well as behavioral changes such as bizarre behavior, agitation and depersonalization. .. Complex behaviors such as ?sleep-driving? driving while not fully awake after ingestion of a sedative- hypnotic, with amnesia for the event) have been reported with sedative-hypnotics, including effects may include] agitation, anxiety, decreased cognition, detached, dif?culty concentrating, dysarthria, emotional lability, hallucination, hypoesthesia, illusion. . .abnormal thinking, aggressive reaction, apathy, delusion, dementia, depersonalization, feeling strange, hypokinesia, hypotonia, hysteria, intoxicated feeling, manic reaction, neuralgia, neuritis, neuropathy, neurosis, panic attacks, paresis, personality disorder, somnambulism, suicide attempts, tetany, yawning?). 33 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 34 of 44 no history of violence, nor a criminal record, who partake in the occasional or recreational consumption of federally legal substances that, when ingested, inhibit human motor function and/or have effects, such as alcohol. 140. Additionally, Plaintiff is being treated differently than similarly situated persons, who have no history of violence, nor a criminal record, who partake in the occasional or recreational consumption of federally unregulated substances that, when ingested, inhibit human motor function and/or have effects, such as kratom, salvia divinorum, or various forms of cannabinoids.87 The rules contain no speci?c prohibition, restriction, or limitation on the purchase or sale of a ?rearm to an individual who occasionally and/or recreationally consumes any or either of the aforementioned substances or with similar effects, which are also not regulated by the Federal Government. On the contrary, the rules speci?cally prohibit individuals who use marijuana for medical purposes from owning a ?rearm, by marijuana?s classi?cation as a Schedule I narcotic under the Controlled Substances Act. Therefore Plaintiff is being treated differently than similarly situated persons, who have no history of violence, nor a criminal record, who partake in the occasional or recreational consumption of federally unregulated substances that, when ingested, inhibit human motor function and/or have effects, such as kratom, salvia divinorum, or various forms of cannabinoids. 87 Cannabinoids (IQ/Spice), National Institute on Drug Abuse (Revised February 2018), cannabinoids act on the same brain cell receptors as THC the mind?altering ingredient in marijuana). 34 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 35 of 44 141. These laws and policies violate the Plaintiffs right to equal protection under the laws of the United States, as guaranteed by the Equal Protection Clause of the Fifth Amendment. 142. In the alternative, the foregoing presents an unconstitutional violation of the Fifth Amendment?s right to equal protection under the law, as it applies to this individual Plaintiff. 143. As a direct and proximate result of the aforementioned laws and policies implemented, maintained, and enforced by the Defendants, the Plaintiff has and continues to suffer damages, and is precluded from exercising the rights afforded to him under the United States Constitution. 144. The Plaintiff has incurred attomey?s fees and costs as a direct result of prosecuting the present action, in addition to suffering injury in law and equity. THIRD CAUSE OF ACTION VIOLATION OF THE PROCEDURAL DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT 145. The foregoing paragraphs are incorporated herein by reference. 146. Plaintiff possesses a protected liberty interest, namely, his right to possess a ?rearm in his home for the purpose of self-defense under the Second Amendment to the United States Constitution. 147. Defendants have implemented, and continue to enforce, maintain, and operate a policy whereby any person who has validly obtained a medical cannabis card pursuant to state law, and who has no other record of violence, criminal activity, or mental disorder that would warrant such a preclusion, is prevented from exercising the basic rights afforded to him under the Second Amendment. 35 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 36 of 44 148. Defendants have deprived the Plaintiff of his protected liberty interest by promulgation of their policy whereby any person who has validly obtained a medical cannabis card pursuant to state law, and who has no other record of violence, criminal activity, or mental disorder, is prevented from owning a ?rearm. 149. The Defendants have denied the Plaintiff adequate procedural protections before depriving him of his right to purchase and possess a ?rearm. Defendants did not provide him with any form of hearing to determine if the deprivation was justi?ed under the law.88 Similarly, Defendants have provided no means by which the Plaintiff may reclaim his right.89 150. In violation of the Plaintiff?s right to procedural due process, Defendants have unilaterally and conclusively determined that individuals who use medical cannabis to treat their illnesses have a propensity for gun violence, by operation of their choice of medical treatment. 151. The foregoing presents an unconstitutional violation of the Fifth Amendment?s right to procedural due process, as it applies to this individual Plaintiff. 152. As a direct and proximate result of the aforementioned laws and policies implemented, maintained, and enforced by the Defendants, the Plaintiff has and continues to suffer damages, and is precluded from exercising the rights afforded to him under the United States Constitution. 88 The only potential administrative remedy for an individual prohibited from purchasing a ?rearm under 18 U.S.C. 922(g)(3) is found in 18 U.S.C. 925(c); however, this provision of the Act has not been funded since 1992, and in each year?s appropriations bill, Congress speci?cally states that the ATP shall not utilize any appropriated dollars for federal ?rearms relief determinations. See The Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, 132 Stat. 348 (declaring, ?Provided, that none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal ?rearms disabilities under section 925(0) of title 18, United States Code?). 89 Id. 36 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 37 of 44 153. The Plaintiff has incurred attorney?s fees and costs as a direct result of prosecuting the present action, in addition to suffering injury in law and equity. FOURTH CAUSE OF ACTION VIOLATION OF THE SUBSTANTIVE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT 154. The foregoing paragraphs are incorporated herein by reference. 155. The Plaintiff right to possess a ?rearm under the Second Amendment is deeply and objectively rooted in this nation?s history and tradition, and implicit in the concept of ordered liberty, such that the deprivation of rights asserted herein amounts to an unconstitutional infringement of the Plaintiffs ?lndamental liberties. McDonald v. City of Chicago, 561 US. 742, 768 (2010) (??citizens must be permitted ?to use [handguns] for the core lawful purpose of makes it clear that this right is ?deeply rooted in this Nation?s history and tradition?). 156. The Plaintiff recognizes that the Second Amendment does not provide an absolute, unrestricted right to possess a firearm, and that reasonable restrictions, such as those imposed on felons or those adjudicated mentally ill, are valid; however, neither the Plaintiff, nor those similarly situated, pose the type of risk of gun violence associated with the reasonable restrictions named, simply due to their status as medical marijuana patients. 157. The Plaintiff possesses the fundamental right to possess a ?rearm in his home under the Second Amendment, as determined by the Supreme Court of the United States in the seminal case of District of Columbia 12. Heller, 554 US. 570 (2008). 158. As a result of 18 U.S.C. 922(g)(3), and 27 CPR. 478.11, and Defendants? enforcement of the same, the Defendants are advancing an interpretation of 37 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 38 of 44 the law which automatically assumes that medical marijuana patients, by operation of the method of treatment of their illnesses, are prone to engage in gun violence in the same manner as those adjudicated mentally ill or those who have been convicted of a felony.90 159. As a result of the aforementioned legal interpretation and policy advanced by Defendants, the Plaintiff and those similarly situated are prohibited from purchasing a ?rearm without violating federal Law, and therefore the Defendants have deprived Plaintiff of his substantive due process right. 160. Additionally, the Plaintiff possesses the fundamental right to be free from self-incrimination, as guaranteed by the Fifth Amendment, and as af?rmed by the seminal case ofIn re Gaulz?, 387 US. 1, 47-48 (1967).91 161. In order to purchase a ?rearm from a federally licensed ?rearms dealer, a citizen must complete and submit ATF Form 4473. 162. Question 11(e) on ATF Form 4473 asks, ?Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.? 90 ?Most researchers who have examined the relationship between marijuana use and crime report that these laws do not have an effect on violent Results revealed no evidence that marijuana use was related to an increase in later non-drug arrest, such as arrests for violent crimes. The authors argued that the association between marijuana use and crime appears to exist because of its illegality. Thus, if the possession and sale of marijuana was legal the relationship between marijuana and crime might disappear.? Robert G. Morris, Michael TenEyck, J. C. Barnes, Tomislav V. Kovandzic, The E?ect of Medical Marijuana Laws on Crime: Evidence from State Panel Data, 1990-2006, ONE e92816. doi: 10.1371/journal.pone.0092816, available at 1 ?The privilege can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory . . . it protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.? In re Gault, 387 US. 1, 47-48 (1967). 38 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 39 of 44 163. If a medical marijuana patient wishes to purchase a gun, he or she must respond to the Question 11(e) either in the af?rmative or the negative. If the patient answers in the negative, then he or she has committed an offense punishable by federal law. If the patient answers in the af?rmative, not only will he or she be denied the right to purchase a ?rearm, but he or she also opens him/herself to criminal prosecution by way of admitting to being an ?unlawful user of, or addicted to, marijuana.? 164. The federal laws, legal interpretations, and policies implemented, enforced, and otherwise perpetuated by Defendants require that anyone who wishes to purchase a ?rearm, respond to Question 11(e) honestly, or face federal prosecution. 165. Here, the Plaintiff completed ATF Form 4473, and honestly answered Question 11(e) in the af?rmative, due to his status as a medical marijuana patientmedical marijuana for medicinal purposes. Therefore, by answering Question 11(e) in the af?rmative, Plaintiff has effectively been forced to incriminate himself as an ?unlawful user of, or addicted to, marijuana,? despite being a legal medical marijuana patient under law. 166. By operation of the legal scheme implemented, enforced, or otherwise perpetuated by Defendants, and by operation of the legal requirement forcing legal medical marijuana patients to answer Question 11(e) on ATF Form 4473 in the af?rmative, the Defendants have forced the Plaintiff to incriminate himself, and have effectively deprived him of his right to substantive due process. 167. In the alternative, the foregoing presents an unconstitutional violation of the Fifth Amendment?s right to substantive due process, as it applies to this individual Plaintiff. 39 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 40 of 44 168. As a direct and proximate result of the aforementioned laws and policies implemented, maintained, and enforced by the Defendants, the Plaintiff has suffered and continues to suffer damages, and is precluded from exercising the rights afforded to him under the United States Constitution. 169. The Plaintiff has incurred attorney?s fees and costs as a direct result of prosecuting the present action, in addition to suffering injury in law and equity. FIFTH CAUSE OF ACTION RELIEF FROM PROHIBITION UNDER 18 U.S.C. ?1925(c) 170. The foregoing paragraphs are incorporated herein by reference. 171. The provisions of 18 U.S.C. 1925(c) provide that a person may apply to the attorney general for relief from the prohibition of Section 922(g)(3) if the person can meet two criteria: First, that ?the applicant will not be likely to act in a manner dangerous to public safety.? Second, that ?the granting of the relief would not be contrary to the public interest.? 172. Plaintiff is not likely to act in a manner dangerous to public safety. 173. Permitting Plaintiff to purchase and possess a ?rearm is not contrary to the public interest. SIXTH CAUSE OF ACTION RELIEF FROM PROHIBITION UNDER 18 U.S.C. 922 BY REASON OF THE MEDICAL MARIJUANA ACT 174. The foregoing paragraphs are incorporated herein by reference. 175. Because of the provisions of the Medical Marijuana Act, Plaintiff is not ?an unlawful user of or addicted to any controlled substance,? and therefore is not prohibited from purchasing and possessing a ?rearm under 18 U.S.C. 922(g)(3)- 4O Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 41 of 44 176. The prohibition of 18 USC. 922 applies to a person who is an ?unlawful user of or addicted to any controlled substance.? 18 USC 922(g)(3). 177. ?Unlawful user of or addicted to any controlled substance? is de?ned as a person who regularly ingests controlled substances in a manner except as prescribed by a physician. United States v. Yancey, 621 F.3d 681, 682 (7th Cir. 2010) (citing 27 C.F.R. 478.11); United States v. Burchard, 580 F.3d 341, 352 (6th Cir.2009); United States v. Patterson, 431 F.3d 832, 839 (5th Cir.2005) (emphasis added). 178. In ?prescription? is de?ned as: a. ?an order for a controlled substance, other drug or device for medication which is dispensed to or for an ultimate user, but does not include an order for a controlled substance, other drug or device for medication which is dispensed for immediate administration to the ultimate 35 PS. 780-102; and/or b. written or oral order for a drug or device to be dispensed to or for an ultimate user.? 49 Pa. Code 18.122. 179. Federal law adopts state law de?nitions of ?prescription.? See 21 USC. 353 (emphasis added): drug intended for use by man not safe for use except under the supervision of a practitioner licensed by law to administer such be dispensed only upon a written prescription of a practitioner licensed by law to administer such drug, or (ii) upon an oral prescription of such practitioner which is reduced to writing and ?led by the 180. Under Medical Marijuana Act, certi?cation to use medical marijuana may be issued by a practitioner to a patient if all of the following 41 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 42 of 44 requirements are [including] [t]he certi?cation is made on a ?standard certi?cation form.? 35 PS. 35 PS. 10231.404. 181. Thus, medical marijuana in is recommended by a ?practitioner licensed by law to administer? it, through ?an order for a controlled substance? on a written form. 182. Consequently, a medical marijuana patient is not an unlawful user of a controlled substance. Hence the prohibition of 18 U.S.C. 922 does not apply to a medical marijuana patient, such as Plaintiff. 183. Because 18 U.S.C. 922 is both a criminal statute and an infringement on a constitutional right, it must be strictly construed. RELIEF REQUESTED WHEREFORE, Plaintiff requests that the court enter judgment in his favor and against Defendants as follows: 1. Declare that Subsections and of 18 U.S.C. 922, 27 C.F.R. 478.11, ATF Form 4473 Question 11(e), and the legal interpretations and policies implemented, enforced, or otherwise perpetuated by Defendants, violate the right to keep and bear arms as guaranteed under the Second Amendment to the United States Constitution. 2. Declare that Subsections and of 18 U.S.C. 922, 27 C.F.R. 478.11, ATF Form 4473 Question 11(e), and the legal interpretations and policies implemented, enforced, or otherwise perpetuated by Defendants, violate the right to procedural due process as guaranteed under the Fifth Amendment to the United States Constitution. 3. Declare that Subsections and of 18 U.S.C. 922, 27 C.F.R. 478.11, ATF Form 4473 Question 11(6), and the legal interpretations and policies implemented, 42 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 43 of 44 enforced, or otherwise perpetuated by Defendants, violate the right to substantive due process as guaranteed under the Fifth Amendment to the United States Constitution. 4. Declare that Subsections and of 18 U.S.C. 922, 27 C.F.R. 478.11, ATF Form 4473 Question 11(e), and the legal interpretations and policies implemented, enforced, or otherwise perpetuated by Defendants, violate the right to equal protection under the law as guaranteed under the Fifth Amendment to the United States Constitution. 5. Declare that Subsections and of 18 U.S.C. 922, 27 C.F.R. 478.11, ATF Form 4473 Question 11(e), and the legal interpretations and policies implemented, enforced, or otherwise perpetuated by Defendants, violate the right to be free from self- incrimination, as guaranteed under the Fifth Amendment to the United States Constitution. 6. Declare that the statutes, regulations and forms set forth in the preceding paragraph do not bar Plaintiff, individually, from purchasing and possessing a ?rearm. 7. Permanently enjoin Defendants, their of?cers, agents, servants, employees, and all others acting in participation with them from enforcing or otherwise perpetuating Subsections and of 18 U.S.C. 922, 27 C.F.R. 478.11, ATF Form 4473 Question 11(6), and the legal interpretations and policies implemented, enforced, or otherwise perpetuated by Defendants, and to provide such other injunctive relief as the Court deems necessary, in order to advance the interests of justice and protect the rights afforded under the United States Constitution. 43 Case 2:18-cv-04947-JS Document 1 Filed 11/15/18 Page 44 of 44 8. Award the Plaintiff compensatory damages, as the Court deems necessary, in order to advance the interests of justice and protect the rights afforded under the United States Constitution. 9. Award costs, attorney?s fees and expenses to the extent permitted under 28 U.S.C. 2412, 1920 and 18 U.S.C. 925(a). 10. Award such other and further relief as the Court deems just and proper. Respectfully Submitted SACKS WESTON DIAMOND, LLC Identi?eatio 0. 26314 jweston@sackslaw.com Andrew B. Sacks, Esq. Identi?cation No. 41390 asacks@sackslaw.com Brian P. Drach, Esq. Identi?cation No. 324749 bdrach@sackswestondiamond.com 1845 Walnut Street, Suite 1600 Philadelphia, PA 19103 Phone: (215) 925-8200 Attorneys for Plainti?f Joshua Prince, Esq. Identi?cation No. 306521 Firearms Industry Consulting Group A Division of Civil Rights Defense Firm PC. 646 Lenape Road Bechtelsville, PA 19505 (888) 202?9297 Attorney for Plaintijj? 44