Much has been made recently of the CARERS ACT being introduced into the US Senate by Sens. Cory Booker (D-N.J.), Rand Paul (R-Ky.) and Kirsten Gillibrand (D-N.Y.), which would curtail the involvement of the federal government regarding state-legalized marijuana programs. However a ruling on a hearing that was held in Federal Court during October of 2014 may preempt those legislative actions if the court rules that listing Marijuana as a Schedule 1 narcotic is unconstitutional.

A federal judge in Sacramento, presiding over a criminal case against seven men charged with growing marijuana on national forest land in Trinity and Tehama counties, heard what she described as “new scientific and medical information” that questions the validity of the federal ban on cannabis. Presently The Drug Enforcement Administration (DEA) classifies marijuana, along with heroin, LSD and Ecstasy as Schedule One substances with “a high potential for abuse and no currently accepted medical use”, marking them as dangerous, even under the direct supervision of a properly licensed medical Doctor. Schedule 1 classification results in nationwide prohibition of possession, use, or cultivation of the cannabis plant and the DEA reaffirmed marijuana’s Schedule 1 status in 2011, and a Federal appeals court in Washington, D.C. upheld it last year.

Now, this new legal challenge filed by Defense San Francisco criminal defense Attorney Zenia Gilg seems to be gaining some traction. Gilg, who is also a member of the legal committee of the National Organization for the Reform of Marijuana Laws (NORML) stated plainly that “It’s about time somebody looked at the new evidence.” U.S. District Judge Kimberly Mueller granted the hearing and scheduled it for three days in the face of the prosecutors’ objections. In Judge Mueller’s April 22 order, she wrote that lawyers for the defendants had presented expert declarations “showing there is new scientific and medical information raising contested issues of fact regarding whether the continued inclusion of marijuana as a Schedule One controlled substance … passes constitutional muster.”

It will not be an easy case to win. Gilg and her colleagues must prove that the federal law is misguided based on current research, and that it is entirely irrational. A ruling in their favor would apply only to the current defendants at first, but the impact would become much broader if higher courts agreed and it would serve as legal precedent for future cases as well.

The witness list included medical Doctors and Researchers listing the medical benefits of cannabis and affirming that it is much less hazardous than tobacco, alcohol or many other readily available medications. A former FBI analyst was also called and explained the federal ban has been socially destructive. “If marijuana is actually such a dangerous drug, the rational response by the Department of Justice would be to increase, not decrease, prosecution in those states,” Gilg said in court papers. She also argued that the government’s state-by-state enforcement policy is discriminatory.

The government’s expert witness is Harvard professor of psychobiology Bertha Madras, a former official in the Office of National Drug Control Policy under President George W. Bush. In a court declaration, she stated that she believes marijuana “has a high potential for abuse” and is properly classified in Schedule 1 the most dangerous drugs.

Judge Mueller is a former Sacramento city councilwoman and Federal magistrate appointed to the bench by President Obama in 2010. She is also the first female Judge in the Eastern District, of Sacramento and Fresno.

Below you can see attorney Zenia Gilg in a recent, though unrelated, television pundit appearance discussing the absurdity of current anti-cannabis laws.

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