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Title: State Proposes Bold Law to Treat Pot Like Tobacco And Expunge All Records of Marijuana “Crimes”
Source:
Activist Post
URL Source: http://www.activistpost.com/2016/09 ... -records-marijuana-crimes.html
Published: Sep 27, 2016
Author: Claire Bernish
Post Date: 2016-09-28 07:51:26 by Deckard
Keywords: None
Views: 27823
Comments: 181
Bold legislation introduced in New Jersey last week would not only treat cannabis like tobacco — legalizing it — but would expunge records for individuals previously convicted of certain marijuana-related ‘crimes.’ Should the bill, A4193, pass, convenience stores would be permitted to sell cannabis alongside cigarettes — available to anyone aged 19 and older. “This bill would legalize marijuana by removing all criminal liability associated with marijuana from the New Jersey Code of Criminal Justice … as well as its regulation as a controlled dangerous substance under the New Jersey Controlled Dangerous Substances Act,” the proposed law states. Sponsored by Assemblyman Michael Patrick Carroll — once deemed the state Legislature’s “Most Conservative” member, as the Newark Patch pointed out — the legislation “[l]egalizes marijuana and provides for records expungement for certain past marijuana offenses; treats marijuana products similar to tobacco products, including the use of civil penalties for providing marijuana to persons under 19 years of age.” Carroll’s bill audacious thumbs its nose at the DEA’s vehemently criticized decision this year not to reschedule cannabis from its current inexplicable designation as a dangerous substance of no medical value, akin to heroin or cocaine. “To me it’s just not a big deal,” Carroll told Politico. “It’s already ubiquitous. Anybody who thinks this is somehow going to increase the availability of marijuana has never been 19. If that’s the case, then what’s the big deal about having it available at the local 7-Eleven?” Alcohol, after all, is a standard fixture at convenience stores and gas stations, with store owners facing fines and other civil penalties for underage distribution. “The whole point here is to get the government out of the business of treating at least marijuana use as a crime and treat it instead as a social problem,” Carroll continued, adding he’s never tried cannabis, personally. “You’re talking to the world’s most boring, straightest guy,” he said. “I’ve never popped a pill, never smoked a joint, nothing. I’ve never quite understood the all the allure of this stuff.” Apparently, though, he doesn’t feel his personal views concerning substances should override contrary opinions and choices. On the surface, the right-wing lawmaker would seem the last person sponsoring legislation taking such a radical departure from federal law — but on issues of personal freedom, his stances align most closely with libertarian philosophy. Carroll not only co-sponsored New Jersey’s medical cannabis legislation, in April he proposed lowering the state’s drinking age to 18, saying, according to the Patch, If you’re old enough to make the determination you want to enlist in the Marines, you’re old enough to determine if you want to have a beer. Despite an overwhelming public perception cannabis should at least be decriminalized and growing national disillusionment with the failed drug war — with the resultant largest prison population in the world, gang violence, strengthening of Mexican cartels, epidemic-level police violence, and inability of those in need to get life-saving medical cannabis treatment — the Drug Enforcement Agency opted to maintain marijuana prohibition this year. Should the proposed law indeed pass, New Jersey would join Alaska, Colorado, Washington, and Oregon in legal, recreational weed. In fact, degrees of decriminalization and legalization — mostly for medical use — exist in half the states in the nation. November’s election will likely expand those numbers. Ballot measures could potentially legalize recreational use in varying degrees in California, Nevada, Massachusetts, Arizona, and Nevada — and although they aren’t all expected to pass, the segment of the population arguing against legalization shrinks seemingly by the month. New Jersey lawmakers are attempting a multi-pronged approach to legalizing weed. Another bill, A2068, filed in January by Assemblyman Reed Gusciora — ironically, one of the most liberal members of the state Legislature — and State Sen. Nicholas Scutari would legalize cannabis and treat it akin to alcohol. A third is expected after several legislators, including Gusciora and Scutari, return from an information-gathering field trip examining legalization in Colorado in October. New Jersey Gov. Chris Christie — whom Carroll refers to as “the Fat Man” — will almost certainly veto any legislation concerning cannabis. But his tenure in office draws to a close just over a year from now. “We would like to get the ball rolling, even with this governor and even if he vetoes it, the choice then could be made to put it on the ballot through the Legislature or set the groundwork for the next administration,” Gusciora told Politico. “I think it’s only a matter of time.” Claire Bernish writes for TheFreeThoughtProject.com, where this article first appeared.
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United States v. McIntosh, 15-10117 (9th Cir. 16 Aug 2016) At 26: In light of the ordinary meaning of the terms of § 542 and the relationship between the relevant federal and state laws, we consider whether a superior authority, which prohibits certain conduct, can prevent a subordinate authority from implementing a rule that officially permits such conduct by punishing individuals who are engaged in the conduct officially permitted by the lower authority. We conclude that it can. ____________________ [4] This requires a slight caveat. Under the CSA, “the manufacture, distribution, or possession of marijuana [is] a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration preapproved research study.” Gonzales v. Raich, 545 U.S. 1, 14 (2005); see 21 U.S.C. §§ 812(c), 823(f), 841(a)(1), 844(a). Thus, except as part of “a strictly controlled research project,” federal law “designates marijuana as contraband for any purpose.” Raich, 545 U.S. at 24, 27. Footnote 5 at 32-33: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/16/15-10117.pdf UNITED STATES COURT OF APPEALS United States of America, No. 15-10117 Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, Senior District Judge, Presiding - - - - - - - - - - - - - - - - - - - - United States of America, No. 15-10122 - - - - - - - - - - - - - - - - - - - - United States of America, No. 15-10127 - - - - - - - - - - - - - - - - - - - - United States of America, No. 15-10132 - - - - - - - - - - - - - - - - - - - - United States of America, No. 15-10137 - - - - - - - - - - - - - - - - - - - - United States of America, No. 15-30098 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In re Iane Lovan, Iane Lovan, United States of America, No. 15-71158 - - - - - - - - - - - - - - - - - - - - In re Somphane Malathong, Somphane Malathong, United States of America, No. 15-71174 - - - - - - - - - - - - - - - - - - - - In re Vong Southy, Vong Southy, United States of America, No. 15-71179 - - - - - - - - - - - - - - - - - - - - In re Khamphou Khouthong, Khamphou Khouthong, United States of America, No. 15-71225 - - - - - - - - - - - - - - - - - - - - OPINION Argued and Submitted December 7, 2015 Filed August 16, 2016 Before: Diarmuid F. O'Scannlain, Barry G. Silverman, Opinion by Judge O'Scannlain SUMMARY* Criminal Law In ten consolidated interlocutory appeals and petitions for writs of mandamus arising from three district courts in two states, the panel vacated the district court's orders denying relief to the appellants, who have been indicted for violating the Controlled Substances Act, and who sought dismissal of their indictments or to enjoin their prosecutions on the basis of a congressional appropriations rider, Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332-33 (2015), that prohibits the Department of Justice from spending funds to prevent states' implementation of their medical marijuana laws. _____________________ * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. The panel held that it has jurisdiction under 28 U.S.C. § 1292(a)(1) to consider the interlocutory appeals from these direct denials of requests for injunctions, and that the appellants have standing to invoke separation-of-powers provisions of the Constitution to challenge their criminal prosecutions. The panel held that § 542 prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by state medical marijuana laws and who fully complied with such laws. The panel wrote that individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana have engaged in conduct that is unauthorized, and that prosecuting such individuals does not violate § 542. Remanding to the district courts, the panel instructed that if DOJ wishes to continue these prosecutions, the appellants are entitled to evidentiary hearings to determine whether their conduct was completely authorized by state law. The panel wrote that in determining the appropriate remedy for any violation of § 542, the district courts should consider the temporal nature of the lack of funds along with the appellants' rights to a speedy trial. Marc J. Zilversmit (argued), San Francisco, California, for Defendant-Appellant Steve Mcintosh. Robert R. Fischer (argued), Federal Defenders of Eastern Washington & Idaho, Spokane, Washington, for Defendant-Appellant Jerad John Kynaston. Richard D. Wall, Spokane, Washington, for Defendant-Appellant Tyler Scott McKinley. Douglas Hiatt, Seattle, Washington; Douglas Dwight Phelps, Spokane, Washington; for Defendant-Appellant Samuel Michael Doyle. David Matthew Miller, Spokane, Washington, for Defendant-Appellant Brice Christian Davis. Nicholas V. Vieth, Spokane, Washington, for Defendant-Appellant Jayde Dillion Evans. Andras Farkas (argued), Assistant Federal Defender; Heather E. Williams, Federal Defender; Federal Defenders of the Eastern District of California, Fresno, California; for Defendant-Appellant/Petitioner Iane Lovan. Daniel L. Harralson, Daniel L. Harralson Law Corp., Fresno, California, for Defendant-Appellant/Petitioner Somphane Malathong. Harry M. Drandell, Law Offices of Harry M. Drandell, Fresno, California, for Defendant-Appellant/Petitioner Vong Southy. Peter M. Jones, Wanger Jones Helsley, P.C., Fresno, California, for Defendant-Appellant/Petitioner Khamphou Khouthong. Owen P. Martikan (argued), Assistant United States Attorney; Barbara J. Valliere, Chief, Appellate Division; Brian Stretch, United States Attorney; United States Attorney's Office, San Francisco, California, and ; Russell E. Smoot and Timothy J. Ohms, Assistant United States Attorneys; Michael C. Ormsby, United States Attorney; United States Attorney's Office, Spokane, Washington; Camil A. Skipper, Assistant United States Attorney; Benjamin B. Wagner, United States Attorney; United States Attorney's Office, Sacramento, California; for Plaintiff-Appellee/Real Party in Interest United States. O'SCANNLAIN, Circuit Judge: We are asked to decide whether criminal defendants may avoid prosecution for various federal marijuana offenses on the basis of a congressional appropriations rider that prohibits the United States Department of Justice from spending funds to prevent states' implementation of their own medical marijuana laws. A These ten cases are consolidated interlocutory appeals and petitions for writs of mandamus arising out of orders entered by three district courts in two states within our circuit.[1] All Appellants have been indicted for various infractions of the Controlled Substances Act (CSA). They have moved to dismiss their indictments or to enjoin their prosecutions on the grounds that the Department of Justice (DoJ) is prohibited from spending funds to prosecute them. In Mcintosh, five codefendants allegedly ran four marijuana stores in the Los Angeles area known as Hollywood Compassionate Care (HCC) and Happy Days, and nine indoor marijuana grow sites in the San Francisco and Los Angeles areas. These codefendants were indicted for conspiracy to manufacture, to possess with intent to distribute, and to distribute more than 1000 marijuana plants in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(l)(A). The government sought forfeiture derived from such violations under 21 U.S.C. § 853. In Lovan, the U.S. Drug Enforcement Agency and Fresno County Sheriffs Office executed a federal search warrant on 60 acres of land located on North Zedicker Road in Sanger, California. Officials allegedly located more than 30,000 marijuana plants on this property. Four codefendants were indicted for manufacturing 1000 or more marijuana plants and for conspiracy to manufacture 1000 or more marijuana plants in violation of 21 U.S.C. §§ 841(a)(1), 846. ____________________ [1] Appellants filed one appeal in United States v. Mcintosh, No. 1510117, arising out of the Northern District of California; one appeal in United States v. Kynaston, No. 15-30098, arising out of the Eastern District of Washington; and four appeals with four corresponding petitions for mandamus—Nos. 15-10122, 15-10127, 15-10132, 15-10137, 1571158, 15-71174, 15-71179, 15-71225, which we shall address as United States v. Lovan—arising out of the Eastern District of California. In Kynaston, five codefendants face charges that arose out of the execution of a Washington State search warrant related to an investigation into violations of Washington's Controlled Substances Act. Allegedly, a total of 562 "growing marijuana plants," along with another 677 pots, some of which appeared to have the root structures of suspected harvested marijuana plants, were found. The codefendants were indicted for conspiring to manufacture 1000 or more marijuana plants, manufacturing 1000 or more marijuana plants, possessing with intent to distribute 100 or more marijuana plants, possessing a firearm in furtherance of a Title 21 offense, maintaining a drug-involved premise, and being felons in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(c)(1)(A)(i) and 21 U.S.C. §§ 841, 856(a)(1). In December 2014, Congress enacted the following rider in an omnibus appropriations bill funding the government through September 30, 2015: Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217 (2014). various short-term measures extended the appropriations and the rider through December 22, 2015. On December 18, 2015, Congress enacted a new appropriations act, which appropriates funds through the fiscal year ending September 30, 2016, and includes essentially the same rider in § 542. Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332-33 (2015) (adding Guam and Puerto Rico and changing "prevent such States from implementing their own State laws" to "prevent any of them from implementing their own laws"). Appellants in Mcintosh, Lovan, and Kynaston filed motions to dismiss or to enjoin on the basis of the rider. The motions were denied from the bench in hearings in Mcintosh and Lovan, while the court in Kynaston filed a short written order denying the motion after a hearing. In Mcintosh and Kynaston, the court concluded that defendants had failed to carry their burden to demonstrate their compliance with state medical marijuana laws. In Lovan, the court concluded that the determination of compliance with state law would depend on facts found by the jury in a federal prosecution, and thus it would revisit the defendants' motion after the trial. Appellants in all three cases filed interlocutory appeals, and Appellants in Mcintosh and Lovan ask us to consider issuing writs of mandamus if we do not assume jurisdiction over the appeals. Federal courts are courts of limited subject-matter jurisdiction, possessing only that power authorized both by the Constitution and by Congress. See Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013). Before proceeding to the merits of this dispute, we must assure ourselves that we have jurisdiction. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 95 (1998). The parties dispute whether Congress has authorized us to exercise jurisdiction over these interlocutory appeals. "our jurisdiction is typically limited to final decisions of the district court." United States v. Romero-Ochoa, 554 F.3d 833, 835 (9th Cir. 2009). "In criminal cases, this prohibits appellate review until after conviction and imposition of sentence." Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989). In the cases before us, no Appellants have been convicted or sentenced. Therefore, unless some exception to the general rule applies, we should not reach the merits of this dispute. Appellants invoke three possible avenues for reaching the merits: jurisdiction over an order refusing an injunction, jurisdiction under the collateral order doctrine, and the writ of mandamus. We address the first of these three avenues. Under 28 U.S.C. § 1292(a), "the courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions, . . . except where a direct review may be had in the Supreme Court." (emphasis added). By its terms, § 1292(a)(1) requires only an interlocutory order refusing an injunction. Nonetheless, relying on Carson v. American Brands, Inc., 450 U.S. 79, 84 (1981), the government argues that § 1292(a)(1) requires Appellants to show that the interlocutory order (1) has the effect of refusing an injunction; (2) has a serious, perhaps irreparable, consequence; and (3) can be effectually challenged only by immediate appeal. The government's reliance on Carson is misplaced in light of our precedent interpreting that case. In Shee Atika v. Sealaska Corp., we explained: 39 F.3d 247, 249 (9th Cir. 1994) (citations omitted); accord Paige v. California, 102 F.3d 1035, 1038 (9th Cir. 1996); see also Shee Atika, 39 F.3d at 249 n.2 (noting that its conclusion was consistent with "the overwhelming majority of courts of appeals that have considered the issue" and collecting cases). Thus, Carson's requirements do not apply to appeals from the "direct denial of a request for an injunction." Shee Atika, 39 F.3d at 249. In the cases before us, the district courts issued direct denials of requests for injunctions. Lovan, for instance, requested injunctive relief in the conclusion of his opening brief: "Therefore, the Court should dismiss all counts against Mr. Lovan based upon alleged violations of 21 U.S.C. § 841 and/or enjoin the Department of Justice from taking any further action against the defendants in this case unless and until the Department can show such action does not involve the expenditure of any funds in violation of the Appropriations Act." At the hearing, Lovan's counsel made exceptionally clear that his motion sought injunctive relief in the alternative: MR. FARKAS: And your Honor, as an alternative in our motion, we ask for a stay of these proceedings, asked this Court to enjoin the Department of Justice from spending any funds to prosecute Mr. Lovan if this Court finds he is in conformity with the California Compassionate Use Act. So it is a motion to dismiss or, alternatively, a motion to enjoin until Congress designates funds for that purpose. Shortly thereafter, Lovan's counsel reiterated: "[W]e would ask either for a dismissal or to enjoin the government from spending any funds that were not appropriated under the Appropriations Act." At the close of the hearing, Lovan's counsel even explicitly argued that the district court's denial of injunctive relief would be appealable immediately: "I believe this might be the type of collateral order that is appealable to the Ninth Circuit immediately. As I said, we are asking for an injunction." The district court denied Lovan's motion, which clearly requested injunctive relief. Similarly, in Kynaston, the opening brief in support of the motion began and ended with explicit requests for injunctive relief. Subsequent filings by other defendants in that case referenced the injunctive relief sought, and one discussed at length how courts of equity should exercise their jurisdiction. The district court denied the motion, which clearly sought injunctive relief. In Mcintosh, the defendant requested injunctive relief in his moving papers, and he mentioned his request for injunctive relief three times in his reply brief. At the hearing, the question of injunctive relief did not arise, and the district court said simply that it was denying the motion. Although Mcintosh could have emphasized the equitable component of his request more, we conclude that he raised the issue sufficiently for the denial of his motion to constitute a direct denial of a request for an injunction. Therefore, we have jurisdiction under 28 U.S.C. § 1292(a)(1) to consider the interlocutory appeals from these direct denials of requests for injunctions. We note the unusual circumstances presented by these cases. In almost all federal criminal prosecutions, injunctive relief and interlocutory appeals will not be appropriate. Federal courts traditionally have refused, except in rare instances, to enjoin federal criminal prosecutions. See Ackerman v. Int'l Longshoremen's Union, 187 F.2d 860, 868 (9th Cir. 1951); Argonaut Mining Co. v. McPike, 78 F.2d 584, 586 (9th Cir. 1935); Stolt-Nielsen, S.A. v. United States, 442 F.3d 177, 185 (3d Cir. 2006); Deaver v. Seymour, 822 F.2d 66, 69 (D.C. Cir. 1987). "An order by a federal court that relates only to the conduct or progress of litigation before that court ordinarily is not considered an injunction and therefore is not appealable under § 1292(a)(1)." Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 279 (1988). Thus, in almost all circumstances, federal criminal defendants cannot obtain injunctions of their ongoing prosecutions, and orders by district courts relating solely to requests to stay ongoing federal prosecutions will not constitute appealable orders under § 1292(a)(1). Here, however, Congress has enacted an appropriations rider that specifically restricts DoJ from spending money to pursue certain activities. It is "emphatically . . . the exclusive province of the Congress not only to formulate legislative policies and mandate programs and projects, but also to establish their relative priority for the Nation. once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for . . . the courts to enforce them when enforcement is sought." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194 (1978); accord United States v. Oakland Cannabis Buyers' Co-op., 532 U.S. 483, 497 (2001). A "court sitting in equity cannot 'ignore the judgment of Congress, deliberately expressed in legislation.'" Oakland Cannabis, 532 U.S. at 497 (quoting Virginian Ry. Co. v. Sys. Fed'n No. 40, 300 U.S. 515, 551 (1937)). Even if Appellants cannot obtain injunctions of their prosecutions themselves, they can seek—and have sought—to enjoin DOJ from spending funds from the relevant appropriations acts on such prosecutions.[2] When Congress has enacted a legislative ____________________ [2] We need not decide in the first instance exactly how the district courts should resolve claims that DOJ is spending money to prosecute a defendant in violation of an appropriations rider. We therefore take no view on the precise relief required and leave that issue to the district courts in the first instance. We note that district courts in criminal cases have ancillary jurisdiction, which “is the power of a court to adjudicate and determine matters incidental to the exercise of its primary jurisdiction over a cause under review.” United States v. Sumner, 226 F.3d 1005, 1013–15 (9th Cir. 2000); see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. restriction like § 542 that expressly prohibits DoJ from spending funds on certain actions, federal criminal defendants may seek to enjoin the expenditure of those funds, and we may exercise jurisdiction over a district court's direct denial of a request for such injunctive relief. 1 As part of our jurisdictional inquiry, we must consider whether Appellants have standing to complain that DOJ is spending money that has not been appropriated by Congress. "The doctrine of standing asks whether a litigant is entitled to have a federal court resolve his grievance." Kowalski v. Tesmer, 543 U.S. 125, 128 (2004). Although the government concedes that Appellants have standing, we have an "independent obligation to examine [our] own jurisdiction, and standing is perhaps the most important of the jurisdictional doctrines." United States v. Hays, 515 U.S. 737, 742 (1995) (internal quotation marks and alterations omitted). Constitutional limits on our jurisdiction are established by Article III, which limits the jurisdiction of federal courts to "Cases" and "Controversies." U.S. Const. art. III, § 2. It "demands that an 'actual controversy' persist throughout all stages of litigation. That means that standing 'must be met by persons seeking appellate review . . . .'" Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013) (citations omitted). To have Article III standing, a litigant "must have suffered or be ____________________ 375, 378–80 (1994); Garcia v. Teitler, 443 F.3d 202, 206–10 (2d Cir. 2006). imminently threatened with a concrete and particularized 'injury in fact' that is fairly traceable to the challenged action . . . and likely to be redressed by a favorable judicial decision." Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014). In Bond v. United States, the Supreme Court addressed a situation similar to the cases before us. 564 U.S. 211 (2011). There, the Third Circuit had concluded that the criminal defendant lacked "standing to challenge a federal statute on grounds that the measure interferes with the powers reserved to States," and the Supreme Court reversed. Id. at 216, 226. The Court explained that "[o]ne who seeks to initiate or continue proceedings in federal court must demonstrate, among other requirements, both standing to obtain the relief requested, and, in addition, an 'ongoing interest in the dispute' on the part of the opposing party that is sufficient to establish 'concrete adverseness.'" Id. at 217 (citations omitted). "When those conditions are met, Article III does not restrict the opposing party's ability to object to relief being sought at its expense." Id. "The requirement of Article III standing thus had no bearing upon [the defendant's] capacity to assert defenses in the District Court." Id. Applying those principles to the defendant's standing to appeal, the Court concluded that it was "clear Article Ill's prerequisites are met. Bond's challenge to her conviction and sentence 'satisfies the case-or-controversy requirement, because the incarceration . . . constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction.'" Id. Here, Appellants have not yet been deprived of liberty via a conviction, but their indictments imminently threaten such a deprivation. Cf. Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342-47 (2014) (threatened prosecution may give rise to standing). They clearly had Article III standing to pursue their challenges below because they were merely objecting to relief sought at their expense. And they have standing on appeal because their potential convictions constitute concrete, particularized, and imminent injuries, which are caused by their prosecutions and redressable by injunction or dismissal of such prosecutions. See Bond, 564 U.S. at 217. After addressing Article III standing, the Bond Court concluded that, "[i]f the constitutional structure of our Government that protects individual liberty is compromised, individuals who suffer otherwise justiciable injury may object." Id. at 223. The Court explained that both federalism and separation-of-powers constraints in the Constitution serve to protect individual liberty, and a litigant in a proper case can invoke such constraints "[w]hen government acts in excess of its lawful powers." Id. at 220-24. The Court gave numerous examples of cases in which private parties, rather than government departments, were able to rely on separation-of-powers principles in otherwise jusiticiable cases or controversies. See id. at 223 (citing Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010); Clinton v. City of New York, 524 U.S. 417, 433-36 (1998); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995); Bowsher v. Synar, 478 U.S. 714 (1986); INS v. Chadha, 462 U.S. 919 (1983); N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); A.L.A. SchechterPoultry Corp. v. United States, 295 U.S. 495 (1935)). The Court reiterated this principle in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014). There, the Court granted relief to a private party challenging an order against it on the basis that certain members of the National Labor Relations Board had been appointed in excess of presidential authority under the Recess Appointments Clause, another separation-of-powers constraint. Id. at 2557. The Court "recognize[d], of course, that the separation of powers can serve to safeguard individual liberty and that it is the 'duty of the judicial department'—in a separation-of-powers case as in any other—'to say what the law is.'" Id. at 2559-60 (citing Clinton, 524 U.S. at 449-50 (Kennedy, J., concurring), and quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)); see also id. at 2592-94 (Scalia, J., concurring in the judgment) (discussing at great length how the separation of powers protects individual liberty). Thus, Appellants have standing to invoke separation-of-powers provisions of the Constitution to challenge their criminal prosecutions. Here, Appellants complain that DOJ is spending funds that have not been appropriated by Congress in violation of the Appropriations Clause of the Constitution. See U.S. Const. art. I, § 9, cl. 7 ("No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . ."). This "straightforward and explicit command . . . means simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress." Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424 (1990) (citation omitted). "Money may be paid out only through an appropriation made by law; in other words, the payment of money from the Treasury must be authorized by a statute." Id. The Appropriations Clause plays a critical role in the Constitution's separation of powers among the three branches of government and the checks and balances between them. "Any exercise of a power granted by the Constitution to one of the other branches of Government is limited by a valid reservation of congressional control over funds in the Treasury." Id. at 425. The Clause has a "fundamental and comprehensive purpose . . . to assure that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good and not according to the individual favor of Government agents." Id. at 427-28. Without it, Justice Story explained, "the executive would possess an unbounded power over the public purse of the nation; and might apply all its moneyed resources at his pleasure." Id. at 427 (quoting 2 Joseph Story, Commentaries on the Constitution of the United States § 1348 (3d ed. 1858)). Thus, if DOJ were spending money in violation of § 542, it would be drawing funds from the Treasury without authorization by statute and thus violating the Appropriations Clause. That Clause constitutes a separation-of-powers limitation that Appellants can invoke to challenge their prosecutions. The parties dispute whether the government's spending money on their prosecutions violates § 542. We focus, as we must, on the statutory text. Section 542 provides that "[n]one of the funds made available in this Act to the Department of Justice may be used, with respect to [Medical Marijuana States[3]] to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana." Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332-33 (2015). Unfortunately, the rider is not a model of clarity. "It is a 'fundamental canon of statutory construction' that, 'unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.'" Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 876 (2014) (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)). Thus, in order to decide whether the prosecutions of Appellants violate § 542, we must determine the plain meaning of "prevent any of [the Medical Marijuana States] from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana." The pronoun "them" refers back to the Medical Marijuana States, and "their own ____________________ [3] To avoid repeating the names of all 43 jurisdictions listed, we refer to Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Wisconsin, Wyoming, the District of Columbia, Guam, and Puerto Rico as the “Medical Marijuana States” and their laws authorizing “the use, distribution, possession, or cultivation of medical marijuana” as the “State Medical Marijuana Laws.” While recognizing that the list includes three non-states, we will refer to the listed jurisdictions as states and their laws as state laws without further qualification. laws" refers to the state laws of the Medical Marijuana States. And "implement" means: "To put into practical effect; carry out." Implement, American Heritage Dictionary of the English Language (5th ed. 2011); and "To complete, perform, carry into effect (a contract, agreement, etc.); to fulfil (an engagement or promise)." Implement, Oxford English Dictionary, www.oed.com. See Sanford v. MemberWorks, Inc., 625 F.3d 550, 559 (9th Cir. 2010) (We "may follow the common practice of consulting dictionaries to determine" ordinary meaning.); Sandifer, 134 S. Ct. at 876. In sum, § 542 prohibits DOJ from spending money on actions that prevent the Medical Marijuana States' giving practical effect to their state laws that authorize the use, distribution, possession, or cultivation of medical marijuana. DoJ argues that it does not prevent the Medical Marijuana States from giving practical effect to their medical marijuana laws by prosecuting private individuals, rather than taking legal action against the state. We are not persuaded. Importantly, the "[s]tatutory language cannot be construed in a vacuum. It is [another] fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Sturgeon v. Frost, 136 S. Ct. 1061, 1070 (2016) (internal quotation marks omitted). Here, we must read § 542 with a view to its place in the overall statutory scheme for marijuana regulation, namely the CSA and the State Medical Marijuana Laws. The CSA prohibits the use, distribution, possession, or cultivation of any marijuana. See 21 U.S.C. §§ 841(a), 844(a).[4] The State Medical Marijuana Laws are those state laws that authorize the use, distribution, possession, or cultivation of medical marijuana. Thus, the CSA prohibits what the State Medical Marijuana Laws permit. In light of the ordinary meaning of the terms of § 542 and the relationship between the relevant federal and state laws, we consider whether a superior authority, which prohibits certain conduct, can prevent a subordinate authority from implementing a rule that officially permits such conduct by punishing individuals who are engaged in the conduct officially permitted by the lower authority. We conclude that it can. ____________________ [4] This requires a slight caveat. Under the CSA, “the manufacture, distribution, or possession of marijuana [is] a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration preapproved research study.” Gonzales v. Raich, 545 U.S. 1, 14 (2005); see 21 U.S.C. §§ 812(c), 823(f), 841(a)(1), 844(a). Thus, except as part of “a strictly controlled research project,” federal law “designates marijuana as contraband for any purpose.” Raich, 545 U.S. at 24, 27. DOJ, without taking any legal action against the Medical Marijuana States, prevents them from implementing their laws that authorize the use, distribution, possession, or cultivation of medical marijuana by prosecuting individuals for use, distribution, possession, or cultivation of medical marijuana that is authorized by such laws. By officially permitting certain conduct, state law provides for non-prosecution of individuals who engage in such conduct. If the federal government prosecutes such individuals, it has prevented the state from giving practical effect to its law providing for non-prosecution of individuals who engage in the permitted conduct. We therefore conclude that, at a minimum, § 542 prohibits DoJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws. Appellants in McIntosh and Kynaston argue for a more expansive interpretation of § 542. They contend that the rider prohibits DoJ from bringing federal marijuana charges against anyone licensed or authorized under a state medical marijuana law for activity occurring within that state, including licensees who had failed to comply fully with state law. For instance, Appellants in Kynaston argue that "implementation of laws necessarily involves all aspects of putting the law into practical effect, including interpretation of the law, means of application and enforcement, and procedures and processes for determining the outcome of individual cases." Under this view, if the federal government prosecutes individuals who are not strictly compliant with state law, it will prevent the states from implementing the entirety of their laws that authorize medical marijuana by preventing them from giving practical effect to the penalties and enforcement mechanisms for engaging in unauthorized conduct. Thus, argue the Kynaston Appellants, the Department of Justice must refrain from prosecuting "unless a person's activities are so clearly outside the scope of a state's medical marijuana laws that reasonable debate is not possible." To determine whether such construction is correct, we must decide whether the phrase "laws that authorize" includes not only the rules authorizing certain conduct but also the rules delineating penalties and enforcement mechanisms for engaging in unauthorized conduct. In answering that question, we consider the ordinary meaning of "laws that authorize the use, distribution, possession, or cultivation of medical marijuana." "Law" has many different meanings, including the following definitions that appear most relevant to § 542: "The set of rules or principles dealing with a specific area of a legal system ." Law, Black's Law Dictionary (10th ed. 2014); and: "One of the individual rules which constitute the 'law' (sense 1) of a state or polity. . . . The plural has often a collective sense . . . approaching sense 1." Law, Oxford English Dictionary, wwww.oed.com. The relative pronoun "that" restricts "laws" to those laws authorizing the use, distribution, possession, or cultivation of medical marijuana. See Bryan A. Garner, Garner's Dictionary of Legal Usage 887-89 (3d ed. 2011). In sum, the ordinary meaning of § 542 prohibits the Department of Justice from preventing the implementation of the Medical Marijuana States' laws or sets of rules and only those rules that authorize medical marijuana use. We also consider the context of § 542. The rider prohibits DOJ from preventing forty states, the District of Columbia, and two territories from implementing their medical marijuana laws. Not only are such laws varied in composition but they also are changing as new statutes are enacted, new regulations are promulgated, and new administrative and judicial decisions interpret such statutes and regulations. Thus, § 542 applies to a wide variety of laws that are in flux. Given this context and the restriction of the relevant laws to those that authorize conduct, we conclude that § 542 prohibits the federal government only from preventing the implementation of those specific rules of state law that authorize the use, distribution, possession, or cultivation of medical marijuana. DOJ does not prevent the implementation of rules authorizing conduct when it prosecutes individuals who engage in conduct unauthorized under state medical marijuana laws. Individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana have engaged in conduct that is unauthorized, and prosecuting such individuals does not violate § 542. Congress could easily have drafted § 542 to prohibit interference with laws that address medical marijuana or those that regulate medical marijuana, but it did not. Instead, it chose to proscribe preventing states from implementing laws that authorize the use, distribution, possession, and cultivation of medical marijuana. The parties cite various pieces of legislative history to support their arguments regarding the meaning of § 542. We cannot consider such sources. It is a fundamental principle of appropriations law that we may only consider the text of an appropriations rider, not expressions of intent in legislative history. "An agency's discretion to spend appropriated funds is cabined only by the 'text of the appropriation,' not by Congress' expectations of how the funds will be spent, as might be reflected by legislative history." Salazar v. Ramah Navajo Chapter, 132 S. Ct. 2181, 2194-95 (2012) (quoting Int'l Union, UAW v. Donovan, 746 F.2d 855, 860-61 (D.C. Cir. 1984) (Scalia, J.)). In International Union, then-Judge Scalia explained: 746 F.2d at 860-61 (quoting Train v. City of New York, 420 U.S. 35, 45 (1975)); see also Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631, 646 (2005) ("The relevant case law makes clear that restrictive language contained in Committee Reports is not legally binding."); Lincoln v. Vigil, 508 U.S. 182, 192 (1993) ("'[I]ndicia in committee reports and other legislative history as to how the funds should or are expected to be spent do not establish any legal requirements on' the agency." (citation omitted)). We recognize that some members of Congress may have desired a more expansive construction of the rider, while others may have preferred a more limited interpretation. However, we must consider only the text of the rider. If Congress intends to prohibit a wider or narrower range of DOJ actions, it certainly may express such intention, hopefully with greater clarity, in the text of any future rider. We therefore must remand to the district courts. If DOJ wishes to continue these prosecutions, Appellants are entitled to evidentiary hearings to determine whether their conduct was completely authorized by state law, by which we mean that they strictly complied with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana. We leave to the district courts to determine, in the first instance and in each case, the precise remedy that would be appropriate. We note the temporal nature of the problem with these prosecutions. The government had authority to initiate criminal proceedings, and it merely lost funds to continue them. DoJ is currently prohibited from spending funds from specific appropriations acts for prosecutions of those who complied with state law. But Congress could appropriate funds for such prosecutions tomorrow. Conversely, this temporary lack of funds could become a more permanent lack of funds if Congress continues to include the same rider in future appropriations bills. In determining the appropriate remedy for any violation of § 542, the district courts should consider the temporal nature of the lack of funds along with Appellants' rights to a speedy trial under the Sixth Amendment and the Speedy Trial Act, 18 U.S.C. § 3161.[5] ____________________ [5] The prior observation should also serve as a warning. To be clear, § 542 does not provide immunity from prosecution for federal marijuana offenses. The CSA prohibits the manufacture, distribution, and possession of marijuana. Anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime. The federal government can prosecute such offenses for up to five years after they occur. See 18 U.S.C. § 3282. Congress currently restricts the government For the foregoing reasons, we vacate the orders of the district courts and remand with instructions to conduct an evidentiary hearing to determine whether Appellants have complied with state law.[6] VACATED AND REMANDED WITH INSTRUCTIONS. ____________________ from spending certain funds to prosecute certain individuals. But Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding. Moreover, a new president will be elected soon, and a new administration could shift enforcement priorities to place greater emphasis on prosecuting marijuana offenses. Nor does any state law “legalize” possession, distribution, or manufacture of marijuana. Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits. U.S. Const. art VI, cl. 2. Thus, while the CSA remains in effect, states cannot actually authorize the manufacture, distribution, or possession of marijuana. Such activity remains prohibited by federal law. [6] We have jurisdiction under the All Writs Act to “issue all writs necessary or appropriate in aid of [our] jurisdiction[] and agreeable to the usages and principles of law.” 28 U.S.C. § 1651. The writ of mandamus “is a drastic and extraordinary remedy reserved for really extraordinary causes.” United States v. Guerrero, 693 F.3d 990, 999 (9th Cir. 2012) (quoting Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004)). We DENY the petitions for the writ of mandamus because the petitioners have other means to obtain their desired relief and because the district courts’ orders were not clearly erroneous as a matter of law. See id. (citing Bauman v. U.S. Dist. Ct., 557 F.2d 650, 654–55 (9th Cir. 2010)). In addition, we GRANT the motion for leave to file an oversize reply brief, ECF No. 47-2; DENY the motion to strike, ECF No. 52; and DENY the motion for judicial notice, ECF No. 53.
Geeesh - just stop it with your long winded copy and paste screeds already nolu spam.
As long as you continue your incessant posting of bullshit about "legal" marijuana, I will continue to post federal court opinions documenting that your posts are just bullshit. Your thread articles are worse than spam — they are deliberate lies. GET MARIJUANA LICENSE — LOSE FIREARMS Wilson v. Lynch, No. 14-15700 (9th Cir. 31 Aug 2016) At 4: [...] [1] As we recently observed: “The [Controlled Substances Act] prohibits the manufacture, distribution, and possession of marijuana. Anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime.” United States v. McIntosh, No. 15-10117, 2016 WL 4363168, at *11 n.5 (9th Cir. Aug. 16, 2016). [...] At 5: The ATF has promulgated regulations implementing § 922 and defining a person "who is an unlawful user of or addicted to any controlled substance." See 27 C.F.R. § 478.11. The ATF has also developed Form 4473, which confirms eligibility for gun ownership under § 922. Prospective purchasers of firearms fill out Form 4473 when they seek to buy a firearm. Form 4473 includes Question 11.e., which asks "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 14-15700 OPINION S. Rowan Wilson, v. Loretta E. Lynch, Attorney General; Argued and Submitted July 21, 2016 Before: Susan P. Graber and Richard C. Tallman, Circuit Judges, and Jed S. Rakoff,* Senior District Judge. Opinion by Judge Rakoff Civil Rights The panel affirmed the district court's dismissal of a complaint challenging the federal statutes, regulations, and guidance that prevented plaintiff from buying a gun because she possesses a Nevada medical marijuana registry card. The panel preliminarily held that plaintiff lacked standing to challenge 18 U.S.C. § 922(g)(3), which criminalizes possession or receipt of a firearm by an unlawful drug user or a person addicted to a controlled substance. Plaintiff had not alleged that she was an unlawful drug user or that she was addicted to any controlled substance. Nor had she alleged that she possessed or received a firearm. The panel further held that plaintiff's remaining claims were not moot because she represented that she has routinely renewed her registry card. ____________________ * The Honorable Jed S. Rakoff, Senior United States District Judge for the Southern District of New York, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. The panel held that plaintiff's Second Amendment claims did not fall within the direct scope of United States v. Dugan, 657 F.3d 998 (9th Cir. 2011), which held that the Second Amendment does not protect the rights of unlawful drug users to bear arms. Taking plaintiff's allegations in her first amended complaint as true - that she chose not to use medical marijuana - the panel concluded that plaintiff was not actually an unlawful drug user. The panel held that 18 U.S.C. § 922(d)(3), 27 C.F.R.§ 478.11, and the Open Letter issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives to federal firearms licensees, which prevented plaintiff from purchasing a firearm, directly burdened plaintiff's core Second Amendment right to possess a firearm. Applying intermediate scrutiny, the panel nevertheless held that the fit between the challenged provisions and the Government's substantial interest of violence prevention was reasonable, and therefore the district court did not err by dismissing the Second Amendment claim. The panel rejected plaintiff's claims that the challenged laws and Open Letter violated the First Amendment. The panel held that any burden the Government's anti-marijuana and anti-gun-violence efforts placed on plaintiff's expressive conduct was incidental, and that the Open Letter survived intermediate scrutiny. The panel held that the challenged laws and Open Letter neither violated plaintiff's procedural due process rights protected by the Due Process Clause of the Fifth Amendment nor violated the Equal Protection Clause as incorporated into the Fifth Amendment. Plaintiff did not have a constitutionally protected liberty interest in simultaneously holding a registry card and purchasing a firearm, nor was she a part of suspect or quasi-suspect class. Finally, rejecting the claim brought under the Administrative Procedure Act, the panel agreed with the district court that the Open Letter was a textbook interpretative rule and that it was exempt from the Act's notice-and-comment procedures. Charles C. Rainey (argued) and Jennifer J. Hurley, Rainey Legal Group PLLC, Las Vegas, Nevada, for Plaintiff-Appellant. Abby C. Wright (argued) and Michael S. Raab, Attorneys, Appellate Staff; Daniel G. Bogden, United States Attorney; Civil Division, Department of Justice, Washington, D.C.; for Defendants-Appellees. RAKOFF, Senior District Judge: Plaintiff-Appellant S. Rowan Wilson acquired a Nevada medical marijuana registry card. She then sought to purchase a firearm, but the firearms dealer knew that Wilson held a registry card. Consistent with a letter issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"), the dealer refused to sell Wilson a firearm because of her registry card. Wilson sued, challenging the federal statutes, regulations, and guidance that prevented her from buying a gun. The district court dismissed Wilson's complaint, and Wilson appealed. We affirm. Marijuana is classified as a Schedule I controlled substance under the Controlled Substances Act, 21 U.S.C. § 812. As a Schedule I controlled substance, marijuana, under federal law, is deemed to have "no currently accepted medical use in treatment[, and] [t]here is a lack of accepted safety for use of the . . . substance under medical supervision." Id. § 812(b)(1)(B) & (C).[1] This, however, is not the view of the State of Nevada. Although Nevada law criminalizes the possession of marijuana, see Nev. Rev. Stat. § 453.336(4), Nevada's Constitution was amended in 2000 to provide for medical marijuana use, see Nev. Const. art. IV, § 38. Under a statutory scheme enacted pursuant to this constitutional amendment, a holder of a valid marijuana registration ID card (a "registry card") is exempt from state prosecution for marijuana-related crimes. Nev. Rev. Stat. § 453A.200. To acquire a registry card, an applicant must provide documentation from an attending physician affirming that the applicant has a chronic or debilitating medical condition, that the medical use of marijuana may mitigate the symptoms of the condition, and that the physician has explained to the ____________________ [1] As we recently observed: “The [Controlled Substances Act] prohibits the manufacture, distribution, and possession of marijuana. Anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime.” United States v. McIntosh, No. 15-10117, 2016 WL 4363168, at *11 n.5 (9th Cir. Aug. 16, 2016). applicant the risks and benefits of the medical use of marijuana. Id. §453A.210(2)(a)(1)-(3). Cardholders must also comply with certain ongoing requirements, including limitations on the amount of marijuana they have at one time, id. § 453A.200(3)(b), as well as the requirement that they "[e]ngage in . . . the medical use of marijuana in accordance with the provisions of this chapter as justified to mitigate the symptoms or effects of a person's chronic or debilitating medical condition," id. § 453A.200(3)(a). A registry card is valid for one year and may be renewed annually by submitting updated written documentation from a physician. Id. §§ 453A.220(5), 453A.230(1)(b). Turning to federal firearms provisions, under 18 U.S.C. § 922(g)(3) no person "who is an unlawful user of or addicted to any controlled substance" may "possess . . . or . . . receive any firearm or ammunition." In addition, it is unlawful for "any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person . . . is an unlawful user of or addicted to any controlled substance." Id. § 922(d)(3). The ATF has promulgated regulations implementing § 922 and defining a person "who is an unlawful user of or addicted to any controlled substance." See 27 C.F.R. § 478.11. The ATF has also developed Form 4473, which confirms eligibility for gun ownership under § 922. Prospective purchasers of firearms fill out Form 4473 when they seek to buy a firearm. Form 4473 includes Question 11.e., which asks "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" See Firearms Transaction Record Part I - Over-the-Counter ("Form 4473"), https://www.atf.gov/file/61446/download. If the answer is "yes," the putative transaction is prohibited. On September 21, 2011, the ATF issued an "Open Letter to All Federal Firearms Licensees" (the "Open Letter") that stated the following: Open Letter to all Federal Firearms Licensees dated Sept. 21, 2011, https://www.atf.gov/files/press/releases/2011/09/092611-atf-open-letter-to-all-ffls-marijuana-for-medicinal-purposes.pdf. It was against this regulatory and statutory context that appellant Wilson, on May 12, 2011, was issued a marijuana registry card by the State of Nevada. A few months later, on October 4, 2011, Wilson sought to purchase a firearm from Custom Firearms & Gunsmithing in the small community of Moundhouse, Nevada. As Wilson began to fill out Form 4473, the owner of the store, Frederick Hauser, stopped her from completing Question 11.e, which asked whether Wilson was an unlawful user of a controlled substance. Hauser explained that, because (as Hauser already knew) Wilson held a marijuana registry card, Wilson was deemed an unlawful user of a controlled substance and therefore someone to whom he could not sell a firearm without jeopardizing his federal firearms license. Wilson handed Hauser Form 4473 with Question 11.e. left blank. Hauser, who had received the ATF Open Letter three days earlier, nonetheless refused to sell her a firearm. Wilson alleges that Hauser's refusal to sell her a firearm was a direct consequence of Hauser's receipt of the Open Letter. On October 18, 2011, Wilson filed the present action against the Government and, on December 17, 2012, filed a First Amended Complaint (the "FAC"). Wilson asserted five causes of action: (1) violation of the Second Amendment, (2) violation of the Equal Protection Clause of the Fifth Amendment, (3) violation of the procedural Due Process Clause of the Fifth Amendment, (4) violation of the substantive Due Process Clause of the Fifth Amendment, and (5) violation of the First Amendment. Wilson sought declarations that 18 U.S.C. § 922(g)(3) and (d)(3), as well as all derivative regulations, such as 27 C.F.R. § 478.11, and the Open Letter, were unconstitutional. Wilson also sought a permanent injunction barring enforcement of § 922(g)(3) and (d)(3), all derivative regulations, and the Open Letter. Finally, Wilson sought compensatory and punitive damages, costs, fees, and expenses. On January 31, 2013, the Government filed a motion to dismiss the FAC. In her opposition to Defendants' motion to dismiss, Wilson asserted that the Open Letter also violated the Administrative Procedure Act ("APA"). On March 11, 2014, the district court granted the Government's motion to dismiss the FAC. The district court also denied Wilson leave to amend the FAC to raise an APA claim, concluding that amendment would be futile. Wilson timely appealed. We review de novo the district court's dismissal for failure to state a claim, and we review for abuse of discretion the denial of leave to amend. Dougherty v. City of Covina, 654 F.3d 892, 897 (9th Cir. 2011). We review de novo all constitutional rulings. Fournier v. Sebelius, 718 F.3d 1110, 1117 (9th Cir. 2013). As a preliminary matter, we address two jurisdictional issues: First, as appellant's counsel conceded at oral argument, Wilson lacks standing to challenge 18 U.S.C. § 922(g)(3).[2] ____________________ [2] Neither party challenged the district court’s determination that Wilson had standing, but we have an independent obligation “to examine jurisdictional issues such as standing [sua sponte].” B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999). We review Standing requires, among other elements, a "concrete and particularized" injury that is "actual or imminent, not conjectural or hypothetical." Lujan v Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks omitted). Section 922(g)(3) criminalizes possession or receipt of a firearm by a unlawful drug user or a person addicted to a controlled substance. Wilson has not alleged that she is an unlawful drug user or that she is addicted to any controlled substance. Nor has she alleged that she possessed or received a firearm. Accordingly, Wilson has not alleged that § 922(g)(3) has injured her in any way. For the same reasons, she also has not shown a "genuine threat of imminent prosecution" under § 922(g)(3), as is generally required of plaintiffs raising pre-enforcement challenges to criminal statutes outside the First Amendment context. San Diego Cty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996) (internal quotation marks omitted). Accordingly, we affirm on the ground of lack of standing the district court's dismissal of Wilson's claims concerning § 922(g)(3). Wilson does have standing, however, to raise her remaining claims challenging 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter. Wilson alleges that § 922(d)(3)'s ban on sales of firearms to individuals whom sellers have reasonable cause to believe are drug users, along with the regulations and guidance implementing this ban, prevented her from purchasing a firearm. These allegations are sufficient to satisfy the injury requirement. Second, contrary to the Government's suggestion, Wilson's remaining claims are not moot. We review the ____________________ questions of standing de novo. La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1087 (9th Cir. 2010). mootness of a case de novo. Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003). The Government's concern is that because Wilson has not renewed her registry card throughout her appeal, she is no longer injured by 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter. Although the FAC discusses only the registry card issued in May 2011, which expired in 2012, Wilson represents that she has routinely renewed her card. The Government has not challenged the accuracy of this representation. Because Wilson has appealed from a granted motion to dismiss and her representation simply updates the allegation in the FAC that she has a current registry card, we accept it as true for purposes of her appeal. Cf. Warth v. Seldin, 422 U.S. 490, 502 (1975). Wilson's first constitutional challenge to 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter purportedly rests on the Second Amendment. Specifically, Wilson claims that these provisions unconstitutionally burden her individual right to bear arms. See District of Columbia v. Heller, 554 U.S. 570, 592 (2008). The district court concluded, however, that Wilson's Second Amendment challenge failed under our decision in United States v. Dugan, 657 F.3d 998 (9th Cir. 2011). In Dugan, we held that the Second Amendment does not protect the rights of unlawful drug users to bear arms, id. at 999-1000, in the same way that it does not protect the rights of "felons and the mentally ill," Heller, 554 U.S. at 626-27. The Government argues that if the Second Amendment does not protect the rights of unlawful drug users to bear arms, it must not protect any possible rights of unlawful drug users to purchase firearms or of firearm dealers to sell to unlawful drug users. Therefore, were Wilson an unlawful drug user, she would be beyond the reach of the Second Amendment, and her claims would fail categorically. However, taking Wilson's allegations as true, as we must on an appeal from a motion to dismiss, Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987), she is not actually an unlawful drug user. Instead, she alleges that, although she obtained a registry card, she chose not to use medical marijuana for various reasons, such as the difficulties of acquiring medical marijuana in Nevada, as well as a desire to make a political statement.[3] Regardless of her motivations, we agree that Wilson's claims do not fall under the direct scope of Dugan.[4] This does not mean that her Second Amendment claim succeeds. We have adopted a two-step inquiry to determine whether a law violates the Second Amendment. We ask (1) "whether the challenged law burdens conduct protected by the Second Amendment and (2) if so . . . apply an appropriate level of scrutiny." United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013). Following this approach, we apply ____________________ [3] Wilson argues that, in light of the active political movements to decriminalize the use of marijuana in some states, her stance as a nonusing registry cardholder allows her to express her support for marijuana legalization in a particularly meaningful way. [4] Dugan does, however, dispose of Wilson’s Second Amendment claims against 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter to the extent that they are facial, as distinct from as-applied, challenges. Under Dugan, there is no question that § 922(d)(3) could be enforced constitutionally, pursuant to 27 C.F.R. § 478.11 and the Open Letter, against a dealer who knowingly sold a firearm to a registry cardholder who was actively using marijuana. intermediate scrutiny and uphold 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter. At Chovan's first step, we ask "whether the challenged law burdens conduct protected by the Second Amendment, based on a historical understanding of the scope of the [Second Amendment] right, or whether the challenged law falls within a well-defined and narrowly limited category of prohibitions that have been historically unprotected." Jackson v. City & County of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014) (citations and internal quotation marks omitted). With respect to Wilson, this inquiry is straightforward: because Wilson insists that she is not an unlawful drug user, a convicted felon, or a mentally-ill person, she is not a person historically prohibited from possessing firearms under the Second Amendment. Accordingly, by preventing Wilson from purchasing a firearm, 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter directly burden her core Second Amendment right to possess a firearm, and we proceed to Chovan's second step. The appropriate level of scrutiny for laws that burden conduct protected by the Second Amendment "depend[s] on (1) how close the law comes to the core of the Second Amendment right and (2) the severity of the law's burden on the right." Chovan, 735 F.3d at 1138 (citing Ezell v. City of Chicago, 651 F.3d 684, 703 (7th Cir. 2011) (internal quotation marks omitted)). Application of the first prong is guided by "Heller's holding that the Second Amendment has 'the core lawful purpose of self-defense,' and that 'whatever else it leaves to future evaluation, [the Second Amendment] surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.'" Jackson, 746 F.3d at 961 (alteration in original) (quoting Heller, 554 U.S. at 630, 635). Here, as previously stated, 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter burden the core of Wilson's Second Amendment right because they prevent her from purchasing a firearm under certain circumstances and thereby impede her right to use arms to defend her "hearth and home." Id. (internal quotation marks omitted). With respect to the second prong of the second Chovan step, Id. (citations and internal quotation marks omitted). The burden on Wilson's core Second Amendment right is not severe. Title 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter bar only the sale of firearms to Wilson-not her possession of firearms. Wilson could have amassed legal firearms before acquiring a registry card, and 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter would not impede her right to keep her firearms or to use them to protect herself and her home. In addition, Wilson could acquire firearms and exercise her right to self-defense at any time by surrendering her registry card, thereby demonstrating to a firearms dealer that there is no reasonable cause to believe she is an unlawful drug user. Because 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter do not place a severe burden on Wilson's core right to defend herself with firearms, we apply intermediate scrutiny to determine whether these laws and guidance pass constitutional muster. Intermediate scrutiny "require[s] (1) the government's stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective." Chovan, 735 F.3d at 1139 (internal quotation marks omitted). Wilson concedes that the Government had a substantial interest in enacting § 922(d)(3) to prevent gun violence.[5] However, she argues that the fit between 27 C.F.R. § 478.11 and the Open Letter, on the one hand, and violence prevention, on the other, is not reasonable because 27 C.F.R. § 478.11 and the Open Letter deprive so ____________________ [5] Wilson also argues that the purpose of the Open Letter was to crush the medical marijuana movement. On its face, the Open Letter serves no such purpose, and Wilson has not substantiated her suspicions with any facts. In addition, if the Government had wished to oppose the medical marijuana movement, it would not have needed the Open Letter–it would have needed merely to enforce existing federal statutes as then interpreted. See 21 U.S.C. § 812. (But see footnote 7, infra.) many non-violent people, such as Wilson, who hold registry cards for political reasons, of their Second Amendment rights. The Government argues that empirical data and legislative determinations support a strong link between drug use and violence. As to the first, studies and surveys relied on in similar cases suggest a significant link between drug use, including marijuana use, and violence. See United States v. Carter, 750 F.3d 462, 466-69 (4th Cir. 2014) (citing and discussing four studies and two government surveys); United States v. Yancey, 621 F.3d 681, 686 (7th Cir. 2010) (per curiam) (citing all but one of the studies and surveys in Carter, plus one additional study). While it would have been helpful for the Government to provide the studies in this case, Wilson has not challenged their methodology. We therefore have no occasion to evaluate the reliability of the studies and surveys, and instead accept them as probative. Moreover, legislative determinations also support the link between drug use and violence. In particular, Congress enacted 18 U.S.C. § 922(g)(3), which bars unlawful drug users from possessing firearms, "to keep firearms out of the hands of presumptively risky people." Dickerson v. New Banner Inst, Inc., 460 U.S. 103, 112 n.6 (1983).[6] It is beyond dispute that illegal drug users, including marijuana users, are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior. See Carter, 750 F.3d at 469-70. They are also more likely to have negative interactions with law enforcement officers because ____________________ [6] A majority of states have enacted similar restrictions on possession of firearms by habitual illegal drug users. See Yancey, 621 F.3d at 683–84 (citing twenty-six state statutes and a District of Columbia statute). they engage in criminal activity. Id. Finally, they frequently make their purchases through black market sources who themselves frequently resort to violence. It may be argued that medical marijuana users are less likely to commit violent crimes, as they often suffer from debilitating illnesses, for which marijuana may be an effective palliative. They also may be less likely than other illegal drug users to interact with law enforcement officers or make purchases through illicit channels.[7] But those hypotheses are not sufficient to overcome Congress's reasonable conclusion that the use of such drugs raises the risk of irrational or unpredictable behavior with which gun use should not be associated. By citing to the link between unlawful drug users and violence in this case, however, the Government incorrectly conflates registry cardholders with unlawful drug users. While these two categories of people overlap, they are not identical. The Government's showings of the link between drug use and violence would be sufficient were we applying intermediate scrutiny to 18 U.S.C. § 922(g)(3), which bars unlawful drug users from possessing firearms. But Wilson flatly maintains that she is not an unlawful drug user and is instead challenging a set of laws that bar non-drug users from purchasing firearms if there is only reasonable cause to believe that they are unlawful drug users, for instance, if they hold a registry card. Wilson correctly points out that the ____________________ [7] See McIntosh, 2016 WL 4363168, at *9–10 (holding that the United States Department of Justice is prohibited under a congressional appropriations rider from prosecuting individuals who are engaged in conduct permitted by state medical marijuana laws and who fully comply with such laws). degree of fit between these laws and the ultimate aim of preventing gun violence is not as tight as the fit with laws like 18 U.S.C. § 922(g)(3), which affect only illegal drug users. Nonetheless, the degree of fit between 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter and the aim of preventing gun violence is still reasonable, which is sufficient to survive intermediate scrutiny. The connection between these laws and that aim requires only one additional logical step: individuals who firearms dealers have reasonable cause to believe are illegal drug users are more likely actually to be illegal drug users (who, in turn, are more likely to be involved with violent crimes). With respect to marijuana registry cards, there may be some small population of individuals who-although obtaining a marijuana registry card for medicinal purposes-instead hold marijuana registry cards only for expressive purposes. But it is eminently reasonable for federal regulators to assume that a registry cardholder is much more likely to be a marijuana user than an individual who does not hold a registry card. Because the degree of fit between 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter and their purpose of preventing gun violence is reasonable but not airtight, these laws will sometimes burden-albeit minimally and only incidentally-the Second Amendment rights of individuals who are reasonably, but erroneously, suspected of being unlawful drug users. However, the Constitution tolerates these modest collateral burdens in various contexts, and does so here as well. For instance, the Fourth Amendment allows an officer to burden an individual's right to be free from searches when the officer has "reason to believe" the person is armed and dangerous, see Terry v. Ohio, 392 U.S. 1, 27 (1968), a standard comparable to the "reasonable cause to believe" standard of § 922(d). Moreover, as previously noted, there are various ways for individuals in Wilson's position to minimize or eliminate altogether the burdens that 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter place on their Second Amendment rights. Accordingly, 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter survive intermediate scrutiny, and the district court did not err in dismissing Wilson's Second Amendment claims. C. Wilson also claims that 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter violate the First Amendment. Wilson's claim fails under long-standing First Amendment precedents. We apply a two-pronged test, known as the Spence test, to determine when conduct contains sufficient elements of communication to fall within the scope of the First Amendment. First, we ask whether the "intent to convey a particularized message was present." Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curiam)). Second, we ask whether "the likelihood was great that the message would be understood by those who viewed it." Id. (quoting Spence, 418 U.S. at 410-11). Wilson argues that her acquisition of a registry card qualifies as expressive conduct protected by the First Amendment. She allegedly intended to convey a particularized message in support of medical use of marijuana and argues that in the midst of a hotly contested debate over the legalization of marijuana, viewers of the card would understand this message. The Government does not dispute that Wilson's acquisition of a registry card passes the Spence test, and we agree that, in the peculiar circumstances alleged, Wilson's acquisition of a registry card falls within the scope of conduct protected by the First Amendment. However, other actions that could give a firearms dealer reasonable cause to believe that Wilson, or another individual, was an unlawful drug user do not necessarily pass the Spence test and are not necessarily expressive. For that reason, Wilson's First Amendment claim rests only on her acquisition of a registry card. Courts apply strict scrutiny to laws that "proscribe particular conduct because it has expressive elements." Johnson, 491 U.S. at 406. "A law directed at the communicative nature of conduct must, like a law directed at speech itself, be justified by the substantial showing of need that the First Amendment requires." Id. (internal quotation marks omitted). But intermediate scrutiny applies when a law is directed at the non-communicative portion of conduct that contains both communicative and non-communicative elements: "[W]hen 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." United States v. O'Brien, 391 U.S. 367, 376 (1968). Wilson argues that strict scrutiny must apply because the Open Letter was allegedly part of a campaign by the Government to crush the medical marijuana movement. She points to news reports that discuss a "crackdown" by the Government on state medical marijuana systems. As noted earlier, this hypothesis seems unlikely; all the federal government would have needed to do to "crush" the medical marijuana movement would have been to enforce the federal laws prohibiting marijuana possession as then interpreted,[8] for the laws, as noted earlier, do not permit a medical exception. However, even accepting Wilson's allegations as true, they do not demonstrate that the Government targeted Wilson's expressive conduct of acquiring a registry card. They demonstrate only that the Government moved to enforce valid federal criminal statutes against the unauthorized acquisition or transfer of firearms by those who illegally use controlled substances. The production, distribution, and use of medical marijuana are not protected by the First Amendment, and efforts by the Government to impede-or even eliminate altogether-the production, distribution, and use of medical marijuana are not evidence of any conspiracy against free speech. Likewise, the Government's efforts to reduce gun violence through 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter are not directed at the expressive portion of Wilson's acquisition of a registry card. Accordingly, any burden the Government's anti-marijuana and anti-gun-violence efforts place on Wilson's expressive conduct is incidental, and the less searching O'Brien standard applies here. ____________________ [8] Of course, Congress would have to restore funding for the prosecution of marijuana offenses before the federal government could enforce the laws prohibiting possession. See McIntosh, 2016 WL 4363168, at *11 & n.5 Under O'Brien, O'Brien, 391 U.S. at 377. The Open Letter satisfies each of these conditions. With respect to the first O'Brien condition, Wilson argues that the Open Letter is analogous to the Subversive Activities Control Act of 1950, which barred any member of designated Communist groups from employment in defense facilities and which the Supreme Court held violated the First Amendment in United States v. Robel, 389 U.S. 258 (1967). But Robel and its discussion of the freedom of association is irrelevant to the question whether the Government may constitutionally regulate the sale and possession of firearms. It may indeed do so, and so the Open Letter meets the first O'Brien condition. With respect to the second O'Brien condition, although Wilson concedes that preventing violent crime is an important interest, she argues that the Government has failed to show that the Open Letter furthers this interest. She points out that the Government has failed to marshal any evidence of the efficacy of the Open Letter in reducing gun violence, despite its being in effect since 2011. But the Government is not required to make such a specific showing in this context. Instead, our discussion of Wilson's Second Amendment claim suffices to show that the Open Letter furthers the aim of preventing gun violence. Registry cardholders are more likely to be marijuana users, and illegal drug users, including marijuana users, are more likely to be involved in violent crimes. See Carter, 750 F.3d at 466-69; Yancey, 621 F.3d at 683-84. Accordingly, preventing those individuals who firearm dealers know have registry cards from acquiring firearms furthers the Government's interest in preventing gun violence. With respect to the third O'Brien condition, Wilson again argues that the purpose of the Open Letter was the suppression of support for medical marijuana. As discussed above, neither the Government's efforts to reduce gun violence nor its efforts to curtail marijuana use are related to the suppression of free expression. With respect to the fourth O'Brien condition, Wilson argues that the incidental effect of the Open Letter on her First Amendment rights is greater than is essential to reduce gun violence. In particular, she argues that the Open Letter places her on the horns of a constitutional dilemma: she must either surrender her Second Amendment right to possess a firearm or her First Amendment right to express her support for medical marijuana use. Wilson faces no such dilemma. The Open Letter burdens only a single form of expression in support of medical marijuana use-the holding of a registry card. Otherwise, Wilson may advocate vigorously and as publicly as she wishes for medical marijuana use while possessing firearms. Moreover, the burden that the Open Letter does place on this single form of expression is minimal. As explained above, Wilson may purchase firearms before acquiring or after surrendering a registry card. As a practical matter, Wilson is not caught in any dilemma, and the Open Letter's incidental effect on her First Amendment rights is no greater than necessary to reduce gun violence. Because the Open Letter satisfies each of the O'Brien conditions, it survives intermediate scrutiny, and the district court did not err in dismissing Wilson's First Amendment claims. Wilson also raises Fifth Amendment claims against 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter. In particular, she argues that the Open Letter violates her procedural due process rights protected by the Due Process Clause of the Fifth Amendment and violates the Equal Protection Clause as incorporated into the Fifth Amendment.[9] These claims fail. To begin with, Wilson's procedural due process rights have not been violated. "A procedural due process claim has ____________________ [9] Wilson also raised substantive due process claims in the district court, but she addresses their dismissal in conclusory fashion on appeal, arguing only that she stated a substantive due process claim because of her fundamental right to choose a course of medical treatment. This argument is foreclosed by our decision in Raich v. Gonzales, 500 F.3d 850, 866 (9th Cir. 2007) (“[F]ederal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.”). Accordingly, the district court did not err in dismissing Wilson’s substantive due process claim or in denying her leave to amend it. two distinct elements: (1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections." Brewster v. Bd. of Educ., 149 F.3d 971, 982 (9th Cir. 1998). Wilson argues that 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter deprive her of her liberty interest in simultaneously carrying a registry card and purchasing a firearm. She contends that this deprivation occurs without any process-only a determination that she holds a registry card. However, Wilson does not have a constitutionally protected liberty interest in simultaneously holding a registry card and purchasing a firearm. Moreover, she has failed to state a procedural due process claim, and the district court did not err in dismissing her claim. Likewise, 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter do not violate the Equal Protection Clause. "The first step in equal protection analysis is to identify the state's classification of groups. . . . The next step in equal protection analysis would be to determine the level of scrutiny." Country Classic Dairies, Inc. v. Mont., Dep't of Commerce Milk Control Bureau, 847 F.2d 593, 596 (9th Cir. 1988). "[E]qual protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class." Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976) (per curiam) (footnote omitted). Wilson argues that 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter disadvantage several groups, including registry cardholders versus users of medical marijuana in states where registry cards are not required. She also argues that she is being treated differently from other persons with similar medical conditions who have pursued other methods of treatment. None of these groups, however, is a suspect or quasi-suspect class. In addition, as discussed above, 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter do not impermissibly interfere with the exercise of any fundamental rights, including Wilson's right to possess firearms. Accordingly, we apply rational basis scrutiny. Title 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter survive rational basis scrutiny because they are reasonably related to reducing gun violence, as explained above. Accordingly, the district court did not err in dismissing Wilson's Fifth Amendment claims. Wilson also claims that the Open Letter violated the APA. Wilson did not plead a specific cause of action for violations of the APA in the FAC,[10] and the district court denied her leave to amend to do so, concluding that any such amendment would be futile. Wilson argues that the Open Letter violated the APA because it is a legislative rule that must go through notice-and-comment procedures under 5 U.S.C. § 553(b) & (c) but did not. ____________________ [10] Wilson argues that, although she did not set out her APA claim as formally as her other claims, she nonetheless adequately pleaded a violation of the APA under Federal Rule of Civil Procedure 8(a)’s notice pleading standard. We do not reach this issue because Wilson’s APA claim fails regardless of whether it was properly pleaded under Rule 8(a). In other words, the district court did not abuse its discretion in denying Wilson leave to correct any deficiency in her pleading of her APA claim because any such amendments would be futile. Title 5 U.S.C. § 553(b)(3)(A) exempts "interpretative rules" and "general statements of policy" from the notice-and-comment requirement of agency rulemaking. The Supreme Court has described interpretive rules as materials "issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers." Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 99 (1995) (internal quotation marks omitted). We have stated that "interpretive rules merely explain, but do not add to, the substantive law that already exists in the form of a statute or legislative rule. Legislative rules, on the other hand, create rights, impose obligations, or effect a change in existing law pursuant to authority delegated by Congress." Hemp Indus. Ass'n v. DEA, 333 F.3d 1082, 1087 (9th Cir. 2003) (citation omitted). Specifically, we have identified three circumstances when a rule has the "force of law" and is therefore legislative: "(1) when, in the absence of the rule, there would not be an adequate legislative basis for enforcement action; (2) when the agency has explicitly invoked its general legislative authority; or (3) when the rule effectively amends a prior legislative rule." Id. (citing Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1109 (D.C. Cir. 1993)). The first two Hemp Industries categories do not apply here: 18 U.S.C. § 922(d)(3) provides an adequate legislative basis for enforcement action even without the Open Letter, and the ATF did not explicitly invoke any legislative authority when it published the Open Letter. Wilson argues that the Open Letter falls into the third Hemp Industries category because it effectively amended 27 C.F.R. § 478.11. Specifically, she argues that the Open Letter impermissibly expands 27 C.F.R. § 478.11's definition of an "unlawful user" of illegal drugs to include registry cardholders who use marijuana. Section 478.11 defines an unlawful user as "any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician." Wilson contends that, because a medical recommendation must be obtained to receive a marijuana registry card, a holder of a registry card who uses marijuana has not used a controlled substance in a manner other than as prescribed by a licensed physician. This is incorrect as a matter of federal law. Under 21 U.S.C. § 812, marijuana is a Schedule I controlled substance, meaning that-as far as Congress is concerned-marijuana "has no currently accepted medical use in treatment[, and] there is a lack of accepted safety for use of the . . . substance under medical supervision." 21 U.S.C. § 812(b)(1)(B) & (C). No physician may legally prescribe marijuana as a matter of federal law, and no user of medical marijuana is using it "as prescribed by a licensed physician" within the meaning of 27 C.F.R. § 478.11. Wilson also characterizes the Open Letter as making a blanket assertion that any individual with a registry card is a marijuana user. According to Wilson, this blanket assertion is made without any investigation or due process, and is therefore unlike the illustrations provided in 27 C.F.R. § 478.11 that assist others in determining when someone can reasonably be determined as using a "controlled substance in a manner other than as prescribed by a licensed physician."[11] ____________________ [11] Wilson points to the following instances identified in 27 C.F.R. § 478.11 as examples of conduct or behavior that may raise an inference of current use of a controlled substance: However, the Open Letter does not make a blanket assertion that all registry card users are marijuana users, it simply clarifies that a firearms dealer has "reasonable cause to believe" an individual is an unlawful user if she holds a registry card. This inference falls well within the scope of 27 C.F.R. § 478.11, which states that "[a]n inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time." A marijuana registry card is circumstantial evidence, although by no means dispositive evidence, of recent use or possession of marijuana. Moreover, it is immaterial that registry cards are different from the illustrations mentioned in 27 C.F.R. § 478.11 that may raise an inference of unlawful drug use. Helpful examples in regulations need not be exhaustive. Indeed, that is one reason agencies publish guidance like the Open Letter-to provide additional examples that "explain, but do not add to, the substantive law that already exists in the form of a statute or legislative rule." Hemp Indus., 333 F.3d at 1087. Accordingly, we agree with the district court that the Open Letter is "textbook interpretative" and that it was exempt from notice-and-comment procedures under 5 U.S.C. § 553(b)(3)(A). The district court did not err in dismissing Wilson's APA claim, to the extent it was pleaded, or in denying Wilson leave to amend her complaint to expand her APA claim. occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year. _____________________ CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED.
#26. To: nolu chan, tpaine (#24)
Yes, exactly - opinions. As I will continue to post mine. The thing is - you don't see me or anyone else posting reams of indecipherable spam.
Top • Page Up • Full Thread • Page Down • Bottom/Latest [Article] State Proposes Bold Law to Treat Pot Like Tobacco And Expunge All Records of Marijuana “Crimes”
Here, we must read § 542 with a view to its place in the overall statutory scheme for marijuana regulation, namely the CSA and the State Medical Marijuana Laws. The CSA prohibits the use, distribution, possession, or cultivation of any marijuana. See 21 U.S.C. §§ 841(a), 844(a).[4] The State Medical Marijuana Laws are those state laws that authorize the use, distribution, possession, or cultivation of medical marijuana. Thus, the CSA prohibits what the State Medical Marijuana Laws permit.
[5] The prior observation should also serve as a warning. To be clear, § 542 does not provide immunity from prosecution for federal marijuana offenses. The CSA prohibits the manufacture, distribution, and possession of marijuana. Anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime. The federal government can prosecute such offenses for up to five years after they occur. See 18 U.S.C. § 3282. Congress currently restricts the government from spending certain funds to prosecute certain individuals. But Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding. Moreover, a new president will be elected soon, and a new administration could shift enforcement priorities to place greater emphasis on prosecuting marijuana offenses. Nor does any state law “legalize” possession, distribution, or manufacture of marijuana. Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits. U.S. Const. art VI, cl. 2. Thus, while the CSA remains in effect, states cannot actually authorize the manufacture, distribution, or possession of marijuana. Such activity remains prohibited by federal law.
FOR THE NINTH CIRCUIT
Plaintiff-Appellee,
v.
Steve Mcintosh,
Defendant-Appellant.
D.C. No. 3:14-cr-00016-MMC-3
Plaintiff-Appellee,
v.
Iane Lovan,
Defendant-Appellant.
D.C. No. 1:13-cr-00294-LJO-SKO-1
Plaintiff-Appellee,
v.
Somphane Malathong,
Defendant-Appellant.
D.C. No. 1:13-cr-00294-LJO-SKO-3
Plaintiff-Appellee,
v.
Vong Southy,
Defendant-Appellant.
D.C. No. 1:13-cr-00294-LJO-SKO-2
Plaintiff-Appellee,
v.
Khamphou Khouthong,
Defendant-Appellant.
D.C. No.1:13-cr-00294-LJO-SKO-4
for the Eastern District of California
Lawrence J. O'Neill, District Judge, Presiding
Plaintiff-Appellee,
v.
Jerad John kynaston, AKA Jared J. Kynaston, AKA Jerad J. Kynaston; Samuel Michael Doyle, AKA Samuel M. Doyle; Brice Christian Davis, AKA Brice C. Davis; Jayde Dillon Evans, AKA Jayde D. Evans; Tyler Scott Mckinley, AKA Tyler S. McKinley,
Defendants-Appellants.
D.C. No. 2:12-cr-00016-WFN-1
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior District Judge, Presiding
Petitioner,
v.
United States District Court
for the Eastern District of California, Fresno,
Respondent,
Real Party in Interest.
D.C. No. 1:13-cr-00294-LJO-SKO-1
Petitioner,
v.
United States District Court
for the Eastern District of California, Fresno,
Respondent,
Real Party in Interest.
D.C. No. 1:13-cr-00294-LJO-SKO-3
Petitioner,
v.
United States District Court
for the Eastern District of California, Fresno,
Respondent,
Real Party in Interest.
D.C. No. 1:13-cr-00294-LJO-SKO-2
Petitioner,
v.
United States District Court
for the Eastern District of California, Fresno,
Respondent,
Real Party in Interest.
D.C. No. 1:13-cr-00294-LJO-SKO-4
San Francisco, California
and Carlos T. Bea, Circuit Judges.
None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such
States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.
In Carson, the Supreme Court considered whether section 1292(a)(1) permitted appeal from an order denying the parties' joint motion for approval of a consent decree that contained an injunction as one of its provisions. Because the order did not, on its face, deny an injunction, an appeal from the order did not fall precisely within the language of section 1292(a)(1). The Court nevertheless permitted the appeal. The Court stated that, while section 1292(a)(1) must be narrowly construed in order to avoid piecemeal litigation, it does permit appeals from orders that have the "practical effect" of denying an injunction, provided that the would-be appellant shows that the order "might have a serious, perhaps irreparable, consequence."
We find nothing in Carson to suggest that the requirement of irreparable injury applies to appeals from orders specifically denying injunctions. Carson merely expanded the scope of appeals that do not fall within the meaning of the statute. Sealaska appeals from the direct denial of a request for an injunction. Carson, therefore, is simply irrelevant.
THE COURT: But remember, your remedy is not because you are upset that the Department of Justice is spending taxpayer money. Your remedy is a dismissal, which is what you are seeking now, is it not?
To "carry out, accomplish; esp.: to give practical effect to and ensure of actual fulfillment by concrete measure." Implement, Merriam-Webster's Collegiate Dictionary (11th ed. 2003);
"The aggregate of legislation, judicial precedents, and accepted legal principles; the body of authoritative grounds of judicial and administrative action; esp., the body of rules, standards, and principles that the courts of a particular jurisdiction apply in deciding controversies brought before them."
"1. a. The body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects. (In this sense usually the law.)."
As the Supreme Court has said (in a case involving precisely the issue of Executive compliance with appropriation laws, although the principle is one of general applicability): "legislative intention, without more, is not legislation." The issue here is not how Congress expected or intended the Secretary to behave, but how it required him to behave, through the only means by which it can (as far as the courts are concerned, at least) require anything—the enactment of legislation. Our focus, in other words, must be upon the text of the appropriation.
#15. To: nolu chan (#14)
(Edited)
#24. To: Deckard (#15)
Geeesh - just stop it with your long winded copy and paste screeds already nolu spam.
Marijuana is classified as a Schedule I controlled substance under the Controlled Substances Act, 21 U.S.C. § 812. As a Schedule I controlled substance, marijuana, under federal law, is deemed to have "no currently accepted medical use in treatment[, and] [t]here is a lack of accepted safety for use of the . . . substance under medical supervision." Id. § 812(b)(1)(B) & (C).[1]
Turning to federal firearms provisions, under 18 U.S.C. § 922(g)(3) no person "who is an unlawful user of or addicted to any controlled substance" may "possess . . . or . . . receive any firearm or ammunition." In addition, it is unlawful for "any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person . . . is an unlawful user of or addicted to any controlled substance." Id. § 922(d)(3).
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/31/14-15700.pdf
D.C. No. 2:11-CV-01679-GMN-PAL
Plaintiff-Appellant,
Bureau of Alcohol, Tobacco, Firearms and Explosives; B. Todd Jones, as Acting Director of U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives; Arthur Herbert, as Assistant Director of U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives; and United States of America,
Defendants-Appellees.
for the District of Nevada
Gloria M. Navarro, Chief District Judge, Presiding
San Francisco, California
[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 firearms or ammunition. Such persons should answer "yes" to question 11.e. on ATF Form 4473 . . . and you may not transfer firearms or ammunition to them. Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have "reasonable cause to believe" that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person, even if the person answered "no" to question 11.e. on ATF Form 4473.
i. Whether 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter Burden Protected Conduct
ii. Which Level of Scrutiny Applies to 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter
laws which regulate only the manner in which persons may exercise their Second Amendment rights are less burdensome than those which bar firearm possession completely. Similarly, firearm regulations which leave open alternative channels for self-defense are less likely to place a severe burden on the Second Amendment right than those which do not.
iii. Applying Intermediate Scrutiny to 18 U.S.C. § 922(d)(3), 27 C.F.R. 478.11, and the Open Letter
i. Whether Wilson's Conduct is Protected by the First Amendment
ii. The Appropriate Level of Scrutiny
iii. Applying the O'Brien Standard
a government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest
occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year.
Replies to Comment # 24. I will continue to post federal court opinions.
End Trace Mode for Comment # 24.
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