Case4:11-cv SBA Document31 Filed11/15/11 Page1 of 31 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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1 Case:-cv-0-SBA Document Filed// Page of 0 0 TONY WEST Assistant Attorney General ARTHUR R. GOLDBERG Assistant Director, Federal Programs Branch VARU CHILAKAMARRI (NY Bar #) KATHRYN L. WYER (Utah Bar #) U.S. Department of Justice, Civil Division 0 Massachusetts Avenue, N.W. Washington, DC 00 Tel. (0) -/Fax (0) -0 kathryn.wyer@usdoj.gov Attorneys for the United States MARIN ALLIANCE FOR MEDICAL MARIJUANA, a not-for-profit association; JOHN D AMATO, an individual, Plaintiffs, v. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ERIC HOLDER, Attorney General of the United States; MICHELLE LEONHART, Administrator of the Drug Enforcement Administration; MELINDA HAAG, U.S. Attorney for the Northern District of California, Defendants. CASE NO. - (SBA) DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR TEMPORARY RESTRAINING ORDER Hearing Date: November, 0 Hearing Time: :00 pm Courtroom: The hearing date for Plaintiffs original motion for preliminary injunction ( PI ) was set for December, 0, at a.m. See Doc.. As indicated in the Notice filed by plaintiffs counsel last Thursday, the parties had agreed that Defendants would file a response with respect to plaintiffs motion for temporary restraining order ( TRO ) on November, 0, and upon resolution of the TRO motion, the parties would confer regarding a briefing schedule with respect to plaintiffs PI motion. See Doc. 0. However, Plaintiffs amended PI motion, filed last Friday, has an earlier hearing date (November, 0) and sets Defendants response deadline on November, 0, and Plaintiffs reply deadline after the hearing date, on December, 0. Given that, in any event, Plaintiffs have already filed their memorandum in support of their PI motion, see Doc., Defendants have no objection should the Court wish to consider the instant memorandum as Defendants response to Plaintiffs PI motion as well as their TRO motion. Case No. - SBA

2 Case:-cv-0-SBA Document Filed// Page of 0 0 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... iii INTRODUCTION... BACKGROUND.... Federal Law Prohibiting Production, Distribution and Possession of Marijuana.... California s Compassionate Use Act of.... Factual and Procedural History... ARGUMENT... I. PLAINTIFFS HAVE NOT SHOWN A LIKELIHOOD OF SUCCESS ON THE MERITS... A. The Injunction that Plaintiffs Seek is Foreclosed, with Respect to Plaintiffs MAMM and D Amato, in Light of a Permanent Injunction Issued Against MAMM in a Prior Case... B. Plaintiffs Judicial Estoppel Argument Is Entirely Lacking in Merit Because the Santa Cruz Stipulation on Which Plaintiffs Rely Did Not Purport to Immunize From Enforcement Action Those Who Violate Federal Law... 0 C. Neither the Commerce Clause nor the Tenth Amendment Shields the Plaintiffs from the Application of Federal Law... D. Plaintiffs Do Not Have a Ninth Amendment or Substantive Due Process Right to Distribute, Possess, or Use Marijuana... E. Plaintiffs Selective Prosecution Argument Has No Merit... II. PLAINTIFFS HAVE FAILED TO SHOW IRREPARABLE HARM... III. THE OTHER RELEVANT FACTORS WEIGH AGAINST ISSUANCE OF PRELIMINARY RELIEF... CONCLUSION... Case No. - SBA ii

3 Case:-cv-0-SBA Document Filed// Page of 0 0 TABLE OF AUTHORITIES Page CASES Alliance for the Wild Rockies v. Cottrell, F.d (th Cir. 0)... Ashcroft v. Iqbal, S. Ct. (00)...0 Beal v. Mo. Pac. R.R. Corp., U.S. ()... Beal v. Stem, F.d (d Cir. )... Bordenkircher v. Hayes, U.S. ()... Cal. Pharm. Ass n v. Maxwell-Jolly, F.d (th Cir. 00)... Carnohan v. United States, F.d 0 (th Cir. 0)... Citizens for Better Forestry v. USDA, F.d (th Cir. 00)... Crawford v. Miller, No. 0-, 00 WL (M.D. Pa, Nov., 00)... Deaver v. Seymour, F.d (D.C. Cir. )... DISH Network Corp. v. FCC, F.d (th Cir. 0)..., Earth Island Inst. v. Carlton, F.d (th Cir. 00)..., Golden Gate Rest. Ass n v. City & County of San Francisco, F.d (th Cir. 00)... Gonzales v. Raich ( Raich I ), U.S. (00)... passim Iconix, Inc. v. Tokuda, F. Supp. d (N.D. Cal. 00)... - Kuromiya v. United States, F. Supp. d (E.D. Pa. )... Lawrence v. Texas, U.S. (00)... McCleskey v. Kemp, U.S. ()... Munaf v. Geren, U.S. (00)... New Hampshire v. Maine, U.S. (00)... Price v. City of Stockton, 0 F.d 0 (th Cir. 00)... iii Case No. - SBA

4 Case:-cv-0-SBA Document Filed// Page of 0 0 Raich v. Gonzales ( Raich II ), 00 F.d 0 (th Cir. 00)... passim Reno v. Condon, U.S. (000)... Sampson v. Murray, U.S. ()... Schowengerdt v. United States, F.d (th Cir. )... Smith v. Shalala, F. Supp. (D.D.C. )... Stormans, Inc. v. Selecky, F.d 0 (th Cir. 00)... Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., 0 F.d (th Cir.00)... Trainor v. Hernandez, U.S. ()... United States v. Armstrong, U.S. ()..., United States v. Armstrong, F. d 0 (th Cir. )... United States v. Brebner, F.d 0 (th Cir. )... United States v. Comstock, 0 S. Ct. (00)... United States v. Hendrickson, F. Supp. d (E.D. Mich. 00) United States v. Hicks, F. Supp. d (E.D. Mich. 00)... United States v. Jones, F.d 0 (th Cir. 000)... United States v. Liquidators of European Fed. Credit Bank, 0 F.d (th Cir. 0)... United States v. Marin Alliance for Medical Marijuana ( MAMM ) & Lynette Shaw, No. C -00 CRB (N.D. Cal. entered June 0, 00)..., United States v. Oakland Cannabis Buyers Co-op., U.S. (00)...,, United States v. Oakland Cannabis Buyers Co-op., Nos. 0-, 0-, 0-, 00 WL 0 (th Cir. Dec., 00), cert. denied, S. Ct. (00)..., United States v. Redondo-Lemos, F.d (th Cir. )... United States v. Rice, F.d (th Cir. )..., 0 iv Case No. - SBA

5 Case:-cv-0-SBA Document Filed// Page of 0 0 United States v. Rutherford, U.S. ()... United States v. Stacy, F. Supp. d 0 (S.D. Cal. 00)..., United States v. Steele, F.d (th Cir. )... United States v. United Mine Workers, 0 U.S. ()... United States v. Weitzenhoff, F.d (th Cir. )... Washington v. Glucksberg, U.S. 0 ()... Wash. Mut. Inc. v. United States, F.d 0 (th Cir. 0)... Wayte v. United States, 0 U.S. ()...,, Whirlpool Corp. v. Marshall, U.S. (0)... Winter v. NRDC, U.S. (00)...,, Zapon v. Dep t of Justice, F.d (th Cir. )... STATUTES U.S.C.... U.S.C.... Controlled Substances Act ( CSA ), as amended, U.S.C. 0 et seq.... U.S.C....,, U.S.C...., U.S.C...., U.S.C.... U.S.C.... Controlled Substance Act of 0, Pub. L. No. -, Stat.... Marihuana Tax Act of, Pub. L. No. -, 0 Stat. (repealed 0)... Cal. Health & Safety Code Ann. -,... Case No. - SBA v

6 Case:-cv-0-SBA Document Filed// Page of 0 0 Cal. Health & Safety Code Ann.. ( Compassionate Use Act of )... Cal. Health & Safety Code Ann OTHER REFERENCES A Wright, Miller & Kane, Federal Practice and Procedure: Civil d... DEA News Release (Oct., 0), available at 0, U.S. Attorneys Press Conference (Oct., 0), available at The Denver Post, October, 0, Colorado issues first medical-marijuana business licenses in U.S., available at vi Case No. - SBA

7 Case:-cv-0-SBA Document Filed// Page of 0 0 INTRODUCTION Plaintiffs in this case one of four that Plaintiffs counsel have filed in the federal district courts of California seek an emergency injunction that would entitle marijuana dispensaries to continue distributing marijuana, notwithstanding the fact that such activities violate the Controlled Substances Act ( CSA ). Plaintiffs ask the Court for license to violate federal law before the merits of their claim are adjudicated, based on nothing more than their word that the dispensaries in question distribute marijuana solely for medical purposes and without financial gain. The Court should reject at the outset any suggestion that the CSA s prohibitions can be set aside even temporarily based on nothing more than unsubstantiated assurances. But there is no need here to determine the truth about Plaintiffs marijuana operations because even if Plaintiffs asserted facts were undisputed, Plaintiffs would not be entitled to preliminary injunctive relief. For one thing, the original Plaintiffs in this case are a dispensary known as the Marin Alliance for Medical Medical Marijuana ( MAMM ) and John D Amato, a patient-member of MAMM. Original Pl. Mem. [Doc. ]. In 00, Judge Charles R. Breyer of this Court issued a permanent injunction against MAMM and its president, Lynette Shaw. Judgment and Permanent Injunction, United States v. Marin Alliance for Medical Marijuana & Lynette Shaw, No. C - 00 CRB (N.D. Cal. entered June 0, 00). The injunction directs MAMM, Ms. Shaw, and their agents to refrain from engaging in the distribution of marijuana, the possession of marijuana with the intent to distribute, or the manufacture of marijuana with the intent to distribute, in violation of U.S.C. (a)(). Id. at. On appeal, the Ninth Circuit affirmed Judge Breyer s order. United States v. Oakland Cannabis Buyers Co-op., Nos. 0-, 0-, 0-, 00 WL 0 (th Cir. Dec., 00), cert. denied, S. Ct. (00). The permanent injunction remains in effect. Though Plaintiffs fail to mention the injunction in any submission to the Court in this case, their implicit attempt to override it through this action is impermissible and should be rejected out of hand. The Court should note that because Plaintiffs had failed to acknowledge the existence of the permanent injunction against MAMM in either their complaint or their TRO papers, Defendants attorneys raised this issue with them on the afternoon of November 0, 0, during a telephone Case No. - SBA

8 Case:-cv-0-SBA Document Filed// Page of 0 0 Even aside from Plaintiffs unacknowledged attempt to circumvent Judge Breyer s order, Plaintiffs are unlikely to succeed in this action because their claims have either been wholly rejected by the Supreme Court and the Ninth Circuit, or they are merely an attempt to circumvent the rule of law based on improper characterizations or inferences. It is well settled that Congress s authority under the Commerce Clause empowers it to prohibit marijuana distribution and possession, even if the prohibited activities are not also illegal under state law. Gonzales v. Raich ( Raich I ), U.S. (00). It is similarly clear that violators of the CSA are not shielded by the Tenth Amendment, nor do they have any substantive due process or Ninth Amendment right to distribute, possess, or use marijuana for claimed medicinal or other purposes. Raich v. Gonzales ( Raich II ), 00 F.d 0 (th Cir. 00). Plaintiffs have raised nothing new that could warrant deviation from this binding authority. In an attempt to escape from this established precedent, Plaintiffs mischaracterize proceedings in a prior case in this district, Santa Cruz v. Holder, No. 0-0, in which different plaintiffs had agreed to dismiss without prejudice their only surviving claim, post-raich, in light of a Department of Justice memorandum relating to the use of federal prosecutorial resources. Contrary to Plaintiffs outlandish assertion that the federal government pledged in [the Santa Cruz case] to allow medical use of cannabis in California, Am. Compl., the federal government did no such thing and instead made clear that it was making no guarantee with respect to its future enforcement decisions. Even if the notion that the government might permanently limit its own enforcement discretion were tenable (which it is not), Plaintiffs here cannot succeed in such a claim based on an alleged promise that was never made. conference held for the purpose of agreeing to a briefing schedule. Plaintiffs attorneys advised that they were aware of the permanent injunction and would be prepared to litigate this issue. Less than hours later, however, Plaintiffs hurriedly filed an Amended Complaint which included two additional dispensaries as Plaintiffs, along with the landlords of one of the dispensaries. The complaint was amended so hastily that Plaintiffs neglected to correct all relevant paragraphs to include these new parties. See Am. Compl.,,. Even if these newly added Plaintiffs are not subject to a similar permanent injunction, they nevertheless should also be denied a TRO for the reasons explained below. Nor should the belated addition of new plaintiffs deflect the Court s attention from the fact that Plaintiffs MAMM and D Amato are openly and blatantly in violation of Judge Breyer s injunction. Case No. - SBA

9 Case:-cv-0-SBA Document Filed// Page of 0 0 Plaintiffs final contention that they are the targets of selective prosecution is equally unavailing, as they do not claim to have actually been prosecuted; they do not claim to be in a protected class; they have not shown the existence of similarly-situated dispensaries in other states that have not been prosecuted; and there is nothing inherently arbitrary in the fact that U.S. Attorneys in different states may differ in their identification and implementation of law enforcement priorities. Because Plaintiffs are unlikely to succeed on the merits, no emergency injunctive relief can possibly be warranted. But in any event, Plaintiffs have also failed to show irreparable harm or that the balance of hardships tips in their favor. Plaintiffs claim that any enforcement action against dispensaries or their landlords must be enjoined because dispensary members have a medical need for marijuana. However, once again, established precedent which holds that an assertion of medical necessity cannot warrant prospective injunctive relief forecloses Plaintiffs arguments. The public interest also weighs against Plaintiffs, given the health and safety risks that often attend illegal drug distribution. The CSA itself represents a congressional determination that the public interest favors prohibiting marijuana distribution and possession. Plaintiffs request for a temporary restraining order should therefore be denied. BACKGROUND. Federal Law Prohibiting Production, Distribution, and Possession of Marijuana The federal drug laws, and the penalties associated with their violation, are contained in the CSA, as amended, codified at U.S.C. 0 et seq. Since the time of the CSA s enactment, marijuana (also known as cannabis) has been classified as a Schedule I drug. U.S.C. (c). That classification reflects express findings by Congress, set forth in the statute. Specifically, Congress has determined that marijuana has a high potential for abuse, that it has no currently accepted medical use in treatment in the United States, and that [t]here is a lack of accepted safety for use of [marijuana] under medical supervision. Id. (b). It is unlawful for any person to knowingly or intentionally... manufacture, distribute, or dispense, Case No. - SBA

10 Case:-cv-0-SBA Document Filed// Page0 of 0 0 or possess marijuana. Id. (a), (a). In addition, it is unlawful for any person to knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using marijuana, or to manage or control any building, room, or enclosure,... for the purpose of unlawfully manufacturing, storing, distributing, or using marijuana. Id. (a).. California s Compassionate Use Act of Separate and apart from federal law, the State of California also criminalizes the possession, sale, cultivation, and transport of marijuana. See Cal. Health & Safety Code Ann. -,. In, California created an exemption from state criminal prosecution for physicians, patients, and primary caregivers who possess or cultivate marijuana for medicinal purposes with a physician s recommendation. See id.. ( Compassionate Use Act of ). Subsequently, California enacted additional legislation relating to the Compassionate Use Act, see id..-., and issued Guidelines for the Security and Non- Diversion of Marijuana Grown for Medical Use (00). Am. Compl. ex. [Doc. -]. In its Guidelines, the State explained that the manufacture, distribution, or possession of marijuana is a federal criminal offense, and that California did not legalize medical marijuana, but instead exercised the state s reserved powers to not punish certain marijuana offenses under state law when a physician has recommended its use to treat a serious medical condition. Id. at.. Factual and Procedural History After California enacted the Compassionate Use Act of, a number of marijuana manufacturers, distributors, and users in the state whose marijuana plants had been seized by the Drug Enforcement Administration ( DEA ) sought to enjoin the federal government from enforcing the CSA against them, claiming that such enforcement would violate the Commerce Clause, the Due Process Clause, and the Ninth and Tenth Amendments, as well as the doctrine of U.S.C. (a) prohibits possession of a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice. Because marijuana is a Schedule I drug, it is not possible to obtain a valid prescription for its possession or use. The CSA contains an express exception for government-approved research projects. U.S.C. (f). Case No. - SBA

11 Case:-cv-0-SBA Document Filed// Page of 0 0 medical necessity. Raich I, U.S.. As explained in more detail below, the Supreme Court unequivocally held that the CSA s application to those who claimed to manufacture or possess marijuana in accord with California law was consistent with Congress s authority under the Commerce Clause. Id. at -. On remand, the Ninth Circuit affirmed the district court s original denial of a preliminary injunction, specifically rejecting the plaintiffs remaining arguments under the Fifth, Ninth, and Tenth Amendments, as well as their attempt to invoke medical necessity as a basis for prospective injunctive relief. Raich II, 00 F.d at. While proceedings were underway in Raich, a collection of persons who admittedly manufactured, distributed, and used marijuana -- the Wo/Men s Alliance for Medical Marijuana ( WAMM ) -- raised similar claims in County of Santa Cruz, et al. v. Holder, et al., Case No (N.D. Cal.). Ultimately, most of the claims asserted by the WAMM plaintiffs were dismissed in light of the Supreme Court and Ninth Circuit s decisions in Raich, leaving only a revised Tenth Amendment claim pending. Meanwhile, on October, 00, U.S. Deputy Attorney General David Ogden sent a memorandum to certain U.S. Attorneys Offices, advising federal prosecutors on making efficient and rational use of [the Department s] limited investigative and prosecutorial resources in states such as California, which had enacted legislation exempting certain marijuana activities from state criminal sanctions. Am. Compl. ex., at [Doc. -, at ] ( Ogden memo ). The memo emphasized that marijuana remains an illegal drug, that the distribution and sale of marijuana is a serious crime, and that the prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority. Id. at. Given limited federal resources, the memo noted that: [a]s a general matter, pursuit of these priorities should not focus federal resources... on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen.... or [their] caregivers... is unlikely to be an efficient use of limited federal resources. On the other hand, prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of Case No. - SBA

12 Case:-cv-0-SBA Document Filed// Page of 0 0 the Department. Id. at -. While offering this general guidance regarding resource allocation and enforcement priorities, the memo explicitly stated that it did not legalize marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights... in any administrative, civil, or criminal matter. Id. at. The memo reiterated that clear and unambiguous compliance with state law would not create a legal defense to a violation of the Controlled Substances Act, and that the memo was intended solely as a guide to the exercise of investigative and prosecutorial discretion and would not preclude investigation or prosecution where it serves important federal interests. Id. at -. After the Ogden memo was issued, on January, 00, the parties in the Santa Cruz proceeding filed a joint stipulation of dismissal, stating that [a]s a result of the [Department of Justice s] issuance of [the Ogden memo], plaintiffs agree to dismiss this case without prejudice. Am. Compl. ex., at [Doc. -, at ]. The stipulation did not characterize the Ogden memo but attached it as an exhibit. The stipulation further provided that: [I]f Defendants withdraw, modify, or cease to follow the [Ogden memo], this case may be reinstituted in its present posture on any Plaintiffs motion, although if any Plaintiff seeks to reinstitute this case, Defendants reserve the right to argue that they have not withdrawn, modified, or ceased to follow the [Ogden memo], and that this case is moot. Id. at. The Santa Cruz plaintiffs have not sought to reinstitute their case. None of the Plaintiffs here were plaintiffs in the Santa Cruz action. However, one of the current Plaintiffs MAMM was a defendant in an enforcement action brought by the United States in. See United States v. MAMM, No. C -00 CRB (N.D. Cal.). As a result of that case, as noted above, Judge Breyer issued an injunction permanently enjoin[ing] MAMM and its agents from distributing marijuana and from manufacturing or possessing marijuana with the intent to distribute. See Ex. A. MAMM was also permanently enjoined from using the premises of Suite 0, School Street Plaza for such purposes. Id. By letter dated September, 0, the U.S. Attorney for the Northern District of California advised MAMM s landlord who is not a plaintiff to this action that MAMM was using his property at School Street, # as a marijuana dispensary in violation of federal Case No. - SBA

13 Case:-cv-0-SBA Document Filed// Page of 0 0 law, and that the dispensary was also operating within a prohibited distance of a park, which carries enhanced penalties. See Am. Compl. ex. [Doc. -]. The letter formally notified the landlord that such continued use of the property in violation of federal law may result in forfeiture of the property as well as criminal and civil fines, and advised the landlord to take necessary steps to discontinue the sale and/or distribution of marijuana from his property within days. Id. Eight days before this -day period was set to expire, on November, 0, Plaintiffs MAMM and MAMM member D Amato brought suit, and four days later filed a request for a temporary restraining order ( TRO ) [Doc. ]. Plaintiffs then filed an Amended Complaint on November, 0, adding two other dispensaries and one dispensary s landlords as Plaintiffs [Doc. ]. These dispensaries landlords had received similar letters from the U.S. Attorney dated September, 0, and both landlords have now required their tenants to cease dispensary operations. Pl. Mem. - [Doc. ] (citing declarations at Docs., ). Plaintiffs allege that by threatening to take action against dispensary landlords, Defendants have threatened Plaintiffs rights under the Ninth, Tenth, and Fourteenth Amendments; that Defendants are judicially estopped from taking the threatened actions; and that such actions would violate the Commerce Clause. Plaintiffs request, inter alia, that this Court enjoin Defendants from arresting or prosecuting Plaintiffs or those similarly situated, seizing their medical cannabis, In an October, 0, press conference, the U.S. Attorney for the Northern District stated that her office was currently focused on targeting commercial marijuana distribution operations in proximity to schools and parks. See While the U.S. Attorney s enforcement authority is not limited to those specific criteria, Plaintiffs have not alleged that any individual user of marijuana for purportedly medicinal purposes has been threatened with federal prosecution. See October, 0 DEA News Release, available at (describing current enforcement efforts as focused on commercial marijuana activities and noting that [t]he department has maintained that we will not focus our investigative and prosecutorial resources on individual patients with serious illnesses like cancer or their immediate caregivers. ). Plaintiffs appear to seek relief that would extend to all marijuana dispensaries in the Northern District, as well as their landlords and customers. However, Plaintiffs have not sought to bring a class action. Any relief to which they might be entitled is therefore necessarily limited only to them and should not extend beyond the harm that Plaintiffs identify as imminent. [A]n injunction must be narrowly tailored... to remedy only the specific harms shown by the plaintiffs rather than to enjoin all possible breaches of the law. Iconix, Inc. v. Tokuda, F. Case No. - SBA

14 Case:-cv-0-SBA Document Filed// Page of 0 0 forfeiting their property or the property of their landlords or threatening to seize property, or seeking civil or administrative sanctions against them or parties whose property is used to assist them. Am. Compl.at. ARGUMENT Plaintiffs fail to establish an emergency situation warranting the issuance of a TRO in this case. See Whirlpool Corp. v. Marshall, U.S., 0 n. (0). The standard for a TRO is the same as for a preliminary injunction. See Stuhlbarg Int'l Sales Co., Inc. v. John D. Brush & Co., 0 F.d, n. (th Cir.00). Such preliminary relief, before the merits of a case have been decided, is an extraordinary and drastic remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Munaf v. Geren, U.S., -0 (00); Winter v. NRDC, U.S., (00). A party seeking such relief must demonstrate () that it is likely to succeed on the merits, () that it is likely to suffer irreparable harm in the absence of preliminary relief, () that the balance of equities tips in its favor, and () that an injunction is in the public interest. Earth Island Inst. v. Carlton, F.d, (th Cir. 00) (citing Winter, U.S. at ). Plaintiffs bear the burden of demonstrating that each of these four factors is met. DISH Network Corp. v. FCC, F.d, (th Cir. 0). I. PLAINTIFFS HAVE NOT SHOWN A LIKELIHOOD OF SUCCESS ON THE MERITS A. The Injunction that Plaintiffs Seek Is Foreclosed, with Respect to Plaintiffs MAMM and D Amato, in Light of a Permanent Injunction Issued Against MAMM in a Prior Case As discussed above, the United States previously brought suit against Plaintiff MAMM, Supp. d, (N.D. Cal. 00) (citing Price v. City of Stockton, 0 F.d 0, (th Cir. 00)) (alteration by court). On or about the same day that Plaintiffs filed their original Complaint, Plaintiffs counsel filed nearly identical complaints in each of the other three federal district courts in California, followed by motions for TROs and preliminary injunctions in two of those districts. See Sacramento Nonprofit Collective, et al. v. Holder, Case No. -0 (E.D. Cal.); Alternative Community Health Care Coop., et al. v. Holder, et al., Case No. -0 (S.D. Cal.); Conejo Wellness Ctr., et al. v. Holder, et al., Case No. -00 (C.D. Cal.). The district court in Conejo Wellness denied the TRO motion filed in that case on November, 0, setting the matter on a standard briefing schedule on the plaintiffs preliminary injunction motion. Id., Doc.. Case No. - SBA

15 Case:-cv-0-SBA Document Filed// Page of 0 0 seeking to enjoin it from distributing marijuana in violation of the CSA. As a result of that suit, Judge Breyer issued a permanent injunction against MAMM, permanently enjoining it from engaging in the distribution of marijuana, the possession of marijuana with the intent to distribute, or the manufacture of marijuana with the intent to distribute, in violation of U.S.C. (a)(). See Order of June, 00 (attached hereto as Exhibit A), aff d by Oakland Cannabis Buyers Coop. et al., 00 WL 0 (upholding district court s issuance of permanent injunction), cert. denied, S. Ct. (00). Any relief that this Court might appropriately tailor to the harms that Plaintiffs allege would directly conflict with the permanent injunction issued by Judge Breyer in the prior proceeding. Moreover, MAMM is collaterally barred from seeking relief from this Court that it is expressly prohibited from exercising as a result of a prior proceeding between the same parties. See Wash. Mut. Inc. v. United States, F.d 0, (th Cir. 0) ( Collateral estoppel, or issue preclusion, bars the relitigation of both issues of law and issues of fact actually adjudicated in previous litigation between the same parties. ). Nor can plaintiff John D Amato seek such relief. As a member of MAMM, Mr. D Amato is also subject to the permanent injunction. See Dec. of John D Amato (Doc. ). Even if D Amato were not a MAMM member, the injunction precludes any relief that would, in effect, authorize MAMM to operate a marijuana dispensary in the property at issue which is the only relief that would redress D Amato s alleged injury based on his own assertions. Even if Plaintiffs were to assert that the prior injunction was erroneously issued or should no longer apply, they cannot overturn it in this proceeding. Only in the rarest of situations such as a clearly invalid prior restraint in the First Amendment context do federal courts countenance a party's disregard of an existing court order because it was mistakenly issued. Zapon v. Dep t of Justice, F.d, (th Cir. ). In all other situations obedience to even an assertedly void (not merely voidable) order is required unless and until it has been vacated or reversed. Id.; see also United States v. United Mine Workers, 0 U.S., 0- (). Thus, no TRO that this Court might issue in this action should apply to MAMM or D Amato. For the reasons discussed below, however, Plaintiffs TRO request should be denied Case No. - SBA

16 Case:-cv-0-SBA Document Filed// Page of 0 0 in its entirety. B. Plaintiffs Judicial Estoppel Argument Is Entirely Lacking in Merit Because the Santa Cruz Stipulation on Which Plaintiffs Rely Did Not Purport to Immunize From Enforcement Action Those Who Violate Federal Law Plaintiffs erroneously attempt to invoke the equitable doctrine of judicial estoppel based on the Joint Stipulation of Dismissal Without Prejudice that the parties to another case, County of Santa Cruz et al. v. Holder et al., No. 0-0 (N.D. Cal.), filed in January 00. See Doc. -, at. As described above, that stipulation incorporates a guidance memorandum issued by then- Deputy Attorney General David Ogden to U. S. Attorneys, indicating that, in order to make efficient and rational use of [the Department s] limited investigative and prosecutorial resources, federal prosecutors should not, as a general matter, focus federal resources... on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana such as individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or their caregivers who, consistent with state law, provide them with marijuana for medicinal purposes. See Ogden Mem., at [Doc. -]. On the other hand, the guidance memorandum made clear that prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department. Id. By its express terms, the memorandum d[id] not alter in any way the Department s authority to enforce federal law, d[id] not legalize marijuana or provide a legal defense to a violation of federal law, and did not create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter. Id. Instead, the memorandum made clear that it was intended solely as a guide to the exercise of investigative and prosecutorial discretion. Id. Contrary to Plaintiffs assertions, the doctrine of judicial estoppel has no application in this case. As the Supreme Court has explained, a court may, in its discretion, apply judicial estoppel to bar a party s argument only where () a party s later position [is] clearly inconsistent with its earlier position, () a court has previously accept[ed] that party's earlier 0 Case No. - SBA

17 Case:-cv-0-SBA Document Filed// Page of 0 0 position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled, and () the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. New Hampshire v. Maine, U.S., - (00) (internal quotation omitted); accord United States v. Liquidators of European Fed. Credit Bank, 0 F.d, (th Cir. 0). None of these factors applies here. First, Plaintiffs are simply wrong in asserting that the Department has ever issued a promise or guarantee, in any prior judicial proceeding, that users and dispensers of medical marijuana operating in accordance with their state laws would no longer be prosecuted by the federal government under the CSA. Pl. Mem.. Indeed, courts have repeatedly held that nothing in the Ogden memo made marijuana possession legal or prevented the federal government from enforcing the CSA as it sees fit. See United States v. Stacy, F. Supp. d 0, 00- (S.D. Cal. 00) (recognizing that the memo provid[es] guidance regarding resource allocation and does not legalize marijuana or provide a legal defense to a violation of federal law (quoting Ogden memo)); United States v. Hicks, F. Supp. d, - (E.D. Mich. 00) ( The Department of Justice s discretionary decision to direct its resources elsewhere does not mean that the federal government now lacks the power to prosecute those who possess marijuana. ). These decisions correctly recognize that, by its express terms, the Ogden memo contained no promise or guarantee that the Department would never enforce the CSA against those acting in compliance with state law. Further, even assuming that the memo made any promises (which it plainly did not), nowhere does it suggest that organized operations for distributing marijuana such as the dispensaries here by their own description appear to be -- would not be targeted. Such operations go well beyond the rubric of state laws providing for the medical use of marijuana. Ogden Mem. at (emphasis added). Second, Plaintiffs attempt to misconstrue the Santa Cruz proceeding as evidence of prior judicial acceptance of the position that those who possess, grow and distribute medical marijuana in compliance with state law will not be prosecuted nor their property seized, Pl. Mem., is untenable. Even assuming arguendo, as Plaintiffs contend, that the letters sent by this Case No. - SBA

18 Case:-cv-0-SBA Document Filed// Page of 0 0 District s U. S. Attorney to marijuana dispensaries and their landlords represent some kind of change in the Department s enforcement policy, the Santa Cruz court did not rely on any promise by the Department not to institute such a change. To the contrary, the Stipulation as accepted by the court expressly recognized that the Department might, in fact, change its enforcement priorities in the future, providing that if [the Department] withdraw[s], modif[ies], or cease[s] to follow the [Ogden memo], this case may be reinstituted in its present posture on any Plaintiffs motion. Santa Cruz Stipulation, at. And despite Plaintiffs contention that the Department invoke[ed] the doctrine of voluntary cessation in order to obtain a dismissal in the Santa Cruz case on grounds of mootness, see id., mootness was never briefed, and the Santa Cruz case was not dismissed on that basis. Instead, the parties agreed to language in the Stipulation of Dismissal that simply recognized that, in light of the Ogden memo which described a general view regarding prosecutorial priorities and resources those particular plaintiffs felt no need to continue litigating their case at that time, but that the litigation could go forward if the Department s position, as set forth in the Ogden memo, were to change. Again, the Santa Cruz court s acceptance of the parties Stipulation dismissing the case without prejudice cannot be read to rely on any promise by the Department regarding its future enforcement activities. Finally, Plaintiffs cannot show that Defendants would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. New Hampshire, U.S. at -. The stipulated dismissal in Santa Cruz was not intended to benefit Plaintiffs, and proceedings in this case are unaffected by that dismissal (though Plaintiffs arguments, like most Significantly, the remedy set forth in the stipulated dismissal was that the Santa Cruz plaintiffs could reinstitute their lawsuit. Id. Plaintiffs here are thus claiming a right to relief enjoining the federal government s enforcement activities before the Court has fully considered the merits of their claim -- that extends far beyond what the Santa Cruz plaintiffs themselves could seek. Indeed, given the posture of Santa Cruz at the time it was dismissed with only one (Tenth Amendment) claim remaining at issue the plaintiffs right to renew their suit was limited to that single claim. See id. (providing that any defenses based on timeliness will be based solely on the delay, if any, after the alleged change of policy on which the Plaintiffs base the reinstitution of this lawsuit ; and that all prior rulings [in the Santa Cruz litigation] shall remain as law of the case ). Case No. - SBA

19 Case:-cv-0-SBA Document Filed// Page of 0 0 of those asserted by the Santa Cruz plaintiffs, are foreclosed by Supreme Court and Ninth Circuit controlling precedent). Plaintiffs therefore cannot sustain their claim that judicial estoppel bars any enforcement action contemplated in the cease and desist letters sent to dispensary landlords. C. Neither the Commerce Clause nor the Tenth Amendment Shields the Plaintiffs from the Application of Federal Law Plaintiffs contend that their distribution, possession, and use of marijuana, allegedly for medical purposes and allegedly in compliance with state law, cannot be subject to federal regulation pursuant to the Commerce Clause. Pl. Mem.. As Plaintiffs acknowledge, id., binding precedent holds to the contrary. As described above, in Gonzales v. Raich, U.S. (00), the Supreme Court held that the CSA is a valid exercise of federal power under the Commerce Clause, even as applied to prohibit the possession or use of marijuana produced and consumed locally for medical purposes. Id. at. The Court thus upheld the federal statute even as applied to activity that was legal under state law, reasoning that [t]he Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. Id. at. Because the CSA is a valid exercise of Congress s commerce power, Plaintiffs Tenth Amendment claim necessarily fails. [T]he Tenth Amendment s text is clear: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved In a footnote, Plaintiffs reference the notion that, if a governmental agent affirmatively assures a party that its conduct is legal, it may not then initiate prosecution for violations of federal law. Pl. Mem. n.. Plaintiffs characterization of this doctrine is erroneous. Courts have recognized that an entrapment by estoppel defense may, in rare circumstances, be invoked in a criminal prosecution, after it has been initiated, as a means of escaping liability for past conduct. See, e.g., United States v. Weitzenhoff, F.d, (th Cir. ); United States v. Brebner, F.d 0, 0 (th Cir. ). The doctrine cannot possibly justify continued illegal activity after notification that the activity is, in fact, illegal. Here, the doctrine has no application because no criminal proceedings have been initiated against plaintiffs. Moreover, nothing in the Ogden memo can be read to justify reliance on the notion that compliance with state law would always and forever immunize individuals from federal enforcement efforts under the CSA. Rather, as described above, the memo expressly warns that it is not intended to alter in any way the Department s authority to enforce federal law, and that even clear and unambiguous compliance with state law would not create a legal defense in any such enforcement proceeding. Ogden Mem. at ; see Stacy, F. Supp. d at 0-0 (rejecting criminal defendant s entrapment by estoppel defense, which had relied on the Ogden memo). Case No. - SBA

20 Case:-cv-0-SBA Document Filed// Page0 of 0 0 to the States respectively, or to the people. The powers delegated to the United States by the Constitution include those specifically enumerated powers listed in Article I along with the implementation authority granted by the Necessary and Proper Clause. Virtually by definition, these powers are not powers that the Constitution reserved to the States. United States v. Comstock, 0 S. Ct., (00) (emphasis added by the Court); see also United States v. Jones, F.d 0, (th Cir. 000) ( [I]f Congress acts under one of its enumerated powers, there can be no violation of the Tenth Amendment. ). The Ninth Circuit accordingly held, on remand from the Supreme Court s decision in Raich, that the CSA does not violate the Tenth Amendment, even applied to actions relating to medical marijuana that would be legal under state law. Raich II, 00 F.d at. Plaintiffs inexplicably discount the Ninth Circuit s decision on this point as dicta. Pl. Mem. n.. It is not; the plaintiffs there pursued the same Tenth Amendment claim as do Plaintiffs here, and the Court of Appeals rejected that claim. Plaintiffs also contend that the CSA violates the Tenth Amendment because it interfere[s] with the exercise of State sovereign powers. Pl. Mem.. The Act, however, does not require the [state legislature] to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals. Raich II, 00 F.d at n. (brackets in original; quoting Reno v. Condon, U.S., (000)). It accordingly poses no commandeering issue that might raise a Tenth Amendment concern. Id. D. Plaintiffs Do Not Have a Ninth Amendment or Substantive Due Process Right to Distribute, Possess, or Use Marijuana Plaintiffs assert that they have a right to distribute, possess, and use marijuana that is protected by either the Fifth or the Ninth Amendment. They describe this asserted right variously as a right to be free of government intrusion with respect to one s body ; to be free of pain ; to ameliorate pain ; or to consult with one s doctor about one s medical condition. Pl. Mem.,. However Plaintiffs choose to characterize their claim, it is foreclosed by the Ninth Circuit s decision on remand in Raich. The Ninth Amendment does not independently secure any judicially-enforceable Case No. - SBA

21 Case:-cv-0-SBA Document Filed// Page of 0 0 constitutional rights. See Schowengerdt v. United States, F.d, 0 (th Cir. ). The Court of Appeals accordingly considered the Ninth Amendment together with the Fifth Amendment in addressing whether there is a substantive due process right to use marijuana for claimed medical purposes and held that no such right exists. Raich II, 00 F.d at - & n.0. The Court recognized that substantive due process protects asserted rights only if they are deeply rooted in this Nation s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. Id. at (quoting Washington v. Glucksberg, U.S. 0, 0- ()). The Court also understood that, under Glucksberg, it was obligated to carefully formulat[e] a narrow definition of the interest at stake, instead of accepting a plaintiff s broad rhetorical flourishes, before deciding whether substantive due process protects that interest. Consistent with the Glucksberg methodology, the Court asked whether the Due Process Clause specifically protects a right to use marijuana to preserve bodily integrity, avoid pain, or prolong life. Id. The asserted right to use marijuana, even by persons who claim they need to use it to alleviate serious medical symptoms, does not meet the exacting standards required for the recognition of a new substantive due process right. No such right is deeply rooted in this Nation s history and tradition, id. (quoting Glucksberg, U.S. at 0-), particularly given the long history of federal regulation aimed to limit or prohibit the use of marijuana for any purposes. See Controlled Substance Act of 0, Pub. L. No. -, Stat. ; Marihuana Tax Act of, Pub. L. No. -, 0 Stat. (repealed 0). Nor could it be said that the distribution or use of marijuana is implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. Raich II, 00 F.d at (quoting Glucksberg, U.S. at 0-). The Raich decision is binding here, and dictates the rejection of Plaintiffs due process claim. It is, therefore, puzzling that Plaintiffs contend that the Ninth Circuit s decision supports their claim. They reason that, when the Ninth Circuit rejected the identical due process claim four years ago, only eleven states had passed laws that had decriminalized medical marijuana. See Pl. Mem. - (quoting Raich II, 00 F.d at -). They contend that six additional Case No. - SBA

22 Case:-cv-0-SBA Document Filed// Page of 0 0 jurisdictions have since enacted similar legislation, see id. n. (citing legislation in Arizona, District of Columbia, Delaware, Michigan, New Jersey, and New Mexico) and that legislation is pending in six more states, see id. From this they conclude that a judicially-enforceable fundamental right to use marijuana has emerged. Id. -. This Court is not empowered to overrule the Ninth Circuit s decision in Raich in the manner that Plaintiffs suggest. See, e.g., Citizens for Better Forestry v. USDA, F.d, (th Cir. 00) (court of appeals precedent is binding on district court). But Plaintiffs claim would fail even on a blank slate. Plaintiffs claim is that legislatures in states comprising about half of the country s population can bind the other half of the country. This certainly is not the law. The decriminalization measures in the six states that have acted since the Raich decision cannot retroactively create a deeply rooted history and tradition of a constitutional right to use marijuana, nor do those measures establish that a right to use marijuana is necessary to ensure that liberty and justice would exist. Plaintiffs contend that due process requires the court to defer to the judgment of the people of the states that have enacted marijuana decriminalization measures. But the People also act through their representatives in Congress, which has unequivocally declared that marijuana has a high potential for abuse, that it has no currently accepted medical use in treatment in the United States, and that [t]here is a lack of accepted safety for use of [marijuana] under medical supervision. U.S.C. (b). If there is any conflict between the legislative pronouncements of the People s representatives in Congress and their representatives in the state legislatures, the Supremacy Clause dictates the result of that conflict. Plaintiffs rely on Lawrence v. Texas, U.S. (00), as support for their claim. But the Ninth Circuit already had considered Lawrence in its decision in Raich, and adhered to its conclusion that there is no substantive due process right to use marijuana allegedly for medical purposes. Raich II, 00 F.d at. Lawrence, in any event, did not mechanically engage in a head count of states in the manner that plaintiffs ask the Court to do here. Instead, it noted a virtually universal pattern of nonenforcement of the few remaining criminal sodomy laws, but did not rely on that pattern alone in reaching its holding. U.S. at. In addition, the right involved in Lawrence unlike that alleged here was not one that the nation, acting through Congress, had already unequivocally rejected. Case No. - SBA

23 Case:-cv-0-SBA Document Filed// Page of 0 0 E. Plaintiffs Selective Prosecution Argument Has No Merit Plaintiffs also claim that their equal protection rights are violated because () the federal government distributes marijuana to patients in a federally-approved scientific study, and () Defendants prosecutorial conduct toward medical marijuana cooperatives and landlords in California irrationally differs from their prosecutorial conduct in other states. First, Plaintiffs claim that the federal government seemingly violates its own laws by distributing cannabis to patients in approved scientific studies, Pl. Mem., is unfounded and provides no bases for an equal protection claim. Plaintiffs are presumably referring to the Food and Drug Administration ( FDA ) s investigational new drug ( IND ) program, through which drugs that are under clinical investigation may be distributed to participants in a controlled study. See U.S.C. (b)-(d). The CSA contains but one express exception, and it is available only for Government-approved research projects, [ U.S.C.] (f). United States v. Oakland Cannabis Buyers Co-op., U.S., 0 (00). Accordingly, IND participants unlike Plaintiffs are plainly acting in accord with federal law. They therefore cannot be considered similarly situated to Plaintiffs. Further, Plaintiffs have no constitutional right to receive unapproved drugs. See Smith v. Shalala, F. Supp., (D.D.C. ) (holding that there was no equal protection violation in refusing to admit the plaintiff into the IND) (citing Carnohan v. United States, F.d 0 (th Cir. 0)); Kuromiya v. United States, F. Supp. d, (E.D. Pa. ) (holding that government decision to discontinue compassionate use program pursuant to which a small number of individuals received marijuana did not violate equal protection principles). And it is entirely rational indeed it is required by the express language of the CSA for research subjects who are receiving marijuana in a federally-approved scientific study (and therefore fall within the exception to the CSA) to be treated differently from those who are not. Plaintiffs fail to articulate how it could possibly be irrational to limit the number of individuals who may legally distribute and possess a drug to those participating in a scientific study whose very purpose is to test the efficacy and safety of Case No. - SBA