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Marijuana Fifth Amendment Lawsuit Seeks to Overturn Self-Incriminating State Licensing Requirements

Businesses would revert back to pre-2010 business models
protected by the Constitution

For immediate release: Dec. 5, 2014

Contact: Robert J. Corry, Jr.: (303) 634-2244
Kathleen Chippi: 888-EAT-HEMP (888-328-4367)

{Denver} -- Attorney Robert J. Corry, Jr. filed a lawsuit on Dec. 5, 2014 in Denver District Court seeking to permanently end Colorado's marijuana self-incriminating regulatory licensing system, on the grounds that the regulations violate a citizen's Fifth Amendment right against self-incrimination, since marijuana remains illegal under federal law.

Click here to read the complaint

Fifth Amendment MarijuanaCorry writes, "Plaintiffs seek to enjoin State and Local Defendants from implementation and enforcement of a reckless scheme of regulation, registration, licensing, and taxation, that requires self-incrimination through mandatory, unequivocal, and law enforcement-accessible
admissions of involvement with a federally-illegal Schedule I narcotic: Marijuana."

If successful, Corry's lawsuit would be the basis for overturning ALL regulations regarding marijuana licensing and registration in Colorado on grounds that the regulations require a person to incriminate themselves.

This would NOT require any medical marijuana businesses to shut down. It would allow all medical marijuana businesses to revert back to their business model that existed before July 1, 2010, when the regulations contained in House Bill 10-1284 went into effect. Pre-HB1284, there were hundreds of medical marijuana businesses in Colorado that were operating safely and legally under the guidelines of Article XVIII, Section 14 of the Colorado Constitution (often known as "Amendment 20", Colorado's medical marijuana law).

"These state regulations are reckless and put all marijuana businesses in Colorado at extreme risk," says Corry. "Overturning the regulations will allow businesses to operate without incrimination and will better protect them from federal law enforcement."

As evidence that state regulations put people at risk of federal penalties, Corry references a recent federal forfeiture action, which seeks to seize the assets of several individuals who owned and operated Medical Marijuana Centers in Colorado. The forfeiture action shows that "records of the Medical Marijuana Enforcement Division" (MMED) were used repeatedly to show that the owners were in violation of federal marijuana law. The only proof the feds needed of federal violations was the fact that the people were registered with the MMED. The MMED registration alone was enough to prove they were in violation of federal law.

Click here to read the federal forfeiture action (large file - 11MB)

Corry contends that as long as marijuana remains illegal under federal law, states cannot require people to give any information about themselves in order to distribute or purchase marijuana. ANY and ALL requirements to identify oneself would result in a "real and appreciable" risk of self-incrimination, and would require a citizen to implicate himself in federal crimes.

The complaint was filed on behalf of an anonymous Medical Marijuana Center owner, referred to as "John Doe", and several individuals, including Kathleen Chippi, Miguel Lopez and William Chengelis.

Corry writes: "The relief requested by Plaintiffs would restore Colorado to the status quo of pre-July 1, 2010 in which there were hundreds of marijuana dispensaries operating legally under Colorado Law, without any concomitant requirement of mandatory Federal self-incrimination through marijuana-specific license applications and disclosures, marijuana-specific licensure, marijuana-specific record-keeping, marijuana- specific tracking of marijuana product, payment of marijuana-specific taxes on marijuana sales, and other requirements, all geared toward regulating a marijuana market, but which have the effect of compelled self-incrimination."

Corry claims that the regulations "require plaintiffs to incriminate themselves as committing multiple violations of federal law, including but not limited to, participating in, aiding and abetting, or conspiring to commit a 'continuing criminal enterprise' and 'money laundering.'"

Corry cites a 1973 Colorado Supreme Court case (People vs. Duleff) that overturned a man's conviction for "selling marijuana without a license" because compliance with the licensing requirement would have required that person to violate his constitutional right against
self-incrimination. Corry writes, "The Colorado Supreme Court held specifically that the Fifth Amendment prohibits state licensing requirements that force a person to reveal a violation of federal law."

From the Duleff decision, Corry quotes the Colorado Supreme Court. "The Fifth Amendment prohibits licensing requirements from being used as a means of discovering past or present criminal activity which is subject to prosecution by calling attention to the licensee and his
activities....There is no doubt that the information which Duleff would have been required to disclose would have been useful to the investigation of his activities, would have substantially increased the risk of prosecution, and may well have been a direct admission of guilt under federal law. The Fifth Amendment protects individuals from such compulsory, incriminating disclosures and provides a complete defense to prosecution." -- Colorado Supreme Court (1973)

Corry also cites a 1969 US Supreme Court case (Timothy Leary v. United States) in which the highest court in the country overturned Leary's marijuana possession conviction and ruled that the federal Marihuana Tax Act of 1937 was illegal, due to the fact that a person seeking a tax stamp and complying with the law would be forced to incriminate himself, in violation of the Fifth Amendment.

Corry writes, "The U.S. Supreme Court overturned the criminal convictions of Dr. Timothy Leary for alleged violations of the Marihuana Tax Act of 1937, because the marijuana tax necessarily required the payer of the tax to incriminate himself."

Corry asks the Court to:
"Enter a temporary restraining order, preliminary injunction, and/or permanent injunction ordering the Defendants, and all those acting in concert with them, to cease and desist from enforcement of the marijuana tax statutes, to cease and desist from any further collection, deposit, or laundering of the marijuana taxes, for a full refund of marijuana tax monies paid by any person or entity, and for destruction of all tax records and identifying information after full refunds are made."

"Anyone that admits to the state on paper that they're committing violations of federal law is asking for serious trouble," says Kathleen Chippi, a plaintiff and member of the Patient and Caregiver Rights Litigation Project. "You can lose custody of your children, lose your employment, lose your right to own a firearm, lose your occupational license, lose your housing, your health insurance and your veteran's benefits. You can have all your assets seized by the feds. You can lose the ability to get an organ transplant, of course, you can also lose your freedom."

"We knew about the Leary case and more recently discovered the Duleff case. In both cases, the courts were very clear that citizens could not be required to incriminate themselves. I am confident that the judge will rule in our favor," she says.

Fifth Amendment Marijuana


Click here to read the complaint

Click here to read the federal forfeiture action (large file - 11MB)

People v. Duleff (Colorado Supreme Court case)

US v. Leary (US Supreme Court case)

Read more about the Fifth Amendment here:

Denver 420 Rally

Law Firm of Robert J. Corry, Jr.

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