Nevada Judge Says Arresting People For Weed Possession Is Unconstitutional
State health officials continue to classify cannabis as an illegal drug, despite adult-use legalization - but a judge just ruled that this is unconstitutional.
Published on September 16, 2022

A Nevada judge just issued a ruling that could stop cops from arresting people for using legal weed.

Nevada legalized medical marijuana in 2000 by way of a voter-approved constitutional amendment, becoming one of the first US states to do so. In 2016, voters approved another ballot measure to fully legalize cannabis, creating a taxed and regulated adult-use retail market. Business has been booming ever since, and the state's medical and recreational pot industries are now selling over $1 billion worth of legal weed a year.

This widespread success hasn't stopped state and local cops from continuing to arrest people for possessing and using legal weed, however. “Police departments are... actually charging people with possession of a controlled substance with intent to sell even if it is marijuana,” Sadmira Ramic, an attorney with ACLU of Nevada, told Marijuana Moment earlier this year. The vast majority of these post-legalization pot arrests are happening in minority and low-income neighborhoods, of course.

The ACLU joined the Cannabis Equity and Inclusion Community (CEIC), a group that has been helping former cannabis offenders get their criminal records expunged, to sue the state. The lawsuit specifically seeks to overturn the conviction of Antoinette Poole, a Nevadan who was charged with a Class E felony for cannabis possession in 2017 – the year that adult-use cannabis became legal in the state.

Beyond just helping Poole, the lawsuit aims to close the legal loophole that allows cops to keep making these discriminatory arrests. Nevada cops still technically have the right to prosecute cannabis-related crimes because the state Board of Pharmacy continues to classify marijuana as a Schedule I drug. Government officials have claimed that they are maintaining this criminal designation in accordance with federal law, which also lists cannabis as a Schedule I drug.

Just like the federal classification that it mirrors, Nevada's Schedule I category is reserved for dangerous, addictive drugs that have no medical value, like meth or heroin. But as the ACLU lawsuit points out, the voter-approved medical marijuana law specifically amended the state constitution to recognize the medical use of cannabis. The suit argues that the Board of Pharmacy's Schedule I classification is a direct violation of that amendment.

“Police departments and district attorneys in Nevada have wasted an immense amount of taxpayer dollars by seeking criminal convictions and penalties for small-time cannabis possession,” Ramic said in a statement. “The failure to remove cannabis as a Schedule I substance not only goes against voters’ will, but it violates the Nevada Constitution which unequivocally recognizes cannabis's medical value.” 

This week, Clark County District Court Judge Joe Hardy agreed that the board's cannabis classification is indeed unconstitutional. “Medical use or value is enshrined in our Constitution,” he said, according to ACLU NV. “It’s clear to me that is correct.”

The ruling does not fully resolve the issue, though. The Board of Pharmacy claims that it has full regulatory authority over cannabis, but both voter-approved legalization measures directly grant that authority to the state Cannabis Compliance Board (CCB). Hardy has so far reserved judgment on which of these boards should actually have this authority. The judge intends to issue a further ruling on the matter after both parties submit additional information for him to review.

It's also possible that the case could be appealed and end up in the state Supreme Court. That may not be good news, given that the Court just decided to overturn the state's cannabis workplace discrimination law.

Cover image via

Chris Moore
Chris Moore is a New York-based writer who has written for Mass Appeal while also mixing records and producing electronic music.
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