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MARIJUANA MOMENT
COURT BRIEF SLAMS DEA’S ‘INDEFENSIBLE’ RATIONALE FOR FIRING AGENT OVER POSITIVE
THC TEST ATTRIBUTED TO CBD HEMP PRODUCT
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Court Deems Prohibition Unconstitutional
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* Court Brief Slams DEA’s ‘Indefensible’ Rationale For Firing Agent Over
Positive THC Test Attributed To CBD Hemp Product
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POLITICS
COURT BRIEF SLAMS DEA’S ‘INDEFENSIBLE’ RATIONALE FOR FIRING AGENT OVER POSITIVE
THC TEST ATTRIBUTED TO CBD HEMP PRODUCT
Published
7 hours ago
on
November 17, 2023
By
Kyle Jaeger
The Drug Enforcement Administration (DEA) fired a former agent based on an
“unjustifiable, unlawful, and inexplicable” rationale after he tested positive
for THC after using CBD products that were marketed as being derived from
federally legal hemp, an attorney argued in a new brief in a federal court case
challenging the removal.
Anthony Armour—described by DEA itself as an “outstanding” special agent during
his 16-year tenure—was terminated in 2019 following a random drug screening that
revealed traces of THC metabolites. He admitted to taking CBD for chronic pain
as an opioid alternative—and he turned over the products he believed to be
federally legal under the 2018 Farm Bill—but DEA upheld his firing even upon
appeal.
In a brief submitted to the U.S. Court of Appeals for the Federal Circuit this
week, the former DEA agent’s attorney, Matt Zorn, challenged a series of
arguments from the agency, asserting that it relied on “undeniably flawed
evidence” to support its claim that Armour unlawfully used marijuana by
consuming a CBD product he believed to be within the federal definition of legal
hemp.
“This is all indefensible enough. But [DEA’s response] disturbingly sheds new
light on how an outstanding DEA agent landed a draconian punishment for an
unintentional act,” the brief says. “Deep in the Response, the government notes
that DEA intended to remove Armour regardless of his intent, outstanding
service, and remorse. DEA would have removed Armour from federal service even if
he were just negligent in purchasing CBD products.“
“DEA could have charged Armour whatever it wanted under its guidelines.
Likewise, it can fashion whatever drug policy it desires,” it says. “But DEA put
Armour on a pedestal and charged him with use/possession of marijuana and never
proved the charge. Instead, it took unjustifiable, unlawful, and inexplicable
shortcuts.”
“DEA cannot fire Armour for unlawful use/possession based on his apparent
negligence, recklessness, or poor judgment in buying widely marketed CBDs. To
remove him based on the charge it brought, DEA had to show that Armour acted
with intent and provide substantial evidence that he used marijuana,” the brief
continues. “In both respects, DEA failed. As a result, Armour’s removal must be
reversed, and regardless, the penalty of removal is unjustifiable.”
The brief argues that, because it’s “undisputed” that Armour didn’t intend to
use or possess marijuana, “the maximum reasonable penalty is no penalty at all,”
and poor judgement or negligence doesn’t justify a marijuana possession charge,
contrary to DEA’s position.
Armour’s attorney pointed to multiple pieces of analogous caselaw that he said
establishes how “unintentional use of illegal substances does not warrant
removal.” For example, a DEA agent who tested positive for illegal drugs after
injecting steroids that were represented to him by a personal trainer as legal
had his removal reversed upon appeal. In 2015, another federal officer with the
Air Force who accidentally ate a THC-infused brownie had his removal cancelled
upon appeal.
“The Court may straightforwardly resolve this appeal on the issue of
intentionality. Still, the [appeals board’s] errors do not stop there. Beyond
there being no evidence of intent, there was no substantial evidence that Armour
used marijuana,” it says.
The test used to justify the agent’s removal did not determine whether the THC
in his system was from consuming federally legal hemp or illegal marijuana, the
brief says. Further, it says that the appeals board “agreed” that the test used
to analyze the CBD product Armour voluntarily provided was “undeniably flawed.”
The Farm Bill that legalized hemp and its derivatives like CBD containing up to
0.3 percent THC by dry weight has forced many federal agencies to reconcile
their workplace drug policies. That includes DEA—but the departmental guidance
only came after the former agent was terminated, which is noted in a briefing
his attorneys filed with the U.S. Court of Appeals for the Federal Circuit in
May.
For its part, DEA said in a response briefing in September that the former
agent’s challenges to the termination are “without merit and improperly invite
the Court to ignore well-established Federal drug policies and to reweigh the
evidence in contravention of the standard of review.”
Armour, who has solicited financial support from the public as he continues to
struggle to find employment amid legal costs to fight the in court, has
emphasized that his problem isn’t with DEA as an institution.
He told Marijuana Moment in an interview last month that he recognizes there are
many who use cannabis who hold deep resentment with the agency given its
historic role in enforcing criminalization—and while he hopes to return to work
there, he agrees that the laws around cannabis need to fundamentally change.
“I support legalization. I support common sense legislation,” he said. “And,
obviously, the science backing legalization is there, and it’s just been ignored
this entire time. Thankfully, we have people that are able to bring the issue to
light and educate a lot of people.”
—
Marijuana Moment is tracking more than 1,000 cannabis, psychedelics and drug
policy bills in state legislatures and Congress this year. Patreon supporters
pledging at least $25/month get access to our interactive maps, charts and
hearing calendar so they don’t miss any developments.
Learn more about our marijuana bill tracker and become a supporter on Patreon to
get access.
—
As advocates and lawmakers work to reshape federal marijuana laws, however,
federal agencies continue to communicate that their current policies still
prohibit workers from engaging in state-legal cannabis activity, and that they
should exercise caution with respect to legal hemp products.
For example, U.S. Department of Agriculture (USDA) food safety workers were
recently told to avoid cannabis products, including federally legal CBD, as the
agency observes an “uptick” in positive THC tests amid “confusion” as more
states enact legalization.
The U.S. Department of Transportation (DOT) has finalized a rule to amend its
drug testing policy in a way that could have significant implications for
truckers, commercial drivers, pilots and other federally regulated transit
workers who use marijuana off the job.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has updated its
employment policy to make it so applicants who’ve grown, manufactured or sold
marijuana in compliance with state laws while serving in a “position of public
responsibility” will no longer be automatically disqualified—whereas those who
did so in violation of state cannabis policies won’t be considered.
The Secret Service also recently relaxed restrictions on prior marijuana use by
prospective agents.
Late last year, draft documents obtained by Marijuana Moment showed that the
federal Office of Personnel Management (OPM) was proposing to replace a series
of job application forms for prospective workers in a way that would treat past
cannabis use much more leniently than under current policy.
The Biden administration instituted a policy in 2021 authorizing waivers to be
granted to certain workers who admit to prior marijuana use, but certain
lawmakers have pushed for additional reform.
Meanwhile, people working in the climate sector would be protected from being
fired for testing positive for marijuana if they’re based in a legal state under
a recently refiled bill from more than 40 congressional Democrats.
The House Rules Committee has repeatedly blocked attempts by lawmakers to end
the practice of drug testing federal job applicants for marijuana as part of
large-scale spending bills this session.
Over in the Senate, however, members passed defense legislation in July that
contains provisions to bar intelligence agencies like the CIA and NSA
from denying security clearances to applicants solely due to their past
marijuana use.
The House Oversight and Accountability Committee also passed a standalone
bipartisan bill in September that would prevent the denial of federal employment
or security clearances based on a candidate’s past marijuana use.
Read the former DEA agent’s brief in the federal appeals court case below:
Photo elements courtesy of rawpixel and Philip Steffan.
> Pennsylvania House Approves Senate-Passed Bill To Let Medical Marijuana
> Growers Sell Directly To Patients
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Kyle Jaeger
Kyle Jaeger is Marijuana Moment's Sacramento-based managing editor. His work has
also appeared in High Times, VICE and attn.
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