19-925 

Adam v. Barr 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

 At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 14th day of November, two thousand nineteen. 

PRESENT: 

ROBERT D. SACK,

PETER W. HALL, 

JOSEPH F. BIANCO,

Circuit Judges. 

_____________________________________ 

Ben Adam, 

Plaintiff-Appellant, 

v. 19-925 

William P. Barr, United States Attorney General, 

Geoffrey Steven Berman, United States Attorney for 

the Southern District of New York, Uttam Dhillon, 

Administrator of the United States Drug Enforcement 

Administration, 

 Defendants-Appellees. 

_____________________________________ 

FOR PLAINTIFF-APPELLANT: Ben Adam, pro se, New York, NY. 

FOR DEFENDANTS-APPELLEES: Jennifer Jude, Benjamin H. Torrance, 

for Geoffrey S. Berman, United States 

Attorney for the Southern District of New 

York, New York, NY. 
2 

Appeal from a judgment of the United States District Court for the Southern District of 

New York (Nathan, J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED. 

Ben Adam, proceeding pro se and under a pseudonym, sued the United States Attorney 

General, the United States Attorney for the Southern District of New York, and the Administrator 

of the Drug Enforcement Administration under the Religious Freedom Restoration Act (“RFRA”), 

42 U.S.C. § 2000bb-1(a), the Free Exercise Clause of the First Amendment, and the Equal 

Protection Clause of the Fifth and Fourteenth Amendments. As the founder of an Orthodox 

Jewish organization, Adam believes that the psychoactive properties of the cannabis plant help 

induce a pre-prophetic ecstatic state which can connect an individual to God and the divine realms. 

He claims a right to use cannabis for religious purposes and contends that the defendants should 

not enforce the Controlled Substances Act (“CSA”), listing marijuana as a controlled substance, 

against him. The district court dismissed Adam’s amended complaint, ruling that he did not have 

standing to bring a pre-enforcement challenge for declaratory and injunctive relief. Adam 

appealed. We assume the parties’ familiarity with the underlying facts, procedural history of the 

case, and issues on appeal. 

I. Legal Standard 

“We review de novo a district court’s dismissal of a complaint for lack of standing.” 

Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009). 

“Standing under Article III of the Constitution requires that an injury be concrete, 

particularized, and actual or imminent; fairly traceable to the challenged action; and redressable 

by a favorable ruling.” Cayuga Nation v. Tanner, 824 F.3d 321, 331 (2d Cir. 2016) (quoting 
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Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010) (internal quotation marks 

omitted)). For an alleged injury to support constitutional standing, it cannot be “conjectural or 

hypothetical.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks omitted)). 

Where, as here, a plaintiff asserts injury based on the threat of prosecution, the plaintiff 

need not “expose himself to liability before bringing suit to challenge the basis for the threat—for 

example, the constitutionality of a law threatened to be enforced.” MedImmune, Inc. v. 

Genentech, Inc., 549 U.S. 118, 128–29 (2007) (collecting cases). Rather, pre-enforcement review 

is available where the “circumstances . . . render the threatened enforcement sufficiently 

imminent.” Susan B. Anthony List, 573 U.S. at 159; see also Babbitt v. United Farm Workers 

Nat’l Union, 442 U.S. 289, 298 (1979) (plaintiff “must demonstrate a realistic danger of sustaining 

a direct injury as a result of the statute’s operation or enforcement”). A sufficiently imminent 

injury can be established by plausible allegations that a plaintiff intends to engage in conduct 

proscribed by a statute, and “there exists a credible threat of prosecution thereunder.” Susan B. 

Anthony List, 573 U.S. at 160 (quoting Babbitt, 442 U.S. at 298). A credible threat is not 

established by “imaginary or speculative” fears of prosecution. Knife Rights, Inc. v. Vance, 802 

F.3d 377, 384 (2d Cir. 2015) (quoting Babbitt, 442 U.S. at 298). Although “courts are generally 

‘willing to presume that the government will enforce the law as long as the relevant statute is recent 

and not moribund,’” Cayuga Nation, 824 F.3d at 331 (quoting Hedges v. Obama, 724 F.3d 170, 

197 (2d Cir. 2013)), the mere existence of a law prohibiting intended conduct does not 

automatically confer Article III standing, see Knife Rights, 802 F.3d at 384 (“The identification of 

a credible threat sufficient to satisfy the imminence requirement of injury in fact necessarily 

depends on the particular circumstances at issue.”). 
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II. Discussion 

Adam argues that he has sufficiently alleged standing because “there is an ongoing threat 

of prosecution.” Appellant’s Br. at 10. He then cites numerous cases (most from outside this 

Circuit): (1) where courts have found pre-enforcement standing, without analyzing possible 

similarities to his case; (2) where ripeness requirements have been relaxed when First Amendment 

rights were at stake, without explaining why or how First Amendment ripeness requirements may 

apply to pre-enforcement standing challenges; and (3) where a failure to disclaim intent to enforce 

a law in response to litigation can confer standing. He asserts that he has validly claimed that his 

right to exercise his religion is being burdened because his complaint stated that he has an 

immediate intent to use cannabis as part of his religious practice. He refers generally to his essay 

entitled The Path to the Tree: Prophecy and its Pursuit in the Jewish Tradition, which, he contends, 

was incorporated into his complaint by reference and “thoroughly discussed the purpose and 

circumstances of his intended cannabis use.” Id. at 17. He also refers to a January 2018 

memorandum authored by a former U.S. Attorney General in which the current Administration 

announced its intention to prosecute cannabis possession, distribution, and cultivation. This 

memorandum, Adam contends, makes it clear that he is “under a constant threat of prosecution,” 

which limits his religious practices. Id. at 18. 

Adam’s contentions on appeal essentially repeat the conclusory arguments he made in 

district court concerning an amorphous threat of prosecution based on his intended, but illegal, use 

of marijuana. He reasons that because he intends to use marijuana, and such usage is against a 

law that the federal government enforces, he could be prosecuted. But he does not provide insight 

into any “particular circumstances at issue” here that could support finding a “credible” threat of 

prosecution. Knife Rights, 802 F.3d at 384. He has not alleged, for example, that he plans to 
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possess and distribute marijuana to the members of his organization; nor could he, given his 

statement that, at present, his organization has only one member—Adam himself. At most, as the 

district court concluded, Adam has merely alleged an intention to possess marijuana for his own 

use. But he does not claim that the CSA has been enforced against him in the past, nor that he 

has ever been threatened with prosecution.1 Nor has he made any allegation concerning the past 

or present enforcement of the CSA in general from which a credible threat could be inferred in this 

case. 

The cases that Adam cites to demonstrate that the Government has enforced the CSA and 

has imprisoned people for violating the statute are inapposite. Either they do not involve criminal 

convictions for marijuana, see, e.g., United States v. Lafley, 656 F.3d 936, 940–42 (9th Cir. 2011) 

(finding no violation of RFRA where conditions of supervised release prevented religious use of 

marijuana following conviction for conspiracy to manufacture and possess with intent to distribute 

methamphetamine), or they involve distribution rather than possession, see, e.g., United States v. 

Christie, 825 F.3d 1048, 1054 (9th Cir. 2016) (prosecution for distributing large quantities of 

cannabis as part of defendants’ Hawaii Cannabis Ministry). These cases do not demonstrate that 

the CSA is enforced against the kind of personal religious use that Adam allegedly intends to 

engage in. 

Even the 2018 memorandum by the U.S. Attorney General concerning enforcement of the 

CSA—which the district court refused to consider on the motion to dismiss—does not particularize 

the CSA’s enforcement in relation to Adam; he would simply be at risk just like any other person 

in the country who might violate the CSA. While Adam argues that “a court is to assume that the 

government will enforce its own laws,” Appellant’s Br. at 22, that presumption, in and of itself, is 

1

 Indeed, Adam alleges that he has never been arrested or charged with any marijuana-related crimes, in relation to 

his religious beliefs or otherwise. 
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not sufficient to confer standing, as courts also consider the extent of that enforcement in 

determining whether a credible threat of prosecution exists. For example, in Cayuga Nation, we 

found that the plaintiffs had alleged a credible threat of prosecution not only because their behavior 

was clearly prohibited by an ordinance, but also because the town “announced its intention to 

enforce the Ordinance” against the plaintiffs and warned the plaintiffs that failure to comply might 

constitute an offense punishable by fine, imprisonment, or both. 824 F.3d at 331; see also Susan 

B. Anthony List, 573 U.S. at 164 (discussing history of past enforcement of a statute against the 

petitioners, for the same conduct, as being good evidence that “the threat of enforcement is not 

‘chimerical’” (quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974))); Knife Rights, 802 F.3d at 

385–87 (fear of prosecution not conjectural or hypothetical “given that defendant [district attorney] 

recently identified [plaintiff] as a [state criminal law] violator and pursued enforcement action 

against it”). 

Because Adam has failed to allege facts sufficient to demonstrate a credible threat of 

prosecution under the CSA, the threat of enforcement against him is insufficiently imminent to 

confer Article III standing. See Knife Rights, 802 F.3d at 384. 

 We have reviewed the remainder of Adam’s arguments and find them to be without merit. 

For the foregoing reasons, the judgment of the district court is AFFIRMED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court