Pubdate: Thu, 18 Dec 2003
Source:  CounterPunch (Web)
Contact:  http://www.counterpunch.org/
Author: Ann Harrison
Note: Ann Harrison is a freelance reporter working in the Bay Area
Note: Posted as an exception to MAP's web-only source policies.

A Landmark Victory

COURT SHOOTS DOWN ASHCROFT ON MEDICAL POT

Medical marijuana patients won a landmark legal victory December 16th
when the Ninth U.S. Circuit Court of Appeals ruled that the federal
government has no constitutional authority to prosecute two California
women for possessing and growing marijuana for their personal medical
use.

Federal prosecutors have long argued that California's 1996 medical
marijuana law, Prop. 215, was superseded by the federal Controlled
Substances Act which outlaws the use or cultivation of marijuana for
any purpose. Law enforcement agents have used this reasoning to raid
and arrest medical marijuana patients and their caregivers. But in a
2-1 decision, the court found that if the marijuana is not purchased,
transported across state lines or used non-medically, the federal
government has no jurisdiction. The ruling covers the seven states in
the Ninth Circuit that have passed medical marijuana laws including
Alaska, Arizona, California, Hawaii, Nevada, Oregon and Washington.
California just passed another medical marijuana law, SB420 which goes
into effect next year.

The appeals court ruling was prompted by a lawsuit filed in October
2002, by medical marijuana patients Angel McClary Raich and Diane
Monson plus Raich's two anonymous caregiver growers. It charged
Attorney General John Ashcroft and DEA Administrator Karen Tandy with
exceeding their authority by embarking on a campaign of seizing
privately-grown intrastate medical cannabis from California patients
and caregivers. The complaint charges that defendants harassed,
arrested or prosecuted patients, mounted paramilitary raids against
them, and targeted patients for other civil or administrative actions.
In its ruling, the Ninth Circuit remanded the case back to federal
district court with instructions to issue a preliminary injunction.
The parties in the case have several weeks to appeal the ruling.

If the case is not appealed, the district court will issue the
preliminary injunction which protects Raich and Monson from arrest by
federal agents. The two women argued that their use of marijuana
constituted a medical necessity. Raich says she has an array of
serious medical conditions including an inoperable brain tumor and a
life threatening wasting syndrome. Monson suffers from a degenerative
disease of the spine. Their situation is now similar to the six
patients who already receive medical marijuana from the U.S.
Government under the FDA's "Compassionate Investigational New Drug
Program." Raich says she hopes the ruling in Raich v. Ashcroft sends a
message to Attorney General John Ashcroft and DEA agents that their
harassment of patients is unconstitutional.

"I am totally ecstatic about what this decision will do not only for
me, but for hundreds of thousands of patients across the country,"
said Raich who hopes it will help other patients with cases pending in
federal court. "Not too many people get to come up against someone who
is as evil as John Ashcroft and actually win and that feels very good.
I have the truth on my side, and it was nice to see the justices of
the Ninth Circuit Court of Appeals care about my life."

The ruling was also a sweet victory for Monson whose Oroville,
California home was raided in August 2002 by federal officials who
seized six of her medical marijuana plants. "Diane feels vindicated as
a person who suffered through a raid. This is a source of considerable
joy to her," said plaintiff's attorney Robert Raich who is also Angel
Raich's husband.

According to Robert Raich this is the first time the Controlled
Substances Act has been ruled unconstitutional. He says the court
based their decision on an interpretation of the Commerce Clause which
governs the federal government's ability to control interstate
commerce. The court found that the federal government lacked the power
under this clause to impose the federal law on plaintiffs.

Writing for the majority, Judge Harry Pregerson found that "The
intrastate, noncommercial cultivation, possession and use of marijuana
for personal medical purposes on the advice of a physician is, in
fact, different in kind from drug trafficking." The court further
noted that "this limited use is clearly distinct from the broader
illicit drug market, as well as any broader commercial market for
medical marijuana, insofar as the medical marijuana at issue in this
case is not intended for, nor does it enter, the stream of commerce."

But the dissenting opinion, written by Justice C. Arlen Beam, who was
visiting from the 8th Circuit, equated the actions of the plaintiffs
with those of a wheat farmer named Filburn. Beam felt constrained by
the 1942 war-rationing decision in Wickard v. Filburn, which said that
any wheat grown anywhere, even for home use by the farmer who grew it,
can be regulated by Congress under the Commerce Clause. This dissent
means that the Supreme Court may have to revisit Wickard, which could
significantly reduce federal power to regulate local activities.

The plaintiffs had also argued that the federal Controlled Substances
Act violated state's rights and their right to be free from pain and
suffering under the 5th and 9th Amendments. But the court did not
address those arguments, nor did it consider the distribution and sale
of marijuana. The court is still considering these questions in
another appeal brought by the Wo/Men's Alliance for Medical Marijuana
and the Oakland Cannabis Buyers' Cooperative.

Robert Raich says it remains to be seen how the Ninth Circuit will use
this ruling as it fashions future decisions. "I would hope that the
court would use it as a springboard to provide additional ways for
patients to legally, under federal law, have access to their
medicine," said Raich. "Now that we have secured the right of patients
to possess and use their medication, it is just another step to
recognize that patients have to be able to obtain it from somewhere."

Dale Gieringer, coordinator for the California branch of the National
Organization for the Reform of Marijuana Laws, believes that an appeal
by the U.S. Justice Department to the Supreme Court appears certain.
"Nonetheless," said Gieringer in a statement, "Medical marijuana
supporters are optimistic of victory, due to the fact that the Ninth
Circuit's reasoning was based on recent Supreme Court precedents by
the court's' conservative majority restricting federal powers under
interstate commerce."

Angel Raich, who credits cannabis with getting her out of her
wheelchair, said she wants the Supreme Court justices to understand
that she doesn't have any other method or legal alternatives with
which to fight her illnesses. She says she is enormously grateful to
her physician, Dr. Frank Lucido, for having the courage to stand with
her and give a declaration under oath that states her medical
conditions. "If the cannabis were taken from me, not only would I die
of starvation, I would become crippled and die a torturous death and
that is something that really scares me." said Raich. "If they appeal
the decision, I will continue to fight this battle with every ounce of
breath in my body."
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