Pubdate: Wed, 17 Dec 2003
Source: Santa Cruz Sentinel (CA)
Copyright: 2003 Santa Cruz Sentinel
Contact:  http://www.santacruzsentinel.com/
Details: http://www.mapinc.org/media/394

COURT BOOSTS MEDICAL POT

San Francisco  - A federal appeals court ruled Tuesday that a congressional 
act outlawing marijuana may not apply to sick people with a doctor's 
recommendation in states that have approved medical marijuana laws.

The 9th U.S. Circuit Court of Appeals ruled 2-1 that prosecuting these 
medical marijuana users under a 1970 federal law is unconstitutional if the 
marijuana isn't sold, transported across state lines or used for 
non-medicinal purposes.

"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," Judge Harry Pregerson wrote for 
the majority.

The court added 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."

The decision was a blow to the Justice Department, which argued that 
medical marijuana laws in nine states were trumped by the Controlled 
Substances Act, which outlawed marijuana, heroin and a host of other drugs 
nationwide.

But it was welcome news for groups like the Santa Cruz-based Wo/Men's 
Alliance for Medical Marijuana, which was raided by federal agents in 
September 2002.

"This is so perfect," said Mike Corral, co-founder of the group. "This is 
the best Christmas present that could come down for our group.

WAMM member Suzanne Pfeil said the ruling eases the anxiety for medical 
marijuana patients who must deal with chronic illness and the possibility 
of federal prosecution.

"Anything that can reduce the stress and fear medical marijuana patients 
live with since (Attorney General John) Ashcroft began these raids is 
wonderful news."

The Justice Department was not immediately available to comment on the 
ruling from a court some call the nation's most liberal appeals court.

Randy Barnett, a Boston University constitutional law professor, said the 
case was precedent-setting.

"It's the first time there's been a ruling that the application of the 
Controlled Substances Act to the application of cultivation of medical 
cannabis is unconstitutional," he said.

The case concerned two seriously ill California women who sued Attorney 
General John Ashcroft. They asked for a court order letting them smoke, 
grow or obtain marijuana without fear of federal prosecution.

The case underscores the conflict between federal law and California's 1996 
medical marijuana law, which allows people to grow, smoke or obtain 
marijuana for medical needs with a doctor's recommendation.

Corral said Tuesday's ruling could have implications for two suits WAMM has 
before the 9th Circuit, one seeking return of 167 marijuana plants uprooted 
during the September 2002 raid and another seeking an injunction that would 
bar federal agents from raiding medical marijuana gardens. Santa Cruz 
County and the city of Santa Cruz signed on as plaintiffs to that latter suit.

Ben Rice, one of WAMM's attorneys, called the ruling "pretty fabulous."

"What it tells us is the panel agreed with us - the commerce clause (of the 
Constitution) does not allow that kind of intrusion into state law," Rice said.

He said WAMM's cases could proceed in two directions, staying before a 9th 
Circuit Court panel while also going back to U.S. District Court Judge 
Jeremy Fogel for reconsideration. Fogel was the judge who heard the cases 
that led to WAMM's appeals.

However, Rice said there will be more legal battles ahead, as Tuesday's 
ruling is almost certain to be appealed.

"We've known all along this is going to mean a trip to the Supreme Court," 
Rice said.

A U.S. District judge tossed the case in March, saying the Controlled 
Substances Act barred him from blocking any potential enforcement action 
against medical marijuana patients Angel Raich and Diane Monson. Tuesday's 
ruling sends the case back to U.S. District Judge Martin Jenkins, who was 
ordered to sign a preliminary injunction blocking federal drug action 
directed toward Raich and Monson.

While the women's case has yet to be tried, the court said the two "have 
demonstrated a strong likelihood of success on the merits."

Raich, a 38-year-old Oakland woman suffering from ailments including 
scoliosis, a brain tumor, chronic nausea, fatigue and pain, smokes 
marijuana every few hours. She said she was partially paralyzed on the 
right side of her body until she started smoking marijuana.

She and her doctor say marijuana is the only drug that helps her pain and 
keeps her eating to stay alive.

"I feel safe for the very first time ever since I've been a patient," Raich 
said of the ruling. "This is very triumphant not only for myself but for 
patients and caregivers across the country."

Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington 
state have laws similar to California's, which has been the focus of 
federal drug interdiction efforts. Agents have raided and shut down several 
medical marijuana growing clubs.

The appeals court, the nation's largest, does not have jurisdiction over 
Colorado and Maine.

The case is Raich v. Ashcroft, 03-15481.

Sentinel staff writer Brian Seals contributed to this report.
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MAP posted-by: Beth Wehrman