Pubdate: Thu, 18 Dec 2003
Source: Associated Press (Wire)
Copyright: 2003 Associated Press
Author: David Kravets, AP Legal Affairs Writer
Cited: Drug Enforcement Administration ( www.dea.gov )
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/ocbc.htm (Oakland Cannabis Court Case)

MEDICAL MARIJUANA DECISION DOESN'T SANCTION POT SALES TO THE SICK

SAN FRANCISCO -- A decision by a federal appeals court here approving
the use and cultivation of medical marijuana did not address the
broader question of whether medical marijuana can be bought and sold.

That issue, the next legal battle in the medical marijuana movement,
is still pending before the 9th U.S. Circuit Court of Appeals. A
three-judge panel of the same court ruled Tuesday that a congressional
act outlawing marijuana can not apply in states with laws permitting
sick people to use marijuana with a doctor's recommendation.

In Tuesday's ruling, the appeals court said prosecuting medical
marijuana users under a 1970 federal drug law is unconstitutional if
the marijuana isn't sold, transported across state lines or used for
non-medicinal purposes.

The court, in explaining its reasoning, said states were free to
experiment with their own laws and that the Constitution's Commerce
Clause forbade federal intervention because the laws at issue did not
impact commerce outside a state's boundaries.

"That means people could cultivate and consume cannabis for medical
purposes free of federal interference, subject to state law," said
Randy Barnett, a Boston University constitutional law scholar.

Alaska, Arizona, California Colorado, Hawaii, Maine, Nevada, Oregon
and Washington state have laws that allow persons to grow, smoke or
use medical marijuana with a doctor's recommendation.

The Drug Enforcement Administration, refusing to recognize medical
marijuana laws, has raided several California patients' backyards,
along with pot clubs that sell marijuana to the sick. Most clubs, the
only avenue by which many patients can obtain marijuana, have gone
underground for fear of being raided.

California's 7-year-old medical marijuana law, the nation's first,
does not expressly allow the sale of marijuana, but authorities in San
Francisco, Oakland, Santa Cruz and elsewhere have tacitly allowed
clubs to operate.

The Justice Department declined comment on whether it would appeal
Tuesday's decision. The ruling was the first time the federal
Controlled Substances Act, which outlaws marijuana, heroin, LSD and
other drugs, was declared unconstitutional as applied to medical marijuana.

"We are currently reviewing the court's ruling," Justice Department
spokesman Charles Miller said. "No determination has been made as to
what our next step will be."

Jeff Jones, director of the Oakland Cannabis Buyer's Cooperative, said
the 9th Circuit panel's decision could bolster his bid to resume
selling pot to the sick. Federal authorities shut the club down
several years ago.

"We feel our case is more ripe now for an interpretation that creates
affordable and safe access for these patients," Jones said.

The government first began cracking down on medical marijuana under
the Clinton administration, and the Bush administration has continued
the policy. The federal government maintains marijuana has no medical
benefits, but patients suffering from cancer and other serious
ailments say it relieves pain and nausea when no other drugs can.

The Oakland cooperative has a lawsuit pending before the San
Francisco-based 9th Circuit that it hopes will resolve the remaining
legal questions that make it difficult for patients to obtain
marijuana legally. In 2001, the Supreme Court said the Oakland club
could not sell marijuana based on the "medical necessity" of sick and
dying customers.

A decision in the cooperative's case is expected here any
day.

David Kravets has been covering state and federal courts for a
decade.
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MAP posted-by: Larry Seguin