MEDICAL POT WINS A LEGAL VICTORY

U.S. Appeals Court Ruling Is Likely to Face a Challenge

Medical marijuana advocates scored a potential legal breakthrough
Tuesday when a federal appeals court ruled that two Northern
California women could use locally grown pot without risking federal
prosecution.

The federal ban on marijuana is probably unconstitutional as applied
to individuals who obtain the drug without buying it, get it within
their state's borders and use it for medical purposes on their
doctors' advice and in compliance with state law, said the Ninth U.S.
Circuit Court of Appeals in San Francisco -- the first court ever to
issue such a ruling.

The 2-1 decision could be short-lived, however. The appeals court has
regularly seen its precedent-setting decisions, particularly those by
liberal panels, overturned by the U.S. Supreme Court. In 2001, the
high court overruled a Ninth Circuit decision that would have allowed
marijuana cooperatives to supply the drug to patients who could not be
treated by legal substances.

The 2001 ruling expressly left some marijuana-related issues unresolved,
including the question addressed Tuesday: whether Congress' power to
regulate interstate commerce applies to locally grown medical marijuana.

Attorney Robert Raich, whose daughter, Angel of Oakland, is one of the
two plaintiffs in the case, said he thought the ruling stood a strong
chance of withstanding a likely appeal by the Bush administration's
Justice Department.

"It's really based on the Supreme Court's own precedents," he said,
citing decisions from the past decade that have limited Congress'
power to regulate local, noncommercial activities, such as gun
possession near schools.

The ruling left a dent in federal drug laws that could get deeper in
the near future. Another panel of the court is considering appeals by
two medical marijuana distributors -- a collective in Santa Cruz and a
buyers' cooperative in Oakland -- that claim a constitutional right to
supply pot produced within California.

Tuesday's ruling made it clear, however, that the court was approving
only the personal medical use of marijuana that the women grew
themselves or had someone grow for them. "This class of activities
does not involve sale, exchange or distribution" and thus is unlikely
to affect interstate commerce, said Judge Harry Pregerson.

Besides California, the ruling affects six other states in the Ninth
Circuit's jurisdiction that also have medical marijuana laws: Arizona,
Oregon, Washington, Nevada, Alaska and Hawaii.

From the start, the case has been the medical marijuana movement's
strongest hope of creating some legal breathing space for California's
1996 initiative, Proposition 215, which allows medical use of pot with
a doctor's recommendation.

The federal government, under former Presidents Bill Clinton and
George Bush, has relied on the conflicting federal law to shut down
California pot dispensaries, raid medical marijuana growers and, in
the past few years, prosecute suppliers. With few exceptions, federal
courts have backed the government.

In one such raid, in August 2002, federal agents seized and destroyed
six marijuana plants grown by Diane Monson of Oroville (Butte County),
who uses the drug to relieve severe chronic back pain and muscle spasms.

Monson is a plaintiff in the case along with Angel Raich, who has used
marijuana every two waking hours for five years to combat pain and the
side effects of other therapies for a brain tumor, wasting syndrome, a
seizure disorder and other conditions. Raich's doctor said that other
medications had been useless or harmful and that Raich might die
without marijuana.

Neither woman has been prosecuted. Their lawsuit, filed in October
2002, asks for an injunction that would allow them to keep using
marijuana without prosecution. U.S. District Judge Martin Jenkins of
San Francisco denied the injunction in March, saying he was doing so
reluctantly but under compulsion of rulings allowing federal
prosecution of users of locally produced drugs.

But the appeals court said Tuesday that the previous rulings involved
recreational or other nonmedical use of drugs that could easily be
dealt in interstate commerce. Marijuana that is grown locally and
obtained by a patient for medical purposes falls into a different
category, the court said.

"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," Pregerson,
joined by Judge Richard Paez, said in the majority opinion.

"The medical marijuana at issue in this case is not intended for, nor
does it enter, the stream of commerce," Pregerson said.

In dissent, C. Arlen Beam, a visiting judge from the federal appeals
court in St. Louis, said marijuana was a commercial product under the
broad definition used by Congress and upheld by the Supreme Court.

"The cultivation of marijuana for medicinal purposes is commercial in
nature," Beam said. He said Raich and Monson were growing and using "a
fungible crop which could be sold in the marketplace."