FEDERAL WAR ON MEDICAL POT CHALLENGED

A federal judge breathed new life Wednesday into medical marijuana
advocates' effort to ward off the federal crackdown on medical pot in
California, saying enforcement of U.S. drug laws can go too far if it
seeks to interfere with state authority.

U.S. District Judge Jeremy Fogel of San Jose denied a Bush
administration request to dismiss a lawsuit by Santa Cruz city and
county officials and members of a medical marijuana collective whose
drugs were seized by federal agents in a 2002 raid.

The Santa Cruz raid was one of many actions by federal authorities
against suppliers of marijuana in California since the state's voters
approved a 1996 initiative allowing individuals to grow and use pot
with their doctors' approval. Federal prosecutors have shut down
medical marijuana dispensaries, threatened to sue the dispensaries'
landlords, won convictions against growers for violating federal
narcotics laws and sought to punish doctors for recommending marijuana.

The U.S. Supreme Court and other courts have upheld the federal
actions, except for the government's attempt to strip federal
prescription licenses from the doctors. But Fogel said the plaintiffs
in the current case may be able to show that the federal government
exceeded its constitutional authority by trying to force California
to repeal its medical marijuana law.

The suit claims federal prosecutors have tried to disrupt the
California law by enforcement that targeted critical participants in
the state system - doctors who approved their patients' marijuana
use, local officials who issued state-approved identification cards
to medical marijuana users, local governments whose zoning allowed
pot dispensaries, and marijuana suppliers who cooperated with local
governments.

Federal authorities' goal, the plaintiffs alleged, is to make it
impossible for the state to distinguish between medical and
recreational use of marijuana and render the state law unenforceable,
interfering with California's constitutional power to enact its own laws.

Government lawyers denied any such intention and said the suit was
baseless. Neither the federal drug law nor any enforcement action has
required the state to change its marijuana law or enforce federal
laws, they said.

The suit, if successful, "would unlawfully inject the courts into
considerations of how the government is enforcing federal law,
matters which the Constitution vests in the executive branch,"
Justice Department lawyers said in court papers.

But Fogel said Wednesday that if the plaintiffs can prove all their
claims, "they may be able to show that (federal officials) are
deliberately seeking to frustrate the state's ability to determine
whether an individual's use of marijuana is permissible under California law."

He cited an opinion by Judge Alex Kozinski of the Ninth U.S. Circuit
Court of Appeals in San Francisco in the 2002 ruling on doctors who
recommended marijuana. Although the federal government may prefer
that California prohibit medical marijuana, Kozinski said, "it cannot
force the state to do so."

Medical marijuana advocates and their lawyers called the ruling a
potential breakthrough.

"For the first time, a court has recognized that a calculated plan by
the federal government to undercut state medical marijuana laws is
patently unconstitutional," said Graham Boyd, an American Civil
Liberties Union lawyer.