CO-OP WINS MEDICAL-POT CASE

DEA Can't Raid Local Group's Marijuana Garden, Judge Rules

A judge ordered the federal government Wednesday to keep away from a
California medical marijuana group that grows and distributes cannabis
for its sick members.

The decision from U.S. District Judge Jeremy Fogel in San Jose was the
first interpretation of a federal appeals-court decision here last
year that ordered the federal government not to prosecute a sick
Oakland woman who smoked marijuana with a doctor's recommendation
under a 1996 California medical-marijuana law.

Fogel ruled that the Justice Department cannot raid or prosecute the
250 members of the Wo/Men's Alliance for Medical Marijuana, which sued
the government after the Drug Enforcement Administration raided its
Santa Cruz County growing operation in 2002 and seized 167 marijuana
plants.

That raid drew criticism from area officials, and the city of Santa
Cruz later allowed WAMM to hold a medical-marijuana giveaway to about
a dozen of its members on the steps of City Hall.

Both the city and the county signed on as plaintiffs in the suit.

Director Valerie Corral said her group had been receiving and growing
marijuana in secret since the raid for fear of prosecution. But with
Fogel's decision, the group intends to plant hundreds of plants
immediately on Corral's acre of land in the Santa Cruz hills.

"We're the first people in the United States that are able to grow
medical marijuana legally," she said.

Mike Corral, co-founder of the cooperative, told the Sentinel late
Wednesday afternoon that members were being called with the news.

He said he was on "cloud nine." The ruling comes at a good time of the
year to begin growing.

"We're making arrangements to break out the rototillers," he said. "It
couldn't happen at a better time."

The Corrals said they were elated, even though the victory may be
temporary.

Santa Cruz lawyer Ben Rice, one of WAMM's attorneys, said the ruling
was "vindication" not only for the cooperative, but for the city and
county which signed on to the suit.

"I think those guys deserve our thanks," Rice said.

The Justice Department, which urged Fogel not to issue an injunction
barring new raids or prosecutions, declined comment. Spokesman Charles
Miller said the government was reviewing the decision.

The marijuana group asked Fogel to issue the injunction after the 9th
U.S. Circuit Court of Appeals ruled in December 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 San Francisco-based court, ruling 2-1, wrote 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 9th Circuit in December.

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."

That 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 outlaws marijuana, heroin and a host of other
drugs nationwide. The Justice Department appealed that 9th Circuit
decision to the Supreme Court on Tuesday.

The Controlled Substances Act, as applied to the Santa Cruz
cooperative, Fogel wrote, "is an unconstitutional exercise" of federal
intervention.

Fogel's decision, meanwhile, furthers 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.

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

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

Wednesday's decision, in addition to December's Circuit ruling, are
outgrowths of a 2001 U.S. Supreme Court ruling. That year, the Supreme
Court said that medical-marijuana clubs could not dole out medical
marijuana based on the so-called "medical necessity" of patients, even
if they have a doctor's recommendation to use marijuana.

Justice Clarence Thomas wrote that an Oakland pot club could not
defend its actions against federal drug laws by declaring it was
dispensing marijuana to the medically needy.

But the justices said they addressed only the issue of a so-called
"medical necessity defense" being at odds with the Controlled
Substances Act that says marijuana, like heroin and LSD, has no
medical benefits and cannot be dispensed or prescribed by doctors.

In the 2001 decision, Justice Thomas wrote that Supreme Court left
several questions unresolved, including whether the government could
interfere with the states to make their own medical-marijuana laws.

"The Supreme Court had left this door open," said Gerald Uelmen, a
scholar at the Santa Clara University School of Law who represented
the Wo/Men's Alliance for Medical Marijuana.

The case decided Wednesday is Santa Cruz v. Ashcroft, 03-01802.