HOME-GROWN VICTORY

Medical marijuana advocates are celebrating more than just a little stash
under the Christmas tree this week, as a recent ruling by the U.S. Ninth
Circuit Court of Appeals may have ended federal prosecution of many
prescription pot users in California. In a major victory for backers of
Proposition 215, which legalized medical marijuana use in 1996 by a large
majority of state voters, the three-judge panel ruled on December 17 that
federal agents lacked the authority to bust two users in the case Raich v.
Ashcroft.

"I had been hoping, praying, and expecting this result all along," says
Dale Gieringer, one of the original organizers of Proposition 215, and
California coordinator for the National Organization to Reform Marijuana
Laws, or NORML. "From the very get-go, when we first made Prop. 215, it was
our view that the federal government did not have any right to overrule
individual Californians ' right to use medical marijuana under Prop. 215 -
at least not in the area of personal use and non-interstate commerce."

In the Raich case, the court ruled that the medical marijuana use by
defendants Angel Raich and Diane Monson did not fall under federal
jurisdiction because the pot had never crossed state lines and no money had
ever changed hands. Hundreds of medical marijuana patients grow their own
marijuana or have free sources of pot for their personal use, and the court
decision seems to put this activity now beyond the reach of the feds.

As to whether or not this would halt federal Drug Enforcement Adminstration
(DEA) raids on medical marijuana users and clubs, U.S. Department of
Justice (DOJ) spokesperson Charles Miller says, "I'm not aware of that. I
think [the ruling] was very specifically tailored to individuals in the
case. We have still not decided what actions we are going to take in this
case, as I recall the ruling was very narrow."

The ruling also does not address medical marijuana buyers' clubs - where
users under Prop. 215 purchase pot, rather than get it for free - which
have proliferated in Northern California. Clubs like the Oakland Cannabis
Buyers' Cooperative were early targets of then-new DOJ head John Ashcroft,
who took power in 2001 with a mandate from the Bush administration to
prosecute marijuana use of any kind, and it is still unclear whether this
ruling would affect cases like Oakland. If the DOJ appeals, the stage would
be set for a long-awaited medi-pot showdown at the U.S. Supreme Court.

The Raich decision, however, is significant in that it is a rare instance
of a court questioning the federal government's power to regulate drug
trafficking under the so-called "commerce clause" of the U.S. Constitution.
The entire U.S. Controlled Substances Act derives its constitutional
authority from this clause. In many cases, federal prosecutors have
stretched credibility in an effort to define such actions as growing
marijuana at home as "commerce." Since a 1995 U.S. Supreme Court ruling in
U.S. v. Lopez, the courts have begun to rein in these powers in significant
new ways.

The ruling also caps a year in which the federal courts seemed to be
pushing back against Ashcroft's DOJ. In June, famed High Times columnist Ed
Rosenthal was sentenced to one day (with credit for time served) by a Ninth
Circuit judge, who lashed out at federal prosecutors for even bringing the
case, though Rosenthal was convicted of growing thousands of plants.
Officers of the Los Angeles Cannabis Resource Center received probation in
a similar case in November. In October, the U.S. Supreme Court ruled that
medical doctors could not be federally prosecuted for prescribing medical
marijuana in states where it had been legalized.

In the near future, many cases on appeal may be affected by the new ruling.
The case of Bryan Epis, for example - sentenced to 10 years for possession
- - would apparently be affected if any amount of his home-grown marijuana
were found to be for personal use. One case involving DEA raids on the
Wo/Men's Alliance for Medical Marijuana (WAMM) in Santa Cruz, where no
money was exchanged - is also widely regarded as a natural extension of Raich.

"The case covers not only the two persons in the case, but the two John
Does who grew for them," says William Dolphin, spokesperson for activist
group Americans for Safe Access. "Anybody who is growing marijuana for
themselves or for someone else, who has a medical recommendation - if they
were convicted, they now have recourse to go back to the courts and say, 'I
was convicted over a non-constitutional use of this law.'"

The Los Angeles U.S. Attorney's office declined to comment on the ruling.