APPEALS COURT UPHOLDS MEDICAL MARIJUANA USE

DeMaris Strohm heard from a friend yesterday that a federal appeals court
ruled that state laws protect medical marijuana users from federal
prosecution. The West Seattle grandmother promptly burst into tears.

"I said, 'Praise God!' and I started crying - out of happiness that I can
have my grandson come and stay with me and not worry about the federal
government busting down my door," said Strohm, 50.

She has used marijuana with a doctor's permission since 1997 for pain and
extreme weight loss after a brutal car accident.

Yesterday, a three-judge panel of the 9th U.S. Circuit Court of Appeals, in
a victory for states' rights, ruled unconstitutional federal prosecutions
of medical marijuana patients in states that have approved laws allowing
such use of the drug.

If patients are authorized by a doctor under state laws, and aren't
transporting marijuana across state lines or selling it, their growing,
possession or use of marijuana is not "drug trafficking," Judge Harry
Pregerson wrote for the majority.

His ruling sends the case back to the California district judge who
declined to protect two patients from federal prosecution.

Quoting from a previous court decision, Pregerson's ruling notes: "It is
particularly important that in the field of criminal law enforcement, where
state power is pre-eminent, national authority be limited to those areas in
which interstate commerce is truly affected. .. The police power is,
essentially, reserved to the states."

The 9th Circuit has a reputation for being frequently overturned by the
Supreme Court. But legal experts say its batting average is about the same
as other circuits, and its reputation likely the result of the cutting-edge
issues that often arise first in California or other states within its
jurisdiction.

The U.S. Justice Department had argued that state laws allowing medical use
of marijuana were superseded by the federal Controlled Substances Act, a
1970 law that puts marijuana in the same category as heroin and other drugs
it deems to have no medicinal use.

In many states, including Washington, the clash between federal and state
laws has left medical marijuana patients fearful of federal prosecution.

In some cases, said Douglas Hiatt, a Seattle attorney who represents such
patients, the unwavering federal position that marijuana is always illegal
has put pressure on state prosecutors to go after patients.

"People are living in limbo and being charged under state law. There are
lots of people being arrested wrongly under state law," he said.

Strohm said she has lived in fear of federal prosecution since she began
using marijuana. But after her 1986 accident, she said, she tried 14
different pharmaceutical drugs and all had the same side effect: loss of
appetite. Only marijuana has helped keep her from wasting away, she said:
At almost 5 feet 7, she now weighs 102 pounds.

"Now, I can bring my grandson over to visit for a month in the summertime.
I wanted him far away from me because of the danger zone," she said. "I
didn't want to have the DEA bust down my door and take me away while he was
there and traumatize him."

The California case that reached the 9th Circuit involved two women, Angel
McClary Raich and Diane Monson.

Like Washington and seven other states, California has passed a law
allowing certain patients to legally use marijuana.

Raich, a 38-year-old Oakland woman, has been diagnosed with more than 10
serious medical conditions, including an inoperable brain tumor, and has
used marijuana for more than five years. Her doctor said she has tried all
other legal alternatives, but they were ineffective or had intolerable side
effects.

Monson, an Oroville resident, has severe chronic back pain and muscle
spasms caused by a degenerative spinal disease. Her doctor, as well, said
alternative medications haven't worked for her.

Monson grows her own, while two caregivers supply Raich.

Last year, deputies from the county sheriff's department and agents from
the Drug Enforcement Administration came to Monson's home. They disagreed
about whether her marijuana use was legal, but after a three-hour standoff,
the DEA agents seized and destroyed her six plants.

The two women, along with Raich's caregivers, filed suit last year against
John Ashcroft, the U.S. attorney general, and Asa Hutchinson, the
administrator of the DEA. The plaintiffs maintained that the federal law
was unconstitutionally being enforced against them. They asked for an
injunction barring federal prosecution, but the district court refused.

Yesterday's ruling returns the case to the district court to grant the
injunction.

Randy Barnett, a Boston University constitutional law professor, said the
ruling by the 9th Circuit is precedent-setting.

"It's the first time there's been a ruling that the application of the
Controlled Substances Act to the application of cultivation of medical
cannabis is unconstitutional," he said.

Federal drug-enforcement agents have raided and shut several medical
marijuana growing clubs in California over the past few years.

In 2001, the U.S. Supreme Court ruled 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.

Hiatt, the Seattle attorney, said the states'-rights argument may be
difficult for the federal government to challenge.

"For the Bush administration to fight this would be very difficult and very
hypocritical, because they'd be fighting against the very conservative
doctrines they've been venerating for the past few years."

Times staff reporter Ian Ith and The Associated Press contributed to this
report.