Victory!

FEDERAL APPEALS COURT RULES FEDS CAN'T PERSECUTE MEDICAL MARIJUANA PATIENTS

In a major victory for medical marijuana patients, the 9th US Circuit
Court of Appeals in San Francisco ruled Tuesday that they cannot be
prosecuted by the US Justice Department if a doctor recommends the
weed -- as long as patients grow their own or obtain it from caregiver
growers without entering into a commercial transaction. In issuing a
preliminary injunction barring further federal government action
against patients, the court also held the Controlled Substances Act
unconstitutional when it comes to medical marijuana patients in states
where it is legal. Pending any appeal by the Justice Department, the
ruling is now in effect throughout the 9th Circuit, which also
includes the medical marijuana states of Alaska, Arizona, Hawaii,
Nevada, Oregon and Washington.

The court did not address the question of whether medical marijuana
co-ops, where cultivators distribute marijuana to patients, are also
protected. That question is pending in a separate case filed by the
Wo/Men's Alliance for Medical Marijuana (http://www.wamm.org), a Santa
Cruz provider that was raided by the DEA last year.

The ruling came in the case of Raich v. Ashcroft, in which medical
marijuana patients Angel McClary Raich and Diane Monson and their
caregiver growers sued Attorney General John Ashcroft in federal court
seeking a permanent injunction barring the federal government from
seizing their medicine or taking any other action against them. Raich,
who suffers from a variety of medical conditions including an
inoperable brain tumor, and Monson, who is afflicted with chronic back
pain, both have doctors' recommendations to use medical marijuana, but
both women suffered a "very real fear," that they would be raided and
their medicine seized by federal agents, said Robert Raich, husband of
Angel and one of the attorneys who argued the case.

That fear is based on repeated DEA raids on medical marijuana patients
and providers in California. Medical marijuana has been legal under
state law since 1996, when voters overwhelmingly approved Proposition
215, but the federal government, under both the Clinton and the Bush
administrations, has continued to resist the will of the voters. The
Justice Department suffered another legal defeat earlier this year,
when the Supreme Court ruled that the DEA could not punish physicians
who recommended marijuana to their patients.

Attorneys in the Raich case did a bit of legal jujitsu in their
successful argument, using a series of Supreme Court rulings cheered
by conservatives that limited federal government powers. Under the
Constitution, the federal government can intervene in matters
traditionally handled by state and local governments only if it
establishes jurisdiction to do so. For years, the federal government
has relied on a broad interpretation of the Constitution's commerce
clause to give it standing to intervene in what would otherwise be
state affairs. But in recent years, the Supreme Court has begun to
cast a more jaundiced eye toward commerce clause claims, rejecting
such arguments in a gun possession case and a crimes-against-women
case.

Still, Attorney General Ashcroft and other federal officials,
including former DEA head Asa Hutchinson, relied on the commerce
clause to justify the raids. They argued that they had jurisdiction to
go after California medical marijuana patients and providers because
marijuana is sold in interstate commerce.

The 9th Circuit Court of Appeals ruled otherwise. "The intrastate,
noncommercial cultivation, possession and use of marijuana for
personal medical purposes on the advice of a physician is, in fact,
different from drug trafficking," Judge Harry Pregerson wrote in the
2-1 decision. The federal government does have the power to legislate
against drug trafficking, Pregerson reasoned, but "the cultivation,
possession and use of marijuana for medicinal purposes and not for
exchange or distribution is not properly characterized as commercial
or economic activity."

"Today my faith in justice is restored", said plaintiff Angel McClary
Raich. "I want to deeply thank the 9th Circuit Court of Appeals for
saving my life and the lives of others like myself. I brought this
case to protect medical cannabis patients who have been living in a
state of fear that we could be raided and imprisoned at any time," she
told DRCNet. "I'm in shock and it's just starting to sink in. I've
been on the front lines of the war against medical marijuana patients
since 1997, and I am so grateful that the judges had the common sense
and compassion to understand my need for justice," the Oakland
resident added. "This is wonderful not only for Diane and me, but all
patients and caregivers in states that have medical marijuana laws, at
least in the 9th Circuit."

"This is an enormous victory for medical marijuana patients," declared
California NORML (http://www.canorml.org) coordinator Dale Gieringer,
one of the original authors of Prop. 215. "It essentially makes Prop.
215 federal law in California."

"This is huge. This essentially makes Prop. 215 federal law in
California," said Dale Gieringer, a co-author of the proposition,
which legalized medical use of marijuana in California.

"This ruling says that medical marijuana patients who grow and possess
marijuana are not breaking the law," said Steph Sherer, executive
director of Americans for Safe Access (http://www.safeaccessnow.org),
an aggressive medical marijuana defense group. "In fact, it is
Ashcroft's prosecution and persecution of those patients that violates
the Constitution. This ruling says the Bush administration can no
longer go after patients in states that have medical marijuana laws,"
she told DRCNet.

The movement is on a roll, said Sherer. "This is very exciting; we are
so close," she said. "We have Supreme Court rulings on our side, we
have this ruling, we have judges not giving people time for medical
marijuana distribution, we have doctors recommending it and the
Supreme Court saying they can. This is a clear signal that it is time
for federal law to change. It is time the federal government kept up
with the rest of us."

And that momentum could be strengthened by a favorable ruling in the
WAMM case, which is already before the 9th Circuit. Attorneys for WAMM
have pursued arguments parallel to Raich, telling the court that
because members of the WAMM co-op trade the weed among themselves,
they are not involved in interstate commerce. "This decision is a
complete vindication of our... argument," Gerald Uelmen, a University
of Santa Clara law professor who represents the co-op, told the Los
Angeles Times Wednesday.

The Raich case is also notable for knocking the first brick out of
what has so far been the impenetrable wall of the Controlled
Substances Act. "Wow, I cracked it," exulted Angel Raich. "To have the
judges say that the Controlled Substances Act is unconstitutional when
it applies to me or other medical marijuana patients -- that's
historic! You can't get any better than that until you knock the whole
law down," she said.

"I would love to be a regular mom and go and play basketball with my
kids," she added, "but I am very, very ill. I have to battle my
illnesses and John Ashcroft, too, and that's difficult to take," she
said. "But this goes to show that someone as tiny and weak as I am can
go up against Ashcroft and win. I'm sick and I'm tired, but I won't
back down. I'll fight him with every last breath in my body. And you
know, if he wants to come after me now, John Ashcroft will be the criminal."

The Justice Department has not yet commented on whether it will
appeal.

To read the opinion in Raich v. Ashcroft online, go to
http://www.ca9.uscourts.gov and click on "opinions" at the upper left,
then select Raich v. Ashcroft.

To read major pleadings from the case online, visit
http://raich-v-ashcroft.com and
http://news.findlaw.com/legalnews/documents/index.html#drugs.