COURT DOESN'T BUY MEDICAL MARIJUANA

Despite Sympathies, Appellate Judge Rules Federal Law Trumps Oakland
Woman's Needs

Medical necessity doesn't shield medical-marijuana users from federal
prosecution, a clearly sympathetic federal appeals court ruled
Wednesday in an Oakland woman's case that earlier went all the way to
the U.S. Supreme Court.

"Nothing in the common law or our cases suggests that the existence
of a necessity defense empowers this court to enjoin the enforcement
of the Controlled Substances Act as to one defendant," 9th U.S.
Circuit Court of Appeals Judge Harry Pregerson wrote. So plaintiff
Angel Raich of Oakland can't get a court order to block federal
officials from arresting and prosecuting her. She might, however, be
able to make a medical-necessity argument as a defense at trial. The
court also found the Constitution's guarantee of due process of law
doesn't embrace the right to make a life-shaping decision, on a
doctor's advice, to use medical marijuana to avoid intolerable pain
and preserve life when all other prescribed medications have failed.
Although the court agreed medical marijuana is slowly gaining legal
acceptance - 11 states including California have passed laws allowing
its use - it found "that legal recognition has not yet reached the
point where a conclusion can be drawn that the right to use medical
marijuana is 'fundamental' and 'implicit in the concept of ordered
liberty.'" "For now, federal law is blind to the wisdom of a future
day when the right to use medical marijuana to alleviate excruciating
pain may be Advertisement deemed fundamental," Pregerson wrote.

"I'm a dead woman walking," Raich, 41, responded Wednesday morning.
"The 9th Circuit is saying the sickest of the sick marijuana patients
have no constitutional right to life. ... Now, if the DEA (Drug
Enforcement Administration) knocked at my door, they could take my
life and get away with it."

Raich, a mother of two, suffers from scoliosis, an inoperable brain
tumor, wasting syndrome, fibromyalgia and other ailments. Robert
Raich, the plaintiff's attorney and ex-husband, said they're
reviewing their options: They could ask this same panel to reconsider
the case; they could ask for review by an 11-member panel of the
appeals court; they could petition the U.S. Supreme Court for review;
or they could ask U.S. District Judge Martin Jenkins of San
Francisco, who ruled against them at the trial court level, to take
up an as-yet-unaddressed issue of whether the Controlled Substances
Act bars marijuana use on a doctor's order.

Raich and Diane Monson of Oroville plus two unnamed providers sued
the government in October 2002 to prevent any interference with their
medical marijuana use, but this case's seeds actually were sown in
the Supreme Court's May 2001 decision on the Oakland Cannabis Buyers
Cooperative's case.

The court in that earlier case had ruled there's no collective
medical necessity exception to the federal ban, which defines
marijuana as having no valid medical use. But it didn't rule on
constitutional questions underlying the medical marijuana debate, so
Raich, Monson and their lawyers tailor-made a case raising exactly
those issues.

A federal judge in San Francisco rejected their arguments in March
2003, but a 9th Circuit appeal panel reversed that ruling nine months
later. That panel believed the plaintiffs could prevail at trial on
their claim that the Constitution's Commerce Clause lets Congress
regulate only interstate commerce, and that Californians' medical
marijuana use neither crosses state lines nor involves money changing
hands. The U.S. Supreme Court heard the case in November 2004 and in
June 2005 ruled 6-3 to uphold the federal ban, finding that even
marijuana grown in backyards for personal medical use can affect or
contribute to the illegal interstate market for marijuana and so is
within Congress' constitutional reach.

But the 9th Circuit panel and the Supreme Court dealt only with the
Commerce Clause argument, not the other constitutional issues. With
the case remanded back to the 9th Circuit, Raich's attorneys pursued
the remaining arguments; Monson dropped out of the case in late 2005.
Arguing almost a year ago in Pasadena, Raich's lawyers claimed the
common-law doctrine of necessity - the idea that it's OK to break the
law when forces beyond one's control compel it and there's no
reasonable, legal alternative - bars the government from applying the
Controlled Substances Act to ban medically necessary activities.
They'd also argued that keeping her from using marijuana as medicine
unduly burdens her fundamental rights to life and freedom from pain,
as protected by the Fifth Amendment's Due Process Clause and the
Ninth Amendment.

The government argued there's no constitutionally protected
fundamental right to obtain and use marijuana in defiance of the
federal ban on the drug, and that the Supreme Court's decision in the
Oakland Cannabis Buyers Cooperative case already had ruled out a
medical-necessity argument.

"We lost this case because the court rejected our characterization of
this as a right to life and accepted the government's
characterization that it's a right to use medical cannabis," said
Georgetown University law professor Randy Barnett, who argued Raich's
case to the Supreme Court in 2004 and to the appeals court in 2006.
"But the court gave the losing party more than the losing party had
any right to expect."

It said that she seems to qualify for a medical necessity defense if
she's ever arrested and prosecuted, Barnett noted, and it said that
as more states pass medical-marijuana laws, a fundamental-rights
claim like hers will grow stronger.

The American Civil Liberties Union issued a news release Wednesday
noting the ruling's holding that a medical-necessity defense could be
viable at trial, and saying it "will immediately pursue such claims
on behalf of patients who have been raided by federal agents in recent years."

And Marijuana Policy Project spokesman Bruce Mirken, at a news
conference with Raich later Wednesday in Oakland, noted another 20
states are mulling medical marijuana bills, with New Mexico likely to
pass its into law soonest. Wednesday's ruling deals only with federal
law and has no effect on state laws, he noted.

"I am not a criminal, I am a good citizen. I've done everything I can
to do the right thing," Raich tearfully said at the news conference,
vowing to continue her fight. "I used cannabis this morning and I
will continue to use cannabis. ... They can bust me if they want."

Continuing the fight, she said, might mean spending even more time
than she already has lobbying Congress to change federal law. The
House last June voted 259-163 against a budget amendment introduced
for the fourth consecutive year by Rep. Maurice Hinchey, D-N.Y., and
Rep. Dana Rohrabacher, R-Huntington Beach, to bar use of federal
funds to arrest and prosecute patients and providers in the 11 states
with medical marijuana laws. The measure received 161 votes in 2005;
148 in 2004 and 152 in 2003; it would need 218 to pass.