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Medical Pot Users Win Key Ruling

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Appellate panel says the U.S. can't prosecute patients if doctors call
marijuana their only relief and the drug is obtained at no charge.

Federal officials may not prosecute marijuana smokers whose doctors
say pot is their only medical relief -- at least so long as the users
grow their own or obtain it from other growers without charge, a
federal appeals court ruled Tuesday.

The 2-1 decision from the U.S. 9th Circuit Court of Appeals in San
Francisco would protect many medical marijuana users from prosecution
in California and six other Western states -- Alaska, Arizona, Hawaii,
Nevada, Oregon and Washington -- that have laws approving the use of
marijuana for medical purposes.

"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.

The measure, approved by voters in 1996, was the nation's first such
law. Despite its passage, federal officials have pursued a number of
cases against medical marijuana users, growers and distributors in the

Justice Department officials declined to comment on Tuesday's ruling,
and legal experts expect them to appeal further. But the decision
marks the second court defeat for the government this year in its
running battle against the medical marijuana movement.

Earlier this year, the Supreme Court upheld a 9th Circuit ruling that
said federal officials could not threaten to revoke the prescription
rights of doctors who approved marijuana use for their patients.

Although statistics are unreliable on the subject, both supporters and
opponents of medical marijuana agree that there are tens of thousands
of such users in California.

Tuesday's ruling involved one of the most hotly debated areas of
constitutional law: the power of the federal government to intervene
in matters that traditionally have been handled by state and local
governments. Through the 1990s, conservatives successfully argued in
court for limiting federal power. But with a Republican administration
in Washington, the legal tables have been turned, and liberals are
using the same arguments in attempts to shield state laws they favor.

Under the U.S. Constitution, routine law enforcement matters are
normally handled by the states; the federal government can be involved
only if the alleged criminal conduct involves federal

Atty. Gen. John Ashcroft and other federal officials, including Drug
Enforcement Administration chief Asa Hutchinson, have pursued
marijuana cases, saying they have jurisdiction because drugs are sold
in interstate commerce.

Last year, based on that rationale, federal drug agents seized
marijuana used by a number of individuals throughout California,
including Diane Monson of Oroville, who smokes the drug to treat
chronic, debilitating back pain.

Monson and Angel M. Raich of Oakland, who uses marijuana for a variety
of serious medical problems, including an inoperable brain tumor, sued
Ashcroft in federal court. They asked for a court order barring the
government from confiscating their marijuana or taking any other
action against them.

Both women have letters from their doctors saying marijuana helps
alleviate their symptoms. That protects them against prosecution by
state and local officials. But both women had a "very real fear" that
their marijuana would be seized by federal agents, said Oakland
attorney Robert Raich, who is married to Angel.

Monson grows her own marijuana. Raich is unable to do so, according to
court papers. Two people identified only as John Doe No. 1 and John
Doe No. 2 grow it for her.

Lawyers for the two women argued that since they used the drug solely
for their own medicinal purposes, and no money changed hands, their
actions did not involve interstate commerce. That would mean the
federal government had no power to prosecute them.

A federal district judge ruled against them in March, saying that
despite "the gravity" of their need for marijuana, the Constitution
did not protect them against federal prosecution. But the appeals
court majority sided with the two women.

"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 for the majority. He was joined by Judge Richard A. Paez.

The federal government has the power to pass laws against trafficking
in drugs, 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."

The dissenting judge -- C. Arlen Beam, who normally sits on the 8th
Circuit in the Midwest -- argued that even if the women did not pay for
their marijuana, they were using a "crop which could be sold in the
marketplace, and which is also being used for medicinal purposes in
place of other drugs which would have to be purchased in the
marketplace." For that reason, Washington can be involved, he said.

Monson was elated by the ruling. "How wonderful. That is very good
news indeed," she said. She smokes about two marijuana cigarettes a
day, which, in combination with yoga and other exercise, alleviates
her back pain, she said.

The 9th Circuit ruling could soon be expanded. The appeals court has a
case before it in which a medical marijuana buyers cooperative is
seeking protection against the federal government. Lawyers for the
co-op argue that because their members trade the drug among
themselves, they are not involved in interstate commerce, said Gerald
Uelmen, a University of Santa Clara law professor who represents the

"This decision is a complete vindication of our ... argument," he

Pregerson and Paez, two of the 9th Circuit's more liberal judges,
based their ruling on two Supreme Court decisions about the principles
of federalism that are hallmarks of the court's conservative majority.

One case involved a federal law that banned guns in and around
schools. The other allowed federal prosecutions of certain types of
violent crimes against women. In both cases, the high court struck
down the federal laws on the grounds that the statutes went beyond
Washington's power to regulate interstate commerce.

While many liberals opposed those rulings, the current decision "shows
that federalism is not just for political conservatives," said Boston
University law professor Randy E. Barnett, who represented Monson and
Raich in the appeals court.

Pubdate: Wed, 17 Dec 2003
Source: Los Angeles Times (CA)
Webpage: Medical Pot Users Win Key Ruling
Copyright: 2003 Los Angeles Times
Contact: letters@latimes.com
Website: Los Angeles Times