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Medical Use Of Marijuana Ok, Appeals Court Rules

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A federal appeals court handed medical marijuana advocates a major
victory yesterday, ruling that the government may not prosecute
patients who smoke the drug with their doctor's recommendation in
states that allow such marijuana use.

In a 2-1 decision, the 9th U.S. Circuit Court of Appeals said it was
unconstitutional to deny marijuana to cancer, AIDS and other patients
under the federal Controlled Substances Act if their marijuana is not
sold, transported across state lines or used for nonmedicinal purposes.

Thousands of sick and dying people use marijuana to alleviate symptoms
of disease or relieve side effects of other medication. Federal law
does not recognize any medicinal value in the drug.

The court said medical marijuana providers who supply the drug to
others are not violating the federal Controlled Substances Act, which
classifies marijuana on the same level as heroin, LSD and other drugs.

"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 majority opinion.

According to the court, "This limited use is clearly distinct from the
broader, illicit drug market, as well as any broader commercial market
for medical marijuana, insofar as the medical marijuana at issue in
this case is not intended for, nor does it enter, the stream of commerce."

The ruling was a significant setback to the Justice Department, which
has stepped up enforcement of federal drug laws in recent years.

Under Attorney General John Ashcroft, the government raided numerous
California cannabis clubs and cooperatives that supplied marijuana to
patients under a state initiative approved by voters in 1996.

Medical marijuana advocates were elated with the decision, even as
they predicted a Justice Department appeal.

"This ruling effectively makes Proposition 215 federal law in
California," said Dale Gieringer of the National Organization for the
Reform of Marijuana Laws in San Francisco. "But we know this is not
going to be the end of it."

Growing and using marijuana may be allowed under California law, but
federal drug policy trumps state rules, federal officials say. Eight
other states have enacted similar medical marijuana laws.

Because the ruling was recorded late yesterday afternoon in San
Francisco, there was little reaction available from federal
prosecutors or drug-enforcement agents in Washington.

Misha Piastro, a spokesman for the San Diego office of the Drug
Enforcement Administration, said there would be no immediate change in
policy regarding marijuana - medical or otherwise.

"We're going to have to review the transcript," Piastro said. "This is
obviously a point of law that is still in contention. The DEA will
continue to enforce the Controlled Substances Act."

He added, however, that his office would await direction from
Washington about how to enforce the law while the case is on appeal.

San Diego activist Steven McWilliams, who was prosecuted in federal
court last year for illegally growing marijuana at his Normal Heights
home, nearly wept when he heard about the ruling.

"We're so happy, we're just bubbling," said McWilliams, who was
sentenced to six months in prison after negotiating a plea. "Now we're
finding out that what they did was unconstitutional."

Attorney Patrick Dudley, who helped represent McWilliams in the
federal case, said the ruling was "quite obviously a landmark decision."

"It's about time the court followed the Supreme Court precedence and
said intrastate commerce cannot be regulated by the federal
government," he said.

McWilliams remains free while his appeal is pending, also before the
9th Circuit. Under terms of his probation order, he is not allowed to
use or possess marijuana and must undergo drug testing every Tuesday.

"It's been really tough for us; we've had to change a lot of our
medications," said McWilliams, who suffers chronic pain from a
motorcycle crash. He and his partner, Barbara MacKenzie, have been
among the most vocal marijuana activists in San Diego County.

"Now what we'll do is go back and ask the judge to void my sentence
and allow us to go back and do what we've always been doing," he said.

The case decided yesterday, filed in October 2002, was brought by two
women from Northern California - Angel Raich of Oakland and Diane
Monson of Oroville.

They sued Ashcroft and a DEA administrator, seeking the right to grow
and smoke marijuana without fear of prosecution.

Last March, a U.S. district court judge dismissed their request for an
injunction, saying the Controlled Substances Act did not allow him to
stop the government from enforcing its drug laws. The ruling yesterday
returns their case to the district court, which was told to grant the

Raich, 38, suffers from an inoperable brain tumor and relies on
marijuana to help her move around and to stimulate her appetite.
Monson, 45, has chronic back pain and spasms that she says are reduced
by smoking marijuana.

Gieringer, the San Francisco activist, said federal drug authorities
likely saw yesterday's decision coming after oral arguments were
presented to the three-judge appeals panel in October.

"They started to back off a little bit in the way they've been running
roughshod over people here," he said.

Pubdate: Wed, 17 Dec 2003
Source: San Diego Union Tribune (CA)
Copyright: 2003 Union-Tribune Publishing Co.
Contact: letters@uniontrib.com
Website: The San Diego Union-Tribune - San Diego, California & National News