Pubdate: Wed, 18 Dec 2002
Source: Oakland Tribune, The (CA)
Copyright: 2002 MediaNews Group, Inc. and ANG Newspapers
Author: Josh Richman
Bookmark: (Cannabis - California)
Bookmark: (Oakland Cannabis Court Case)


Judge Preparing To Decide Whether U.S. Should Be Blocked From Prosecuting

Lawyers argued Tuesday over whether a federal judge can and should bar U.S.
Attorney General John Ashcroft and Drug Enforcement Administration chief Asa
Hutchinson from treating medical marijuana patients as criminals. 

U.S. District Judge Martin Jenkins didn't rule Tuesday, but indicated he'll
do so no later than mid-January. 

Patients sued the government officials in October, claiming their civil
rights are being violated by federal crackdowns on medical marijuana. The
federal government still deems all marijuana growth, possession or use
illegal, even though California voters OK'd medical marijuana in 1996.
Alaska, Arizona, Colorado, Hawaii, Maine, Oregon and Washington have similar

Jenkins peppered the patients' attorneys -- Robert Raich of Oakland, David
Michael of San Francisco and Boston University Law Professor Randy Barnett
- -- and Justice Department trial lawyer Mark T. Quinlivan with questions

Some questions concerned whether Jenkins even has the authority under 9th
Circuit case law to issue an injunction in a case such as this. Quinlivan
argued he doesn't, while the patients' attorneys said he does. 

The lawyers also sparred on whether the federal Controlled Substances Act,
which Ashcroft and Hutchinson use as authority to go after medical marijuana
patients, should be applied to medical marijuana. Barnett argued Congress'
constitutional authority extends only to interstate commerce, while medical
marijuana in California is an issue contained wholly within the state's own
borders, involving no money changing hands. 

Quinlivan noted case law has found marijuana use for any purpose can't be
considered wholly intrastate and non-economic. 

Raich argued for the 9th Amendment right of plaintiff Angel McClary Raich,
his wife, to be free from pain and prolong her life by using marijuana. 

"Angel would die were it not for cannabis," he said. "It cannot be the law
of the United States that a person must face death because of a law Congress
passed for other purposes entirely." 

Quinlivan argued Congress passed the Controlled Substances Act knowing it
would apply to everyone, and marijuana remains on the act's most restricted
list, signifying it has no recognized medicinal value. Case law says people
have a constitutional right to treatment in general, but not to specific,
unproven medicines and methods, he said. 

Some of this case's constitutional arguments mirror those made to the 9th
U.S. Circuit Court of Appeals in the Oakland Cannabis Buyers Cooperative's
pending case. The OCBC raised those issues after the U.S. Supreme Court in
2001 struck down its medical necessity argument for resuming distribution to

But in his concurrence with that opinion, Justice John Paul Stevens wrote
individual patients -- rather than clubs like the OCBC -- might have better
legal standing to seek such an exception. The patients' lawsuit was a
response to that ruling.
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