Pubdate: Wed, 17 Dec 2003
Source: Sacramento Bee (CA)
Copyright: 2003 The Sacramento Bee
Author: Claire Cooper, Bee Legal Affairs Writer


SAN FRANCISCO -- The highest court in the West ruled Tuesday that
personal cultivation and use of medical marijuana in a state that
permits such activities can be outside the control of federal

The decision by the 9th U.S. Circuit Court of Appeals directly affects
only Angel Raich of Oakland and Diane Monson of Oroville, who sued to
block federal interference with their pot supplies. But its rationale
would apply to others who, like Monson, grow their own pot or, like
Raich, obtain it free from local grower-caretakers without involving
interstate traffickers.

The 9th Circuit said such activity appeared to be neither commercial
nor economic and, therefore, probably was outside the legal reach of
the federal government, which is empowered to regulate commerce
between the states.

"We find that (Raich's and Monson's) class of activities -- the
intrastate, noncommercial cultivation, possession and use of marijuana
for personal medical purposes on the advice of a physician -- is, in
fact, different in kind from drug-trafficking," the court said in
directing a lower court to issue a preliminary injunction against
federal interference.

The federal government had argued in court that interstate commerce
would be affected. Calls to the U.S. Drug Enforcement Administration
were directed to offices in Washington, D.C., that had closed by the
time the decision was released late in the day.

Boston University law professor Randy Barnett, who won the ruling,
said it was the first of its kind.

Ten states have legalized medical marijuana, with California and
Arizona leading the way in 1996. But, especially in California, state
and local officials, as well as individual users, have locked horns
with federal drug and Justice Department officials, who claim any use
of the drug conflicts with the nation's 33-year-old Controlled
Substances Act.

Pot farms and warehouses legal under California law have been raided
all over the state, and suppliers have been prosecuted. So far,
courts, including the U.S. Supreme Court, have mostly upheld federal
authority. The high court in 2001 ruled that medical necessity was no
defense against distributing pot to sick people, overturning a 9th
Circuit decision. But in ruling against the government Tuesday, the
9th Circuit said the Supreme Court had left open the possibility that
individual pot users and caretakers could successfully claim the
federal government was exceeding its proper authority over them.

The 9th Circuit majority drew on major court decisions that in recent
years have limited federal authority to control guns, pornography and
domestic violence. As with those matters, said the 2-1 decision in the
pot case, attempts to regulate purely intrastate medical marijuana
activity fall outside the government's reach.

The decision, written by Circuit Judge Harry Pregerson of Woodland
Hills, one of the court's most liberal members, also drew on an
earlier 9th Circuit opinion written by Judge Alex Kozinski of
Pasadena, a leading conservative.

The 2002 concurring opinion, in a case barring the federal government
from revoking the licenses of doctors who recommend pot, said medical
marijuana grown and consumed locally is beyond federal control. The
Supreme Court declined to review that case.

The dissenter from Tuesday's decision, visiting 8th Circuit Judge C.
Arlen Beam, relied on a different line of Supreme Court precedents to
support the federal government's position.

Judge Richard Paez of Pasadena joined Pregerson in the majority
opinion. It directed a district court in San Francisco to issue a
preliminary injunction that will block federal prosecution of Monson,
Raich or Raich's caregivers and prohibit raids that could cut off the
women's pot supplies.

Raich, who has been diagnosed with a variety of ailments including an
inoperable brain tumor, uses pot every two hours. Her doctor says
forgoing the treatment could prove fatal. Monson has a degenerative
spine disease and uses pot to control pain. The DEA ripped up her
six-plant marijuana garden in 2002.

Doctors for both women contend they have no alternatives.

"I feel safe for the very first time ever since I've been a patient,"
Raich told the Associated Press. "This is very triumphant not only for
myself but for patients and caregivers across the country."
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