Pubdate: Wed, 17 Dec 2003
Source: Minneapolis Star-Tribune (MN)
Copyright: 2003 Star Tribune
Author: Claire Cooper, Sacramento Bee
Bookmark: (Cannabis - California)
Bookmark: (Cannabis - Medicinal)


SAN FRANCISCO -- The highest court in the West ruled Tuesday that personal 
use of medical marijuana in a state that permits it can be outside the 
control of federal authorities.

The decision by the 9th U.S. Circuit Court of Appeals directly affects only 
Angel Raich of Oakland and Diane Monson of Oroville. But its rationale 
would apply to others who, like Monson, grow their own pot supplies, 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 
judge 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 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 in 2001 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 decision written by Judge Alex Kozinski of Pasadena, a leading 

The 2002 Kozinski ruling, barring the federal government from revoking the 
licenses of doctors who prescribe pot, said medical marijuana grown and 
consumed locally is beyond federal control. The Supreme Court declined to 
review that decision.

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 two 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 acceptable alternatives.
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MAP posted-by: Beth Wehrman