HTTP/1.0 200 OK Content-Type: text/html Feds Ordered To Halt Pot Raids
Pubdate: Wed, 17 Dec 2003
Source: Oakland Tribune, The (CA)
Copyright: 2003 MediaNews Group, Inc. and ANG Newspapers
Author:   Josh Richman,  Staff Writers


Appellate Judges Rule Case Fighting For Medical Marijuana Has Merit.

U.S. Attorney General John Ashcroft and Drug Enforcement Administration 
chief Asa Hutchinson should be temporarily barred from treating medical 
marijuana patients as criminals, a federal appeals court ruled Tuesday.

Lawyers for the plaintiffs -- a medical marijuana patient from Oakland, two 
unnamed Oakland growers who supply her and an Oroville patient who grows 
her own -- called the 2-1 ruling a major victory.

"We feel we've been vindicated after a long, hard effort," said Oakland 
attorney Robert Raich, both a lawyer for and husband of Oakland plaintiff 
Angel McClary Raich. He said his wife "was jubilant, absolutely elated" and 
will "take a deep sigh of relief knowing she will finally be safe," no 
longer fearing she'll be denied medicine she needs to stay alive.

Boston University Law Professor Randy Barnett, who argued the case to the 
9th U.S. Circuit Court of Appeals, called this "a tremendous victory on 
behalf of suffering people" and proof "that federalism is not just a 
doctrine for political conservatives."

The ruling sends the case back to U.S. District Judge Martin Jenkins of San 
Francisco, ordering him to issue a preliminary injunction blocking more 
raids until the case is tried. But the Justice Department, which doesn't 
comment on pending cases, could ask that Tuesday's ruling be reviewed by a 
larger 9th Circuit panel or by the U.S. Supreme Court.

Angel Raich, Diane Monson of Oroville and the two "John Doe" growers sued 
Ashcroft and Hutchinson in October 2002 after a series of DEA raids against 
medical marijuana patients and providers. California is among 10 states 
with laws allowing medical marijuana use, but the federal Controlled 
Substances Act still bans the drug for all purposes.

Raich has said she uses marijuana to combat scoliosis, temporomandibular 
joint disease, endometriosis, fibromyalgia, a uterine fibroid tumor and a 
rotator cuff injury. She also has an inoperable brain tumor and suffers 
post-traumatic stress disorder from childhood abuse and nonepileptic seizures.

Monson's home was raided in August 2002. Local sheriff's deputies and a 
local prosecutor agreed her six marijuana plants were within county 
guidelines under state law, but DEA agents took the plants without charging 
her with any crime.

The lawsuit claimed that the U.S. Constitution's commerce clause lets 
federal law regulate only interstate commerce, and that Californians' 
medical marijuana use neither crosses state lines nor is commerce.

Jenkins in March refused to enjoin the raids, saying the plaintiffs hadn't 
shown sufficient likelihood that they would prevail at trial. But 9th 
Circuit Judge Harry Pregerson, writing for himself and Circuit Judge 
Richard Paez, overturned that ruling Tuesday, finding the plaintiffs likely 
to succeed in proving the federal law, as applied to them, is an 
unconstitutional use of Congress' com-merce clause authority.

"We find that the appellants' 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," he In this case, a doctor's recommendation 
eliminates the health, safety and policy concerns usually associated with 
drug abuse, he wrote, and this cultivation, possession and use "does not 
involve sale, exchange, or distribution." So, he wrote, the federal law's 
application in this case fails constitutional tests set by recent U.S. 
Supreme Court precedent, and letting the raids continue will create a 
"significant hardship" for the plaintiffs.

Senior Circuit Judge C. Arlen Beam dissented from Tuesday's ruling, citing 
the 1942 case of an Ohio wheat farmer fined for growing too much wheat for 
personal use in violation of a federal law meant to control the wheat 
market's extreme supply and price fluctuations. In this case, Beam wrote, 
the Controlled Substances Act "clearly reaches plaintiffs' activities, even 
though they grow, or take delivery of marijuana grown by surrogates, for 
personal consumption as medicine in the home as permitted by California, 
but not federal, law."
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