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Medical Marijuana Article.
Medical marijuana advocates scored a potential legal breakthrough Tuesday
when a federal appeals court ruled that two Northern California women
could use locally grown pot without risking federal prosecution.
The federal ban on marijuana is probably unconstitutional as applied
to individuals who obtain the drug without buying it, get it within their
state's borders and use it for medical purposes on their doctors' advice
and in compliance with state law, said the Ninth U.S. Circuit Court of
Appeals in San Francisco -- the first court ever to issue such a ruling.
The 2-1 decision could be short-lived, however. The appeals court has
regularly seen its precedent-setting decisions, particularly those by
liberal panels, overturned by the U.S. Supreme Court. In 2001, the high
court overruled a Ninth Circuit decision that would have allowed marijuana
cooperatives to supply the drug to patients who could not be treated by
legal substances.
The 2001 ruling expressly left some marijuana-related issues unresolved,
including the question addressed Tuesday: whether Congress' power to regulate
interstate commerce applies to locally grown medical marijuana.
Attorney Robert Raich, whose wife, Angel of Oakland, is one of the two
plaintiffs in the case, said he thought the ruling stood a strong chance
of withstanding a likely appeal by the Bush administration's Justice Department.
"It's really based on the Supreme Court's own precedents,'' he said,
citing decisions from the past decade that have limited Congress' power
to regulate local, noncommercial activities, such as gun possession near
schools.
The ruling left a dent in federal drug laws that could get deeper in
the near future. Another panel of the court is considering appeals by
two medical marijuana distributors -- a collective in Santa Cruz and a
buyers' cooperative in Oakland -- that claim a constitutional right to
supply pot produced within California.
Tuesday's ruling made it clear, however, that the court was approving
only the personal medical use of marijuana that the women grew themselves
or had someone grow for them. "This class of activities does not
involve sale, exchange or distribution'' and thus is unlikely to affect
interstate commerce, said Judge Harry Pregerson.
Besides California, the ruling affects six other states in the Ninth
Circuit's jurisdiction that also have medical marijuana laws: Arizona,
Oregon, Washington, Nevada, Alaska and Hawaii.
From the start, the case has been the medical marijuana movement's strongest
hope of creating some legal breathing space for California's 1996 initiative,
Proposition 215, which allows medical use of pot with a doctor's recommendation.
The federal government, under former Presidents Bill Clinton and George
Bush, has relied on the conflicting federal law to shut down California
pot dispensaries, raid medical marijuana growers and, in the past few
years, prosecute suppliers. With few exceptions, federal courts have backed
the government.
In one such raid, in August 2002, federal agents seized and destroyed
six marijuana plants grown by Diane Monson of Oroville (Butte County),
who uses the drug to relieve severe chronic back pain and muscle spasms.
Monson is a plaintiff in the case along with Angel Raich, who has used
marijuana every two waking hours for five years to combat pain and the
side effects of other therapies for a brain tumor, wasting syndrome, a
seizure disorder and other conditions. Raich's doctor said that other
medications had been useless or harmful and that Raich might die without
marijuana.
Neither woman has been prosecuted. Their lawsuit, filed in October 2002,
asks for an injunction that would allow them to keep using marijuana without
prosecution. U.S. District Judge Martin Jenkins of San Francisco denied
the injunction in March, saying he was doing so reluctantly but under
compulsion of rulings allowing federal prosecution of users of locally
produced drugs.
But the appeals court said Tuesday that the previous rulings involved
recreational or other nonmedical use of drugs that could easily be dealt
in interstate commerce. Marijuana that is grown locally and obtained by
a patient for medical purposes falls into a different category, the court
said.
"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,'' Pregerson, joined
by Judge Richard Paez, said in the majority opinion.
"The medical marijuana at issue in this case is not intended for,
nor does it enter, the stream of commerce,'' Pregerson said.
In dissent, C. Arlen Beam, a visiting judge from the federal appeals
court in St. Louis, said marijuana was a commercial product under the
broad definition used by Congress and upheld by the Supreme Court.
"The cultivation of marijuana for medicinal purposes is commercial
in nature,'' Beam said. He said Raich and Monson were growing and using
"a fungible crop which could be sold in the marketplace.''
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