Victory! Federal Appeals Court Rules Feds Can't Persecute Medical Marijuana Patients 12/19/03

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In a major victory for medical marijuana patients, the 9th US Circuit Court of Appeals in San Francisco ruled Tuesday that they cannot be prosecuted by the US Justice Department if a doctor recommends the weed -- as long as patients grow their own or obtain it from caregiver growers without entering into a commercial transaction. In issuing a preliminary injunction barring further federal government action against patients, the court also held the Controlled Substances Act unconstitutional when it comes to medical marijuana patients in states where it is legal. Pending any appeal by the Justice Department, the ruling is now in effect throughout the 9th Circuit, which also includes the medical marijuana states of Alaska, Arizona, Hawaii, Nevada, Oregon and Washington.

The court did not address the question of whether medical marijuana co-ops, where cultivators distribute marijuana to patients, are also protected. That question is pending in a separate case filed by the Wo/Men's Alliance for Medical Marijuana (, a Santa Cruz provider that was raided by the DEA last year.

The Ninth Circuit encompasses the nine western states of Alaska,
Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon,
Washington, and Guam and the Northern Mariana Islands. (Photo and
info from

The ruling came in the case of Raich v. Ashcroft, in which medical marijuana patients Angel McClary Raich and Diane Monson and their caregiver growers sued Attorney General John Ashcroft in federal court seeking a permanent injunction barring the federal government from seizing their medicine or taking any other action against them. Raich, who suffers from a variety of medical conditions including an inoperable brain tumor, and Monson, who is afflicted with chronic back pain, both have doctors' recommendations to use medical marijuana, but both women suffered a "very real fear," that they would be raided and their medicine seized by federal agents, said Robert Raich, husband of Angel and one of the attorneys who argued the case.

That fear is based on repeated DEA raids on medical marijuana patients and providers in California. Medical marijuana has been legal under state law since 1996, when voters overwhelmingly approved Proposition 215, but the federal government, under both the Clinton and the Bush administrations, has continued to resist the will of the voters. The Justice Department suffered another legal defeat earlier this year, when the Supreme Court ruled that the DEA could not punish physicians who recommended marijuana to their patients.

Attorneys in the Raich case did a bit of legal jujitsu in their successful argument, using a series of Supreme Court rulings cheered by conservatives that limited federal government powers. Under the Constitution, the federal government can intervene in matters traditionally handled by state and local governments only if it establishes jurisdiction to do so. For years, the federal government has relied on a broad interpretation of the Constitution's commerce clause to give it standing to intervene in what would otherwise be state affairs. But in recent years, the Supreme Court has begun to cast a more jaundiced eye toward commerce clause claims, rejecting such arguments in a gun possession case and a crimes-against-women case.

Still, Attorney General Ashcroft and other federal officials, including former DEA head Asa Hutchinson, relied on the commerce clause to justify the raids. They argued that they had jurisdiction to go after California medical marijuana patients and providers because marijuana is sold in interstate commerce.

The 9th Circuit Court of Appeals ruled otherwise. "The intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician is, in fact, different from drug trafficking," Judge Harry Pregerson wrote in the 2-1 decision. The federal government does have the power to legislate against drug trafficking, Pregerson reasoned, but "the cultivation, possession and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity."

"Today my faith in justice is restored", said plaintiff Angel McClary Raich. "I want to deeply thank the 9th Circuit Court of Appeals for saving my life and the lives of others like myself. I brought this case to protect medical cannabis patients who have been living in a state of fear that we could be raided and imprisoned at any time," she told DRCNet. "I'm in shock and it's just starting to sink in. I've been on the front lines of the war against medical marijuana patients since 1997, and I am so grateful that the judges had the common sense and compassion to understand my need for justice," the Oakland resident added. "This is wonderful not only for Diane and me, but all patients and caregivers in states that have medical marijuana laws, at least in the 9th Circuit."

"This is an enormous victory for medical marijuana patients," declared California NORML ( coordinator Dale Gieringer, one of the original authors of Prop. 215. "It essentially makes Prop. 215 federal law in California."

"This is huge. This essentially makes Prop. 215 federal law in California," said Dale Gieringer, a co-author of the proposition, which legalized medical use of marijuana in California.

"This ruling says that medical marijuana patients who grow and possess marijuana are not breaking the law," said Steph Sherer, executive director of Americans for Safe Access (, an aggressive medical marijuana defense group. "In fact, it is Ashcroft's prosecution and persecution of those patients that violates the Constitution. This ruling says the Bush administration can no longer go after patients in states that have medical marijuana laws," she told DRCNet.

The movement is on a roll, said Sherer. "This is very exciting; we are so close," she said. "We have Supreme Court rulings on our side, we have this ruling, we have judges not giving people time for medical marijuana distribution, we have doctors recommending it and the Supreme Court saying they can. This is a clear signal that it is time for federal law to change. It is time the federal government kept up with the rest of us."

And that momentum could be strengthened by a favorable ruling in the WAMM case, which is already before the 9th Circuit. Attorneys for WAMM have pursued arguments parallel to Raich, telling the court that because members of the WAMM co-op trade the weed among themselves, they are not involved in interstate commerce. "This decision is a complete vindication of our... argument," Gerald Uelmen, a University of Santa Clara law professor who represents the co-op, told the Los Angeles Times Wednesday.

The Raich case is also notable for knocking the first brick out of what has so far been the impenetrable wall of the Controlled Substances Act. "Wow, I cracked it," exulted Angel Raich. "To have the judges say that the Controlled Substances Act is unconstitutional when it applies to me or other medical marijuana patients -- that's historic! You can't get any better than that until you knock the whole law down," she said.

"I would love to be a regular mom and go and play basketball with my kids," she added, "but I am very, very ill. I have to battle my illnesses and John Ashcroft, too, and that's difficult to take," she said. "But this goes to show that someone as tiny and weak as I am can go up against Ashcroft and win. I'm sick and I'm tired, but I won't back down. I'll fight him with every last breath in my body. And you know, if he wants to come after me now, John Ashcroft will be the criminal."

The Justice Department has not yet commented on whether it will appeal.

To read the opinion in Raich v. Ashcroft online, go to and click on "opinions" at the upper left, then select Raich v. Ashcroft.

To read major pleadings from the case online, visit and

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Issue #316, 12/19/03 Editorial: Why Prohibition Scares Me | Victory! Federal Appeals Court Rules Feds Can't Persecute Medical Marijuana Patients | Supreme Court Okays Arrest of All Occupants in Cars Where Unclaimed Drugs Are Found | Flex Your Rights in News -- New and Improved BUSTED Video Offer Available from DRCNet Too | Afghanistan: Drug War Yields to Terror War as Rumsfeld Glad-Hands Drug Dealing Warlords | Newsbrief: Georgia Deputy Kills Innocent Man in Highway Drug Stop | Newsbrief: Campaign Watch -- Kucinich Says Legalize It | Newsbrief: Morocco Cannabis Production Booming, UN Drug Office Reports | Newsbrief: Canadian Supreme Court to Rule Next Week on Key Marijuana Cases | Newsbrief: With National Parks Threatened, Colombia Fumigation Petition Drive Underway | Newsbrief: Nigerian Reefer Madness Breaks Out as Officials Blame Marijuana for Social Strife | Newsbrief: UN Drug Office Predicts Humanitarian Crisis as Myanmar Opium Ban Goes Into Effect | Announcement: New Hemp Nutrition Bar Supports Advocacy | DRCNet Temporarily Suspending Our Web-Based Write-to-Congress Service Due to Funding Shortfalls -- Your Help Can Bring It Back -- Keep Contacting Congress in the Meantime | Perry Fund Accepting Applications for 2003-2004 and 2004-2005 School Years, Providing Scholarships for Students Losing Aid Because of Drug Convictions | The Reformer's Calendar

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