Prometheus 6   

This affects about two thirds of Libertarians

Medical Pot Users Win Key Ruling
The U.S. can't prosecute patients who use it on the advice of a physician and obtain the drug at no charge, an appeals court panel rules.
By Henry Weinstein
Times Staff Writer

December 17, 2003

People who use marijuana for medical purposes won a victory Tuesday from a federal appeals court that ruled they cannot be prosecuted by the federal government so long as they grow their own or obtain pot from other growers without charge.

The 2–1 decision from the U.S. 9th Circuit Court of Appeals in San Francisco would protect many medical marijuana users from prosecution in California and six other Western states — Alaska, Arizona, Hawaii, Nevada, Oregon and Washington — that have laws approving the use of marijuana for medical purposes.

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

…Tuesday's ruling involved one of the most hotly debated areas of constitutional law: the power of the federal government to intervene in matters that traditionally have been handled by state and local governments. Through the 1990s, conservatives successfully argued in court for limiting federal power. But with a Republican administration in Washington, liberals are now using the same arguments in attempts to shield state laws they favor.

Under the U.S. Constitution, routine law enforcement matters are normally handled by the states; the federal government can be involved only if the alleged criminal conduct involves federal jurisdiction.

Atty. Gen. John Ashcroft and other federal officials, including Drug Enforcement Administration chief Asa Hutchinson, have pursued marijuana cases, saying they have jurisdiction because drugs are sold in interstate commerce.

Last year, based on that rationale, federal drug agents seized marijuana used by a number of individuals throughout California, including Diane Monson of Oroville, who smokes the drug to treat chronic, debilitating back pain.

Monson and Angel M. Raich of Oakland, who uses marijuana for a variety of serious medical problems, including an inoperable brain tumor, sued Ashcroft in federal court. They asked for a court order barring the government from confiscating their marijuana or taking any other action against them.

Both women got letters from their doctors saying marijuana helps alleviate their symptoms. That protects them against prosecution by state and local officials. But both women had a "very real fear" that their marijuana would be seized by federal agents, said Oakland attorney Robert Raich, who is married to Angel.

Monson grows her own marijuana. Raich is unable to do so, according to court papers. Two people identified only as John Doe No. 1 and John Doe No. 2 grow it for her.

Lawyers for the two women argued that since they used the drug solely for their own medicinal purposes, and no money changed hands, their actions did not involve interstate commerce. That would mean the federal government had no power to prosecute them.

A federal district judge ruled against them in March, saying that despite "the gravity" of their need for marijuana, the Constitution did not protect them against federal prosecution. But the appeals court majority sided with the women.

"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 for the majority. He was joined by Judge Richard A. Paez.

The federal government has the power to pass laws against trafficking in drugs, Pregerson added, 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."

The dissenting judge — C. Arlen Beam, who normally sits on the 8th Circuit in the Midwest — argued that even if the women did not pay for their marijuana, they were using a "crop which could be sold in the marketplace, and which is also being used for medicinal purposes in place of other drugs which would have to be purchased in the marketplace." For that reason, Washington can be involved, he said.