- The Washington Times - Wednesday, December 17, 2003

Prosecuting sick people under federal law for using medical marijuana on a doctor’s advice is unconstitutional, if users grow the drug themselves or obtain it free, the 9th Circuit U.S. Court of Appeals has ruled.

In a 2-to-1 decision Tuesday, the San Francisco-based appeals court concluded that federal law outlawing marijuana does not apply to people who smoke it on a doctor’s recommendation in a state that allows it — if the drug is not sold and is not transported across state lines or used for nonmedicinal purposes.

In the majority opinion, Judge Harry Pregerson, appointed to the court in 1979 by President Carter, wrote that smoking marijuana on the advice of a doctor is “different in kind from drug trafficking.” The court held that “this limited use is clearly distinct form the broader illicit drug market.”

At this time, the appellate ruling is limited to two seriously-ill California women, who sought a court order that would let them obtain and smoke marijuana without facing federal prosecution, and two “John Does,” who grow the pot consumed by one of the sick women, according to Charles Miller, a Justice Department spokesman.

Mr. Miller declined to speculate on the potential effect of the ruling.

Keith Stroup, executive director and founder of the National Organization for the Reform of Marijuana Laws (NORML), said it is “technically true” that the immediate effects of the ruling are limited to four persons.

“But the legal doctrine laid out by the 9th Circuit applies to all states in the 9th Circuit with medical marijuana laws … so this decision is enormously significant,” Mr. Stroup added.

States under the 9th Circuit include California, Alaska, Nevada, Hawaii, Oregon, Washington and Arizona.

Robert Raich, a lawyer in the case, said the decision would be “binding only in the 9th Circuit,” but he believes the ruling could be “persuasive” in its influence throughout the country.

Mr. Miller said Justice Department lawyers are currently reviewing the ruling to determine whether to appeal. He said federal lawyers have 45 days to go to the full 9th Circuit — considered one of the more liberal courts in the nation — or 90 days to appeal to the Supreme Court.

The ruling was a setback for the Justice Department, which has held that federal drug laws supercede state statutes that authorize medical use of marijuana. The department argued it could prosecute medical marijuana users under the 1970 Controlled Substances Act.

In 2001, the Supreme Court ruled that medical need was not a valid defense for distributing an illegal drug to sick people.

A California law passed in 1996 allows people to grow, use or obtain marijuana for medical needs with a doctor’s prescription. Colorado, Maryland and Maine have similar laws. Since the law’s enactment, the courts have been a battleground between the federal government and state and local authorities over their respective drug laws.

The 9th Circuit reversed a decision a federal judge rendered in March, who dismissed the four plaintiffs’ suit. The lower court said federal law barred it from blocking any enforcement action against medical marijuana patients. The appellate ruling sends the case back to the district judge.

In ruling against the government, the 9th Circuit said that the Supreme Court, in its 2001 opinion, had left open the possibility that individual patients and care givers could claim the federal government was exceeding its authority over them.

Mr. Stroup of NORML pointed out that the Justice Department has always asserted that it had the right to intervene with state medical marijuana laws because such legislation could “adversely affect interstate commerce.”

But given that plaintiffs Angel Raich of Oakland, Calif., and Diane Monson of Orville, Calif., either grew their own marijuana or had it provided free by local growers, the court “found there was no impact on interstate commerce,” Mr. Stroup said.

As a result, it held that the federal government “lacked jurisdiction” in this case, he said.

“Up till now, there had been no break in federal [court] adamancy that there are no exceptions to federal marijuana laws. This is the first crack in the barrier,” Mr. Stroup observed.

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