Medical use of marijuana OK, appeals court rules
By Jeff McDonald STAFF WRITER
December 17, 2003
A federal appeals court handed medical marijuana advocates a major victory yesterday, ruling that the government may not prosecute patients who smoke the drug with their doctor's recommendation in states that allow such marijuana use.
In a 2-1 decision, the 9th U.S. Circuit Court of Appeals said it was unconstitutional to deny marijuana to cancer, AIDS and other patients under the federal Controlled Substances Act if their marijuana is not sold, transported across state lines or used for nonmedicinal purposes.
Thousands of sick and dying people use marijuana to alleviate symptoms of disease or relieve side effects of other medication. Federal law does not recognize any medicinal value in the drug. (HempPharm.com comment; Federal government however does have a medical marijuana compassionate use program since early 80's that is still in effect today, so we do not understand how at the same time medical value of marijuana can be denied by this same authority, now it seems the issue is finally settled over the backs of seriously ill fellow Americans.)
The court said medical marijuana providers who supply the drug to others are not violating the federal Controlled Substances Act, which classifies marijuana on the same level as heroin, LSD and other drugs.
"The intrastate, non-commercial 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 majority opinion.
According to the court, "This limited use is clearly distinct from the broader, illicit drug market, as well as any broader commercial market for medical marijuana, insofar as the medical marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce."
The ruling was a significant setback to the Justice Department, which has stepped up enforcement of federal drug laws in recent years.
Under Attorney General John Ashcroft, the government raided numerous California cannabis clubs and cooperatives that supplied marijuana to patients under a state initiative approved by voters in 1996.
Medical marijuana advocates were elated with the decision, even as they predicted a Justice Department appeal.
"This ruling effectively makes Proposition 215 federal law in California," said Dale Gieringer of the National Organization for the Reform of Marijuana Laws in San Francisco. "But we know this is not going to be the end of it."
Growing and using marijuana may be allowed under California law, but federal drug policy trumps state rules, federal officials say. Eight other states have enacted similar medical marijuana laws.
Because the ruling was recorded late yesterday afternoon in San Francisco, there was little reaction available from federal prosecutors or drug-enforcement agents in Washington.
Misha Piastro, a spokesman for the San Diego office of the Drug Enforcement Administration, said there would be no immediate change in policy regarding marijuana – medical or otherwise.
"We're going to have to review the transcript," Piastro said. "This is obviously a point of law that is still in contention. The DEA will continue to enforce the Controlled Substances Act."
He added, however, that his office would await direction from Washington about how to enforce the law while the case is on appeal.
San Diego activist Steven McWilliams, who was prosecuted in federal court last year for illegally growing marijuana at his Normal Heights home, nearly wept when he heard about the ruling.
"We're so happy, we're just bubbling," said McWilliams, who was sentenced to six months in prison after negotiating a plea. "Now we're finding out that what they did was unconstitutional."
Attorney Patrick Dudley, who helped represent McWilliams in the federal case, said the ruling was "quite obviously a landmark decision."
"It's about time the court followed the Supreme Court precedence and said intrastate commerce cannot be regulated by the federal government," he said.
McWilliams remains free while his appeal is pending, also before the 9th Circuit. Under terms of his probation order, he is not allowed to use or possess marijuana and must undergo drug testing every Tuesday.
"It's been really tough for us; we've had to change a lot of our medications," said McWilliams, who suffers chronic pain from a motorcycle crash. He and his partner, Barbara MacKenzie, have been among the most vocal marijuana activists in San Diego County.
"Now what we'll do is go back and ask the judge to void my sentence and allow us to go back and do what we've always been doing," he said.
The case decided yesterday, filed in October 2002, was brought by two women from Northern California – Angel Raich of Oakland and Diane Monson of Oroville.
They sued Ashcroft and a DEA administrator, seeking the right to grow and smoke marijuana without fear of prosecution.
Last March, a U.S. district court judge dismissed their request for an injunction, saying the Controlled Substances Act did not allow him to stop the government from enforcing its drug laws. The ruling yesterday returns their case to the district court, which was told to grant the injunction.
Raich, 38, suffers from an inoperable brain tumor and relies on marijuana to help her move around and to stimulate her appetite. Monson, 45, has chronic back pain and spasms that she says are reduced by smoking marijuana.
Gieringer, the San Francisco activist, said federal drug authorities likely saw yesterday's decision coming after oral arguments were presented to the three-judge appeals panel in October.
"They started to back off a little bit in the way they've been running roughshod over people here," he said.
The Associated Press contributed to this report.
*Industrial-Hemp has no psychoactive properties following definition of the European Economic Community (EEC); THC content is less than 0.3%. In general, low THC-seed varieties without psychoactive properties are those that have a THC content of less than 1%. (See also No-THC Hemp-seed.) THC= Delta-9 TetraHydroCannabinol.
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