Los Angeles Times - December 17, 2003
Henry Weinstein, Times Staff Writer

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.

The measure, approved by voters in 1996, was the nation's first such law. Despite its passage, federal officials have pursued a number of cases against medical marijuana users, growers and distributors in the state.

Justice Department officials declined to comment on Tuesday's ruling; legal experts expect them to appeal further. But the decision marks the second court defeat for the federal government this year in its running battle against the medical marijuana movement.

Earlier this year, the Supreme Court upheld a 9th Circuit ruling that said federal officials could not threaten to revoke the prescription rights of doctors who approved marijuana use for their patients.

Although statistics are unreliable on the subject, both supporters and opponents of medical marijuana agree that there are tens of thousands of such users 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.

Monson was elated by the ruling. "How wonderful! That is very good news indeed," she said. She smokes about two marijuana cigarettes a day, which, in combination with yoga and other exercise, alleviates her back pain, she said.

The 9th Circuit ruling could soon be expanded. The appeals court has a case before it in which a medical marijuana buyers cooperative is seeking protection against the federal government. Lawyers for the co-op argue that because their members trade the drug among themselves, they are not involved in interstate commerce, said Gerald Uelmen, a University of Santa Clara law professor who represents the co-op.

"This decision is a complete vindication of our ... argument," he said.

Pregerson and Paez, two of the 9th Circuit's more liberal judges, based their ruling on two Supreme Court decisions about the principles of federalism that are hallmarks of the court's conservative majority.

One case involved a federal law that banned guns in and around schools. The other allowed federal prosecutions of certain types of violent crimes against women. In both cases, the high court struck down the federal laws on the grounds that the statutes went beyond Washington's power to regulate interstate commerce.

Although many liberals opposed those rulings, the current decision "shows that federalism is not just for political conservatives," said Boston University law professor Randy E. Barnett, who represented Monson and Raich in the appeals court.

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