Key Court Victories Boost Medical Marijuana Movement

After struggling for years against the federal government’s prohibition of marijuana, activists in the medical cannabis movement scored several victories in 2003 -- and say next year could produce a key showdown in the legal debate over pot as medicine.

In June, well-known medical marijuana activist Ed Rosenthal avoided prison in a case that received national attention. Eight jurors told a federal judge they would have acquitted the self-proclaimed “Guru of Ganja,” had they known he was cultivating cannabis for the ill.

The U.S. Supreme Court waded in with an October ruling that doctors in California and other Western states do not risk federal investigation or punishment if they choose to recommend the use of marijuana by their patients.

Last week, the U.S. 9th Circuit Court of Appeals produced the most significant victory yet for patients who use medical marijuana, saying the federal government cannot prosecute them as long as they cultivate their own cannabis or obtain it for free.

“This has been an amazing year, from Ed Rosenthal up through last week’s decision,” said Steph Sherer, executive director of Americans for Safe Access, a Berkeley-based advocacy group for medical marijuana. “We’re very close to a time when patients can focus on getting better instead of fighting the federal government.”

Several legal cases winding through the federal courts are expected to reach critical junctures in the coming year, pushing the exhausting, seven-year struggle over medical marijuana toward resolution.

Federal officials remain committed to blocking a movement that has seen California and eight other states legalize medical cannabis in a direct rebuke to federal law.

“When you disentangle the external parts of this debate, whether it’s the cultural war or the conflict of federal versus state, what it boils down to is a question of how does our nation approve safe and effective medicines,” said Tom Riley, a spokesman for President Bush’s Office of National Drug Control Policy. “We have a very good system for doing that. It’s based on science. It’s respected around the world. But are we going to let one substance get a special pass to avoid that system of approval?”

Riley said federal officials were still reviewing last week’s 9th Circuit decision. But legal experts say the federal government almost certainly will appeal, setting up a potential showdown in the U.S. Supreme Court.

In a 2-1 ruling, the 9th Circuit panel said U.S. drug laws could not be used to prosecute two Northern California patients who used medical marijuana. The ruling was grounded in a long-ignored technicality: the connection between drug trafficking prohibitions and the Commerce Clause of the U.S. Constitution.

Though routine law enforcement matters are generally left to the states, Congress justified passage of the Controlled Substances Act partly on its constitutional authority to regulate interstate commerce, including trafficking of illegal contraband such as drugs.

But the 9th Circuit ruled that the use of medical marijuana by Angel Raich and Diane Monson did not qualify as interstate commerce because the cannabis never had crossed state lines and no money had changed hands.

Raich said she got her marijuana at no cost from two sympathetic growers to treat an inoperable brain tumor and other serious illnesses. Monson cultivated six plants on her own for severe, chronic back pain and constant painful muscle spasms.

“I am not a drug trafficker. I’m not a marijuana activist. I’m a taxpayer citizen,” said Monson, an Oroville resident whose plants were seized by U.S. drug agents last year. “I really, really appreciate the federal government having to agree that I’m not a criminal.”

Though applicable to individuals who grow their own, the 9th Circuit ruling didn’t address a sizable cornerstone of the medical marijuana movement: the cannabis buyers clubs. Two other cases are expected to shape the future of such dispensaries.

After state voters legalized medical marijuana in 1996, scores of the facilities sprouted in the Bay Area, Los Angeles and other cities around the state to act as a distribution network for patients who could not grow their own.

Federal drug agents mounted a series of busts to close the clubs, and several tried to fight back in court.

One of the dispensaries, the Oakland Cannabis Buyers Cooperative, lost a round at the U.S. Supreme Court in 2001. Now its case is back before the 9th Circuit on appeal, with a decision expected early next year.

Though its legal arguments echo last week’s ruling, some activists worry that the Oakland cooperative could face an uphill fight. The reason: Patients had to buy marijuana at the Oakland storefront operation, making it tougher to argue that the nonprofit cooperative had not engaged in a form of commerce.

A more promising case in the eyes of some medical marijuana advocates is the legal push by a Santa Cruz cooperative raided in September 2002 by federal drug agents.

The bust at the Wo/Men’s Alliance for Medical Marijuana drew widespread criticism in the liberal seaside town and prompted civic leaders to join in a protest on the steps of City Hall, where pot was ceremonially distributed to patients.

The city and county of Santa Cruz later joined WAMM to sue the Bush administration, asking that the confiscated marijuana be returned and drug agents be barred from ever raiding the dispensary again.

Unlike the Oakland cooperative, WAMM’s medical marijuana is not sold. Instead, patients participated in growing the marijuana crop, which was distributed in small amounts at weekly meetings attended by members.

In September, a federal judge in San Jose refused the cooperative’s request to block any future raids. Buoyed by last week’s decision, the medical marijuana alliance’s attorneys say they plan in early January to ask the federal court for reconsideration.

Frank Kennamer, a San Francisco attorney representing the Santa Cruz cooperative, said WAMM’s arguments are “a somewhat larger-scale version of the same facts” embraced last week by the 9th Circuit.