Source: Seattle Post-Intelligencer (WA)
Author: Sam Skolnik
Published: Wednesday, December 17, 2003
Copyright: 2003 Seattle Post-Intelligencer
Contact: [email protected]
Court says those who use for medicinal reasons are exempt.
A federal court ruling yesterday that would permit some medical marijuana use bolsters what proponents say is the clear -- and fair -- judicial trend to allow state medical marijuana laws like Washington's to stand.
A 9th U.S. Circuit Court of Appeals panel said yesterday that a congressional act outlawing marijuana may not apply to sick people with a doctor's recommendation in states that have approved medical marijuana laws, such as Washington.
And in its wake, a top federal prosecutor in Seattle said his office likely would continue its policy of not prosecuting those who smoke pot on their doctor's advice.
Medical marijuana proponents were ecstatic.
"This is one of the best decisions I've seen in a really long time," said Lee Newbury, director of the South Puget Sound chapter of the National Organization for the Reform of Marijuana Laws.
"This is the first step for getting state's rights for patients," Newbury said. "When the federal government is trying to supersede the will of the citizens who have passed these laws, something's wrong."
The federal court panel in San Francisco, ruling 2-1 in a rare late-afternoon filing, said prosecuting these medical marijuana users under a 1970 federal law is unconstitutional if the marijuana isn't sold, transported across state lines or used for non-medicinal purposes.
"The intrastate, non-commercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician is, in fact, different in kind from drug trafficking," Judge Harry Pregerson wrote for the majority.
The court added that "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."
In dissent, Judge C. Arlen Beam said that Congress could regulate medical marijuana, noting that the Supreme Court has declared that grain is subject to federal regulation even if the grower never sold it and used it solely for his family.
Washington voters passed their medical marijuana law in 1998. Initiative 692, which passed with 59 percent of the vote, gives doctors the right to recommend -- but not prescribe -- marijuana for people suffering from cancer, AIDS, multiple sclerosis, glaucoma and other conditions.
Yesterday's appellate panel decision was a blow to the Justice Department, which argued that medical marijuana laws in nine states were trumped by the Controlled Substances Act, which outlawed marijuana, heroin and other drugs.
Mark Bartlett, first assistant U.S. attorney in Seattle, said he was surprised by the decision, believing that case law backed the federal government's position. But he said that the ruling's "impact will be minimal."
Bartlett said that unlike federal prosecutors in Northern California and other jurisdictions, he could not recall any cases U.S. attorneys here have brought against medical marijuana users in the last five to 10 years.
Randy Barnett, a Boston University constitutional law professor, said the case was precedent-setting. "It's the first time there's been a ruling that the application of the Controlled Substances Act to the application of cultivation of medical cannabis is unconstitutional," he said.
This wasn't the first pro-medical marijuana ruling recently from the 9th Circuit. A court panel ruled unanimously last October that the government cannot revoke doctors' prescription licenses for recommending marijuana to sick patients.
The case that led to yesterday's ruling concerned two seriously ill California women who sued Attorney General John Ashcroft.
They asked for a court order letting them smoke, grow or obtain marijuana without fear of federal prosecution.
The case underscores the conflict between federal law and California's 1996 medical marijuana law, which allows people to grow, smoke or obtain marijuana for medical needs with a doctor's recommendation. A U.S. District judge tossed the case in March, saying the Controlled Substances Act barred him from blocking any potential enforcement action against medical marijuana patients. Yesterday's ruling sends the case back to the district judge.
Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington have laws similar to California's, which has been the focus of federal drug interdiction efforts.
This report includes information from The Associated Press.
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