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Meri Simon ~ Mercury News 

In 2001, Angel McClarey spoke to the
Berkeley City Council to argue against
 a 10-plant limit the city had imposed
on medical marijuana users.

Hope for Healing

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Source: Sacramento Bee (CA)
Author: Claire Cooper -- Bee Legal Affairs Writer
Published: Friday, November 26, 2004
Copyright: 2004 The Sacramento Bee
Contact: [email protected]

Medical marijuana users will take on the federal government before the Supreme Court.

The U.S. Supreme Court on Monday will hear the case that offers medical marijuana patients their best hope of getting around the federal government's strict laws against pot.

A year ago the San Francisco-based 9th U.S. Circuit Court of Appeals ruled in favor of the plaintiffs, two desperately ill Northern California women, and the federal government has appealed to the Supreme Court.

Angel McClary Raich, 39, calls marijuana "my miracle." She vows that the government "won't take it away from me." She suffers from multiple ailments that don't respond to conventional therapies, including wasting syndrome and an inoperable brain tumor.

The other plaintiff, Diane Monson, 47, of Butte County, is prone to excruciating back spasms and, like Raich, did poorly on conventional drugs.

The 9th Circuit said federal authorities lack the power to regulate the noncommercial growing, possession and use of pot for personal medical purposes if the activity occurs wholly within a state that permits it. California has done so since 1996, when voters approved Proposition 215, the Compassionate Use Act. The law permits patients with a doctor's recommendation to use marijuana and also covers their caregivers. A more recent state law sets limits on pot amounts and penalties for abusers.

Monson grows her pot in her home garden, generating each crop from seeds produced by the previous crop. Raich gets her pot free from two Oakland growers, who use only California plants, soil, water and nutrients.

A victory for the women would reverberate. Twenty-six states have acknowledged medicinal marijuana in some way, if only by establishing research programs or providing reduced penalties for users, according to a brief filed by several medical associations.

Almost half of those states view marijuana as a legitimate medicine, despite the federal government's position that it "has no accepted medicinal use." Pending the Supreme Court decision which is expected by early summer, several judges already have placed federal cases involving medical marijuana on hold and have ordered some convicted defendants released from prison.

Meanwhile, Raich and Monson are protected by a preliminary injunction that bars federal authorities from interfering with them or their pot supplies.

Answering a Prayer

Raich says marijuana may have come into her life in answer to her daughter's prayer.

Eight years ago, the child would attack with her fists as Raich sat paralyzed in a wheelchair, unable to explain why she could no longer be the active, athletic mother her daughter and son had known. Doctors said she would never walk again or live without pain. She told the girl to pray for an answer.

She says she was offended the first time a nurse suggested marijuana, after she attempted suicide in 1997. She had tried it as a teenager but never, she says, "as a mother." But moved by her daughter's distress, she did research, talked to her doctor and then had a family member buy street pot for her.

Now she eats, drinks or inhales marijuana every two hours. She massages its oil on her skin for spasms and hives. One strain eases her pain, another controls seizures, a third helps with eating and a fourth checks nausea.

When she wakes up in the morning without enough marijuana in her system, her husband usually has to help her get out of bed. But she recovers "within five minutes" after taking the drug, he says. "It's almost like a night-and-day effect."

Her doctor, Frank Henry Lucido, says in a declaration that doing without pot could kill her.

She still has pain "every single second ... like having the flu all the time," she says over a breakfast of strawberry pancakes with whipped cream and an extra order of berries - a start on the 2,500 to 3,000 calories she eats each day to keep flesh on her 5-foot-4 frame. Without pot, she says, she loses as much as a pound a day.

Raich says she has chosen to be a fighter instead of a victim.

For years she has been active in the California campaign to put medical pot - which she always refers to as "cannabis" - on solid legal footing.

In 1998, she joined the Oakland Cannabis Buyers Cooperative, where she says "the better quality made all the difference." She was walking again by late 1999.

Two years later the cooperative was taken out of the marijuana-selling business by a civil injunction after the U.S. Supreme Court ruled that the organization couldn't claim "medical necessity" as a reason for violating the federal ban on marijuana.

The court said in its ruling that it was leaving open various constitutional questions and, specifically, whether the federal pot ban exceeds the U.S. government's limited authority under Article I to regulate "commerce ... among the several states."

With federal agents raiding and closing marijuana cooperatives around California, Raich and her husband, Robert Raich, the Oakland cooperative's longtime lawyer, began setting up a case to test that question.

They recruited Monson as a co-plaintiff after a standoff in her garden put her in the news in 2002.

DEA Moved In

Butte County sheriff's agents, at the request of the U.S. Drug Enforcement Administration, flew over Monson's 160-acre spread and spotted her green garden high in the brown hills above Marysville.

The DEA recently had busted a large marijuana garden 30 to 40 miles away on rental property owned by Monson and her husband, Michael Pierce, a landscaper and county water commissioner until his recent death. The sheriff's agents were concerned about a possible tie-in, says Butte County District Attorney Michael Ramsey.

Accompanied by DEA agents, they returned to the Monson-Pierce spread with a search warrant. But the only marijuana they found among the shrubs, herbs and flowers was the six plants permitted to medical patients under Butte County guidelines.

A three-hour standoff followed, with the county agents wanting to leave Monson and her plants alone and the federal agents insisting on tearing up the pot. As Monson read aloud the entire text of Proposition 215, the county agents alerted Ramsey, who phoned an appeal to the U.S. attorney's office in Sacramento.

The DEA wouldn't budge, though. The federal agents removed the plants. No charges were filed.

Monson uses marijuana six to eight times a day, usually by inhaling its vapor. She credits it with a "massive improvement in my level of pain." Dr. John Rose, her physician for the past 25 years, says in a court declaration that marijuana is the only therapy that relieves her spasms.

Ramsey backed her case in the 9th Circuit.

Monson calls herself "a private individual who's active in the community."

"I've never sued anybody in my life," she says. "Now I have to get on an airplane and go to Washington, D.C., to sue (outgoing U.S. Attorney General) John Ashcroft, for Pete's sake. I don't think they left me any choice. ... I believe (marijuana) is my right and my privilege as a citizen of the state of California."

Support from Six States

California sees the issue that way, too, as do five other states that have signed friend-of-the-court briefs in support of the plaintiffs' legal argument.
Personal use of medical marijuana is neither "interstate" nor "commerce," argue Alabama, Mississippi and Louisiana in a joint brief. Claims to the contrary, they say, are reminiscent of the old saw: "If we had some ham, we could fix some ham and eggs, if we had some eggs."

Another brief was filed by a geographically and politically diverse group of constitutional law professors, including Charles Fried, the Harvard scholar who served as U.S. solicitor general under the first President Bush. They view the case as an important test of the federal government's regulatory reach.

"At the end of the day this case involves household production for household consumption with no sales or prospect of sales," the professors' brief argues. "If the government can regulate that, it can regulate anything" - perhaps, "the growing of geraniums in window boxes, where no sale or purchase ever takes place, simply because such activity falls within a broader class of 'agricultural production' that also includes growing products for sale."

The Supreme Court has tackled similar issues before. In 1942, it upheld a fine against a farmer who had exceeded his federal wheat quota and had used the excess grain on his farm - to bake bread for his family, seed his next crop and feed cattle and livestock later sold at market.

The federal government's regulatory powers under the commerce clause expanded for the next half-century. But in 1995, the current Supreme Court struck down a federal law against carrying a gun in a school zone, saying that wasn't economic activity and it didn't substantially affect interstate commerce. In 2000, the court struck down a federal law against domestic violence, saying Congress couldn't "aggregate" the effects of violence against women to assert a national economic impact.

A 'Substantial' Impact

The federal government maintains that Raich and Monson are like the wheat farmer.

When all medical marijuana activity is taken into consideration, the impact on interstate commerce is "substantial and direct," says the government's brief. It says medical users will divert excess pot to the illicit drug trade or buy from the drug trade when private supplies run short.

The government predicts "staggering" problems in enforcing part of the 1970 Controlled Substances Act - if police have to differentiate noncommercial from commercial pot and intrastate from interstate pot.

Among supporters of that position is a group of congressmen, whose brief refers to state medical marijuana laws as a cover for large-scale drug production and trafficking.

The plaintiffs' brief contends federal law enforcement has focused its anti-pot effort disproportionately on medical users and suppliers and outspoken critics of the federal anti-pot policy.

That's "completely false," says Richard Meyer, regional DEA spokesman. He says the DEA focuses on what he calls "large-scale distributors."

Angel Raich, who calls herself "just a mother who is fighting to stay alive," acted pre-emptively, suing the federal government to block it from interfering with her.

As for Monson, Meyer says that if DEA agents come in contact with any illegal drug, they must remove it.

"By law we are required to take action ... even if it's a joint, and nobody's going to get prosecuted for a joint."

Related Articles & Web Site:

Angel Raich v. Ashcroft News

Supreme Court To Hear California Med Pot Case

High Court To Weigh Medical Marijuana Laws

The Fate of Medical Pot

Federal Government, Butt Out of Med Marijuana




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