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
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
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
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
Answering a Prayer
Raich says marijuana may have come into her life in answer to her
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
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
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
"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'
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
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
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."
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