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Wednesday, December 17, 2003 - Page updated at 01:12 A.M.
Appeals court upholds medical marijuana use
By Carol M. Ostrom
DeMaris Strohm heard from a friend yesterday that a federal appeals court ruled that state laws protect medical marijuana users from federal prosecution. The West Seattle grandmother promptly burst into tears.
"I said, 'Praise God!' and I started crying out of happiness that I can have my grandson come and stay with me and not worry about the federal government busting down my door," said Strohm, 50.
She has used marijuana with a doctor's permission since 1997 for pain and extreme weight loss after a brutal car accident.
Yesterday, a three-judge panel of the 9th U.S. Circuit Court of Appeals, in a victory for states' rights, ruled unconstitutional federal prosecutions of medical marijuana patients in states that have approved laws allowing such use of the drug.
If patients are authorized by a doctor under state laws, and aren't transporting marijuana across state lines or selling it, their growing, possession or use of marijuana is not "drug trafficking," Judge Harry Pregerson wrote for the majority.
His ruling sends the case back to the California district judge who declined to protect two patients from federal prosecution.
Quoting from a previous court decision, Pregerson's ruling notes: "It is particularly important that in the field of criminal law enforcement, where state power is pre-eminent, national authority be limited to those areas in which interstate commerce is truly affected. ... The police power is, essentially, reserved to the states."
The 9th Circuit has a reputation for being frequently overturned by the Supreme Court. But legal experts say its batting average is about the same as other circuits, and its reputation likely the result of the cutting-edge issues that often arise first in California or other states within its jurisdiction.
The U.S. Justice Department had argued that state laws allowing medical use of marijuana were superseded by the federal Controlled Substances Act, a 1970 law that puts marijuana in the same category as heroin and other drugs it deems to have no medicinal use.
In many states, including Washington, the clash between federal and state laws has left medical marijuana patients fearful of federal prosecution.
"People are living in limbo and being charged under state law. There are lots of people being arrested wrongly under state law," he said.
Strohm said she has lived in fear of federal prosecution since she began using marijuana. But after her 1986 accident, she said, she tried 14 different pharmaceutical drugs and all had the same side effect: loss of appetite. Only marijuana has helped keep her from wasting away, she said: At almost 5 feet 7, she now weighs 102 pounds.
"Now, I can bring my grandson over to visit for a month in the summertime. I wanted him far away from me because of the danger zone," she said. "I didn't want to have the DEA bust down my door and take me away while he was there and traumatize him."
The California case that reached the 9th Circuit involved two women, Angel McClary Raich and Diane Monson.
Like Washington and seven other states, California has passed a law allowing certain patients to legally use marijuana.
Raich, a 38-year-old Oakland woman, has been diagnosed with more than 10 serious medical conditions, including an inoperable brain tumor, and has used marijuana for more than five years. Her doctor said she has tried all other legal alternatives, but they were ineffective or had intolerable side effects.
Monson, an Oroville resident, has severe chronic back pain and muscle spasms caused by a degenerative spinal disease. Her doctor, as well, said alternative medications haven't worked for her.
Monson grows her own, while two caregivers supply Raich.
Last year, deputies from the county sheriff's department and agents from the Drug Enforcement Administration came to Monson's home. They disagreed about whether her marijuana use was legal, but after a three-hour standoff, the DEA agents seized and destroyed her six plants.
The two women, along with Raich's caregivers, filed suit last year against John Ashcroft, the U.S. attorney general, and Asa Hutchinson, the administrator of the DEA. The plaintiffs maintained that the federal law was unconstitutionally being enforced against them. They asked for an injunction barring federal prosecution, but the district court refused.
Yesterday's ruling returns the case to the district court to grant the injunction.
Randy Barnett, a Boston University constitutional law professor, said the ruling by the 9th Circuit is 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.
Federal drug-enforcement agents have raided and shut several medical marijuana growing clubs in California over the past few years.
In 2001, the U.S. Supreme Court ruled that medical marijuana clubs could not dole out medical marijuana based on the so-called "medical necessity" of patients, even if they have a doctor's recommendation to use marijuana.
Justice Clarence Thomas wrote that an Oakland pot club could not defend its actions against federal drug laws by declaring it was dispensing marijuana to the medically needy.
Hiatt, the Seattle attorney, said the states'-rights argument may be difficult for the federal government to challenge.
"For the Bush administration to fight this would be very difficult and very hypocritical, because they'd be fighting against the very conservative doctrines they've been venerating for the past few years."
Times staff reporter Ian Ith and The Associated Press contributed to this report.
Carol M. Ostrom: 206-464-2249 or email@example.com
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