U.S. Judge Rules Against Medical Pot Patients

Advocates of medical marijuana have lost another round in federal court in San Francisco. A U.S. judge has turned down a bid by two patients for a preliminary injunction that would have protected them from federal prosecution for using marijuana to alleviate serious health problems.

U.S. District Judge Martin Jenkins said although the patients had shown they will suffer "severe harm and hardship" if denied marijuana, he was bound by higher court rulings that allow no exception from federal drug law for California's medical marijuana law.

Jenkins issued the ruling March 5 in a lawsuit filed last fall by Angel McClary Raich of Oakland and Diane Monson of Oroville against U.S. Attorney General John Ashcroft and U.S. Drug Enforcement Administration Chief Asa Hutchinson.

The two women said they should be allowed to use marijuana under California's Compassionate Use Act. The law, passed by state voters in 1996, allows patients to use marijuana for medical purposes upon a doctor's recommendation.

Raich suffers from several debilitating conditions, including severe chronic pain, weight loss and a brain tumor. Monson suffers from chronic back pain and muscle spasms.

Robert Raich, who is Angel Raich's attorney and husband, said the two women will appeal to the 9th U.S. Circuit Court of Appeals in San Francisco.

"We will certainly appeal. We feel more confident we will get a good ruling from the appeals court. We feel that the judge misapplied a number of 9th Circuit precedents,'' Raich said.

The plaintiffs argued that the U.S. Controlled Substances Act, which criminalizes marijuana, should not apply to them because their locally grown marijuana did not involve any interstate commerce.

But Jenkins wrote in his ruling that the 9th Circuit has specifically upheld the application of the federal law to drug activity within state borders.

Jenkins also turned down the two women's claims that they had a fundamental right to obtain marijuana for treatment and that they should be granted a "medical necessity" exemption from federal law.

He said a U.S. Supreme Court ruling two years ago in a case involving the Oakland Cannabis Buyers' Cooperative established that both patients and providers are not exempt from the law.

The judge said that although he was constrained by the higher court rulings, the public interest appeared to weigh in the plaintiffs' favor.

Jenkins wrote, "Plaintiffs' list of medical conditions, and their statements that marijuana is the only medication that has proven effective to ameliorate their symptoms, provide strong evidence that plaintiffs will suffer severe harm and hardship if denied use of it.''

The judge said the public interests in upholding the federal law "wane in comparison with the public interests enumerated by plaintiffs and by the harm they would suffer if denied medical marijuana.''

The 2001 U.S. Supreme Court ruling was made in a civil lawsuit filed by the U.S. Justice Department in federal court in San Francisco in 1998 against the Oakland coop and five other Northern California medical marijuana clubs.

Raich and Monson sought to argue in their lawsuit that the high court decision applied to marijuana distributors but not necessarily to patients.

But Jenkins said the Supreme Court majority specifically said its ruling applies to patients as well as to people who provide them with marijuana.

"This court must also follow the dictate of the Supreme Court in its finding that there is no medical necessity defense for any of the prohibitions contained in the Controlled Substances Act, including even possession for medicinal use,'' Jenkins wrote.

In another defeat for medical marijuana, Oakland author Edward Rosenthal was convicted in federal court in San Francisco in January of three criminal counts of marijuana cultivation and conspiracy.

Rosenthal claimed he was growing marijuana for patients but was barred by the trial judge from making that argument in his defense because he was prosecuted under federal law. He is appealing his conviction.

Although neither Raich nor Monson has been prosecuted for using marijuana, they sought an injunction to protect themselves against possible future federal raids and prosecution.

Raich has never been arrested or had her home searched, but Raich said that fear of a possible raid worsened her medical conditions.

Monson's home was raided last August by Butte County sheriff's deputies and federal DEA agents. While the county deputies concluded that her marijuana use was legal under the state law, the federal agents seized and destroyed her six marijuana plants. She has not been prosecuted.