Medical pot parade to put festive face on ongoing, hard-fought battle

July 14, 2005

Brian Seals, Santa Cruz Sentinel

Organizers of a medical marijuana march planned Saturday in downtown Santa Cruz promise a bit of festivity and a bit of reverence for their deceased colleagues.

And, they hope to make a social and political statement.

But as members and friends of the Wo/Men’s Alliance for Medical Marijuana wage a public-relations battle, attorneys continue to craft a legal war strategy behind the public limelight.

Far from going into seclusion in the aftermath of a U.S. Supreme Court ruling June 6 that dealt state medical pot laws a setback, WAMM is continuing a very public battle.

'Our hope is we can turn out thousands of people' for the parade, WAMM co-founder Valerie Corral said from the group’s Westside office. 'We want to demonstrate to the federal government the people of this community support medical marijuana.'

About 150 members of the cooperative plan to march through downtown starting at noon Saturday, with participants toting about 25 live marijuana plants.

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Corral said she wants to show the compassionate side of the issue.

'We want to assist each other,' Corral said. 'This is America at its best, people helping people.'

Medical marijuana users say they need the drug for a variety of ills, such as relieving pain without side effects of other drugs, or increasing an appetite depressed by pharmaceuticals

But federal drug-policy officials say no statement needs to be made. The federal Office of Drug Control Policy considers pot the same as other illicit drugs, a stance only reinforced by this summer’s Supreme Court ruling.

The ruling does not overturn laws in California and 10 other states that allow medical use of marijuana, but those who use marijuana as a medical treatment risk legal action by the U.S. Drug Enforcement Administration or other federal agencies .

'Marijuana is a serious drug of abuse,' said spokesman Tom Riley from Washington, D.C. 'It is a more dangerous drug than many people realize.'

Riley said medical marijuana advocates are seeking to make medical policy out of popular opinion, rather than science and government approval that rules the use of other pharmaceutical drugs.

Moreover, he said, while some people are using pot to relieve genuine suffering, medical pot policies are being abused by people seeking wholesale legalization.

While WAMM members plan parade logistics, attorneys working with the group are plotting courtroom strategy.

The Supreme Court ruling gutted some of the group’s legal basis for continuing its work unfettered, but WAMM has more legal ammo, said Santa Cruz attorney Ben Rice.

The ruling overturned a 9th Circuit U.S. Court of Appeals decision in 2003 that allowed medical marijuana use as long as no money changed hands and the marijuana crossed no state lines. That case brought a states’ rights versus federal rights aspect to the issue.

The Raich case, brought by two Northern California women, Angel Raich and Diane Monson, challenged the constitutionality of the federal government’s ban on personal use and cultivation of marijuana for medicine under California law.

Similarly, WAMM’s case centered on the interstate commerce clause of the constitution.

While the appeals court ruling was in place, WAMM secured an injunction protecting its marijuana gardens from future raids by federal agencies, as occurred in September 2002.

But the 6-3 Supreme Court decision in the Raich case settled that aspect.

However, WAMM plans to argue in U.S. District Court another component of its case: Its rights are being violated under 'due process' provisions of the U.S. Constitution, Rice said.

The approach will center on the concept of 'substantive' due process in the U.S. Constitution, he said. That pertains to rights that aren’t set forth explicitly in the Constitution, such as alleviating pain.

Using marijuana to save one’s life or help one live it more fully would fall under that concept, WAMM lawyers would argue.

'We think we have a winning argument that an attempt to stop access to marijuana is an infringement on a constitutional substantive due process right to ameliorate pain,' Rice said.

WAMM’s legal team includes Rice, a defense lawyer, Santa Clara University law professor Gerald Uelmen and lawyers from the San Francisco firm of Bingham McCutchen.

The attorneys have been ordered by the 9th Circuit Court of Appeals to file a brief in U.S. District Court in San Jose by Aug. 2. The U.S. Attorney’s Office has a Sept. 2 deadline to respond, Rice said.

As for this Saturday’s parade, WAMM still enjoys protections of an injunction granted in April 2004, though that will expire as a result of the Supreme Court ruling.

WAMM, joined by the county and city of Santa Cruz, sued then-Attorney General John Ashcroft in 2003, seeking relief on behalf of terminally ill patients who are members of the cooperative.

While it won the injunction in 2004, the case has been on hold while the Raich case was decided.

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