Medical marijuana takes another hit in court
March 14, 2007
Josh Richman, ANG NewspapersMedical necessity doesn't shield medical-marijuana users from federal prosecution, a clearly sympathetic federal appeals court ruled Wednesday in an Oakland woman's case that earlier went all the way to the U.S. Supreme Court.
"Nothing in the common law or our cases suggests that the existence of a necessity defense empowers this court to enjoin the enforcement of the Controlled Substances Act as to one defendant," 9th U.S. Circuit Court of Appeals Judge Harry Pregerson wrote.
So plaintiff Angel Raich of Oakland can't get a court order to block federal officials from arresting and prosecuting her. She might, however, be able to make a medical-necessity argument as a defense at trial.
The court also found the Constitution's guarantee of due process of law doesn't embrace the right to make a life-shaping decision, on a doctor's advice, to use medical marijuana to avoid intolerable pain and preserve life when all other prescribed medications have failed.
Although the court agreed medical marijuana is slowly gaining legal acceptance — 11 states including California have passed laws allowing its use — it found "that legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is 'fundamental' and 'implicit in the concept of ordered liberty.'"
"For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental," Pregerson wrote.
"I'm a dead woman walking," Raich, 41, responded Wednesday morning. "The 9th Circuit is saying the sickest of the sick marijuana patients have no constitutional right to life. ... Now, if the DEA (Drug Enforcement Administration) knocked at my door, they could take my life and get away with it."
Raich suffers from scoliosis, an inoperable brain tumor, wasting syndrome, fibromyalgia and other ailments.
Robert Raich, the plaintiff's attorney and ex-husband, said they're reviewing their options: They could ask this same panel to reconsider the case; they could ask for review by an 11-member panel of the appeals court; they could petition the U.S. Supreme Court for review; or they could ask U.S. District Judge Martin Jenkins of San Francisco, who ruled against them at the trial court level, to take up an as-yet-unaddressed issue of whether the Controlled Substances Act bars marijuana use on a doctor's order.
Raich and Diane Monson of Oroville plus two unnamed providers sued the government in October 2002 to prevent any interference with their medical marijuana use, but this case's seeds actually were sown in the Supreme Court's May 2001 decision on the Oakland Cannabis Buyers Cooperative's case.
The court in that earlier case had ruled there's no collective medical necessity exception to the federal ban, which defines marijuana as having no valid medical use. But it didn't rule on constitutional questions underlying the medical marijuana debate, so Raich, Monson and their lawyers tailor-made a case raising exactly those issues.
A federal judge in San Francisco rejected their arguments in March 2003, but a 9th Circuit appeal panel reversed that ruling nine months later. That panel believed the plaintiffs could prevail at trial on their claim that the Constitution's Commerce Clause lets Congress regulate only interstate commerce, and that Californians' medical marijuana use neither crosses state lines nor involves money changing hands.
The U.S. Supreme Court heard the case in November 2004 and in June 2005 ruled 6-3 to uphold the federal ban, finding that even marijuana grown in backyards for personal medical use can affect or contribute to the illegal interstate market for marijuana and so is within Congress' constitutional reach.
But the 9th Circuit panel and the Supreme Court dealt only with the Commerce Clause argument, not the other constitutional issues. With the case remanded back to the 9th Circuit, Raich's attorneys pursued the remaining arguments; Monson dropped out of the case in late 2005.
Arguing almost a year ago in Pasadena, Raich's lawyers claimed the common-law doctrine of necessity — the idea that it's OK to break the law when forces beyond one's control compel it and there's no reasonable, legal alternative — bars the government from applying the Controlled Substances Act to ban medically necessary activities. They'd also argued that keeping her from using marijuana as medicine unduly burdens her fundamental rights to life and freedom from pain, as protected by the Fifth Amendment's Due Process Clause and the Ninth Amendment.
The government argued there's no constitutionally protected fundamental right to obtain and use marijuana in defiance of the federal ban on the drug, and that the Supreme Court's decision in the Oakland Cannabis Buyers Cooperative case already had ruled out a medical-necessity argument.
"We lost this case because the court rejected our characterization of this as a right to life and accepted the government's characterization that it's a right to use medical cannabis," said Georgetown University law professor Randy Barnett, who argued Raich's case to the Supreme Court in 2004 and to the appeals court in 2006. "But the court gave the losing party more than the losing party had any right to expect."
It said that she seems to qualify for a medical necessity defense if she's ever arrested and prosecuted, Barnett noted, and it said that as more states pass medical-marijuana laws, a fundamental-rights claim like hers will grow stronger.
The American Civil Liberties Union issued a news release Wednesday noting the ruling's holding that a medical-necessity defense could be viable at trial, and saying it "will immediately pursue such claims on behalf of patients who have been raided by federal agents in recent years."
And Marijuana Policy Project spokesman Bruce Mirken, at a news conference with Raich later Wednesday in Oakland, noted another 20 states are mulling medical marijuana bills, with New Mexico likely to pass its into law soonest. Wednesday's ruling deals only with federal law and has no effect on state laws, he noted.
"I am not a criminal, I am a good citizen. I've done everything I can to do the right thing," Raich tearfully said at the news conference, vowing to continue her fight. "I used cannabis this morning and I will continue to use cannabis. ... They can bust me if they want."
Continuing the fight, she said, might mean spending even more time than she already has lobbying Congress to change federal law.
The House last June voted 259-163 against a budget amendment introduced for the fourth consecutive year by Rep. Maurice Hinchey, D-N.Y., and Rep. Dana Rohrabacher, R-Huntington Beach, to bar use of federal funds to arrest and prosecute patients and providers in the 11 states with medical marijuana laws. The measure received 161 votes in 2005; 148 in 2004 and 152 in 2003; it would need 218 to pass.
Contact Josh Richman at firstname.lastname@example.org or (510) 208-6428.