Santa Cruz group wins court OK to grow pot Ruling allows medical marijuana distribution

April 21, 2004

Maria Alicia Gaura, San Francisco Chronicle

 A Santa Cruz medical marijuana collective shut down by federal agents two years ago can grow and distribute marijuana for its patients while its civil lawsuit against the federal government is decided by the courts, a federal judge ruled Wednesday.

The ruling by U.S. District Judge Jeremy Fogel in San Jose marks the first time a court has granted a medical marijuana organization the right to grow the federally outlawed herb without interference from federal drug agents.

The ruling clears the way for the Wo/Men's Alliance for Medical Marijuana in Santa Cruz to challenge the federal government's authority to raid medical marijuana gardens operating within the boundaries of California law.

'This is an incredible victory for us, though we do realize that everything is temporary,' said Valerie Corral, the founder and director of the collective. 'We are so pleased to be able to begin our garden again.'

Federal Drug Enforcement Administration agents raided the collective's marijuana farm on Sept. 5, 2002, seizing 167 plants and detaining several of the group's members.

At the time of the raid, the collective had been operating openly for several years with the explicit support of Santa Cruz city and county officials, including local law enforcement. The group's approximately 250 members, suffering from a variety of serious illnesses, collectively grew marijuana and distributed it to members free of charge.

The federal raid was denounced by Santa Cruz officials, who responded by allowing the group to distribute marijuana from the steps of City Hall -- as an unmarked helicopter repeatedly circled overhead.

Even Attorney General Bill Lockyer protested the raid, firing off a letter to U.S. Attorney General John Ashcroft in which he called the DEA's actions in Santa Cruz a 'provocative and intrusive incident of harassment.'

The collective's first foray into court was a civil suit demanding the return of items seized in the raid, but it was dismissed by Judge Fogel in December 2002. The case has since been appealed.

In April 2002, the collective and Santa Cruz city and county officials filed suit again, challenging the federal government's authority to interfere with medical marijuana activities that are legal under California law.

Federal authorities claim authority to pre-empt state law under provisions of the Commerce Clause of the U.S. Constitution, arguing that marijuana use of any kind constitutes interstate commerce.

But a December 2003 decision by the Ninth Circuit Court of Appeals in San Francisco in a separate medical marijuana case was cited by Judge Fogel as critical in leading to Wednesday's decision.

In that ruling, the Ninth Circuit found that medical marijuana grown and used by Angel Raich, an Oakland woman suffering from a brain tumor, does not constitute interstate commerce. The appeals court ruled that Raich could use marijuana free from federal prosecution.

The collective will be allowed to grow marijuana at least until the balance of its case challenging the applicability of the commerce clause is decided in Fogel's courtroom.

Fogel dismissed four additional claims against the federal government, narrowing the case to the single issue.

This week, the Justice Department appealed the Raich case to the U.S. Supreme Court.

Fogel's decision was hailed as a victory for patients' rights and states' rights by the collective's jubilant legal team.

'This is wonderful news for the patients who have really endured a good deal of suffering since the raid,' said collective attorney and Santa Clara University law Professor Gerald Uelmen. 'Since the raid we have lost more than 20 patients, and there is no question but that their deaths were more painful than they needed to be.

'The Raich decision was really the breakthrough, but this (decision) takes it a step further,' Uelmen said. 'It says there is no difference between a single patient growing their own medicine and a collective group assisting each other to achieve exactly the same purpose.'

Officials from the Justice Department and the DEA declined to comment on the decision.



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