Federal Appeals Court Slaps Ashcroft for Violating Constitution in Medical Marijuana Raids

In a landmark ruling yesterday, a federal court in California affirmed the right of sick patients to grow and use marijuana to treat their illnesses. The U.S. Ninth Circuit Court of Appeals ruled in a 2-1 decision that so long as patients do not pay for the drug, they cannot be prosecuted by the federal government.

“After this case, patients can collectively breathe a sigh of relief” said Judy Appel, The Drug Policy Alliance’s Deputy Director of Legal Affairs. “They can now seek out and use their medicine without fear of federal prosecution.”

The court ruled that Ashcroft and the Bush administration have improperly applied the interstate commerce clause in some cases to prosecute those who use and provide medical marijuana. Since no commerce occurs without payment, and no marijuana travels between states in the cases of Monson and Raich, the court ruled the matter to be outside of federal jurisdiction.

The decision follows a series of federal raids on medical marijuana facilities, during which AIDS and cancer patients and their providers have been handcuffed and arrested. It was made in response to a lawsuit filed against Attorney General John Ashcroft by Angel Raich of Oakland, who uses marijuana to help ease suffering from an inoperable brain tumor, and Diane Monson of Oroville, California, who uses marijuana to treat chronic pain.

Yesterday’s decision will likely have an immediate impact on patients in states that have voter-approved medical marijuana laws and are under Ninth Circuit jurisdiction, such as Alaska, California, Hawaii, Nevada, Oregon and Washington. Proposition 215, a ballot initiative passed by California voters in 1996, exempts state residents who use medical marijuana from criminal penalties.

The decision also comes on the heels of other major victories for medical marijuana patients. In October the U.S. Supreme Court upheld a medical doctor’s right to recommend medical marijuana to his or her patients in the case of Conant v. Walters. Both Presidents Bill Clinton and George W. Bush have tried to stop medical marijuana use in states that have approved it by threatening to remove the license of any doctor who even mentions medical marijuana to a patient.

“This new case, coupled with the Conant decision provides two tiers of protection,” added Appel. “First, for doctors to fully discuss the benefits of medical marijuana with their patients, and second, it gives patients the freedom to use their medicine without fear.”

Other wins include medical marijuana activist Ed Rosenthal’s one day prison sentence, which he received last summer after his high-profile arrest for growing medical marijuana sparked protests nationwide. Unfortunately, the U.S. Attorney’s Office has since filed notice with the federal appeals court in San Francisco to appeal U.S. District Judge Charles Breyer’s decision. Rosenthal has filed his own appeal with the court to overturn his conviction, which he argues was unfair because the jury was prevented from hearing evidence related to medical marijuana.

The Alliance and other advocates for medical marijuana are hopeful that the Ninth Circuit’s decision will help to further protect medical marijuana patients and their caregivers from federal action. In particular, they are hoping it will influence the case of Santa Cruz v. Ashcroft, in which the Drug Policy Alliance along with co-counsel including the firm Bingham McCutchens sued the federal government on behalf of the city and county of Santa Cruz and a medical marijuana cooperative. Yesterday’s ruling in the Raich case explicitly mentions that the lower court judge in the Santa Cruz case erred in applying the commerce clause. The attorneys at the Drug Policy Alliance are optimistic that yesterday’s judgement will result in a positive outcome in that case.