Tony Newman at (212) 613-8026 or Elizabeth Mendez Berry at (212) 613-8036
San Jose, CA. Eighteen months after a brutal DEA raid on a peaceful medical marijuana collective in Santa Cruz, California, the seriously ill members of the collective may finally get the protection from future raids and harassment they have sought since filing suit against the federal government. On Wednesday, March 31st at 9 AM in the San Jose Courthouse Courtroom 3, 5th Floor, Judge Jeremy Fogel of the Northern District of California will reconsider his earlier decision in County of Santa Cruz et al. v. Ashcroft, which denied the protection the plaintiffs had sought.
The case involves the Wo/Men’s Alliance for Medical Marijuana (WAMM), a collective of medical marijuana patients and their caregivers. WAMM was raided by 30 armed DEA agents on September 24, 2002. DEA agents held the collective’s founders and a patient at gunpoint while they confiscated 167 plants. The founders, Valerie and Mike Corral, were taken into police custody but never charged with a crime. Since that time, WAMM has been unable to grow medicine in its garden, creating a terrible hardship for WAMM’s members–many of whom are terminally ill. After the raid the City and County of Santa Cruz joined WAMM and seven patient members in suing the federal government.
County of Santa Cruz et. al. v. Ashcroft challenges the authority of the federal government to conduct medical marijuana raids and focuses on the constitutional right of terminally and chronically ill patients to control the circumstances of their own pain relief and ultimately their deaths– a right recognized by the Supreme Court. The plaintiffs asked for a preliminary injunction to protect the collective from future raids while the lawsuit is pending. On August 28, 2003 Judge Fogel denied the plaintiffs’ motion for a preliminary injunction and granted the government’s motion to dismiss the case.
The Drug Policy Alliance, along with the firm Bingham McCutchen, the Santa Cruz City Attorney and co-counsel Prof. Gerald Uelmen and Ben Rice represent the plaintiffs in this case. Judy Appel, Director of Legal Affairs for the Drug Policy Alliance said, “Hopefully relief from the court is in sight and the WAMM patients will be able to grow and use their medicine free from fear of federal persecution.”
Earlier this year the plaintiffs asked Judge Fogel to reconsider his August ruling in the WAMM case in light of a landmark December 2003 decision by the Ninth Circuit Court of Appeals in Raich v. Ashcroft. In the Raich case, the Ninth Circuit ruled that John Ashcroft and the Bush administration had improperly applied the interstate commerce clause, since no commerce takes place when a patient is growing his or her own marijuana or a caregiver is growing it for the patient they assist. No marijuana traveled between states in the Raich case, and so the court ruled the federal government lacked the jurisdiction required to prosecute people under the Controlled Substances Act.
The facts of the WAMM case are very similar to those in Raich; the WAMM collective is a group of patients and caregivers growing and sharing their medicine where no one is charged money and there is no interstate commerce. In fact, the decision in the Raich case specifically criticized Judge Fogel’s decision in the WAMM/ Santa Cruz case, saying that the court had erred in its analysis.
The Raich decision has given new hope to the members of the WAMM collective, who suffer from cancer, AIDS, chronic pain and other serious illnesses. “The courts have historically protected Americans from harm, and as patients, we also seek the right to relief from suffering,” said Valerie Corral, co-founder of WAMM. “We hope that through the court’s wisdom we will be granted the freedom to continue our collective efforts to face illness and death.”
Since the 2002 raid on the collective, over 25 WAMM members have died and the supply of medicine for remaining patients has dwindled while the legal battles continue. One of the seven patient plaintiffs in the WAMM case, Dorothy Gibbs, who began using medical marijuana at the age of 86 to ease the pain she suffered as a result of Post-Polio Syndrome, passed away two weeks ago.
Neha Shah Nissen, an attorney with Bingham McCutchen said, “Through the Raich case, the Ninth Circuit has spoken loud and clear on the rights of sick individuals to cultivate and use marijuana for medical purposes pursuant to state law. It sent a direct message to the district court in the WAMM case to enjoin the federal government from interfering with WAMM members’ intrastate, noncommercial activities.”