Judge
tells feds to back off from medical pot
group
SAN FRANCISCO (AP) — The federal government
must stay away from a California medical
marijuana group that grows and distributes
cannabis for its sick members, a judge ruled.
The
decision Wednesday from U.S. District Judge
Jeremy Fogel in San Jose was the first interpretation
of a federal appeals court decision here
last year that ordered the federal government
not to prosecute a sick Oakland woman who
smoked marijuana with a doctor’s recommendation
under a 1996 California medical marijuana
law.
Fogel
ruled that the Justice Department cannot
raid or prosecute the 250 members of the
Wo/Men’s Alliance for Medical Marijuana,
which sued the government after the Drug
Enforcement Administration raided its Santa
Cruz County growing operation in 2002 and
seized 167 marijuana plants.
The
group’s director, Valerie Corral,
said the group had been receiving and growing
marijuana in secret since the raid out of
fear of being prosecuted. But now the group
intends to immediately plant hundreds of
plants at Corral’s one-acre property
in the Santa Cruz hills.
‘‘You
better believe it we’re gonna plant,’’
Corral, who uses marijuana to alleviate
epileptic seizures, said. ‘‘I’m
leaving now. It’s amazing.’’
The
Justice Department, which urged Fogel not
to issue an injunction barring new raids
or prosecutions, declined comment. Spokesman
Charles Miller said the government was reviewing
the decision.
The
marijuana group for the injunction after
the 9th U.S. Circuit Court of Appeals ruled
in December that a congressional act outlawing
marijuana may not apply to sick people with
a doctor’s recommendation in states
that have approved medical marijuana laws.
The
San Francisco-based appellate court, ruling
2-1, wrote that prosecuting these medical
marijuana users under a 1970 federal law
is unconstitutional if the marijuana isn’t
sold, transported across state lines or
used for non-medicinal purposes.
That
decision was a blow to the Justice Department,
which argued that medical marijuana laws
in nine states were trumped by the Controlled
Substances Act, which outlawed marijuana,
heroin and a host of other drugs nationwide.
The Justice Department on Tuesday appealed
that 9th Circuit decision to the Supreme
Court.
The
Controlled Substances Act, as applied to
the Santa Cruz cooperative, Fogel wrote,
‘‘is an unconstitutional exercise’’
of federal intervention.
Fogel’s
decision, meanwhile, furthers the conflict
between federal law and California’s
1996 medical marijuana law, which allows
people to grow, smoke or obtain marijuana
for medical needs with a doctor’s
recommendation.
Alaska,
Arizona, Colorado, Hawaii, Maine, Nevada,
Oregon and Washington state have laws similar
to California, which has been the focus
of federal drug interdiction efforts. Agents
have raided and shut down several medical
marijuana growing clubs.
The
appeals court, the nation’s largest,
does not have jurisdiction over Colorado
and Maine.
The
two recent decisions are outgrowths of a
2001 U.S. Supreme Court ruling, when the
court said medical marijuana clubs could
not dole out medical marijuana based on
the so-called ‘‘medical necessity’’
of patients, even if they have a doctor’s
recommendation to use marijuana.
Justice
Clarence Thomas wrote that an Oakland pot
club could not defend its actions against
federal drug laws by declaring it was dispensing
marijuana to the medically needy.
But
the justices said they addressed only the
issue of a so-called ‘‘medical
necessity defense’’ being at
odds with the Controlled Substances Act
that says marijuana, like heroin and LSD,
has no medical benefits and cannot be dispensed
or prescribed by doctors.
Thomas
wrote that Supreme Court left several questions
unresolved, including whether the government
could interfere with the states to make
their own medical marijuana laws.
‘‘The
Supreme Court had left this door open,’’
said Gerald Uelmen, a scholar at the Santa
Clara University School of Law who represented
the Wo/Men’s Alliance for Medical
Marijuana.
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