cannabisnews.com: Federal Court Considers Pot Arguments





Federal Court Considers Pot Arguments
Posted by CN Staff on December 18, 2002 at 07:46:02 PT
By Josh Richman, Staff Writer
Source: Oakland Tribune 
Lawyers argued Tuesday over whether a federal judge can or should bar U.S. Attorney General John Ashcroft and Drug Enforcement Administration chief Asa Hutchinson from treating medical marijuana patients as criminals. U.S. District Judge Martin Jenkins didn't rule Tuesday, but indicated he'll do so no later than mid-January. Patients sued the government officials in October, claiming their civil rights are being violated by federal crackdowns on medical marijuana. 
The federal government still deems all marijuana growth, possession or use illegal, even though California voters OK'd medical marijuana in 1996. Alaska, Arizona, Colorado, Hawaii, Maine, Oregon and Washington have similar laws. Jenkins peppered the patients' attorneys -- Robert Raich of Oakland, David Michael of San Francisco and Boston University Law Professor Randy Barnett -- and Justice Department trial lawyer Mark Quinlivan with questions Tuesday. Some questions concerned whether Jenkins even has the authority under 9th Circuit case law to issue an injunction in a case such as this. Quinlivan argued he doesn't, while the patients' attorneys said he does. The lawyers also sparred on whether the federal Controlled Substances Act, which Ashcroft and Hutchinson use as authority to go after medical marijuana patients, should be applied to medical marijuana. Barnett argued Congress' constitutional authority extends only to interstate commerce, while medical marijuana in California is an issue contained wholly within the state's own borders, involving no money changing hands. Quinlivan noted case law has found marijuana use for any purpose can't be considered wholly intrastate and noneconomic. Raich argued for the 9th Amendment right of plaintiff Angel McClary Raich, his wife, to be free from pain and prolong her life by using marijuana. "Angel would die were it not for cannabis," he said. "It cannot be the law of the United States that a person must face death because of a law Congress passed for other purposes entirely." Quinlivan argued Congress passed the Controlled Substances Act knowing it would apply to everyone, and marijuana remains on the act's most restricted list, signifying it has no recognized medicinal value. Case law says people have a constitutional right to treatment in general, but not to specific, unproven medicines and methods. Some of this case's constitutional arguments mirror those made to the 9th U.S. Circuit Court of Appeals in the Oakland Cannabis Buyers Cooperative's pending case. The OCBC raised those issues after the U.S. Supreme Court in 2001 struck down its medical necessity argument for resuming distribution to patients. But in his concurrence with that opinion, Justice John Paul Stevens wrote individual patients -- rather than clubs like the OCBC -- might have better legal standing to seek such an exception. The patients' lawsuit was a response to that ruling.Note: Judge preparing to decide whether U.S. should be blocked from prosecuting California.Source: Oakland Tribune (CA)Author: Josh Richman, Staff WriterPublished: Wednesday, December 18, 2002Copyright: 2002 MediaNews Group, Inc. Contact: triblet angnewspapers.com Website: http://www.oaklandtribune.com/Related Articles & Web Site:OCBChttp://www.rxcbc.org/Medicinal Marijuana Users Sue U.S. Officialshttp://cannabisnews.com/news/thread14417.shtmlGrowers File Suit To Stop Federal Raids http://cannabisnews.com/news/thread14412.shtmlMedicinal Pot Users Renew Legal Challenge http://cannabisnews.com/news/thread14410.shtml 
Home Comment Email Register Recent Comments Help




Comment #4 posted by FoM on October 07, 2003 at 21:33:36 PT
DPFCA: Ninth Circuit Hears Raich-Monson MMJ Appeal
    
 San Francisco, Oct 7: The Ninth Circuit Court of Appeals heard oral arguments in a lawsuit by Prop. 215 patients Angel Raich and Diane Monson challenging the constitutionality of the federal government's ban on personal use and cultivation of marijuana for medicine under California law. The case involves the same basic issues that were raised in a similar appeal by the Oakland Cannabis Buyers' Cooperative and Wo/Men's Alliance for Medical Marijuana before a different Ninth Circuit Panel three weeks ago. The salient difference in that Raich and Monson were in no way engaged in distribution and are seeking only the right to use and grow medicine for relief of their own personal pain and suffering in accordance with state law. Defense Attorney Randy Barnett stressed that the case involves "wholly interstate, non-economic activity" of a kind that Congress does not have power to reach, in the same way that recent Supreme Court decisions (Lopez and Morrison) have held that Congress cannot regulate guns in school zones or violence against women. Although the defense raised three other lines of argument - that California's law is protected by state's rights, that patients have a fundamental right to relief from pain and suffering, and that the DEA's actions constitute "interference of liberty" under the Supreme Court's Lawrence v. Texas ruling - the oral arguments focused exclusively on the interstate commerce issue. The case was heard by justices Pregerson and Paez - Democratic appointees with a liberal reputation - and by visiting justice Beam, a Reagan appointee from the Eighth Circuit. Justice Beam questioned why Raich & Monson's marijuana plants were different from the home-grown wheat that featured in the ruling precedent, Filburn vs Wickard, where the Supreme Court ruled that the government could regulate wholly intrastate economic activity if it were part of a larger class of activities constituting interstate commerce. Prof. Barnett replied that Filburn was a commercial wheat farmer, and his activities were therefore economic in a way that his clients' were not. US Attorney Mark Quinlivan stressed that in a slew of precedents, the Ninth Circuit had consistently ruled that marijuana and other drugs are within the government's powers of regulation under the interstate commerce clause. In rebuttal, Barnett argued that all of the precedents either involved plainly economic activity or preceded the Supreme Court's Morrison decision. Barnett also took note of the Ninth Circuit's recent McCoy ruling, in which it held that personal possession of child pornography was beyond the scope of Congress' powers to regulate interstate commerce. "Your case is really a McCoy case, right?" asked Justice Paez - a pregnant question that delighted medical cannabis supporters. No decision is expected until after the OCBC/WAMM appeal is decided, hopefully sometime in the next 5 or 6 months.The panel also heard two other medical marijuana appeals today. One involved an appeal by Dr. Mollie Fry, who was seeking an administrative hearing challenging the DEA's suspension of her license last December. Her attorney, Lawrence Lichter, claimed that Dr. Fry had instructed her previous attorney, David Nick, to file a notice for a hearing, but that the notice had not been received by DEA within the legal 30-day deadline. A search failed to reveal a copy of the letter in Nick's files, though Nick submitted a sworn statement that he had sent it. The US attorney argued that the DEA had legal discretion to suspend Fry without a hearing once the deadline had passed. The judges deliberated whether there was good cause to order a hearing in these circumstances.The other case involved a homeless man named Hassel who had been charged with assaulting a federal officer who had ordered him not to smoke marijuana in the S.F. federal court building. His attorney, Mark Eibert, argued that a lower court had wrongly forbidden Hassel to present evidence that he was a legal medical marijuana patient so as to argue that he had acted in self-defense. The U.S. attorneys challenged the relevance of Hassel's medical marijuana use to the charge in question and raised other procedural objections. Judge Pregerson questioned whether the case had been properly handled by either party, opining that "everybody was asleep."   - D. Gieringer, Cal NORML-- 
----
Dale Gieringer (415) 563-5858 // canorml igc.org
2215-R Market St. #278, San Francisco CA 94114
 
California NORML
[ Post Comment ]


Comment #3 posted by The C-I-R-C-L-E on December 18, 2002 at 16:29:09 PT
Um...remember who's in office?
In the casino of federal court pot cases, the house always wins.This has as much chance of turning out a ruling in our favor as we have of seeing John Ashcroft at a rave smoking a fatty.They will find a reason to shut us up or they will simply make one up. Not many will care about the case unless the general public is ultimately swayed to care, and we're not quite there yet.But the lawsuit will serve to educate the populace and drum up informational media coverage (from the media that's not bought out).We mustn't focus on "winning" by their definition of winning, but these cases must be filed nonetheless. These are true warriors we are reading about!Go ganja!
[ Post Comment ]


Comment #2 posted by FoM on December 18, 2002 at 08:27:42 PT
65 Years!
No No No that isn't acceptable. I'll be pushing up daisies by then. Or I'll be the oldest activists in recorded history! Just thinking that far down the road makes me tired! LOL!
[ Post Comment ]


Comment #1 posted by Ethan Russo MD on December 18, 2002 at 08:17:15 PT:
Critical Case
This case, if it receives a favorable ruling, could represent the end of the commerce clause excuse in the execution of the unconstitutional Controlled Substances Act. The arguments advanced here are very strong, very compelling.Let's hope.Should this not be successful, there is only hope through prescription cannabis products, or the intercession of Congress. That latter might occur, in about another 65 years.
[ Post Comment ]


Post Comment