April 15, 2007 By Wallin & Klarich

The recent opinion of the US Court of Appeals for the Ninth Circuit in Raich v. Gonzalez, (March 14, 2007), once again draws the spotlight on the conflicting provisions of federal drug laws, which all but prohibit possession of marijuana under any circumstances, and California’s laws that permit the use of “medical marijuana” upon a doctor’s recommendation. Unfortunately, this case does not provide a resolution to this conflict in the laws, and it appears that it will take an act of Congress, if indeed Congress is willing to act on this issue, before there will be any consistency between California’s medical marijuana laws and the federal drug laws.

More than ten years ago, the voters in California passed Proposition 215. Proposition 215, known as the “Compassionate Use Act of 1996,” was enacted to ensure that “seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.” As such, the law states that it is the intent of the law that “patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.

” It was the stated hope that the enacting this law would “encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.”

While ten other states, i.e., Alaska, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Rhode Island, Vermont, and Washington, have followed California’s lead in this regard by passing laws that decriminalize medical marijuana to some varying degree or another, the United States government has not seen fit to follow suit. Under the federal Comprehensive Drug Abuse Prevention and Control Act of 1970, marijuana is classified as a “Schedule I drug” meaning that, according to federal authorities, marijuana has a “high potential for abuse” and, furthermore, it “has no currently accepted medical use in treatment in the United States, and, lastly, marijuana has a “lack of accepted safety for use … under medical supervision.” The federal law provides for stiff criminal penalties for anyone who might “possess” or “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense” marijuana. Simple possession of marijuana is generally a misdemeanor under federal law and, on conviction; one could be punished by imprisonment for up to one year and/or a fine of at least $1,000.00. 21 U.S.C. § 844(a). The fact that such a sanction exists does provide a person contemplating use of “medical marijuana” here in California, or in other states with “medical marijuana” laws, with some pause for thought, since he federal law does not permit a person to possess marijuana “upon the recommendation of a physician” and even if one has such a recommendation, such fact likely would not serve to shield one from a federal prosecution.

This obvious conflict between California and federal law came to a head on August 15, 2002. On that date, Deputies from the Butte County California Sheriff’s Department, the Butte County District Attorney, and agents from the US Drug Enforcement Agency (DEA) went to the home of one Diane Monson. When the officials arrived at Ms. Monson’s home, they found that she had six marijuana plants. The federal authorities found that Ms. Monson’s possession of the plants violated the federal law, whereas the state authorities believed that her possession of the plants was lawful under California’s “medical marijuana” law. What ensued was a three-hour standoff between the federal authorities and state authorities. Eventually, the federal authorities prevailed and seized and destroyed the plants.

Fearing future raids, Ms. Monson, along with Angel Raich, and two persons identified only as John Doe Number One and John Doe Number Two, filed a federal lawsuit against the US Attorney General and the DEA in the US District Court for the Northern District of California. Ms. Monson eventually dropped out of the lawsuit, but Ms. Raich and the “Does” (who apparently help Ms. Raich and Ms. Monson obtain medical marijuana) remained in the suit.

Ms. Raich claimed that the federal drug laws, as applied to her, were unlawful, and that the laws exceeded Congress’ constitutional authority, and denied Ms. Raich’s right to due process of law, and, finally, that the law could not be enforced against her because her violation of the law was exempted by the law of “necessity.” Ms. Raich sought a court order to prevent federal authorities from enforcing the federal drug laws against marijuana as to her.

In court proceedings on her petition, Ms. Raich’s doctor testified that Ms. Raich suffers from ten serious medical conditions, including a brain tumor, life-threatening weight loss, and severe and chronic pain disorders. The doctor testified that he had attempted all legal methods of treating Ms. Raich, and presented to the court a list of thirty-five legal drugs that were either ineffective or had intolerable side effects for Ms. Raich. The doctor testified that he found marijuana to be of great value to Ms. Raich, and that, in his estimation, if Ms. Raich were to stop taking marijuana that she would likely die. The record revealed that, before using marijuana, Ms. Raich was confined to a wheelchair and had even attempted suicide because of the constant pain she suffered.

The US District Judge found that traditional medicine has “utterly failed” Ms. Raich. Although the US District Judge found that Ms. Raich demonstrated a “grave need” for medical marijuana, the judge denied her petition for a preliminary injunction, i.e., a court order directing the federal authorities to not enforce the federal marijuana laws as to Ms. Raich while the case was pending, finding that Ms. Raich did not demonstrate that she would likely prevail in her lawsuit – a prerequisite to obtaining such an order. Ms. Raich appealed.

The US Court of Appeals for the Ninth Circuit reversed, finding that Ms. Raich likely would succeed in her case, and finding that the enforcement of the drug laws against Ms. Raich violated the US Constitution’s “Commerce Clause,” which says, essentially, that Congress may regulate “interstate commerce” i.e., commerce that moves between one state and another, and, since Ms. Raich’s activities were confined to the state of California, enforcement of the drug laws as to her went beyond Congress’ powers under the US Constitution.

The government sought review of that opinion in the United States Supreme Court. The High Court struck down the Ninth Circuit’s decision that the law violates the “commerce clause.” The Court, citing to its prior opinion in the 1942 case of Wickard v. Filburn, 317 U.S. 111 (1942), found that Congress may properly pass laws that reach only “local” activities that are not even “commerce,” so long as the overall effect of the activity has a “substantial effect” on interstate commerce. The Court found Wickard particularly applicable because, in that case, Congress passed a law that restricted how much wheat farmers could grow in an attempt to stave off a wheat surplus in the interstate and international wheat markets. Mr. Filburn was a farmer who grew too much wheat on his farm, but stated that he grew the extra wheat to eat himself and feed his family on his farm and not to sell. The Supreme Court in that case found that the purpose of the law was to regulate how much wheat was on the market, and Mr. Filburn, by growing his own wheat, would not be buying it on the market, thereby increasing the amount of wheat in the interstate wheat market. Accordingly, the Court upheld the law as applied to Mr. Filburn. The Court analogized Ms. Raich’s case to the case of Mr. Filburn, and found that Ms. Raich’s activities could have a similar effect on the illicit interstate drug market – a market that Ms. Raich admitted she availed herself of in the past. The US Supreme Court sent the case back to the Ninth Circuit for that Court to consider Ms. Raich’s remaining claims.

On March 14, 2007, the Ninth Circuit issued a ruling on those remaining claims.

The first issue was Ms. Raich’s claim of a “necessity” defense. This defense generally requires a showing that some force beyond the actor’s control rendered the violation of a law the “lesser of two evils.” The court cited an example of a case where a prisoner is charged with escaping from a burning jail, and, under such a circumstance, the prisoner would be permitted to assert the necessity defense, since, it is assumed that the legislature that enacted the law prohibiting inmates from leaving a jail would have allowed an exception in a case where the jail was on fire. Although the US Supreme Court has ruled that a defense of medical necessity cannot be used to defend against a charge of distributing marijuana, United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001), the Court never ruled on whether a person charged with possession of marijuana for medical purposes would have the ability to assert this defense. The Court seemed to state that, as things stand now, Ms. Raich might have a compelling defense, but since things could change in the future – for instance a new drug could be developed for Ms. Raich’s condition, or she could have a miraculous cure, the Court believed that it should not rule now on the issue of whether a necessity defense applies to Ms. Raich, but should wait and consider the issue in the event that Ms. Raich is ever arrested or prosecuted under the federal narcotics laws, and, since Ms. Raich has not been arrested and her marijuana has not been seized by the US government, the applicability of the “necessity” defense in her case is not ripe for review at this time.

The Court next considered whether enforcing drug laws against Ms. Raich violates her right to due process of law. Due process rights are considered “fundamental” rights and are “implicit in the concept of ordered liberty.” The Court defined the question as being whether the Constitution guarantees “a right to make a life-shaping decision on a physician’s advice to use medical marijuana to preserve bodily integrity, avoid intolerable pain, and preserve life, when all other prescribed medications and remedies have failed.” The Court, in finding that the medical use of marijuana to alleviate human suffering is not a “fundamental” right, seemed to acknowledge the insensitivity of its ruling on this point by stating that “[f]or now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected. Until that day arrives, federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.”

The Court quickly disposed of Ms. Raich’s final argument, an argument that the federal drug law violates the US Constitution’s Tenth Amendment, which provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Court noted that the purpose of the Tenth Amendment was to ensure that the states could individually exercise “police power” to protect the health and safety of the state’s citizens. The Court found that, although the California law is an exercise of police power, the US Supreme Court “long ago rejected the suggestion that Congress invades areas reserved to the States by the Tenth Amendment simply because it exercises its authority under the Commerce Clause in a manner that displaces the States’ exercise of their police powers.”

There was one final argument, that being that the federal drug laws, as written, do not criminalize Ms. Raich’s conduct. The Court found that this issue was not timely and properly presented, and, accordingly, the Court did not decide this issue.

It would appear that, for now, critically ill Californians who, upon a physician’s recommendation, use marijuana as a medical treatment, will continue to risk federal prosecution under federal drug laws unless Congress steps in and either reclassifies marijuana, or enacts a “medical marijuana” defense to a charge of violating federal drug laws.

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