POT GROWERS WIN KEY VICTORY
Within hours of a decision by U.S. District Judge Jeremy Fogel
allowing the Santa Cruz, Ca.-based Wo/Men's Alliance for Medical
Marijuana to resume growing marijuana and distributing it to its
patients, Attorney General John Ashcroft took time away from fighting
the war on terrorism to petition the U.S. Supreme Court to reverse the
federal appellate ruling underlying the judge's decision.
Judge Fogel's ruling was based on Raich v. Ashcroft which, explains
Bruce Mirken, director of communications for the Washington,
D.C.-based Marijuana Policy Project, was "a case won by patients Angel
McClary Raich and Diane Monson and their caregivers who argued that
because their medical marijuana activities were completely
non-commercial and conducted entirely within California, the Commerce
Clause as well as the Fifth, Ninth, and Tenth Amendments of the U.S.
Constitution give the federal government no right to intervene."
Judge Fogel's extension of the protections of Raich to Santa Cruz's
WAMM collective, Mirken said, was "the first time a court allowed a
medical marijuana organization to grow marijuana without being subject
to raids by federal drug agents."
Over the past three years, the Bush Administration has been fighting a
multi-front war against marijuana in general and medical marijuana
specifically: Hundreds of millions have been spent on anti-marijuana
advertising; the DEA unleashed a series of high profile raids on
medical marijuana buying and growing collectives; and the Bush's White
House Office of National Drug Control Policy has dispatched deputy
directors around the country to testify against medical marijuana
legislation and fight against medical marijuana legalization
"During the past 18 months," Mirken told me in a phone interview, "the
DEA appears to have de-emphasized the raids." Admitting that he was
speculating on the reasons fo
r the change in strategy, Mirken allowed
that since this is an election year, "Gestapo-like behavior unleashed
by previous raids brought a fair amount of negative publicity to the
agency. Images of severely-ill people harassed by armed government
agents is not an image that Karl Rove, the president's top advisor,
would be happy seeing on television.
"Which is not to say that John Walters, the drug czar, hasn't been
fighting tooth and nail against medical marijuana," Mirken added. "Of
late, Andrea Barthwell, one of a handful of deputy directors at the
White House Office of National Drug Control Policy, has been going
around the country denouncing medical marijuana proposals and
According to Mirken, one of the patented arguments Barthwell trucks
out is a claim "there is no support within the medical community for
the use of medical marijuana. In fact," Mirken points out, "a large
number of medical and public health organizations including, for
example, the American Academy of Family Physicians and the American
Nurses Association are on record as supporting legal access to medical
marijuana with physician's supervision."
Judge Fogel's ruling stems from a September 5, 2002 raid at the
collective's marijuana farm by Federal Drug Enforcement Administration
agents where they not only seized some 167 plants, but they also
detained several of the group's members. At the time, the DEA raid was
roundly denounced by Santa Cruz city and county officials, including
local law enforcement officials.
According to a report in the San Francisco Chronicle, "Even
[California] Attorney General Bill Lockyer protested the raid, firing
off a letter to U.S. Attorney General John Ashcroft in which he called
the DEA's actions in Santa Cruz a 'provocative and intrusive incident
The Fogel decision, which was greeted with great joy by the collective
and its patients, unfortunately comes too late for some of the
organization's clients. "This is wonderful news for the patients who
have really endured a good deal of suffering since the raid,"
collective attorney and Santa Clara University law Professor Gerald
Uelmen said. "Since the raid we have lost more than 20 patients, and
there is no question but that their deaths were more painful than they
needed to be.
"The Raich decision was really the breakthrough, but this (decision)
takes it a step further," Uelmen added. "It says there is no
difference between a single patient growing their own medicine and a
collective group assisting each other to achieve exactly the same purpose."
"This is an incredible victory for us, though we do realize that
everything is temporary," said Valerie Corral, the founder and
director of the collective told the Chronicle. "We are so pleased to
be able to begin our garden again."
"We are disappointed, but not surprised, that Attorney General
Ashcroft has chosen to ask the Supreme Court for what amounts to a
license to attack the sick," said MPP Executive Director Rob Kampia.
"This administration has waged a war against medical marijuana
patients that is completely unrestrained by science, compassion or
sound legal principles. Conservatives should be appalled that the
Justice Department is arguing that two patients and their caregivers,
growing and using medical marijuana within California - using
California seeds, California soil, California water and California
equipment, and engaging in no commercial activity whatsoever - are
somehow engaged in 'interstate commerce.'
"We hope the Supreme Court will let the Ninth Circuit's decision
stand," Kampia added, "but seriously ill patients shouldn't have to
depend on the courts for protection. Congress can and should end this
cruel federal war on the sick immediately."
Santa Cruz's Wo/Men's Alliance for Medical Marijuana has said they
intend to replant their garden immediately, and they should be able to
go ahead without fear of the DEA. According to Mirken, "The Supreme
Court could decide as early as June whether they will hear the
government's appeal of the Raich decision, but until and unless the
court actually overturns Raich, Judge Fogel's ruling should stand and
the members of WAMM will be safe."