Raich Brings Marijuana Case Back to Appeals Court

By Motorhead · Mar 28, 2006 · ·
  1. Motorhead
    California has been in the forefront of legalizing medical marijuana. There has been more turmoil and arrests in that state than any other since individual states have been introducing medical marijuana legislation. We all know about the Kubbys situation and now Angel Raich is geared up for another fight. Raich is an incredible woman taking the battle against the federal government to the courts once again. She is a fighter and I hope her efforts prevail.

    US CA: Raich Brings Marijuana Case Back to Appeals Court
    by Josh Richman, Staff Writer, (27 Mar 2006)
    Daily Review California
    Less than a year after the U.S. Supreme Court ruled against her, Oakland medical marijuana patient and advocate Angel Raich will go back before a federal appeals court today with a different legal argument.

    Her lawyers will try to persuade a three-judge panel of the 9th U.S. Circuit Court of Appeals, sitting in Pasadena, that keeping her from using marijuana as medicine unduly burdens her fundamental rights to life and freedom from pain, as protected by the Fifth Amendment's Due Process Clause and the Ninth Amendment.

    The government argues there's no constitutionally protected fundamental right to obtain and use marijuana in defiance of the federal ban on the drug.

    "Nor can plaintiffs establish that the use of any particular drug, free of a regulatory scheme designed to protect the public health and safety, is a fundamental right that is deeply rooted in our nation's history, legal traditions and practices," wrote Assistant U.S. Attorney Mark Quinlivan in his January brief to the appeals court.

    Each side will have 30 minutes to argue its case. It will probably be months before the court rules.

    Raich and Diane Monson of Oroville plus two unnamed providers sued the government in October 2002 to prevent any interference with their medical marijuana use, but this case's seeds actually were sown in the Supreme Court's May 2001 decision on the Oakland Cannabis Buyers Cooperative's case.

    The court in that case ruled there's no collective medical necessity exception to the federal ban, which defines marijuana as having no valid medical use. But it didn't rule on constitutional questions underlying the medical marijuana debate, so Raich, Monson and their lawyers tailor-made a case raising exactly those issues.

    A federal judge in San Francisco rejected their arguments in March 2003, but a 9th Circuit appeal panel reversed that ruling nine months later.

    That panel believed the plaintiffs could prevail at trial on their claim that the Constitution's Commerce Clause lets Congress regulate only interstate commerce, and that Californians' medical marijuana use neither crosses state lines nor involves money changing hands.

    The U.S. Supreme Court heard the case in November 2004 and in June 2005 ruled 6-3 to uphold the federal ban, finding that even marijuana grown in back yards for personal medical use can affect or contribute to the illegal interstate market for marijuana and so is within Congress' constitutional reach.

    But the 9th Circuit panel and the Supreme Court dealt only with the Commerce Clause argument, not the other constitutional issues. With the case remanded back to the 9th Circuit, Raich's attorneys now are pursuing the remaining arguments; Monson dropped out of the case late last year.

    Besides the Fifth- and Ninth-Amendment arguments, Raich's lawyers also claim the common-law doctrine of necessity -- the idea that it's OK to break the law when forces beyond one's control compel it and there's no reasonable, legal alternative -- bars the government from applying the Controlled Substances Act to ban medically necessary activities. The government argues the Supreme Court's decision in the Oakland Cannabis Buyers Cooperative case already ruled out a medical-necessity argument.

    And Raich's lawyers claim the Tenth Amendment protects against federal interference with state regulation of personal, non-commercial medical activities within their own borders -- namely, medical marijuana laws. But the government says the Supreme Court's rejection of the Commerce Clause argument last year already covered that ground.

    "I know we're going to win, I feel pretty good about the 9th Circuit," Raich said Friday.

    Raich says without the drug's appetite boost, her wasting syndrome causes rapid, dangerous weight loss threatening her life. She also suffers from ailments including an inoperable brain tumor and nonepileptic seizures, and in November had a hysterectomy following her precervical-cancer diagnosis.

    Meanwhile, she's planning a Capitol Hill lobbying blitz with renowned talk-show host and fellow medical marijuana user Montel Williams, perhaps to begin as early as May.

    The House last June defeated an amendment which would've forbidden the Justice Department from using public money to raid, arrest or prosecute patients and providers in states with medical marijuana laws. The amendment got 161 votes -- more votes than it had in 2003 and 2004 -- but still fell 57 short of the 218 it needed for passage.

    Raich's case documents are available on her Web site, http://www.angeljustice.org.

    Share This Article


  1. Motorhead
    Posted by CN Staff on April 13, 2006 at 07:03:52 PT
    By Jordan Smith
    Source: Austin Chronicle

    [​IMG] California -- Medical-marijuana patient, and its fiercest advocate, Angel Raich, was back in federal court on March 27, where her lawyers argued before a three-judge panel of the 9th U.S. Circuit Court of Appeals that the Constitution and the common-law doctrine of medical necessity protect Raich's use of medi-pot and make unconstitutional the federal government's attempts to enforce pot prohibition against sick and dying patients.

    Raich, who suffers from a host of serious medical conditions – including an inoperable brain tumor and wasting syndrome – began using medi-pot in compliance with the 1996 California law that codified the practice after trying a host of pharmaceuticals that failed to control her symptoms – or that, in some cases, made those symptoms worse. After federal narcos stepped up raids on medi-mari dispensaries and users in California, Raich sued the feds, arguing that they had no right to interfere with her in-state, legal use of medi-pot.

    The feds countered that the Constitution's Commerce Clause authorized the raids as part of a scheme to maintain the prohibition on pot use outlined by the Controlled Substances Act, which reads, in part, that pot has no medically acceptable uses (a classification the feds have maintained in large part by simply ignoring the growing body of medical research that suggests otherwise.)

    Raich fought all the way to the U.S. Supreme Court, where many court watchers – mindful of the Court's recent legal interpretations deferring to state's rights in intrastate matters – thought Raich would prevail. But with Justice Antonin Scalia (usually a stalwart supporter of state sovereignty) defecting to the majority, the court ruled against Raich, opining that the feds may use the Commerce Clause to enforce the CSA in states that legalize and regulate medi-pot.

    Still, the court did not contemplate any of the other legal questions raised by Raich's suit and sent the case back to the Ninth Circuit for further consideration. On March 27, Raich and her attorneys, Randy Barnett and Robert Raich, told the appeals court that the due process clause of the Fifth Amendment, the Ninth Amendment's granting to the people those rights not specifically identified in the Constitution, and the common-law doctrine of medical necessity prohibit the feds from using drug laws to ban Raich's state-sanctioned medi-pot use.

    The three-judge panel, however, wasn't sure that Raich could bring such a claim without first having been arrested or prosecuted for her medi-pot use – if she had been arrested, she would likely have a winning case, opined Judge Arlen Beam. "I'd be amazed if the Supreme Court didn't think the evidence would carry the day," he speculated. "The problem is, we don't have standing, in my view, on this particular issue." And, arguing on behalf of the feds, Assistant U.S. Attorney Mark Quinlivan told the panel that it would be "incredibly unlikely" that someone like Raich would be arrested solely because she is a patient – unless, he said, a patient was to "flaunt" his or her medi-pot use. Amazingly – and contrary to reports of ongoing raids on small-time medi-mari dispensaries, growers and users – Quinlivan told the judges that the feds are focused on busting "large-scale distributors and growers."
    Still, Raich attorney Barnett told the judges that the real issue is that federal prohibition puts Raich's life in jeopardy and unconstitutionally threatens her ability to make "life-shaping" choices, to protect bodily integrity and, ultimately, to stay alive – arguments that necessarily give Raich legal standing before the court.

    In short, he said, "If she obeys the law, she will die." But there's no right for an individual to use any drug the government has banned, Quinlivan said – a contention that Judge Harry Pregerson quickly challenged: "Supposing … a patient faced an unbearable suffering that could only be relieved by a pill that was on the government's black list, would not that patient have a right to use the drug?" No, Quinlivan replied; the patient would not have any right to use a drug that Congress has banned; in explaining his answer, Quinlivan trotted out the age-old drug warrior's assertion that allowing any exceptions to the CSA ban on marijuana rule would only "open the floodgates" to others who want to use a host of other banned drugs.

    So it is okay to allow Raich to die, Pregerson asked.

    "Congress has made that judgment," Quinlivan responded.

    Quinlivan's flippant attitude infuriates Raich, who points out that when it comes to protecting the right to live – which, she argues, is at the heart of her case – the judgments of Congress are cherry-picked and driven by politics – as in the case of Terry Schiavo or in the ongoing quest to restrict and control women's reproductive freedoms. "So, does this mean that my life is less important than a fetus?" she asks.

    The ongoing fight over legalizing medi-mari – which challenges the feds' illogical drug classification scheme, and thus requires the fed lawyers to perform complicated mental gymnastics in order to build their prohibitionist arguments – angers Raich, who says she doesn't understand why the government won't simply let her live. For Raich, her access to and use of medi-pot is that fundamental: Without access, she would die. And getting herself arrested to ensure legal standing for her claims – as Judge Beam suggested – would likely hasten her death.

    "If I got arrested and they withheld my medicine, I'd die," she said in a recent phone interview. "So, if they want me to test their argument on 'standing' that's what I'd have to do. It makes me so angry because I don't feel like I should have to [put my life in jeopardy] to survive." Still, she says that if the appeal court rules against her, she may have to do just that. "If the [court] rules against me, I'm taking my gloves off, and you'll see an Angel Raich you haven't seen before," she said. "I want my freedom; I want to live."

    Source: Austin Chronicle (TX)
    Author: Jordan Smith
    Published: April 14, 2006

  2. Motorhead
    Dying Activist Angel Raich Loses Medical Marijuana Appeal
    by David Kravets, Associated Press (14 Mar, 2007) Federal government free to prosecute despite state med-pot legality
    [​IMG][SIZE=-2]Angel Raich and her husband Robert[/SIZE]SAN FRANCISCO - A woman whose doctor says marijuana is the only medicine keeping her alive can face federal prosecution on drug charges, a federal appeals court ruled Wednesday.

    The ruling was the latest legal defeat for Angel Raich, a mother of two from Oakland suffering from scoliosis, a brain tumor, chronic nausea and other ailments who sued the federal government pre-emptively to avoid being arrested for using the drug. On her doctor's advice, Raich eats or smokes marijuana every couple of hours to ease her pain and bolster her appetite.

    The latest legal twist once again highlighted the conflict between the federal government, which declares marijuana an illegal controlled substance with no medical value, and the 11 states allowing medical marijuana for patients with a doctor's recommendation.

    The Supreme Court ruled against Raich two years ago, saying medical marijuana users and their suppliers could be prosecuted for breaching federal drug laws even if they lived in a state such as California where medical pot is legal.

    Because of that ruling, the issue before the 9th U.S. Circuit Court of Appeals was narrowed to the so-called right to life theory: that the gravely ill have a right to marijuana to keep them alive when legal drugs fail.

    Raich, 41, began sobbing when she was told of the decision that she was not immune to prosecution, and said she would continue using the drug. "I'm sure not going to let them kill me," she said. "Oh, my God."

    The three-judge appeals panel said that the United States has not yet reached the point where "the right to use medical marijuana is 'fundamental' and 'implicit in the concept of ordered liberty.'"

    However, the court left open the possibility that Raich, if she was arrested and prosecuted, might be able to argue that she possessed marijuana as a last resort to stay alive, in what is known as a 'medical necessity defense'. "I have to get myself busted in order to try to save my life," Raich said.

    Leaders in the medical marijuana movement said they would continue fighting. "This is literally a matter of life and death for Angel and thousands of other patients, and we will keep fighting on both the legal and political fronts until every patient is safe," said Rob Kampia, executive director of the Marijuana Policy Project.

    New Mexico is poised to become the 12th state to allow medical marijuana under a bill lawmakers approved Wednesday. Gov. Bill Richardson, a strong supporter of the measure, is expected to sign it.

To make a comment simply sign up and become a member!