Medical cannabis user tries novel approach in federal court appeal

Inside Bay Area

Oakland patient invokes the Fifth and Ninth Amendments in marijuana case.

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 Monday 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 is 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," Assistant U.S. Attorney Mark Quinlivan wrote 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 is 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 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 it 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.

By Josh Richman