Ninth Circuit Rules Prop 215 Patients Raich and Monson May Use & Grow Medical Marijuana for Personal Use

Prop 215 Effectively Federal Law in California

[Note: This ruling was subseuqnetly invalidated by the U.S. Supreme Court in Gonzalez v. Raich, Jun 2005]

SAN FRANCISCO, Dec. 16th, 2003. In a stunning victory for medical marijuana, the Ninth Circuit Court of Appeals upheld the right of patients Angel Raich and Diane Monson to possess and cultivate marijuana for their own personal medical use in accordance with Prop. 215.

Raich, who claims medical necessity for marijuana, and Monson, whose Prop 215 garden was raided by the DEA, had filed for an injunction to protect them from federal arrest or prosecution under the Controlled Substances Act.

In a 2-1 ruling, Justices Pregerson and Paez held that the federal government lacked power under the Interstate Commerce Clause of the Constitution to interfere with the plaintiffs' possession and cultivation of marijuana for personal use (text of the court's ruling). The court cleared the way for a preliminary injunction barring the government from arresting Raich or Monson for violating the Controlled Substances Act. 

"This is a huge victory," declared California NORML coordinator Dale Gieringer, one of the original authors of Prop. 215, "It essentially makes Prop. 215 federal law in California" (The decision also applies to the other states in the Ninth Circuit with medical marijuana laws, namely Washington, Oregon, Alaska, Nevada and Hawaii).

This is thought to be the first case in which the Controlled Substances Act has been held unconstitutional.

The Justice Department appealed for an en banc review of the Raich-Monson ruling by the full Ninth Circuit. [UPDATE, Feb 26, 2004: The Ninth Circuit unanimously declined to review the decision. The government's only remaining recourse to reverse it is to appeal to the Supreme Court]

Most observers expect the case will eventually wind up in the Supreme Court.

The Ninth Circuit based its decision entirely on the Commerce Clause, declining to address other issues raised by the plaintiffs, such as states' rights, medical necessity, and the right of patients to relief from pain and suffering under the 5th and 9th amendments.

Writing for the majority, Judge Harry Pregerson found that "The intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician is, in fact, different in kind from drug trafficking." The court further noted that "this limited use is clearly distinct from the broader illicit drug market, as well as any broader commercial market for medical marijuana, insofar as the medical marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce."

In a dissenting opinion, Justice C. Arlen Beam, visiting from the 8th Circuit, wrote that he could see no difference between the activities of Raich and Monson and those of the farmer Filburn, whose right to grow wheat was struck down in a famous precedent, Wickard v Filburn (1942). Even though Filburn claimed that the crop was for his own private use, the Supreme Court held that it lay within the scope of the governmentıs interstate commerce powers to regulate for purposes of setting the price of wheat.

The majority opinion followed two other recent Ninth Circuit precedents, McCoy and Stewart, in which the court struck down federal prosecution of defendants charged with personal use possession of pornography and home manufacture of machine guns, respectively, on the grounds they exceeded federal powers under interstate commerce.

Although an appeal to the Supreme Court appears certain, medical marijuana supporters are optimistic of victory, due to the fact that the Ninth Circuit's reasoning was based on recent precedents by the Supreme Court's' conservative majority restricting federal powers under interstate commerce.

Courts have so far moved cautiously in implementing the Raich-Monson decision. Some judges have indicated skepticism about the ruling pending further review by the courts. The Ninth Circuit denied bail motions by medical marijuana defendant Steve McWilliams and prisoner Bryan Epis to reconsider their punishment in light of the Raich decision. However, U.S. District Judge Jeremy Fogel has agreed to reconsider a request by the Wo/Menıs Alliance for Medical Marijuana for an injunction similar to that sought by Raich and Monson.

Release by Dale Gieringer, Coordinator, California NORML