SAN FRANCISCO, April 21 (AP) A judge ordered the federal
government on Wednesday not to raid or prosecute a California
group that grows and distributes marijuana for its sick members.
The decision, by Judge Jeremy Fogel of Federal District Court in
San Jose, was the first interpretation of an appeals court's
ruling in December that federal prosecutions of medical marijuana
users were unconstitutional if the marijuana was not sold,
transported across state lines or used for nonmedicinal purposes.
Nine states, including California, allow medical marijuana use,
but the Justice Department contends that federal drug laws take
Judge Fogel ruled that the government could not raid or prosecute
the 250 members of the Wo/Men's Alliance for Medical Marijuana,
which sued the government after the Drug Enforcement
Administration raided its growing operation in Santa Cruz County
in 2002 and seized 167 marijuana plants.
The group's director, Valerie Corral, said the group had been
receiving and growing marijuana in secret since the raid for fear
of being prosecuted. But with Judge Fogel's decision, the group
plans to plant hundreds of plants on Ms. Corral's one-acre
property in the Santa Cruz hills.
`You better believe it we're going to plant," said Ms. Corral,
who uses marijuana to alleviate epileptic seizures.
A Justice Department spokesman, Charles Miller, said the
government was reviewing the decision.
The marijuana group asked Judge Fogel to issue the injunction
after the United States Court of Appeals for the Ninth Circuit
ordered the government in December not to prosecute a sick
Oakland woman who smoked marijuana with a doctor's
The court, ruling 2 to 1, wrote that it was unconstitutional to
use 1970 federal law to prosecute sick people with medical
recommendations in states with medical marijuana laws..
"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,"
Judge Harry Pregerson wrote for the court.
The court added, "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."
That decision was a blow to the Justice Department, which argued
that state medical marijuana laws were trumped by the Controlled
Substances Act, which outlawed marijuana, heroin and other drugs
nationwide. The department appealed that Ninth Circuit decision
on Tuesday to the Supreme Court.
The Controlled Substances Act, as applied to the Santa Cruz
cooperative, Judge Fogel wrote, "is an unconstitutional exercise"
of federal intervention.
Judge Fogel's decision furthers the conflict between federal law
and California's 1996 medical marijuana law, which allows people
to grow, smoke or obtain marijuana for medical needs with a
Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and
Washington State have laws similar to California's statute, which
has been the focus of federal drug interdiction efforts. Agents
have raided and shut down several clubs that grow medical
The Ninth Circuit has jurisdiction over all those states except
Colorado and Maine.