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Associated Press
Leave Medical Marijuana Group Alone, Judge Tells Government

April 21, 2004
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 precedence.

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 recommendation.

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 doctor's recommendation.

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 marijuana.

The Ninth Circuit has jurisdiction over all those states except Colorado and Maine.

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