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Angel Raich appeals for right to medical marijuana November 23, 2005 - cbs5.com
An Oakland medical marijuana user returned to a federal appeals court in San Francisco today with new arguments on why she should be allowed to use cannabis.
Angel Raich contends in a brief filed with the 9th U.S. Circuit Court of Appeals that she has a fundamental liberty right to take "the only medication that enables her to avoid intolerable pain and death."
The brief argues that barring her from using marijuana would violate her "fundamental right to life" under the Fifth Amendment due process guarantee of the Constitution.
Raich, 40, says she needs marijuana to combat lack of appetite and severe pain from several illnesses.
Robert Raich, who is Angel Raich's husband and attorney, said, "This case implicates perhaps the most fundamental right of all, the right to preserve one's life."
In June, Raich lost a different argument, based on the Constitution's commerce clause, in the U.S. Supreme Court.
Raich and another patient, Diane Monson of Oroville, sought to argue that their locally grown medical marijuana was not part of interstate commerce and thus was not subject to federal laws criminalizing marijuana.
But the high court said Congress's power to regulate interstate commerce includes the authority to ban marijuana grown and used within a state.
Raich's new brief revives several other constitutional arguments that were not resolved by the Supreme Court.
The brief asks the appeals court to order a federal trial judge in San Francisco to issue an injunction protecting Raich from federal prosecution for using medical marijuana.
Raich says she is entitled to use marijuana under California's Compassionate Use Act, a 1996 voter initiative that allows seriously ill patients to use cannabis on a doctor's recommendation.
Federal courts have thus far ruled, however, that federal laws do not allow any exception for the state law.
Luke Macaulay, a spokesman for the U.S. attorney's office in San Francisco, said government attorneys had no comment and will respond in court papers.
The government's brief in the case is due in 20 days and Raich's reply is due 10 days after that, but either side may ask for an extension, according to Robert Raich.
In addition raising a due process argument, Raich's brief contends she has a right to use medical marijuana under the common-law doctrine of medical necessity.
In another case concerning the Oakland Cannabis Buyers' Cooperative, the Supreme Court ruled in 2001 that the medical necessity doctrine doesn't apply to medical marijuana distributors.
But Raich's brief notes that Justice John Paul Stevens and two other justices reserved judgment on what they called "the difficult issue" of whether medical marijuana users, as opposed to distributors, might be entitled to use a necessity argument.
Medical pot appeals move forward December 8, 2005 - ebar.com
Despite this summer's U.S. Supreme Court ruling that the federal government may continue to prosecute individuals who use medicinal cannabis in states with medical marijuana laws, California patients are not giving up the fight.
On November 23, attorneys for Angel Raich, one of the two plaintiffs in the Supreme Court case, asked the 9th Circuit Court of Appeals to reconsider her lawsuit on different grounds.
"Without cannabis, I would die," said Raich, who suffers from a variety of ailments including an inoperable brain tumor and severe wasting, and is unable to tolerate most pharmaceutical drugs. "I feel very strongly that this case still has merit."
New legal strategy
In a 6-3 split decision in June, the nation's high court overturned a December 2003 9th Circuit ruling in Raich's favor, declaring that the federal government could legitimately regulate cannabis under the interstate commerce clause – even if the pot was provided free and was grown and consumed within a single state.
"The Controlled Substances Act is a valid exercise of federal power," Justice John Paul Stevens wrote for the court's majority, "even as applied to the troubling facts of this case."
Former Chief Justice William Rehnquist, and Justices Clarence Thomas and Sandra Day O'Connor disagreed, arguing in favor of states' rights.
"The states' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens," O'Connor wrote.
This time around, rather than focusing on the commerce clause, Raich and her attorneys are basing their arguments on the Fifth, Ninth, and 10th Amendments, claiming that federal drug law deprives her of her rights to life and liberty without due process.
"If I did not have cannabis, I would not be here today," Raich told the Bay Area Reporter. "I don't feel it's fair for this country to say I cannot have this medicine that's saving my life."
The latest appeal will go before the same three-judge panel that previously ruled in Raich's favor; a hearing is scheduled for next spring. Raich said she fully expects the case to make its way back to the U.S. Supreme Court within two years.
"Stay tuned, because this battle is not over," she declared. "I'm going to keep fighting as long as I have breath in my body."
In a related case, the California Supreme Court on November 30 agreed to hear the appeal of an employee fired for using medical marijuana outside of work hours.
The plaintiff, Gary Ross, worked as a systems administrator for RagingWire, a Sacramento-based information technology company. He was terminated in 2001 after just one week on the job when a marijuana drug test came back positive.
Ross, who has a doctor's recommendation to use medical cannabis to relieve back pain resulting from an old Air Force injury, said his marijuana use did not negatively affect his job performance. He claims that his firing amounts to discrimination on the basis of a disability, in violation of the Fair Employment and Housing Act.
In September, a three-judge panel from the 3rd District Court of Appeal in Sacramento ruled against Ross, stating that the recent U.S. Supreme Court ruling means federal law supercedes California's Compassionate Use Act (Proposition 215), which was passed by voters in 1996.
"An employer need not accommodate a disability by allowing an employee to use illegal drugs," wrote Justice Arthur Scotland. A state court "has no legitimate authority to require an employer to accommodate an employee's use of marijuana, even if it is for medicinal purposes and thus legal under California law."
Medical cannabis advocates, including Oakland-based Americans for Safe Access, which is acting as co-counsel in the case, counter that this summer's U.S. Supreme Court ruling did not invalidate state medical marijuana laws.
"Employers should not have discretion to fire employees based on their patient status," ASA legal director Kris Hermes told the B.A.R . "This is clearly depriving patients of their rights under state law. Medical cannabis patients must have the ability to work and be productive, and deserve the same accommodations as any other worker."