Quick Hits (page 2)
Federal Appeals Court OKs Medical Marijuana in Some Cases
By: David Kravets (AP)
SAN FRANCISCO -- A federal appeals court ruled that a congressional act outlawing marijuana may not apply to sick people with a doctor's recommendation in states that have approved medical marijuana laws.
The 9th U.S. Circuit Court of Appeals ruled 2-1 that prosecuting these medical marijuana users under a 1970 federal law is unconstitutional if the marijuana isn't sold, transported across state lines or used for non-medicinal purposes.
"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 majority.
The court added 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."
The decision was a blow to the Justice Department, which argued that medical marijuana laws in nine states were trumped by the Controlled Substances Act, which outlawed marijuana, heroin and a host of other drugs nationwide.
The Justice Department was not immediately available to comment on the ruling from a court some call the nation's most liberal appeals court.
Randy Barnett, a Boston University constitutional law professor, said the case was precedent setting.
"It's the first time there's been a ruling that the application of the Controlled Substances Act to the application of cultivation of medical cannabis is unconstitutional," he said.
The case concerned two seriously ill California women who sued Attorney General John Ashcroft. They asked for a court order letting them smoke, grow or obtain marijuana without fear of federal prosecution.
The case underscores 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.
A U.S. District judge tossed the case in March, saying the Controlled Substances Act barred him from blocking any potential enforcement action against medical marijuana patients Angel Raich and Diane Monson. The ruling sends the case back to U.S. District Judge Martin Jenkins, who was ordered to sign a preliminary injunction blocking federal drug action directed toward Raich and Monson.
While the women's case has yet to be tried, the court said the two "have demonstrated a strong likelihood of success on the merits."
Raich, a 38-year-old Oakland woman suffering from ailments including scoliosis, a brain tumor, chronic nausea, fatigue and pain, smokes marijuana every few hours. She said she was partially paralyzed on the right side of her body until she started smoking marijuana.
She and her doctor say marijuana is the only drug that helps her pain and keeps her eating to stay alive.
"I feel safe for the very first time ever since I've been a patient," Raich said of the ruling. "This is very triumphant not only for myself but for patients and caregivers across the country."
Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington state have laws similar to California, which has been the focus of federal drug interdiction efforts. Agents have raided and shut down several medical marijuana growing clubs.
The appeals court, the nation's largest, does not have jurisdiction over Colorado and Maine.
In dissent, Judge C. Arlen Beam said that Congress could regulate medical marijuana as the U.S. Supreme Court has declared that grain was subject to federal regulation even if the grower never sold it and used it solely for his family.
The case in an outgrowth of a 2001 decision by the U.S. Supreme Court, which ruled that medical marijuana clubs could not dole out medical marijuana based on the so-called "medical necessity" of patients, even if they have a doctor's recommendation to use marijuana.
Justice Clarence Thomas wrote that an Oakland pot club could not defend its actions against federal drug laws by declaring it was dispensing marijuana to the medically needy.
But the justices said they addressed only the issue of a so-called "medical necessity defense" being at odds with the 1970 federal law that marijuana, like heroin and LSD, has no medical benefits and cannot be dispensed or prescribed by doctors.
Thomas wrote that important and unresolved constitutional questions remained, including Congress' ability to interfere with the state's ability to make their own medical marijuana laws. Raich cited Thomas' opinion in her lawsuit.
The case is Raich v. Ashcroft, 03-15481.
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Growin' Our Own (page 2)
Two if by Sea
By: Elmore Stone
Having lived around, near and for sometime on a couple of different oceans a person gets the feeling of just how they fit into the grand scheme of things. The Atlantic ocean is huge as in real damn big. Yet compared to the Pacific ocean the Atlantic is a mere pond. The oceans of the world offer a whole bunch of really neat things to us lowly humans: food, minerals, adventure, beauty, and because of their sheer size, transportation, cover and concealment. One other thing oceans have is ports. Whether a ship or boat pulls into a port to re-provision, take on fuel, take on passengers or on-load or off-load contraband cargo - that is to say, weed, for one - an enterprising person can do so with more or less relative ease and security. The gendarmes can not be everywhere at once and neither can satellites for that matter. Furthermore, for a transfer of weed to take place, or any other drug, a boat does not necessarily have to pull into to port. The transfer can take place at sea.
When was the last time you looked at a map of the good old U.S. of A.? And by that I mean taken a really good look at our national borders. Gee, funny how with the single exception of our northern border the west, the south and east borders have water all around them. Plus there are plenty of sloughs, river mouths, bays ... the whole nine yards. Thousands of miles of water. Thousands of miles of cover and concealment. Absolutely perfect for the enterprising drug runner. Besides there are a whole lot more boats on the water on any given decent day than there are airplanes flying around the blasted sky. Additionally, airplane pilots are required to file flight plans and while some folks have their own airplane garage next to their house, they are in the minuscule minority and, as such, are basically irrelevant. A lot more people own boats of varying sizes and capacities than own airplanes. You don't file a flight plan to put your boat in the water -- if you know what I mean.
A person driving a 14 foot Boston Whaler is not going to smuggle 14 tons of pot. But neither is the guy flying a single engine Piper Cub. However, several hundred pounds of our favorite weed is definitely doable in a 14 footer. Yeah, the oceans of the world are the main means for the transportation of drugs and anything else. And have been for many, many years. I also don't see that changing anytime soon either.
There are as many methods of smuggling our favorite herb into the country as there are smugglers. Some are big time, most are not. Some use huge ocean going cargo ships. On the other hand, the small fry smuggler can and has used everything from a kayak up to a fishing boat. It just depends on cost, risk and, as they say in business, location, location, location. In fact some scuba divers have something which resembles a kayak but is used to store spare tanks, caught fish, etc. Some of the more inventive divers have gone as far as making a false bottom compartment on this contraption. They dive down to a certain depth in a certain location, pick up their cargo, swim toward the surface and place said cargo in this compartment. Then they go back for more or break the surface. The pick up of the cargo is never seen - it takes place under the surface. An excellent sleight of hand. Who ever came up with that idea should be congratulated and ought to receive a medal. Now it may not be much, but ten pounds of quality hash will fetch a pretty penny on the ... er ... open market. So will ten pounds of good pot. Plus the risk of getting busted is pretty slim. Yeah, there is a risk, but the game of life is a risk.
You know, there are waterways which feed the San Francisco bay and go up to Stockton, Sacramento and beyond. Talk about handy. And, during most of the year, they are chock full of Sunday sailors. Hundreds if not thousands of boats on the water. There is absolutely no way in hell the local constabulary, and they are out there patrolling on the water, is going to nab all the smugglers using that river. There is an added benefit as well. Major highways. You bet. Interstate 5, 80, and good old Highway 99. Interstate 80 damn near goes across the country. Hell from Sacramento, California to Reno, Nevada is about a two hour trip, or less, in good weather. Pick up ten or twenty pounds on the Sacramento River, haul your boat out of the water, hook it up to your vehicle and about two hours later you are wining, dining, gambling and celebrating in Reno. Ahhh ... such is the good life.
Another right handy-dandy thing about the Sacramento river et al., is all the boat shops selling the latest, greatest and most expensive pieces of fiberglass you will ever see. If you have to ask 'how much' you can't afford it. But -- make a few successful river runs then sell your stash, take the cash and buy another boat and then resell it. Lovely way to launder the fruits of your labor. Isn't life grand?
Yeah, the San Francisco bay is pretty cool but it does not hold a candle to the Big Muddy - the mighty Mississippi. The delta area is fucking humongous. There are more jettys, canals, estuaries and the like than you can shake a bud at. Of course the Coast Guard is there in force but their presence is moot. Quite simply, there is just too much water to watch.
Shrimpers galore with their drag nets or whatever they call them now. Yup. Pleasure craft all over the place and quite often running into each other. It is a free-for-all that the enterprising smuggler, and there are plenty, can enjoy and take complete advantage of. There are also oil rigs right off shore which can be used for the anchoring of perishable commodities shall we say. One nice thing about off shore oil derricks is that one rig will support numerous wells. Wells have pipes which connect them to the rig. Therefore, and depending upon the depth of the underwater pipes, divers can get to them and attach or pick up water proof boxes and bails of the good stuff which will sell quite nicely and make the smuggler a pretty penny indeed.
The Big Muddy is over 2,300 miles long and goes through 10 states. Interstate 10 and 40 cross over it along with way too many local and various state bridges to count. It is truly a prime means of interstate commerce. Indeed, the National Park Service calls the river the "Nile of the new world." How very correct (for once) they are. Commerce, commerce and contraband. Basically one can go from Louisiana to, believe it or not, Minnesota peddling pot or whatever else that person has in their goody bag. It is all in a day's work for Joe Smuggler.
Because the Mississippi dumps into the Gulf of Mexico it is in a very strategic position as far as drugs are concerned. Mexico to the southwest. Central America below that. As you can plainly see water plays into this gig in more ways than one.
Dig it - I just covered, and barely at that, two hubs. One on the west coast and mid in the gulf. I haven't even bothered to discuss the James River, Chesapeake Bay or the New York area. Let alone Florida and the Keys. That could and would take a life time by itself. So you get the general idea that the U.S. is a big country and most of its national borders abut a gulf or an ocean. And the goober-mint can't do a god damn thing to stop it.
Back during the twenties and thirties when prohibition was the law of the land one hell of a lot of booze was brought in by boat and ship. I know my father was one of those bringing whiskey into San Francisco. The same holds true today. The sea provides the means for it. The cover and concealment needed to bring into this country what the idiots in goober-mint don't want us to have. The federales spend billions of our tax dollars a year in a vain attempt to enforce their morals upon us. They have spent billions and what do they have to show for it? Not a fucking thing. Drug use is doing just fine -- thank you. Smugglers are making a fortune and the goober-mint still thinks they are winning the war on drugs.
Well, as to winning the war on drugs just ask anybody in the Coast Guard and they will tell you a real interesting story. It's called the 99 that got away. What does that mean? It means that for every smuggler they catch, 99 get away. The Coasties I have talked to tell me, and I believe them, that the goober-mint has lost the war and refuses to admit it. Enforcing drug laws is a drain on their equipment and personnel. Further, there is way too much money in it and, as such, there are lots and lots of people smuggling. They catch - by their own admission - 1/100th of them.
One if by land ... two if by sea. I'll take the sea anytime.
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Pipeline (page 2)
Medical pot Wins a Legal Victory U.S. Appeals Court Ruling is Likely to Face a Challenge
By: Bob Egelko (SF Chronicle)
Medical marijuana advocates scored a potential legal breakthrough Tuesday when a federal appeals court ruled that two Northern California women could use locally grown pot without risking federal prosecution.
The federal ban on marijuana is probably unconstitutional as applied to individuals who obtain the drug without buying it, get it within their state's borders and use it for medical purposes on their doctors' advice and in compliance with state law, said the Ninth U.S. Circuit Court of Appeals in San Francisco -- the first court ever to issue such a ruling.
The 2-1 decision could be short-lived, however. The appeals court has regularly seen its precedent-setting decisions, particularly those by liberal panels, overturned by the U.S. Supreme Court. In 2001, the high court overruled a Ninth Circuit decision that would have allowed marijuana cooperatives to supply the drug to patients who could not be treated by legal substances.
The 2001 ruling expressly left some marijuana-related issues unresolved, including the question addressed Tuesday: whether Congress' power to regulate interstate commerce applies to locally grown medical marijuana.
Attorney Robert Raich, whose daughter, Angel of Oakland, is one of the two plaintiffs in the case, said he thought the ruling stood a strong chance of withstanding a likely appeal by the Bush administration's Justice Department.
"It's really based on the Supreme Court's own precedents,'' he said, citing decisions from the past decade that have limited Congress' power to regulate local, noncommercial activities, such as gun possession near schools.
The ruling left a dent in federal drug laws that could get deeper in the near future. Another panel of the court is considering appeals by two medical marijuana distributors -- a collective in Santa Cruz and a buyers' cooperative in Oakland -- that claim a constitutional right to supply pot produced within California.
Tuesday's ruling made it clear, however, that the court was approving only the personal medical use of marijuana that the women grew themselves or had someone grow for them. "This class of activities does not involve sale, exchange or distribution'' and thus is unlikely to affect interstate commerce, said Judge Harry Pregerson.
Besides California, the ruling affects six other states in the Ninth Circuit's jurisdiction that also have medical marijuana laws: Arizona, Oregon, Washington, Nevada, Alaska and Hawaii.
From the start, the case has been the medical marijuana movement's strongest hope of creating some legal breathing space for California's 1996 initiative, Proposition 215, which allows medical use of pot with a doctor's recommendation.
The federal government, under former Presidents Bill Clinton and George Bush, has relied on the conflicting federal law to shut down California pot dispensaries, raid medical marijuana growers and, in the past few years, prosecute suppliers. With few exceptions, federal courts have backed the government.
In one such raid, in August 2002, federal agents seized and destroyed six marijuana plants grown by Diane Monson of Oroville (Butte County), who uses the drug to relieve severe chronic back pain and muscle spasms.
Monson is a plaintiff in the case along with Angel Raich, who has used marijuana every two waking hours for five years to combat pain and the side effects of other therapies for a brain tumor, wasting syndrome, a seizure disorder and other conditions. Raich's doctor said that other medications had been useless or harmful and that Raich might die without marijuana.
Neither woman has been prosecuted. Their lawsuit, filed in October 2002, asks for an injunction that would allow them to keep using marijuana without prosecution. U.S. District Judge Martin Jenkins of San Francisco denied the injunction in March, saying he was doing so reluctantly but under compulsion of rulings allowing federal prosecution of users of locally produced drugs.
But the appeals court said Tuesday that the previous rulings involved recreational or other nonmedical use of drugs that could easily be dealt in interstate commerce. Marijuana that is grown locally and obtained by a patient for medical purposes falls into a different category, the court said.
"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,'' Pregerson, joined by Judge Richard Paez, said in the majority opinion.
"The medical marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce,'' Pregerson said.
In dissent, C. Arlen Beam, a visiting judge from the federal appeals court in St. Louis, said marijuana was a commercial product under the broad definition used by Congress and upheld by the Supreme Court.
"The cultivation of marijuana for medicinal purposes is commercial in nature,'' Beam said. He said Raich and Monson were growing and using "a fungible crop which could be sold in the marketplace."
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Dakota Joseph Arts