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Ninth Circuit Grants Preliminary Injunction in Medical Marijuana Case

By Lindsay F. Wiley [Bio]

December 18, 2003 - In a two-to-one decision, a three-judge panel of the Ninth Circuit has held that the federal Department of Justice should be temporarily enjoined from enforcing the Controlled Substances Act with respect to medical marijuana users in California pending trial of the case.

The plaintiffs, a patient and two unnamed growers who supply her with the drug and another patient who grows her own marijuana, filed suit in October of 2002 after a series of DEA raids against medical marijuana patients and suppliers in California. California and nine other states allow medical marijuana use, but the federal Controlled Substances Act criminalizes marijuana without distinguishing between medical and nonmedical use. The plaintiffs argued that because the medical use of marijuana by California residents does not cross state lines and is not commerce, Congress is without power to regulate it under the Commerce Clause.

The three-judge panel of the Ninth Circuit found that the plaintiffs’ argument that the federal law is unconstitutional as applied to them was likely to succeed. The court found that “the appellants’ class of activities – 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 appellate panel remanded the case to the district judge and ordered him to enjoin raids by federal officials pending trial of the case. The ruling may be appealed by the Justice Department to a larger panel of the circuit court or to the U.S. Supreme Court.