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For California attorneys who defend medical marijuana use, the U.S. Supreme Court’s decision in Gonzales v. Raich, 05 C.D.O.S. 4725, snuffed out a popular tactic. To make their clients’ cases, defense attorneys routinely cite the U.S. Constitution’s commerce clause, which gives Congress power to regulate activities that affect interstate trade. Many federal judges had been holding off on ruling on those motions, some attorneys said Monday. Presumably they were waiting to see whether the Supreme Court would uphold the Ninth Circuit decision that favored plaintiffs Angel Raich and Diane Monson and hindered the federal government’s power to prosecute for medical marijuana use in states that wanted to allow it. Now that the high court has gone the other way, medical cannabis proponents are turning their attention to Congress. And while their lawyers still have existing defenses to take into courtrooms — such as arguments of medical necessity — new maneuvers are also expected. “Defense attorneys will craft new and novel defenses, just like the commerce clause argument was unheard of a decade ago,” said San Francisco criminal defense attorney Omar Figueroa. “Human ingenuity knows no bounds.” Speculation abounds as to whether Monday’s opinion will lead to an increase in federal raids and prosecutions of medical marijuana organizations. Laurence Lichter, a San Francisco criminal defense lawyer, said his office is gearing up for an onslaught, adding that police officers who are cross-deputized as Drug Enforcement Administration agents have told him to expect “a flood” of federal arrests, indictments and prosecutions. “We’re all trying to figure out if the 43 [cannabis] clubs in San Francisco are going to be raided tomorrow.” Some federal officials, at least, are downplaying the impact. Javier Pena, the special agent in charge of the DEA’s San Francisco field division, says nothing has changed. “We’ve been investigating some groups, and we’re still investigating some groups,” he said, referring to what he calls major cultivators and trafficking organizations. Since the Ninth Circuit’s underlying decision, “we were in sort of a wait-and-see — nobody knew, because there had been a great question placed upon the law,” said McGregor Scott, U.S. attorney for the Eastern District of California. “That question has now been answered definitively.” Still, he maintains that for all practical matters, the opinion isn’t likely to make federal prosecutors in his district more aggressive. “We only have limited time and limited resources. And our focus has been and continues to be large-scale traffickers and large-scale growers.” The U.S. attorney’s office for the Northern District of California, reputed to be more mellow than the Eastern District among medical-pot advocates, did not have a comment Monday. In San Francisco, criminal defense attorneys aren’t the only ones liable to freak out over the decision. It also frustrates local politicians who favor medical marijuana but want to find ways to regulate the city’s cannabis clubs. “We are now in a state of suspended animation,” said Supervisor Ross Mirkarimi. The city attorney’s office is reviewing the opinion to see whether there’s any room left for local regulation, said spokesman Matt Dorsey. Despite the unfriendly precedent the Supreme Court established for their cause, local lawyers for Monson and Raich say they don’t regret bringing the case. David Michael, who represents Monson, said there were at least 10 other cases in the wings, and the issue would have gotten to the high court eventually. “We had facts that were the most untainted, unassailable facts,” he said, noting that the two women were indisputably using pot to alleviate their own suffering, had not faced criminal charges, and weren’t growing marijuana for anyone else. “And even with those facts, we lost,” Michael added. “Anybody else would have been even more doomed.” Oakland attorney Robert Raich, plaintiff Angel Raich’s husband and lawyer, says the case ultimately preserved the status quo. The feds were prosecuting medical marijuana cases before, while California prosecutors were not, he said. “We had much to gain and nothing to lose.”

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