Federal Judge Permits Continued Distribution of Medical Marijuana in Northern California

BOB EGELKO

Associated Press Writer

Monday, August 31, 1998

Breaking News Sections

(08-31) 21:20 EDT SAN FRANCISCO (AP) -- A federal judge on Monday rejected Oakland's attempt to shield its medical marijuana club from federal drug laws by making it part of city government, but refused to order the immediate shutdown of clubs in Oakland and two other cities.

Instead, U.S. District Judge Charles Breyer said he may allow a jury to decide whether patients at the clubs need marijuana to relieve pain and survive treatment for cancer, AIDS and other illnesses.

Breyer rejected both a request by the Oakland Cannabis Buyers' Cooperative to dismiss the federal government's suit and a motion by the government to declare the clubs in contempt of court and close them without a trial. The other two clubs are in Ukiah and the Marin County community of Fairfax.

The judge tentatively scheduled a hearing Sept. 28 on whether there should be a trial, and allowed the clubs to remain open at least until then.

The clubs sprang up around California after passage of Proposition 215, the November 1996 initiative that allows seriously ill patients to grow and use marijuana for pain relief, with a doctor's recommendation, without being prosecuted under state law.

But many of the clubs have been shut down through the efforts of Attorney General Dan Lungren, who obtained state court rulings limiting the scope of Proposition 215, and the Clinton administration's Justice Department, which sued six clubs to enforce federal laws against marijuana distribution.

Breyer issued an injunction in May prohibiting the six Northern California clubs from distributing marijuana while the government's suit was pending.

Three of the clubs have remained open, including the Oakland club, which claims 2,000 members.

``We're going to remain open,'' the club's director, Jeff Jones, said after Monday's hearing. ``We feel what we're doing is a necessity to these patients.''

The club had hoped to win immunity from federal prosecution as a result of Oakland's apparently unprecedented action Aug. 13, previously authorized by the City Council, declaring club officials to be city agents who were distributing marijuana to patients on the city's behalf.

In court, the club invoked a federal drug law that protects state and local officers from legal liability while legally enforcing drug-related laws.

That law was intended to shield police from prosecution for undercover drug transactions, but its wording also covers city agents who distribute medical marijuana, argued Gerald Uelmen, a Santa Clara University law professor representing the club.

``We're not dealing with a subversive effort to undercut the government's drug war,'' Uelmen said. ``This is a careful and good-faith effort to implement the will of the people, consistent with federal law.'' Breyer called the argument ``creative'' but ``not persuasive.'' He said club employees are not legally enforcing a drug-related law when their ``purpose is to violate federal law.''

Uelmen said the club would appeal the ruling, though he did not know whether an immediate appeal was possible. But Breyer rejected government lawyers' arguments that there was conclusive evidence the clubs were violating his injunction and should be shut down immediately.

The judge said he may order a jury trial on the issue of `"medical necessity'': the clubs' claim that violation of a federal drug law was the only way to pain that was serious, and in some cases life-threatening. He did not rule on the government's argument that a club would have to be closed if necessity could not be proven for every one of its patients.