Pubdate: Sat, 19 Jun 2004
Source: San Francisco Chronicle (CA)
Copyright: 2004 Hearst Communications Inc.
Contact:  http://www.sfgate.com/chronicle/
Details: http://www.mapinc.org/media/388
Author: Bob Egelko, Chronicle Staff Writer
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

REVIEW OF POT CLUB CASES ORDERED

9th Circuit Says Patients' Rights Protected by Ruling

A federal appeals court gave some encouragement Friday to Northern
California medical marijuana clubs in their effort to fend off federal
enforcement, saying the clubs' cases may be affected by a recent
ruling protecting patients from prosecution under federal drug laws.

The Ninth U.S. Circuit Court of Appeals in San Francisco ordered
federal judges to reconsider their decisions against four medical
marijuana dispensaries - in Oakland, Santa Cruz, Fairfax and Ukiah -
in light of the court's ruling in December. The ruling, the appeals
court said, "may control the outcome" of each case.

That ruling said federal drug laws do not apply to patients who obtain
marijuana for medical purposes from within the state, without a
commercial transaction, under California's 1996 initiative that
legalized medical use of the drug to relieve pain and the side effects
of therapies for AIDS and cancer. The court said the federal ban on
marijuana applied only to acts that affect interstate commerce.

The Bush administration has appealed the December ruling to the U.S.
Supreme Court, arguing that any use or distribution of marijuana -
which has no recognized medical purpose under federal law - affects
interstate commerce, which Congress is constitutionally authorized to
regulate.

The high court is scheduled to announce late this month whether it
will grant review or let the ruling stand. The appeals court's orders
Friday specified that judges should reconsider the clubs' cases only
after the Supreme Court has acted.

Annette Carnegie, one of the clubs' attorneys, said the orders were a
hopeful sign.

Although the December ruling involved individual patients rather than
distributors, "I think the issues are very similar," she said. "What
(the ruling) establishes is that patients, along with those who assist
them, are allowed to possess and cultivate cannabis for their use. ...
The federal government doesn't have the right to interfere with
strictly intrastate activities."

She said none of the clubs was organized for profit.

Justice Department lawyers have argued that the December ruling, even
if it survives Supreme Court review, does not protect marijuana
distributors.

The clubs in Oakland, Fairfax and Ukiah are appealing injunctions
obtained by federal authorities that prohibit them from distributing
marijuana to patients. The Santa Cruz organization, the Wo/Men's
Alliance for Medical Marijuana or WAMM, is seeking to recover
marijuana seized by federal agents in a September 2002 raid.

Relying on the appeals court's December ruling, U.S. District Judge
Jeremy Fogel of San Jose issued an order in April allowing WAMM to
resume growing and distributing marijuana for its patient-members
while its suit against the government proceeds. However, he refused
its request to have its marijuana returned.

The appeals court Friday told Fogel to reconsider WAMM's demand for
return of the confiscated marijuana and ordered U.S. District Judge
Charles Breyer of San Francisco to reconsider the other cases.
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