Source: San Francisco Chronicle (CA) Contact: http://www.sfgate.com/chronicle/ Pubdate: Fri, 15 May 1998 Author: Sabin Russell, Chronicle Staff Writer FEDERAL JUDGE ORDERS CLOSURE OF POT CLUBS Advocates hope to challenge the ruling in a jury trial Siding with the Clinton administration, a U.S. district judge has ruled that California pot clubs must stop selling medical marijuana in violation of federal law. In a decision released yesterday, Judge Charles Breyer found that whether or not medical marijuana clubs are legal under state Proposition 215 they are not legal under federal statutes that take precedence over California law. U.S. Attorney Michael Yamaguchi, who filed a civil suit to force closure of the clubs in January, called on state marijuana clubs to shut down voluntarily. ``The clubs, and all those acting in concert with them, should immediately cease their operations,'' he said. Breyer issued a preliminary injunction, to take effect Tuesday, barring the clubs from distributing marijuana to chronically ill members. If made permanent, the injunction would eviscerate Proposition 215, without passing judgment on its constitutionality. ``A state law which purports to legalize the distribution of marijuana for any purpose . . . even a laudable one, nonetheless directly conflicts with federal law,'' Breyer wrote. Defiant pot club operators said they were disappointed by Breyer's decision, but nonetheless detected enough legal wiggle room in it to believe that their fight to remain open can continue. Because the judge issued a preliminary injunction, rather than the summary judgment sought by Yamaguchi, club lawyers said they can challenge the ruling in a trial before a jury in San Francisco, where voters passed Proposition 215 by an 8 to 1 ratio. ``It is not against the law to save lives,'' said Dennis Peron, founder of San Francisco's largest medical marijuana club, which has been changing its name as fast as the courts have been issuing injunctions. It is currently called the Cannabis Healing Center, and boasts as many as 8,000 members. The clubs will invoke a ``medical necessity defense,'' arguing that the distribution of pot to those suffering from chronic illnesses can save their lives. They also intend to argue that there is an established constitutional right to be ``free of pain'' and that marijuana acts as a pain reliever. ``We're confident we can win before a jury,'' said Peron. ``We're going to win, and change the medical marijuana laws throughout the country. Medical marijuana is going to be legal in New Jersey.'' But Breyer's ruling suggests that any federal court fight will be an uphill challenge, if only because the case rests on the narrow but solid argument that federal law prohibits marijuana possession except for research and that federal law overrules conflicting state statutes. The thin thread of hope for medical marijuana advocates is that Breyer did not foreclose the possibility of a successful medical necessity defense in a jury trial. Breyer also left open the possibility that federal courts would not attempt to stop the distribution of marijuana to the chronically ill by a government entity -- just as the courts have not blocked the otherwise illegal distribution of clean needles to drug users as an AIDS prevention measure. San Francisco attorney Jerrold Ladar, a former federal prosecutor, said the judge's ruling does not mean an end to California pot clubs, but it substantially raises the ante for those fighting to keep them open. ``They've got to leap on the barbed wire,'' he said. ``If they decide to violate the court order, at that point they will be commiting several different offenses, including criminal contempt.'' Ladar said it is unclear whether the pot clubs would be allowed to remain open during the course of a jury trial, which is likely to be lengthy and would not be able to start for months. ``If they try to continue to operate, the court has the power to tell the U.S. attorney to order U.S. marshals to padlock the doors and put a keeper inside.'' - --- Checked-by: (Joel W. Johnson)