Pubdate: Tue, 14 Sep 1999
Source: Associated Press
Copyright: 1999 Associated Press

JUDGE TOLD TO RETHINK MARIJUANA BAN

SAN FRANCISCO (AP) -- The dark judicial clouds hovering over California's
medical marijuana clubs may have lightened -- but only just a bit.

On Monday, the 9th U.S. Circuit Court of Appeals told a federal judge to
rethink his absolute ban on drug distribution at some northern California
marijuana clubs, and consider an exemption for patients who show a serious
medical need and no legal alternative.

Though not as broad, the court's language was consistent with a 1996
California initiative allowing patients with a doctor's recommendation to
possess and use marijuana for serious illnesses without prosecution under
state law.

It's also consistent with medical marijuana laws in four other states --
Arizona, Oregon, Washington and Alaska -- in the nine-state circuit.

For those states -- and Nevada, which is considering a similar law -- the
ruling appears to recognize a defense of "medical necessity:" the need to
violate the federal drug law in order to prevent a more serious harm.

That conflicts with a U.S. Justice Department argument that no claim of
necessity could justify use of a drug federally classified as dangerous and
having no approved medical purpose.

"For the first time, we have a clear ruling that the federal Controlled
Substances Act is not an absolute bar to the distribution of medical
cannabis," said Gerald Uelmen, a Santa Clara University law professor and
lawyer for the Oakland Cannabis Buyers' Cooperative.

The Justice Department did not return a telephone call seeking comment.

Medical marijuana clubs sprang up around California after the November 1996
approval of Proposition 215, which allowed patients with serious illnesses
to obtain and use marijuana if their doctors approved. The drug is used to
relieve pain and other effects of AIDS, cancer and certain other diseases
and their treatments.

The Justice Department responded by suing six northern California clubs,
saying the absolute federal ban on marijuana distribution overrode the
proposition.

U.S. District Judge Charles Breyer agreed, issuing a contempt order last
year that forced four of the clubs to stop distributing marijuana.

Two of the clubs, in Fairfax and Ukiah, remain open because the government
failed to present evidence that they were distributing marijuana at the time.

Other informal organizations scattered around the state also continue to
supply medicinal marijuana. The Oakland club also has resumed limited
operations.

In its 3-0 ruling, the court said the government "has yet to identify any
interest it may have in blocking the distribution of marijuana to those with
medical needs."

The panel said the government "has offered no evidence to rebut (a marijuana
club's) evidence that cannabis is the only effective treatment for a large
group of seriously ill individuals."

The court said patients would have to show they faced imminent harm, from a
serious medical condition, and have found that legal alternatives to
marijuana don't work or cause intolerable side effects.

The court said Breyer would be justified in granting the exception, but did
not order it issued.

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