Pubdate: Wed, 19 Jul 2000 Source: San Francisco Examiner (CA) Copyright: 2000 San Francisco Examiner Contact: http://www.examiner.com/ Forum: http://examiner.com/cgi-bin/WebX Author: Bob Egelko, The Examiner Staff FEDERAL JUDGE LETS OAKLAND POT CLUB DISTRIBUTE DRUG Ruling Limits Use To Strictly Defined Medical Necessity Medical marijuana will soon be legal in Oakland under an unprecedented ruling by a federal judge. Over Clinton administration objections, U.S. District Judge Charles Breyer allowed the Oakland Cannabis Buyers' Cooperative to distribute the drug to patients who face imminent harm without it and have no legal alternative. Monday's ruling comes three days after San Francisco health officials started issuing photo ID cards to marijuana users who had their doctors' approval. A day earlier, a UC-San Francisco professor's study released at the 13th International AIDS Conference in South Africa found that marijuana did not interfere with anti-retroviral drugs used against AIDS and suggested it was effective against extreme weight loss associated with the disease. "We applaud the wisdom of the courts and again call upon the federal authorities to reschedule" marijuana, now classified under federal law as a substance with no legitimate medical use, said Jeff Jones, executive director of the Oakland cooperative. The government has shown no such inclination, moving instead to close marijuana clubs that sprang up after California voters passed Proposition 215 in November 1996. The initiative, adopted in varying forms by seven other states, suspends state drug laws for patients whose doctors recommend marijuana to ease pain, nausea or the side effects of potent medicines for diseases that include AIDS and cancer. Justice Reviewing Ruling Justice Department spokeswoman Gretchen Michael said the department was reviewing Breyer's ruling and had no comment. The department has until the end of next week to decide whether to seek Supreme Court review of an appellate ruling last September that was the basis of Breyer's decision. Implementation may not be quick or simple. Following the language of the 9th U.S. Circuit Court of Appeals, Breyer said the cooperative could supply marijuana to patients who showed a medical necessity - a serious condition, threatening imminent harm, that has resisted all legal medicines but could be improved by marijuana. That is narrower than the Prop. 215 standards and will require Jones' staff and medical advisors to screen the 2,500 members of the cooperative, which halted marijuana distribution by court order in October 1998. Jones said the review should take about a week and would probably leave somewhere between 15 and 50 percent of the members eligible for marijuana. The ruling also has a limited scope, shielding only the Oakland cooperative and not a handful of patients and growers who have been turned down by other federal judges in the past year when they tried to invoke a "necessity" defense against federal criminal charges. Those defendants are counting on the appeals court to apply its September ruling to their cases. But Breyer's decision was nevertheless a dramatic victory for sponsors of Prop. 215 after more than three years of adversity in state and federal courts. "This is the first step toward getting it in pharmacies. . . . The genie's out of the bottle and they never can put it back," said Dennis Peron, author of Prop. 215 and founder of the Cannabis Buyers' Club in San Francisco. The club, which predated the 1996 initiative, was closed by the courts, and Peron now runs a farm in Lake County that distributes marijuana to about 150 patients. Hallinan: Legal Under 'Federal Law' "It's a victory for everyone who voted for Prop. 215," said San Francisco District Attorney Terence Hallinan. "Medical patients can now use marijuana legally under federal law." Breyer refused to carve out an exception for medical necessity in October 1998 when he granted the Justice Department's request for an injunction prohibiting marijuana distribution at the Oakland cooperative and five others in Northern California. The Oakland organization quickly reopened as a hemp store and patient counseling center, with the backing of city officials. Last September, the appeals court told Breyer to reconsider and said evidence offered by the cooperative and its patients, about the effectiveness of marijuana and lack of a legal substitute, would support an exception unless the government rebutted it. Breyer invited a rebuttal at a hearing last Friday but was told by Justice Department lawyer Mark Quinlivan that he had nothing to add beyond the fact that Congress and federal regulators considered marijuana medically worthless. "The government has still not offered any evidence to rebut (the cooperative's) evidence that cannabis is medically necessary for a group of seriously ill patients," Breyer said in his order Monday. - --- MAP posted-by: Richard Lake