Pubdate: Fri, 15 Sep 2000
Source: East Bay Express (CA)
Copyright: 2000 Express Publishing Company LLC
Contact:  (510) 540-7700
Address: PO Box 3198, Berkeley, CA 94703-0198
Author: Tim Kingston


Just when things were starting to look a little grim on the medical
marijuana front, what with the Supreme Court's recent stay that
prohibits the Oakland Cannabis Buyers Cooperative from distributing
medical marijuana, at least for the time being, another federal court
has offered medical marijuana advocates a ray of sunshine.

Last week, as the result of a First Amendment class action suit filed
against the federal government by doctors and patients statewide, US
District Court Judge William Alsup in San Francisco permanently
prohibited the federal government from investigating, interviewing, or
threatening to yank the prescription privileges of doctors who
recommend that patients use medical marijuana to treat symptoms of
life-threatening and debilitating diseases.

The Alsup decision is the latest wrinkle in what has turned into a
fast-moving legal battle over medical marijuana.

Many of the most recent decisions have centered on the Oakland
Cannabis Buyers Cooperative (OCBC) in downtown Oakland. But while both
the Alsup and Oakland cases are about medical marijuana, the first is
strictly a free-speech First Amendment case, while the second is an
effort to carve out a legal space for the distribution of medical
marijuana, using a defense of medical necessity.

The Alsup decision, says Robert Raich, attorney for the OCBC,
"continues to illustrate how intellectually, morally, and legally
bankrupt the federal government's position is with regard to medical
cannabis." Of course, Raich could use a boost after the Supreme
Court's recent stay that told the OCBC to cease distributing medical
marijuana until the Supreme Court reviews the entire issue. "That
stay," said Raich, "is obviously a disappointment." But, he adds, "it
is really just a bump in the road. The immediate issues in this case
will be decided later."

Outside the Law  At the heart of the OCBC's case is the contention
that the medical use of marijuana is justified by medical necessity;
medical marijuana advocates argue that the drug offers relief for
conditions such as AIDS, chronic pain, and nausea.

The necessity defense, says Ellen Komp of the Lindesmith Center, an
anti-war-on-drugs advocacy group that contributed to the class action
First Amendment suit, "is saying that you are admitting you are
breaking the law, but you have a necessity to do so. It is a
life-or-death situation. It is a defense of `I stole a boat to save a
drowning man.' It is a common-law defense that has been on the books
for a long time."

In other words, the OCBC is trying to prove not that the distribution
of medical marijuana is legal under federal law, but that it is legal
outside of federal law. If this succeeds at the Supreme Court level,
it will carve out a precedent for medical marijuana dispensaries
nationwide. Such a precedent could be crucial: While Proposition 215,
passed by voters in 1996, allows patients and caregivers to grow
marijuana, not everyone has the time, energy, and funds necessary to
grow the plant successfully. That means people need dispensaries like
the OCBC.

Of course, that's not how the federal government sees it. Although
Prop. 215 allows possession and cultivation by patients and their
caregivers, the definition of "caregiver" is the issue that's up for

Jeff Jones, executive director of the OCBC, explains, "If you talked
to [the authors of Prop. 215], they said that it legalized everything:
medical marijuana use, growth, distribution. [But] if you talked to
the opponents, they said all it did was give preemptive defense in
court." Gretchen Michael of the Justice Department asserts that there
is insufficient evidence of the efficacy of medical marijuana. "As it
stands, marijuana remains an illegal substance," she says. "That is
the current state of federal law." The Clinton administration has
stuck to this viewpoint adamantly - after all, you remember, he didn't

A Legal Pas-de-Deux  But why does the federal government need to
respond to a state ballot measure at all? Federal drug czar Barry
McCaffrey reportedly never could stomach Prop. 215 in the first place,
and when marijuana dispensaries came out in the open in the wake of
the law's passage, the Justice Department filed a civil suit against
the OCBC and other clubs in 1998. This resulted in a civil injunction
against the dispensaries; cannabis buyers' clubs were left with the
lame-duck right to issue medical identity cards, serve as an
information clearinghouse, and sell hemp products.

Raich and the OCBC appealed the injunction to the Ninth Circuit United
States District Court of Appeals in early 1999, and won an
extraordinarily favorable ruling in September of that year, ordering
that the injunction be rescinded. The Appeals Court declared that the
injunction ruling should have taken into account medical necessity as
"a legally cognizable defense that would likely pertain in the
circumstances," and criticized the Justice Department, saying, "It has
yet to identify any interest it may have in blocking the distribution
of cannabis to those with medical needs." The court tartly noted that
the federal government "offered no evidence to rebut the OCBC's
evidence that cannabis is the only effective treatment for a large
group of seriously ill individuals, and it confirmed in oral argument
that it sees no need to offer any."

Medical marijuana advocates rejoiced, but the appeals court ruling
prompted what Raich described as a "desperate" federal counterattack,
the legal equivalent of a cruise missile launch on Oakland. The bitter
fight that ensued amounts to nothing more than a power struggle
between two branches of the federal government - the Justice
Department and the federal courts - played out on the OCBC's turf. The
appeals and conflicting rulings have been flying fast and furious for
over a year, and California Attorney General Bill Lockyer has even
stepped in to ask the Justice Department to tone down its attack.

In July, the original injunction against the dispensaries was finally
revoked, although the Justice Department has appealed the appeals
courts ruling that rescinded that injunction. Plus, when the OCBC
reopened for the distribution of medical marijuana, the Justice
Department let loose another legal bombardment. First there was a
request for a stay of the second ruling. That was rejected.

There was a request for an emergency review of the case by the Supreme
Court, which is pending.

And finally the Feds hit paydirt with their request for an emergency
stay of the 9th Circuit Court ruling.

As a result, says Raich, the OCBC is drowning in legal briefs. "These
are our tax dollars at work," he says. "The federal government has an
unlimited amount of money to spend on its lawyers." But Raich and
Jones remain optimistic, despite the recent Supreme Court setback.

I sensed an almost messianic tone as Jones anticipated the upcoming
battles in the highest court in the land. "We have not yet educated
the high court," he says. "They do not yet understand the question at
hand and what our actions are about."
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