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 Website: http://www.eastbayexpress.com/ Author: Tim Kingston SMOKE A JOINT AND CALL ME IN THE MORNING 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 debate. 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 inhale. 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." - --- MAP posted-by: Richard Lake