Pubdate: Thu, 16 Sep 1999 Source: Sacramento Bee (CA) Copyright: 1999 The Sacramento Bee Contact: P.O.Box 15779, Sacramento, CA 95852 Feedback: http://www.sacbee.com/about_us/sacbeemail.html Website: http://www.sacbee.com/ Forum: http://www.sacbee.com/voices/voices_forum.html BREATH OF LIFE: FEDERAL COURT OUTLINES A MEDICINAL POT DEFENSE Federal law bans the use of marijuana for all purposes, but is there a defense for medicinal marijuana in federal court? The U.S. 9th Circuit Court of Appeals thinks so, and has outlined a new and intriguing argument for medicinal marijuana. The ruling potentially alters the judicial landscape and challenges Gov. Gray Davis, who has largely refused to address the state's medicinal marijuana law, Proposition 215, based on the contention that the drug was illegal for medicinal purposes under federal law. The test case centers on the Oakland Cannabis Buyers' Cooperative. City officials had sought to shield the cooperative from prosecution by designating its distributors as "agents" under laws that protect narcotic officers who possess drugs. Federal prosecutors nonetheless sought a federal injunction to shut down the cooperative based on the federal ban of all marijuana use. The cooperative sought to argue that for some, the marijuana was medically necessary. District Judge Charles Breyer concluded there was no room in federal law for such a defense. He granted the injunction to shut down the cooperative, which then appealed the decision. The appellate court, in dramatic contrast to Breyer's ruling, has concluded that Breyer should have balanced the legal ban on marijuana against an argument of medical necessity. Justices Mary Schroeder, Stephen Reinhardt and Barry Silverman unanimously instructed Breyer to reconsider the injunction. The cannabis cooperative "presented evidence that there is a class of people with serious medical conditions for whom the use of cannabis is necessary," the justices wrote. "The government, by contrast, has yet to identify any interest it may have in blocking the distribution of cannabis to those with medical needs." The practice of medicine is regulated largely by states, not Congress -- including determinations of what is medically necessary and what is not. Local governments may have a role as well. Breyer may end up taking into consideration how Oakland has declared a public health emergency because of the lack of proper distribution channels for medicinal marijuana. Davis, meanwhile, has trapped himself between his reflexive get-tough anti-crime rhetoric and public support for medicinal marijuana. If federal courts begin to consider medical necessity as a legitimate argument (they may not; this appellate court is frequently overturned), state definitions would become increasingly relevant. Davis and the Legislature should help clarify the political intent of Proposition 215 as the courts continue to muddle through marijuana's legal swamp. - --- MAP posted-by: Richard Lake