Important note: Information in this article was accurate in 1999. The state of the art may have changed since the publication date.
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The San Francisco Examiner - Tuesday, September 14, 1999
Peter Hartlaub and Emily Gurnon of the Examiner Staff
The 9th U.S. Circuit Court of Appeals told a federal judge on Monday to review his 1998 order that closed the Cannabis Cultivators Club in San Francisco, the Oakland Cannabis Buyers' Cooperative and other Northern California clubs, and to consider an exemption for patients who face immediate harm without the drug and who have no alternatives.
Though it will not immediately open the doors of any local marijuana clubs, the ruling constitutes a victory for patients who say marijuana is the only drug that will ease their suffering.
"I'm ecstatic," said Dennis Peron, founder of the Cannabis Cultivators Club and author of the 1996 medical marijuana initiative, Proposition 215. He said the federal government may finally be moving toward the realization that availability of medical cannabis is a life- and-death issue for some users. The ruling reviews U.S. District Judge Charles Breyer's decision last year to shut down the Cannabis Cultivators Club in San Francisco and several other clubs.
The government "has yet to identify any interest it may have in blocking the distribution of marijuana to those with medical needs," and "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 in a 3-0 ruling.
"Medical necessity'
In their decision, the judges seemed to recognize the "medical necessity" defense for federal marijuana prosecutions, which says a person can violate the law when it is the only way to prevent a greater harm.
"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, which was the appellant in the case.
The Justice Department has maintained that no claim of necessity can justify the use of a drug that is classified by Congress to be among the most dangerous substances, with no approved medical purposes.
Avram Goldstein, professor emeritus of pharmacology at Stanford, said the issue of medical marijuana should be left for medical science, not the courts, to decide.
"I really don't think judges ought to get into the medical business," Goldstein said. "They don't know anything about it."
Prop. 215, passed by California voters in 1996, allowed patients to legally possess and grow marijuana for a variety of medical conditions, including AIDS and cancer, if recommended by a doctor.
Clash with federal law
But the initiative clashed with federal laws against distributing the drug, and the Justice Department sued six Northern California clubs. Breyer issued an injunction in May 1998 barring the clubs from distributing marijuana.
Club lawyers presented their "necessity" defense to Breyer a few days after that ruling, but he rejected the argument, and the clubs appealed. Monday's ruling sends the "necessity" defense back to Breyer, asking him to reconsider.
The opinion says the government relied "exclusively on its general interest in enforcing its statutes," without addressing the arguments in favor of giving pot to the seriously ill.
"It simply rests on the erroneous argument that the district judge was compelled as a matter of law to issue an injunction (that follows the statute)."
The 9th District represents nine states. Five of those states * California, Arizona, Oregon, Washington and Alaska * have laws that provide at least limited protection from state prosecution for medical marijuana users. Those who want marijuana can still find it through informal clubs, including several in San Francisco, and through private cultivation and street sales. The Oakland club, which served 2,000 patient-members, has been allowed to reopen for hemp distribution and patient support.
State Attorney General Bill Lockyer announced in March that he would not interfere with medical marijuana providers, as long as they operate discreetly.
Monday's ruling was signed by Judges Mary Schroeder, Stephen Reinhardt and Barry Silverman. The Associated Press contributed to this report.
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