Marijuana clubs lose what may be final appeal
against injunction

By Julia Cheever

December 13, 2007

Three medical marijuana clubs in Oakland, Fairfax and Ukiah today lost what may be their final appeal in a long-running battle against a federal court injunction barring them from giving marijuana to patients.

The 9th U.S. Circuit Court of Appeals in San Francisco upheld a permanent injunction issued by a federal trial judge in 2002 against the Oakland Cannabis Buyers' Cooperative, Marin Alliance for Medical Marijuana and Ukiah Cannabis Buyer's Club.

The case began in 1998 when the U.S. Justice Department filed a civil lawsuit seeking to stop the three clubs as well as three other now-defunct dispensaries in San Francisco and Santa Cruz from giving marijuana to patients.

A voter-approved California law, the Compassionate Use Act of 1996, allows seriously ill patients to use marijuana with a doctor's approval, but federal laws don't recognize the state law.

The claims decided by the appeals court today were the only arguments left in the case after the U.S. Supreme Court rejected other assertions raised by the clubs.

In a key ruling in 2001, the high court said federal law doesn't allow a "medical necessity" exception for distribution of marijuana to seriously ill patients.

In another ruling in 2005 in a related lawsuit filed by medical marijuana patient Angel Raich, the high court said that even locally grown, non-commercial medical marijuana should be considered part of interstate commerce and thus subject to federal laws criminalizing the drug.

In today's decision, the appeals court turned down the clubs' argument that marijuana shouldn't be classified as a Schedule I drug under the U.S. Controlled Substances Act.

Drugs in that category are defined as having a high potential for abuse and no accepted medical use.

A three-judge panel of the appeals court said the classification is constitutional and has a rational basis.

The panel also rejected the Oakland club's argument that it should be protected from the federal court action because of its relationship with the city of Oakland. The panel said it had already ruled against such a claim in the case of Oakland marijuana activist Ed Rosenthal.

Robert Raich, a lawyer for the Oakland club, said the group hadn't yet decided whether to ask the appeals court for reconsideration or appeal to the U.S. Supreme Court.

Oakland Cannabis Buyers' Cooperative executive director Jeffrey Jones said the ruling is "just another bump in the legal road" in the group's bid to help patients needing medical marijuana.

The Oakland club is still in operation, but doesn't dispense marijuana and restricts its activities to providing information, support and advocacy for patients needing medical marijuana, Jones said.

Medical marijuana supporters say the drug alleviates appetite loss, nausea, pain and other problems associated with AIDS, cancer, multiple sclerosis and glaucoma.

The permanent injunction upheld today was issued by U.S. District Judge Charles Breyer of San Francisco in 2002.

Raich said that despite the ruling, the state's medical marijuana is still in place and can still be used by qualifying patients as a defense against state prosecution, although not against federal prosecution.

Raich said that only about 1 percent of marijuana arrests nationwide are by federal authorities.

Therefore, he said, "It's important for patients in California and other medical cannabis states to recognize that they will continue to have protection under their state laws."

Permalink

Copyright © 2007 by Bay City News, Inc. -- Republication, Rebroadcast or any other Reuse without the express written consent of Bay City News, Inc. is prohibited.

####