Review of pot club cases ordered

June 18, 2004

Bob Egelko, San Francisco Chronicle

 

A federal appeals court gave some encouragement Friday to Northern California medical marijuana clubs in their effort to fend off federal enforcement, saying the clubs' cases may be affected by a recent ruling protecting patients from prosecution under federal drug laws.

The Ninth U.S. Circuit Court of Appeals in San Francisco ordered federal judges to reconsider their decisions against four medical marijuana dispensaries - in Oakland, Santa Cruz, Fairfax and Ukiah - in light of the court's ruling in December. The ruling, the appeals court said, 'may control the outcome'' of each case.

That ruling said federal drug laws do not apply to patients who obtain marijuana for medical purposes from within the state, without a commercial transaction, under California's 1996 initiative that legalized medical use of the drug to relieve pain and the side effects of therapies for AIDS and cancer. The court said the federal ban on marijuana applied only to acts that affect interstate commerce.

The Bush administration has appealed the December ruling to the U.S. Supreme Court, arguing that any use or distribution of marijuana - which has no recognized medical purpose under federal law - affects interstate commerce, which Congress is constitutionally authorized to regulate.

The high court is scheduled to announce late this month whether it will grant review or let the ruling stand. The appeals court's orders Friday specified that judges should reconsider the clubs' cases only after the Supreme Court has acted.

Annette Carnegie, one of the clubs' attorneys, said the orders were a hopeful sign.

Although the December ruling involved individual patients rather than distributors, 'I think the issues are very similar,'' she said. 'What (the ruling) establishes is that patients, along with those who assist them, are allowed to possess and cultivate cannabis for their use. ... The federal government doesn't have the right to interfere with strictly intrastate activities.''

She said none of the clubs was organized for profit.

Justice Department lawyers have argued that the December ruling, even if it survives Supreme Court review, does not protect marijuana distributors.

The clubs in Oakland, Fairfax and Ukiah are appealing injunctions obtained by federal authorities that prohibit them from distributing marijuana to patients. The Santa Cruz organization, the Wo/Men's Alliance for Medical Marijuana or WAMM, is seeking to recover marijuana seized by federal agents in a September 2002 raid.

Relying on the appeals court's December ruling, U.S. District Judge Jeremy Fogel of San Jose issued an order in April allowing WAMM to resume growing and distributing marijuana for its patient-members while its suit against the government proceeds. However, he refused its request to have its marijuana returned.

The appeals court Friday told Fogel to reconsider WAMM's demand for return of the confiscated marijuana and ordered U.S. District Judge Charles Breyer of San Francisco to reconsider the other cases.



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