Federal Appeals Court Opens Door For Medical Marijuana Clubs

Sept. 16, 1999, San Francisco, CA: California's medical marijuana clubs won a victory in the federal court of appeals Monday in a ruling that said U.S. District Court Judge Charles Breyer should consider modifying his injunction against the Oakland Cannabis Buyers' Cooperative (OCBC) to permit the distribution of marijuana to patients who can demonstrate a medical necessity.

Judge Breyer had issued the injunction based on his determination that the OCBC was distributing marijuana in violation of the federal Controlled Substances Act. The OCBC then sought to modify the injunction to provide an exception for the distribution of marijuana to patients who could demonstrate a medical necessity under federal law. That motion was denied and the OCBC filed an interlocutory appeal of that decision to the 9th Circuit U.S. Court of Appeals.

The circuit court found that an injunction must be "narrow enough to exclude conduct that likely would be legally privileged or justified," and pointed out that it had previously recognized the "necessity defense" to violations of federal law in United States v. Aguilar, 883 F.2nd 662 (1989).

The circuit court further held that Judge Breyer erred by ignoring the public interest as demonstrated on the record. "OCBC has identified a strong public interest in the availability of a doctor-prescribed treatment that would help ameliorate the condition and relieve the pain and suffering of a large group of persons with serious and fatal illnesses...OCBC submitted the declarations of many seriously ill individuals and their doctors who, despite their very real fears of

criminal prosecution, came forward and attested to the need for cannabis in order to treat the debilitating and life threatening conditions...The government, by contrast, has yet to identify any interest it may have in blocking the distribution of cannabis to those with medical needs, relying exclusively on its general interest in enforcing its statutes."

"In short, OCBC presented evidence that there is a class of people with serious medical conditions for whom the use of cannabis is necessary in order to treat or alleviate those conditions or their symptoms; who will suffer serious harm if they are denied cannabis; and for whom there is no legal alternative to cannabis for the effective treatment of their medical conditions because they have tried other alternatives and have found they are ineffective, or that they result in intolerable side effects."

The circuit court then reversed the lower court's order denying OCBC's request for modification of the injunction and remanded the case to the district court. "On remand, the district court is instructed to reconsider the appellants' request for a modification that would exempt from the injunction distribution to seriously ill individuals who need cannabis for medical purposes. In particular, the district court is instructed to consider...the criteria for a medical necessity exemption, and, should it modify the injunction, to set forth those criteria in the modification order." The three-judge appeals panel said it would retain jurisdiction over any further appeals in this case.

"This provides a framework in which patients can receive medical cannabis legally in accordance with federal law," said Robert Raich, Esq., OCBC attorney.

"It's important to note that this decision does not indicate that everyone entitled to protection under Proposition 215 will be similarly protected from prosecution under federal law," noted Tom Dean, Esq., NORML Foundation Litigation Director. "Proposition 215 requires only that a patient have a recommendation from their physician to be protected from prosecution under state law. The criteria for protection from federal prosecution is that they meet the higher standards required to qualify for a medical necessity defense, as outlined in this decision."

The OCBC also raised two other issues in the appeal. First, it asked the 9th Circuit to reverse Judge Breyer's order denying the OCBC's motion to dismiss the case on the basis that an Oakland City ordinance had immunized OCBC from prosecution under the Controlled Substances Act. The Court of Appeals found it had no jurisdiction to entertain this appeal, because the denial of a motion to dismiss is not subject to an interlocutory appeal. This important issue will have to await an appeal later in the process.

Second, the OCBC asked the court to overturn a contempt order issued against it by Judge Breyer for operating in violation of the injunction. That contempt order had later been vacated by the district judge pursuant to an agreement by the OCBC to abide by the terms of the injunction.

Therefore, the 9th Circuit ruled the issue was moot.

For more information, please contact Tom Dean, Esq., NORML Foundation Litigation Director at (202) 483-8751 or Robert Raich, Esq., attorney for the OCBC at (510) 338-0700.

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