The 9th Circuit Ruling on Medical Marijuana
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Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit
USA V CANNABIS 9817044 9817137
Case Number: Date Filed:
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
OAKLAND CANNABIS BUYERS'
COOPERATIVE; JEFFREY JONES,
Appeal from the United States District Court
for the Northern California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
April 13, 1999--San Francisco, California
Filed September 13, 1999
Before: Mary M. Schroeder, Stephen Reinhardt, and
Barry G. Silverman, Circuit Judges.
Per Curiam Opinion
Robert A. Raich, Oakland, California; Gerald F. Uelmen,
Santa Clara University School of Law, Santa Clara, Califor-
nia; and Annette P. Carnegie, Morrison & Foerster, San Fran-
cisco, California, for the appellants-defendants.
Mark B. Stern, Assistant Attorney General, United States
Department of Justice, Washington, D.C., for the plaintiff-
This interlocutory appeal involves a preliminary injunction
entered at the United States' request, to stop the distribution
of cannabis in the wake of California's initiative supporting
the medical use of marijuana. The district court held that the
distribution of marijuana by certain cannabis clubs and their
agents, including appellant, Oakland Cannabis Buyers' Coop-
erative and Jeffrey Jones (collectively "OCBC"), likely vio-
lates the Comprehensive Drug Abuse Prevention and Control
Act of 1970 (the "Controlled Substances Act"), 21 U.S.C.
S 841(a)(1). See United States v. Cannabis Cultivators Club,
5 F. Supp. 2d 1086, 1105 (N.D. Cal. 1998). The district court
also indicated that it would consider in subsequent contempt
proceedings a defense that a particular distribution was justi-
fied by a medical necessity. Id. at 1102. OCBC did not appeal
the district court's order enjoining the distribution of mari-
juana by cannabis clubs. Instead, OCBC seeks to appeal three
subsequent orders: (a) an order denying OCBC's motion to
dismiss the complaint on the ground that an Oakland City
ordinance makes it immune from liability under 21 U.S.C.
S 885(d); (b) an order subsequently purged and vacated that
found OCBC in contempt of the injunction; and (c) an order
denying OCBC's motion to modify the injunction to permit
cannabis distribution to persons having a doctor's certificate
that marijuana is a medical necessity for them.
We lack jurisdiction over the appeal from the denial of the
motion to dismiss and from the contempt order that has been
purged. We have jurisdiction over the appeal from the denial
of the motion to modify. We do not vacate the injunction, but
remand for the district court to consider modifying the order.
Denial of the Motion to Dismiss
The district court denied the defendants' motion to dismiss
that was grounded in the Oakland City Council's attempt to
immunize OCBC under the Controlled Substances Act. The
district court held that section 885(d) of the Controlled Sub-
stances Act is intended to protect state law enforcement offi-
cials when they engage in undercover drug operations, and
these defendants do not engage in such activities.
 We lack jurisdiction of the appeal because the denial of
a motion to dismiss is generally not appealable. See 28 U.S.C.
SS 1291 & 1292 (granting appellate jurisdiction over final
orders and limited interlocutory orders). The denial of the
motion to dismiss is not one of the interlocutory orders that
can be appealed under S 1292, and it is not a final judgment
under S 1291. See, e.g., Credit Suisse v. United States Dist.
Ct., 130 F.3d 1342, 1345-46 (9th Cir. 1997).
OCBC contends we have jurisdiction under 28 U.S.C.
S 1292(a)(1) authorizing, inter alia, appellate jurisdiction over
an interlocutory order "continuing . . . or refusing to dissolve
or modify injunctions." OCBC asks us to treat the district
court's denial of the motion to dismiss as, in effect, a continu-
ance of the injunction and a refusal to dissolve it. OCBC
relies upon Jung Hyun Sook v. Great Pacific Shipping Co.,
632 F.2d 100, 102 n.4 (9th Cir. 1980).
 The motion to dismiss in Jung Hyun Sook, however,
was not a motion to dismiss the action in its entirety, but a
motion intended specifically to dissolve an injunction. There
the district court had enjoined the further prosecution of a
Jones Act suit pending the determination of a petition to limit
liability. Id. at 102. The district court's denial of the motion
to dismiss the limitation of liability petition was appealable
because its denial continued in effect the injunction against
further prosecution of the Jones Act suit. The purpose of the
motion to dismiss in that case was not to decide the merits of
the litigation, but only to dissolve the injunction. See 16
Wright & Miller, Federal Practice and Procedure , S 3924.2,
at 198-99 n.6 (2d ed. 1996). The motion to dismiss in this
case was intended to resolve the entire dispute on the merits.
While one effect of granting OCBC's motion to dismiss in
this case would have been to dissolve the preliminary injunc-
tion, the broader purpose was to resolve the case in defen-
dants' favor. The general rule barring appeals from the denial
of motions to dismiss, therefore, must apply. See Credit
Suisse, 130 F.3d at 1345-46 ("The district court's denial of
[defendants'] motion to dismiss is not a `final decision' within
the meaning of 28 U.S.C. S 1291, and it is therefore not
 Nor did the district court's denial of the motion to dis-
miss constitute an order "continuing" the injunction within the
meaning of 28 U.S.C. S 1292(a)(1). An order that "continues"
an injunction under that statute is an order that extends the
duration of the injunction that would otherwise have dissolved
by its own terms. See 16 Wright & Miller, supra, at 196; see
also Public Serv. Co. of Colorado v. Batt, 67 F.3d 234, 236-
37 (9th Cir. 1995); In re Fugazy Express, Inc. , 982 F.2d 769,
777 (2d Cir. 1992).
 OCBC also argues that the denial of the motion to dis-
miss is appealable as a "collateral order" under the theory of
the Supreme Court's decision in Mitchell v. Forsyth, 472 U.S.
511 (1985). Mitchell permits appeal from orders denying
immunity from suit to government officials on damage claims
for violations of federal rights. Such orders are immediately
reviewable because the immunity at stake is not merely an
immunity from liability but an "immunity from suit" that is
effectively lost if a case goes to trial. See id. at 526. Section
885(d) is not such an immunity from suit, but is on its face
simply an immunity from liability. It provides that "no civil
or criminal liability will be imposed" upon law enforcement
officers who engage in drug activity as part of their duties. 21
U.S.C. S 885(d). Thus, OCBC can obtain effective review of
its liability (or immunity) under the Controlled Substances
Act after the district court has rendered a final judgment.
 In addition, the order being appealed is not a "collateral
order" involving an important issue separate from the merits
of the lawsuit. See Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 546 (1949). The merits of the government's suit
depend squarely upon whether or not OCBC is immune from
liability under S 885(d).
The Contempt Order
OCBC appeals the district court's order finding it in con-
tempt and modifying the preliminary injunction so as to
empower the U.S. Marshal to seize OCBC's offices. The
court neither fined nor jailed members of OCBC as a result
of the contempt. The district court subsequently vacated this
modification to the injunction on October 30, 1998 after
OCBC told the court that it would comply with the injunction.
Consequently, OCBC was permitted to re-enter its offices.
 The government argues that this appeal is moot because
the modification order was vacated and the contempt purged.
"A long line of precedent holds that once a civil contempt
order is purged, no live case or controversy remains for
adjudication." Thomassen v. United States, 835 F.2d 727, 731
(9th Cir. 1987); accord In re Campbell, 628 F.2d 1260, 1261
(9th Cir. 1980). However, a party asserting that an issue is
moot must demonstrate that there is no reasonable expectation
that the violation will recur. See County of Los Angeles v.
Davis, 440 U.S. 625, 631 (1979); Campbell , 628 F.2d at 1261.
 This court has held that a purged contempt order is
moot unless there is "near certainty" that the violation will
recur. Campbell, 628 F.2d at 1262. That is not the case here.
In its reply brief, OCBC reiterates that it has promised the dis-
trict court that it will comply with the injunction. The only
way for the violation to recur is if OCBC breaks its promise.
Clearly, it is not a "near certainty" that OCBC will do so.
Moreover, although the purged contempt order at issue in
Campbell was not moot, the court explicitly limited its result
to the facts of that case: "We emphasize that were it not for
the statement of the grand jury foreman [informing the wit-
ness that he would be required to testify again in the future],
we would be inclined to find that the purging of the contempt
orders mooted the present appeals." Id. at 1261.
 OCBC also contends that the appeal of the contempt
order is not moot because it is "capable of repetition, yet
evading review." An issue may evade review because of an
inherent limit in the duration of a challenged action that pre-
vents full litigation before it ends. See Phoenix Newspapers,
Inc. v. United States Dist. Ct., 156 F.3d 940, 945 (9th Cir.
1998). However, nothing inherently limited the duration of
OCBC's contempt other than its own decision to purge. The
appeal is now moot because OCBC voluntarily purged the
contempt by declaring that it would comply with the injunc-
tion. Had OCBC chosen to remain in contempt to this day, the
appeal would not be moot because this court could have pro-
vided a remedy.
 OCBC argues that even if the denial of the motion to
dismiss and the modification order are not in and of them-
selves appealable, the court should assert pendent appellate
jurisdiction because they are "inextricably intertwined" with
the denial of the motion to modify the injunction, which is
appealable. See Swint v. Chambers County Comm'n , 514 U.S.
35, 51 (1995). We have held that the "inextricably
intertwined" doctrine should be narrowly construed; more is
required than that separate issues rest on common facts. See
California v. Campbell, 138 F.3d 772, 778 (9th Cir.), cert.
denied, 119 S. Ct. 64 (1998). The legal theories on which the
motion to dismiss, the contempt order, and the motion to
modify are independent of each other. Each required applica-
tion of different legal principles. They are not therefore so
"intertwined" as to necessitate simultaneous review.
Denial of the Motion to Modify
OCBC contends that the district court abused its discretion
by refusing to modify its injunction to permit cannabis distri-
bution to patients for whom it is a medical necessity. A few
days after the district court issued its contempt citation
instructing the Marshals to padlock its premises, OCBC asked
the district judge to modify the injunction to allow continuing
cannabis distribution to patients whose physicians certify that
(1) the patient suffers from a serious medical condition; (2) if
the patient does not have access to cannabis, the patient will
suffer imminent harm; (3) cannabis is necessary for the treat-
ment of the patient's medical condition or cannabis will alle-
viate the medical condition or symptoms associated with it;
(4) there is no legal alternative to cannabis for the effective
treatment of the patient's medical condition because the
patient has tried other legal alternatives to cannabis and has
found them ineffective in treating his or her condition or has
found that such alternatives result in intolerable side effects.
These factors were modeled on this court's recognition of a
necessity defense to violations of federal law in United States
v. Aguilar, 883 F.2d 662, 692 (9th Cir. 1989).
 The denial of a motion to modify an injunction is inde-
pendently appealable under S 1292(a)(1) as one of the appeal-
able interlocutory orders denominated in that section.
Therefore, we have jurisdiction to review the order denying
OCBC's motion for modification.
 The district court summarily denied OCBC's motion,
saying that it lacked the power to make the requested modifi-
cation because "its equitable powers do not permit it to ignore
federal law." In doing so, the district court misapprehended
the issue. The court was not being asked to ignore the law. It
was being asked to take into account a legally cognizable
defense that likely would pertain in the circumstances.
 The government did not need to get an injunction to
enforce the federal marijuana laws. If it wanted to, it could
have proceeded in the usual way, by arresting and prosecuting
those it believed had committed a crime. Had the government
proceeded in that fashion, the defendants would have been
able to litigate their necessity defense under Aguilar in due
course. However, since the government chose to deal with
potential violations on an anticipatory basis instead of prose-
cuting them afterward, the government invited an inquiry into
whether the injunction should also anticipate likely excep-
tions. This gives rise to a drafting issue -- crafting an injunc-
tion that is broad enough to prohibit illegal conduct, but
narrow enough to exclude conduct that likely would be
legally privileged or justified.
 In Northern Cheyenne Tribe v. Hodel, we held that
courts retain broad equitable discretion when it comes to
injunctions against violations of federal statutes unless Con-
gress has clearly and explicitly demonstrated that it has bal-
anced the equities and mandated an injunction. 851 F.2d
1152, 1156 (9th Cir. 1988). Here, although the government
may be entitled to its requested injunction, there is no evi-
dence that Congress intended to divest the district court of its
broad equitable discretion to formulate appropriate relief
when and if injunctions are sought. Further, there is no indica-
tion that the "underlying substantive policy" of the Act man-
dates a limitation on the district court's equitable powers. Id.
 The district court erred in another respect as well. In
deciding whether to issue an injunction in which the public
interest would be affected, or whether to modify such an
injunction once issued, a district court must expressly con-
sider the public interest on the record. The failure to do so
constitutes an abuse of discretion. Northern Cheyenne Tribe,
851 F.2d at 1156; American Motorcycle Association v. Watt,
714 F.2d 962, 965 (9th Cir. 1983); Carribean Marine Serv.
Co. v. Baldridge, 844 F.2d 668, 678 (9th Cir. 1988). 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 or fatal illnesses. Indeed, the City of
Oakland has declared a public health emergency in response
to the district court's refusal to grant the modification under
appeal here. Materials submitted in support of OCBC's
motion to modify the injunction show that the proposed
amendment to the injunction clearly related to a matter affect-
ing the public interest. Because the district court believed that
it had no discretion to issue an injunction that was more lim-
ited in scope than the Controlled Substances Act itself, it sum-
marily denied the requested modification without weighing or
considering the public interest.
 We have no doubt that the district court could have
modified its injunction, had it determined to do so in the exer-
cise of its equitable discretion. The evidence in the record is
sufficient to justify the requested modification. OCBC sub-
mitted 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 canna-
bis in order to treat the debilitating and life threatening condi-
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 condi-
tions or their symptoms; who will suffer serious harm if they
are denied cannabis; and for whom there is no legal alterna-
tive to cannabis for the effective treatment of their medical
conditions because they have tried other alternatives and have
found that they are ineffective, or that they result in intolera-
ble side effects.
 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. It has offered no evidence to
rebut OCBC's evidence that cannabis is the only effective
treatment for a large group of seriously ill individuals, and it
confirmed at oral argument that it sees no need to offer any.
It simply rests on the erroneous argument that the district
judge was compelled as a matter of law to issue an injunction
that is coextensive with the facial scope of the statute.
 The district court, accepting the government's argu-
ment that it lacked the authority to grant the requested modifi-
cation, failed to undertake the required analysis and
summarily denied OCBC's request. Accordingly, we reverse
the order denying the modification and remand. On remand,
the district court is instructed to reconsider the appellants'
request for a modification that would exempt from the injunc-
tion distribution to seriously ill individuals who need cannabis
for medical purposes. In particular, the district court is
instructed to consider, in light of our decision in United States
v. Aguilar, 883 F.2d 662, 692 (9th Cir. 1989), the criteria for
a medical necessity exemption, and, should it modify the
injunction, to set forth those criteria in the modification order.
The panel will retain jurisdiction over any further appeals
in this case.
The case is REMANDED for further proceedings consis-
tent with this opinion.
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