Medical Marijuana Issue Raised

The Associated Press

September 14, 1999

By BOB EGELKO

SAN FRANCISCO (AP) - A federal appeals court Monday raised the possibility
that clubs that provide medical marijuana might be reopened, saying
``medical necessity'' could make some patients exempt from laws against pot.

In a rebuff to the Clinton administration, the 9th U.S. Circuit Court of
Appeals told a judge who had issued an injunction against such groups to
consider exempting patients and doctors who could show ``medical
necessity.''

The injunction against six medical marijuana clubs had been issued at the
request of the Justice Department.

The court did not order the exception but said there was evidence that would
justify it.

One of the six Northern California clubs, the Oakland Cannabis Buyers'
Cooperative, ``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,'' the court said in a 3-0 ruling.

The court noted that the ``necessity'' defense - showing that breaking the
law was the only way to prevent a more serious harm - would be available if
federal authorities prosecuted patients or club officials for violating
federal drug laws.

Because the government sought an injunction against future lawbreaking
instead of prosecuting anyone, the order should be worded to exclude conduct
that likely would be allowed if a person cited the necessity defense at
trial, the court said.

To be eligible for such an exemption, patients would have to show that they
have tried legal alternatives to marijuana and found that they don't work or
cause intolerable side effects, the court said.

The ruling was applauded by Robert Raich, a lawyer for the Oakland
cooperative, which served about 2,000 patients before being closed by court
order last year. It later reopened as a center for hemp products and patient
support, but not for marijuana distribution.

``The 9th Circuit is correctly recognizing that cannabis has medical
efficacy to a large class of patients and that it should be recognized under federal
law under the medical necessity defense,'' Raich said.

He said the ruling could lead to the reopening of the Oakland cooperative
for the limited number of patients who could show medical necessity.

No one was immediately available at the Justice Department to respond to the
ruling, a spokesman said.

Medical marijuana clubs sprang up around California after the November 1996
approval of Proposition 215, which allowed patients with serious illnesses
to obtain and use marijuana at their doctors' recommendation without being
prosecuted under state law. The drug is used to relieve pain and other
effects of AIDS, cancer and certain other diseases and their treatments.

The Justice Department responded by suing six Northern California clubs,
saying the absolute federal ban on marijuana distribution overrode
Proposition 215.

U.S. District Judge Charles Breyer agreed, issuing a contempt order last
year that forced four of the clubs to stop distributing marijuana. Two of the
clubs, in Fairfax and Ukiah remain open because the government failed to
present evidence that they were distributing marijuana at the time. Other
informal organizations scattered around the state also continue to supply
medicinal marijuana.