Marijuana clubs lose what may be final appeal
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
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
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
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
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
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
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."
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