Oakland’s Effort to Shield Pot Club Rejected

A federal judge on Monday rejected Oakland’s attempt to shield its medical marijuana club from federal drug laws by making it part of city government, but refused to order the immediate shutdown of clubs in Oakland and two other cities.

Instead, U.S. District Judge Charles Breyer said he may allow a jury to decide whether patients at the clubs need marijuana to relieve pain and survive treatment for cancer, AIDS and other illnesses.

Breyer rejected a request by the Oakland Cannabis Buyers’ Cooperative to dismiss the federal government’s suit and a motion by the government to declare the clubs in contempt of court and close them without a trial. The other two clubs are in Ukiah and the Marin County community of Fairfax.

The judge tentatively scheduled a hearing for Sept. 28 on whether there should be a trial, and allowed the clubs to remain open at least until then.

The clubs sprang up throughout California after passage of Proposition 215, the November 1996 initiative that allows seriously ill patients to grow and use marijuana for pain relief with a doctor’s recommendation without being prosecuted under state law.

But many of the clubs have been shut down through the efforts of Atty. Gen. Dan Lungren, who obtained state court rulings limiting the scope of Proposition 215, and the Clinton administration’s Justice Department, which sued six clubs to enforce federal laws against marijuana distribution.

Breyer issued an injunction in May prohibiting the six Northern California clubs from distributing marijuana while the government’s suit was pending. Three of the clubs have remained open, including the Oakland club, which says it has 2,000 members.

The club had hoped to win immunity from federal prosecution as a result of Oakland’s apparently unprecedented action Aug. 13, previously authorized by the City Council, declaring club officials to be city agents who were distributing marijuana to patients on the city’s behalf.

In court, the club invoked a federal drug law that protects state and local officers from legal liability while legally enforcing drug-related laws. That law was intended to shield police from prosecution for undercover drug transactions, but its wording also covers city agents who distribute medical marijuana, argued Gerald Uelmen, a Santa Clara University law professor representing the club.

“We’re not dealing with a subversive effort to undercut the government’s drug war,” Uelmen said. “This is a careful and good-faith effort to implement the will of the people, consistent with federal law.”

Breyer called the argument “creative” but “not persuasive.”