Medical Need a Factor in Pot Cases, Court Says

A federal appeals court created a potentially major opening in federal drug laws Monday, ruling that medical marijuana centers may be allowed to distribute cannabis if they can prove that the drug is needed to protect patients against imminent medical harm.

In its decision, the three-judge panel of the 9th U.S. Circuit Court of Appeals said that a federal judge should have considered patients’ medical needs for marijuana when he ordered a cannabis club in Oakland last year to stop distributing the drug.

The ruling “means that the federal law is not an absolute barrier to distribution of marijuana,” said Santa Clara University law professor Gerald F. Uelmen, who helped represent the Oakland center. “It requires courts to exercise discretion to look at the circumstances of individual patients and weigh that against the public interest.”

The court did not overturn U.S. District Judge Charles Breyer’s injunction against the club, but said he must consider the case again, taking into account evidence that some patients need cannabis to treat debilitating and life-threatening conditions.

The decision could lead to the Oakland Cannabis Buyers Cooperative and others being allowed to distribute marijuana to some severely ill patients, said Robert Raich, another attorney for the center.

“It may provide a method under federal law in which medical patients, some medical patients, can be provided with the medical cannabis they need . . . legally,” the Oakland attorney said.

California voters in November 1996 approved Proposition 215, which permitted seriously ill patients to obtain and use marijuana with their doctors’ recommendations without being prosecuted under state law. Some doctors and patients say that the drug quells nausea, eases pain and restores appetite.

The Clinton administration, however, sued six Northern California clubs on the grounds that a federal ban on marijuana distribution prevails over the state initiative.

Oakland’s center stopped distributing marijuana, three clubs closed and two others are still open and being monitored by federal authorities.

The court ruling follows the collapse of an effort by legislators in Sacramento to make Proposition 215 more workable by setting up a statewide registry of medical marijuana users.

Faced with opposition from law enforcement and a likely veto from Gov. Gray Davis, state Sen. John Vasconcellos (D-Santa Clara) abandoned his efforts, at least for now, to win legislative approval of a registry. The plan had been recommended by a special task force of law enforcement officials and medical marijuana advocates put together by Atty. Gen. Bill Lockyer in January.

In the federal court case, federal attorneys had no immediate comment Monday on whether they will appeal the decision of the 9th Circuit panel. Without an appeal, the case would return to Judge Breyer in San Francisco, who would have to reconsider his injunction against the Oakland center after reviewing evidence that marijuana is a necessity for some patients.

Protection From Harm

The 9th Circuit panel said the Oakland cooperative had presented sufficient evidence that the injunction could be modified to reflect that some patients with serious medical conditions need marijuana to treat their illnesses or symptoms and will “suffer serious harm if they are denied cannabis.”

The evidence showed that for these patients, there was no legal alternative to obtaining marijuana for the effective treatment of their ailments, the court said.

It said the federal government failed to rebut the Oakland center’s evidence that “cannabis is the only effective treatment for a large group of seriously ill individuals.”

Judge Breyer must consider whether to “exempt from the injunction, distribution to seriously ill individuals who need cannabis for medical purposes,” said the ruling by Judges Mary M. Schroeder, Stephen Reinhardt and Barry G. Silverman.

Raich said the 9th Circuit decision may allow a narrower class of patients than those singled out under Proposition 215 to buy and use cannabis. Such patients would include those with AIDS and cancer, he said.

Mark Quinlivan, a U.S. Justice Department lawyer who is handling the marijuana case, said he had not yet read the court’s ruling and had not determined whether to ask the 9th Circuit to reconsider its decision.

“We are going to have to read it in full before we have any comment on it,” Quinlivan said.

In Sacramento, Vasconcellos’ representative to the state task force said the lawmaker will continue to work toward a compromise between medical marijuana advocates and law enforcement officials, and to reintroduce a state registry bill next year.

“This was far too complicated and emotional an issue to try and jam a so-called compromise down anybody’s throat,” said Rand Martin, the task force member. In addition, he said, “we were getting signals from the governor’s office that he was, at best, skeptical about the proposal as a whole.”

Hillary McLean, a spokeswoman for the governor, said Davis’ “concern from the outset was that under federal law the use of marijuana is illegal. The governor did not want to see the state of California acting in conflict with federal law. He had strong concerns about the bill.”

Lockyer had asked the task force to find ways to make Proposition 215 more workable. As written, the measure only gives medical marijuana users a defense to use in court if they are arrested.

In July, the task force recommended the creation of a state registry that would provide every patient who chose to register with an identification card. The system was meant to protect patients from arrest and to simplify enforcement of the law for police officers. Vasconcellos incorporated it into SB 848, which he tabled on the final day of the legislative session.

“I’m certainly disappointed,” Vasconcellos said in a statement announcing that he was abandoning the bill this year.

After the task force had made its recommendations, several law enforcement officials on the committee said they needed to seek approval from their organizations for the proposals. To Lockyer and Vasconcellos’ dismay, some law enforcement agencies told them that they would oppose the bill unless registration was mandatory.

Over the summer, Vasconcellos tried to broker a compromise, fashioning language that would have required physicians who recommended that a patient use medical marijuana to register that patient with the county health department. The health department would then have forwarded the names to the state health department, to be entered in the registry. Law enforcement agencies embraced that idea, but it was rejected by medical marijuana advocates, who argued that it violated the privacy of the physician-patient relationship.

“All this was happening in the last two weeks of the session, with a million other things going on,” Martin of the task force said.

Medical marijuana advocates and law enforcement officials who participated in the task force expressed disappointment Monday that no compromise was found.

“This is a missed opportunity,” said Pete Herley, chief of police in Tiburon. Herley represented the California Police Chiefs Assn. on the task force. His association would have supported the bill had the provision for physician reporting been included, Herley said.

“We worked very hard for the last four months to develop a set of guidelines which are sorely needed for patients, caregivers, physicians, prosecutors and law enforcement,” Herley said. “I thought everything was settled until the very last minute.”

“I’m really sad to hear it,” said Karyn Sinunu, an assistant district attorney for Santa Clara County who participated in the task force. Sinunu said she preferred a mandatory registration system “because it is really clean, it is as close as we can get to issuing a prescription for medical marijuana,” but she was willing to compromise and accept a voluntary system “because I thought most people who were legitimate medical marijuana users would take advantage of it.”

Sinunu said she could understand the reluctance of some police agencies to accept a voluntary system that would still have left a gray area of users who were not registered. Still, she said, she thought the task force had gone a long way toward establishing a rapport between medical marijuana users and advocates and the police and district attorneys who were often at odds with them.

Optimistic for the Future

Scott Imler, director of the Los Angeles Cannabis Resource Center, coauthor of Proposition 215 and one of the patients on the task force, said he believed the task force’s efforts were not in vain.

“Of course I’m disappointed that still, three years after Proposition 215 passed, nobody can seem to do the right thing,” Imler said. “But I don’t think this was a waste of time. Hopefully, between now and when this thing is taken up again next year, we’ll be able to get back together and work something out.”

Imler said he would have supported a mandatory registration system had Davis indicated he would sign the bill. But most medical marijuana advocates, he said, adamantly oppose a mandatory system, arguing that it would make patients more vulnerable to federal prosecution, because marijuana remains a banned substance under federal law, and would violate the state’s Constitution that says that an initiative passed by voters cannot be amended by the Legislature.

“I think this failed because there was a little bit of obstinacy on the part of both advocates and law enforcement,” Imler said.

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