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Los Angeles Times


Tuesday, September 14, 1999, Front Page


Medical Need a Factor in Pot Cases, Court Says


Health: Federal appeals panel rules that marijuana centers may distribute drug if patient faces serious harm.


By MAURA DOLAN and MARY CURTIUS, Times Staff Writers


SAN FRANCISCO--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, (pictured) 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 saidthe 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.