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| Recommending Pot Sounds OK To 9th Circuit |
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Posted by FoM on April 08, 2002 at 20:25:00 PT By Greg Mitchell, The Recorder Source: Recorder CA 
A 9th Circuit panel sounded ready Monday to uphold an injunction that prohibits the federal government from investigating or punishing California doctors who recommend marijuana to patients. Though it's possible the judges will send the case back to the trial court in light of last year's U.S. Supreme Court decision on medical marijuana, they expressed few reservations about the need for the injunction and seemed almost eager to keep it in place. With Judge Alex Kozinski setting the tone, the panel hammered away at Department of Justice attorney Michael Stern, who argued the injunction has tied the government's hands from going after abuses. "How is getting a note from your doctor," Kozinski asked him several times, "interfering with federal enforcement [of drug laws]? Be specific." Stern said the laws could be undermined if doctors "encourage" patients to seek out marijuana. But Kozinski said encouraging violations of the law is protected by the First Amendment. "You can do it all day long." Conant v. Walters, 00-17222, was brought after the Clinton administration reacted to the passage of Proposition 215 by saying doctors who recommended marijuana to patients could lose their licenses to prescribe drugs. Prop 215 provides a defense under state law for patients who use or purchase marijuana with a physician's recommendation. The recommendation needn't be in writing. A group of doctors, led by UCSF's Dr. Marcus Conant, filed suit saying the Clinton policy interfered in the doctor-patient relationship. In September 2000, U.S. District Judge William Alsup permanently enjoined the government from either "revoking a class-member physician's DEA registration merely because the doctor recommends medical marijuana to a patient based on a sincere medical judgment" or "initiating any investigation solely on that ground." 9th Circuit Judge Mary Schroeder was skeptical of the government's position Monday, noting that a doctor's recommendation isn't the same as a prescription. "This really does sweep much more broadly," she said. "But the injunction sweeps broader," Stern countered, repeating his argument that the injunction goes far beyond protecting doctors who simply answer questions about marijuana. Senior Judge Betty Fletcher asked Stern what he believed doctors could legally tell patients about marijuana. But his examples, heavy with caveats, did little to satisfy the panel. Kozinski told Stern that his "embellishments" and "hedging" made him "nervous," and asked him what a doctor could say about marijuana without any caveats. "I don't really know," Stern said. "How do you expect doctors to practice medicine," Kozinski asked, "if you don't really know?" Referring to Ashcroft's Justice Department, which inherited the case from the Clinton administration, Kozinski then asked, "Why on earth does an administration that is committed to federalism ... want to go to these lengths to put doctors in jail?" Stern's opponent, the American Civil Liberties Union's Graham Boyd, had a much easier time. The only tough question Kozinski asked was if he knew how to reach the author of one of the many amicus briefs. Kozinski was impressed, he told Boyd, by declarations submitted by four patients who receive marijuana as part of a federal program. "I thought it was very brave of them to do that," he said. Judge Schroeder, meanwhile, asked Boyd if the case should be sent back to Alsup in light of the decision last year in U.S. v. Oakland Cannabis Buyers Cooperative, in which the U.S. Supreme Court ruled 8-0 that medical necessity wasn't a valid defense under federal law. Boyd said the injunction wasn't related to or based on lower court rulings in that case, and so didn't require remand. At one point, Boyd tried to draw a parallel between medical marijuana and contraception, which was illegal in many states until the U.S. Supreme Court intervened 40 years ago. But Kozinski and Schroeder waved him off that path after noting some differences. "Let's just not go there," Schroeder suggested. Source: Recorder, The (CA) Related Articles & Web Sites: OCBC Versus US Government News DEA Raids Medical Marijuana Club CannabisNews Medical Marijuana Archives Home Comment Email Register Recent Comments Help |
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Comment #8 posted by lookinside on April 09, 2002 at 08:14:38 PT:
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| A great court. It consistently makes decisions firmly grounded in the Constitution. Our current Supreme Court could learn from the 9th. [ Post Comment ] |
| Comment #7 posted by goneposthole on April 09, 2002 at 06:42:39 PT |
| free from hypocrisy and pretense Doesn't sound like our government. In fact, our government has gone over the edge; it's irrational. Judge Kozinski has a level head and a heart. He can help save it and bring it back to sanity. The US government desperately needs help, it's committing suicide. [ Post Comment ] |
| Comment #6 posted by goneposthole on April 09, 2002 at 06:30:04 PT |
| One day, the prohibition cow will run dry. When it does, the day will be like the day the Berlin wall fell. The look of amazement and happiness on the faces of 'those' East and West 'Krauts' was as genuine as genuine could get. [ Post Comment ] |
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Comment #5 posted by kaptinemo on April 09, 2002 at 06:00:30 PT:
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| the saner governmental positions seem to be. Or perhaps it's just the people who are saner, exercising common sense in the face of government histrionics and bombast. But, to my mind, the real questions have yet to be asked. Questions like: What was the scientific basis for the prohibition of cannabis in the first place? I mean, if the judgement is be partly based on questions of medical efficacy - or putative lack of it - then shouldn't that question be settled as well? Shouldn't the government be required, since it is the offending party in this case, to provide it's proof? Shouldn't that proof be subjected to the highest (no pun intended) scrutiny for factual basis? I remember the part in the movie JFK when D.A. Garrison is reading the testimonies given in the Warren Commission report and is verbally, frustratingly saying: "Ask the question! Why don't you ask the question?!" which would blow the whole matter wide open...and never is asked. That's just the way I feel about this. The one question, about the scientific basis for the original imposition of prohibition, has to my knowledge, never been asked in court. And it is the one question, which like when you pull a thread, will unravel the smeared, foul, and disgusting garment of cannabis prohibition. Let that question be asked in court, with the evidence of the 1937 hearings in which Anslinger damned himself for all Eternity with his remarks, and the game will be over. Because a lot of minority people still are as purblind as their leaders, and have no conception that the DrugWar is deliberately targeting them for 'special treatment' by law enforcment officers. Let them get a whiff of this, and the laws will change real quick...lest the insurance companies go bankrupt as they almost did after the riots in LA 10 years ago. [ Post Comment ] |
| Comment #4 posted by boppy on April 09, 2002 at 05:51:08 PT |
| It seems the only people suffering from reefer madness are the prohibitionists. [ Post Comment ] |
| Comment #3 posted by firedog on April 08, 2002 at 22:28:34 PT |
| To the 9th Circuit Court of Appeals: You are one of the few remaining parts of US Government that I still have respect for. You give me hope that someday soon, the people of the USA will take the reins of government back from the usurpers that have stolen them away. Time and time again, you have come down on the side of reason and compassion. If a case goes to your court, I believe that at least it will get a fair hearing, even if I don't always agree with the outcome. I am happy that a lot of marijuana-related cases are coming to your court. I am glad that you are impressed by the bravery of medical marijuana patients and that you are not calling them "druggies" or "frauds" (unlike certain other federal courts involving the number 9 that I can think of). Keep freedom alive. Keep America alive. Keep reason alive. And thank you. [ Post Comment ] |
| Comment #2 posted by goneposthole on April 08, 2002 at 21:09:29 PT |
| He is able to recognize the useful idiots when he sees them... The Bush administrations antics are getting frothy. [ Post Comment ] |
| Comment #1 posted by E_Johnson on April 08, 2002 at 20:58:14 PT |
| Referring to Ashcroft's Justice Department, which inherited the case from the Clinton administration, Kozinski then asked, "Why on earth does an administration that is committed to federalism ... want to go to these lengths to put doctors in jail?" Both the Republican and Democratic political leadership are at odds with their rank and file on this issue. The leadership in both parties is choosing to betray fundamental values in the each party for the sake of the war against weed. This makes me wonder what effect campaign finance reform is going to have on the power of the law enforcement lobbies in national politics. Does anyone know? [ Post Comment ] |
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