Cannabis News Marijuana Policy Project
  Are Pot Clubs About to Go up in Smoke?
Posted by FoM on April 23, 2002 at 08:14:34 PT
By Jason Hoppin, The Recorder  
Source: The Recorder  

medical The day before marijuana advocates' equivalent of a religious holiday, federal Judge Charles Breyer of the Northern District of California assumed the role of buzzkill by appearing ready to side with the federal government in a suit against San Francisco Bay Area medical marijuana clubs.

An adverse ruling would jeopardize medical marijuana distribution centers established after the 1996 passage of California's Proposition 215. Most of Breyer's questions during a hearing Friday were aimed at shaping any relief he grants the government, while he entertained none of the pot clubs' possible defenses -- not exactly the type of hearing advocates were hoping for.

The judge told the courtroom -- which included a solitary government lawyer, a dozen defense lawyers and a gallery of people who drifted in from last week's National Organization for the Reform of Marijuana Laws convention in San Francisco -- that he would issue an order in the case soon. But he seemed more interested in whether he needed to accompany that order with a permanent injunction should the medical marijuana clubs lose.

"Is it your view," Breyer asked lead defense attorney Annette Carnegie, that if they lose, "the defendants will not dispense of marijuana? Can you make that representation?"

Carnegie, a partner at San Francisco-based Morrison & Foerster, was unable to give Breyer a definitive answer, but argued against an injunction.

If the clubs lose United States v. Oakland Cannabis Buyer's Cooperative, 98-0088, Breyer said he will ask them to submit declarations -- under seal, if necessary -- stating whether they will comply with his ruling. If they won't comply, he seemed to suggest that he would, perhaps reluctantly, give the government an injunction.

The distinction is important: If Breyer issues an injunction, the government could pursue individual cases against the clubs under a much easier burden. But Carnegie pointed out that such a standard would eliminate some of the safeguards of the criminal justice system, including trial by jury.

Breyer, however, was averse to forcing the government to enforce his ruling through criminal prosecutions. "I have a very hard time urging the government to pursue marijuana cases in the criminal context, because I have some idea of what happens" to defendants under federal drug sentencing statutes, he said. "To ask me to ask the government to do that ... it just strikes me that you're asking me to do something that I'm not terribly comfortable, in my role as the court, doing."

Later, U.S. Department of Justice senior counsel Mark Quinlivan told Breyer that by pursuing a civil case, the government had taken "a measured approach where we sought to enforce federal law and yet not put the liberty of the individual defendants at risk."

The case was filed in 1998 by the Justice Department, alleging that the commercial distribution of marijuana under Proposition 215 violates federal law. Breyer's decision will not affect the personal cultivation or use of medical marijuana.

The judge is in the unenviable position of having been reversed twice by higher courts in the same case, on the same issue. He previously foreclosed a medical marijuana defense before being overturned by the 9th U.S. Circuit Court of Appeals. When he reversed himself, he was overturned unanimously by the U.S. Supreme Court.

Friday's hearing was held the same week as the annual NORML convention and came the day before April 20, known to advocates as a day to celebrate -- and smoke -- marijuana.

At the conference, Oakland Cannabis Buyers' Cooperative attorney Robert Raich seemed braced for defeat. He told a crowd of marijuana advocates at San Francisco's Crown Plaza Union Square Hotel that an adverse ruling from Breyer would not be the end. "No matter what happens at the district court level, that's not the final word," Raich said.

He also told the crowd, amid the odor of marijuana smoke, that he would ask Breyer to take judicial notice of an Oregon federal judge's recent decision to strike down Attorney General John Ashcroft's directive that assisted suicide violates federal law, a decision seen as a boon for states' rights.

However, neither that argument, nor others Raich outlined, were uttered in court Friday. Carnegie was able to briefly suggest that the Commerce Clause foreclosed federal involvement in the intrastate growth and distribution of marijuana, but Breyer did not seem interested.

Perhaps sensing that the writing was on the wall, Oakland, Calif., solo defense attorney William Panzer leaped to the podium to argue that Breyer should consider those defenses. "There's still some very viable arguments on the part of the defendants," Panzer said.

Breyer insisted the balance of his questions did not tip judgment against the defendants.

Some have criticized the government's prosecution of medical marijuana clubs in civil court as an end-run around the difficulties of prosecuting them in criminal court, where the law would be interpreted -- and perhaps ignored -- by a local jury, rather than a judge.

In asking whether an injunction is needed, Breyer touched on the issue. "Should I consider jury nullification?" he asked Carnegie.

"I think that's a false issue," Carnegie said.

Note: A U.S. District judge appeared Friday to side with the federal government in a case against pot clubs.

Source: Recorder, The (CA)
Author: Jason Hoppin, The Recorder
Published: April 23, 2002
Copyright: 2002, NLP IP Company
Contact: bbaraff@therecorder.com
Website: http://www.callaw.com/

Related Articles & Web Sites:

NORML
http://www.norml.org/

OCBC
http://www.rxcbc.org/

OCBC Vs US Government News
http://freedomtoexhale.com/mj.htm

Judge Stalls Pot Club’s Defense
http://cannabisnews.com/news/thread12613.shtml

Medical-Pot Backers Get Cool Reception
http://cannabisnews.com/news/thread12590.shtml

California Cannabis Clubs Organize to Fight Feds
http://cannabisnews.com/news/thread12569.shtml


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Comment #5 posted by Jose Melendez on April 24, 2002 at 05:07:30 PT:

Moses used technology, not theology
Do we have to ask God to give them a plague of boils?

Don't need to ask God... Locusts, frogs and chemical methods to auto-abort first born children are readily available.

[ Post Comment ]
 
Comment #4 posted by E_Johnson on April 24, 2002 at 01:59:14 PT
Pharoah let my people go!
Do we have to ask God to give them a plague of boils?



[ Post Comment ]

 
Comment #3 posted by freddybigbee on April 23, 2002 at 10:19:10 PT:

Not Interested?
"However, neither that argument, nor others Raich outlined, were uttered in court Friday. Carnegie was able to briefly suggest that the Commerce Clause foreclosed federal involvement in the intrastate growth and distribution of marijuana, but Breyer did not seem interested."

Now why would a judge NOT be interested in relevant laws? I guess there is a drug exception to any and all law and reason. How sad for the world; America was the great hope.

[ Post Comment ]

 
Comment #2 posted by kaptinemo on April 23, 2002 at 10:02:08 PT:

Double-plus UnGood
Harry Orwell must be setting off every seismic recorder in Britain with his posthumous gyrations.

Breyer, however, was averse to forcing the government to enforce his ruling through criminal prosecutions. "I have a very hard time urging the government to pursue marijuana cases in the criminal context, because I have some idea of what happens" to defendants under federal drug sentencing statutes, he said. "To ask me to ask the government to do that ... it just strikes me that you're asking me to do something that I'm not terribly comfortable, in my role as the court, doing."

Later, U.S. Department of Justice senior counsel Mark Quinlivan told Breyer that by pursuing a civil case, the government had taken "a measured approach where we sought to enforce federal law and yet not put the liberty of the individual defendants at risk."

Excuse me, you flaming idiot, it's the law that is placing the patient's lives at risk, never mind their supposed 'liberty'.

Freedom to be a corpse because you've been made to suffer and die for want of medicine is not freedom; it's not a choice; it's the end result when people who have no business deciding your fate...get to.

NewSpeak is alive and well and hiding behind Judge Breyer's robes...

[ Post Comment ]

 
Comment #1 posted by el_toonces on April 23, 2002 at 08:39:24 PT:

I had to see it.....
......in person to belive it, but it is true, I think, that even on the criminal side of the federal bench, and even where a judge has early on in the case granted the government's motion in limine to prevent references to "medical uses", a defendant in a medical case would be extremely difficult to convict, even though he or she could never directly argue necessity or nullification.

I am interested in following this case and comaring it to the decision issued by Judge Jones in Oregon, where the local voters are being assaulted by Ashcroft because they want the option of physician assisted end of life care. Judge Jones said the feds have no basis for jurisdiction even though the CSA of 1970 is cited as a reason for what I call a "constiutional excemption" for drugs, as in the many "drug" exceptions to the Fourth Amendment. If that can't justify the feds meddling in Oregon, I don't see how OCBC can ultimately lose.

But, then again, I am just simple minded,

El Toonces

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