Federal Appeals Court Opens Door For MMJ

Federal Appeals Court Opens Door For MMJ
Posted by FoM on September 16, 1999 at 09:34:10 PT
NORML Weekly Press Release
Source: NORML
Sept. 16, 1999, San Francisco, CA: California's medical marijuana clubs gained a victory in a federal court of appeals court Monday in a panel ruling that said U.S. District Court Judge Charles Breyer should reconsider modifying his injunction against the Oakland Cannabis Buyers' Cooperative (OCBC) to permit the distribution of marijuana to patients who can demonstrate a medical necessity.
Judge Breyer had issued the injunction because he determined that the OCBC was distributing marijuana in violation of the federal Controlled Substances Act. The OCBC's request to modify the injunction by providing an exception that would allow the OCBC to distribute marijuana to patients with a doctor certified medical necessity was summarily declined and the OCBC filed an interlocutory appeal of that decision to the 9th Circuit. An interlocutory appeal is allowed in certain circumstances even though the case is still pending at the lower court. Normally, an appeal may be sought only after the case has reached a conclusion at the District Court level.   The 9th Circuit held that Judge Breyer wrongfully ignored the strong public policy reasons for allowing the distribution of marijuana to those with valid medical needs and should have considered the requested modification and sent the case back to the District Court for further proceedings consistent with its ruling.  The Court explained that an injunction must be "narrow enough to exclude conduct that likely would be legally privileged or justified." It pointed out that it had already determined in a previous case, United States v. Aguilar, that federal law recognizes a medical necessity defense to criminal prosecution. Thus, the court reasoned that the injunction should take into consideration that decision and allow for distribution of marijuana by the OCBC to persons who have a medical necessity as defined by that case.  In short, the Court described the class of persons whom the OCBC should be able to distribute to as those with (1) a serious medical condition for whom the use of marijuana is necessary in order to treat or alleviate those conditions or their symptoms; (2) who will suffer serious harm if they are denied marijuana; and (3) for whom there is no legal alternative to marijuana for the effective treatment of their medical conditions because they have tried other alternatives and have found that they are ineffective, or that they result in intolerable side effects.   The court found that the OCBC had presented evidence that there is a class of persons that meet those criteria and identified a "strong public interest in the availability of a doctor-prescribed treatment (marijuana) that would help ameliorate the condition and relieve the pain and suffering of a large group of persons with serious or fatal illnesses." It ruled that "the evidence in the record is sufficient to justify the requested modification." On the other hand, the court observed that "the government, by contrast, has yet to identify any interest it may have in blocking the distribution of cannabis to those with medical needs..."   "This provides a framework in which patients can receive medical cannabis legally in accordance with federal law," said OCBC attorney Robert Raich. "This decision only allows distribution of medical marijuana to those with a doctor certified medical need," said Tom Dean, Esq., NORML Foundation Litigation Director. "It does not reinstate the terms of Proposition 215 since all that is necessary under that enactment is a doctors recommendation. Further, it only applies to distributors."  "The decision does not prohibit the federal government from proceeding against patients who receive and use marijuana even if they have been certified by a doctor to have a valid medical necessity," Dean added. However, in light of the strong language of the opinion, it seems unlikely that it would try."  The OCBC also raised two other issues in the appeal. First, it asked the 9th Circuit to reverse judge Breyer's order denying the OCBC's motion to dismiss the case on the ground that an Oakland City ordinance makes it immune from liability under federal criminal law. The Court declined to consider that issue because it was not procedurally allowed for in an interlocutory appeal. The OCBC will have to wait for the conclusion of the entire case before it seeks review of that issue.   Secondly, the OCBC asked the court to overturn a contempt order issued against it by Judge Breyer for operating in violation of the injunction. That contempt order had later been vacated pursuant to an agreement by the OCBC not to commit any more violations of the injunction. Therefore, the 9th Circuit ruled that the issue was moot.  For more information, please contact Tom Dean, Esq., NORML Foundation Litigation Director at (202) 483-8751 or Robert Raich, Esq., OCBC Attorney at (510) 338-0700. The Next Step on Medical Pot - 9/15/99
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Comment #2 posted by FoM on September 16, 1999 at 15:57:59 PT:
A Big Hello!
Hello Dr. Ganj!!!I've sure missed you around here! Great to read your posts again! Please keep us posted!Peace, FoM!
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Comment #1 posted by Dr. Ganj on September 16, 1999 at 13:15:52 PT
Federal Court Ruling
Since my wife and I operate another medical marijuana dispensary in Oakland, we were very pleased with the appellate court ruling. It seems the three judge panel could see the obvious logic in medical necessity cases, and ruled accordingly.This is very encouraging, and should not be underestimated in the potential impact it will have on other states and cases, that could use this ruling to further their cause(s).Finally some sanity in a usually very conservative legal arena.Cheers,Dr. Ganj
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