(Article reprinted with permission of Dale Gieringer, California NORML, [email protected], http://www.norml.org/canorml/)
SAN FRANCISCO, March 24, 1998: Medical marijuana advocates beat back the government's efforts to obtain an injunction against California's cannabis clubs today, as U.S. District Judge Charles Breyer called for further arguments to be submitted on April 16th. Breyer indicated that he would render some sort of decision thereafter. Earlier in the day, medical marijuana supporters were blessed by a break in the rainy weather, allowing patients, providers, and sympathizers from around the state to gather for a rally and protest march under sunny skies in San Francisco. Addressing the rally were S.F. District Attorney Terence Hallinan, West Hollywood Mayor Steve Martin, S.F. Supervisors Gavin Newsom and Tom Ammiano, and representatives of Rep. Nancy Pelosi and Oakland City Councilman Nate Miley.
At the court hearing, Judge Breyer repeatedly expressed skepticism about the government's sweeping claims of supremacy in the face of opposition from 56% of California voters, the mayors of four cities, and amicus briefs from S.F. District Attorney Hallinan, the city of Oakland, and the town of Fairfax. Breyer posed a series of probing questions to the government:
Federal attorney Mark Quinlivan insisted that Proposition 215 had no bearing on the case, since state law is superseded by federal authority. He said that courts have ruled that there is no substantive due process right to any particular form of medicine, citing a case involving the purported cancer cure Laetrile. Asked by Judge Breyer whether there might not exist a fundamental right to relief from extreme pain, Quinlivan replied that only individual patients, not clubs, would have standing to make this argument. He said that the defendants could seek redress by petitioning the government to re-schedule marijuana.
Asked by Breyer whether it would be sufficient simply to enjoin the clubs from engaging in interstate commerce in marijuana, Quinlivan insisted that Congressional findings specifically mandate that all commerce and distribution be enjoined. Defense attorney William Panzer likened the government's argument to maintaining that the world is flat, accusing it of engaging in an "arbitrary and capricious" conspiracy to cover up the facts. Defense attorney Carl Shapiro argued that Section 903 of the CSA allows states to pass their own laws regarding controlled substances, so long as there is no "positive conflict" with federal law. In a forceful and elegant presentation, Santa Clara Univ. Professor Gerald Uelmen argued that Section 903 permits state and federal laws to be reconciled. In particular, he argued that the clubs' activities do not constitute distribution, as maintained by the government, but "joint purchase for consumption," which is equivalent to possession under the CSA. Insofar as the government is asking to enjoin distribution, not possession, Prof. Uelmen invited the court to issue an injunction against distribution with the understanding that cooperative purchase by medical marijuana patients not be included. In another impressive presentation, defense attorney Tony Serra argued that the government's case was irrevocably soiled by its own "dirty hands," that is, the unethical tactics used to enforce its laws. Appearing as an amicus of the court, San Franciso District Attorney Terence Hallinan argued that closure of the clubs would be harmful to public health and safety. (Hallinan's amicus brief was joined by the city of Oakland and a separate brief by the town of Fairfax). Hallinan declared that he favored keeping the clubs open or, failing that, that any injunction be tailored so as to permit distribution of medical marijuana by the city. Medical marijuana supporters were heartened by the day's proceedings, sensing that Judge Breyer was in no way predisposed to granting the government carte blanche to shut off distribution of medical marijuana.