California
Medical
Marijuana:
One
Step
Forward,
One
Step
Back
in
Federal
Courts
9/15/00
The festering low-intensity conflict between California and the federal government over medical marijuana has resulted in two notable federal court rulings in recent weeks. The rulings, one by a US District Court and one by the Supreme Court, send seemingly contradictory messages, but more than anything they indicate that the battle will probably drag on for years to come. First, at the request of the Clinton administration, on August 29th the Supreme Court granted an emergency stay barring the Oakland Cannabis Buyers' Co-operative from distributing marijuana to its patient members. The stay at least temporarily overturned a decision last month by US District Court Judge Charles Breyer allowing the club to go about its business. But the Supreme Court decision was more a slap in the face to the 9th US Circuit Court of Appeals, which had directed Breyer to issue the ruling. Breyer had earlier forbade the club from operating, but was overruled by the 9th Circuit when the club appealed. The appeals court found that "medical necessity" was a "legally cognizable defense" to prosecution under federal marijuana laws. Despite much wailing and gnashing of teeth among some in the drug reform movement, the Supreme Court's decision does not mean that any distribution of medical marijuana is banned or that the court has found Proposition 215, which legalizes the medical use of marijuana in California, unconstitutional. In fact, Jeff Jones of the Oakland Cannabis Buyers' Co-op, the direct target of the stay, told DRCNet he considers it "a small bump in the road." "We've been wrangling with them for 2 1/2 years," said Jones. "They're trying to shut down our ability to help patients." "This is by no means the final word," Jones continued. "This is a stay while the 9th Circuit reconsiders its decision. The government is appealing Breyer's decision and the stay will be in force only until then." As for those who worry that the Supreme Court stay signals a looming federal crackdown in the state, Jones scoffs. "The feds have had several years and haven't tried anything. They know they can't take a medical marijuana case before a jury. They'd lose." Less than two weeks after the Supreme Court's action, meanwhile, a federal judge in San Francisco ruled that the federal government cannot investigate, penalize, or prosecute doctors who prescribe marijuana to patients. US District Court Judge William Alsup issued a permanent injunction barring the federal government from revoking a physician's license to prescribe drugs "merely because the doctor prescribes medical marijuana to a patient based on a sincere medical judgment." Alsup wrote that the order applies even if "the physician anticipates that the recommendation will, in turn, be used by the patient to obtain marijuana in violation of federal law." As of press time, the Justice Department had not announced whether it plans to appeal the ruling, although given the administration's intractable opposition to medical marijuana, such an appeal is highly likely. The ruling came in Conant v. McCaffrey, now a class-action lawsuit originally filed by a group of California doctors and patients after drug czar Barry McCaffrey threatened to yank the licenses of doctors prescribing marijuana. Graham Boyd of the American Civil Liberties Union, who represents the plaintiffs, told CNN that the ruling was "quite significant." Although only one California physician was actually questioned by the DEA before an earlier preliminary ruling discouraged such attempted intimidation, Boyd told CNN the threat had "a chilling effect." By threatening to prosecute doctors considering marijuana as a treatment, the government effectively discouraged doctors from discussing that option with AIDS and cancer patients, Boyd said.
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