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By Ray Delgado, Examiner Staff

POT CLUBS VOW TO DEFY JUDGE’S ORDER

Citing federal laws, court is demanding they stop giving out medical marijuana

Another crushing blow for proponents of medical marijuana, another defiant pledge to keep going.

But keeping the doors open to four pot clubs across Northern California isn’t going to be so easy in the wake of the strongest legal setback yet delivered by a federal judge.

On Thursday, U.S. District Court Judge Charles Breyer sided with the federal government’s argument that the Cannabis Healing Center and three other clubs in Northern California are violating federal drug laws and he ordered the clubs shut down.

The preliminary injunction goes into effect once Breyer reviews arguments from both parties and signs the injunction, which could occur as early as Monday afternoon. What happens after that will be up to the clubs.

"It’s the saddest day for medical marijuana that I can envisage," said Tony Serra, an attorney for local club founder Dennis Peron. "I believe Judge Breyer’s decision is morally bankrupt."

Several of the clubs, including the S.F. operation, have vowed to defy the injunction and risk a raid by federal marshals if Breyer then holds them in contempt and orders them forcibly shut down.

But Breyer could also allow the clubs to remain open while ordering a contempt hearing. That trial would allow the defense to present a number of legal challenges that could keep the clubs open.

"We’re allowed to argue the medical necessity defense if we break the injunction, which we plan to do," said Peron, who predicted that his act of defiance would be followed by undercover federal marshals trying to purchase marijuana with a doctor’s note next week.

Breyer’s ruling expressly avoided deciding on the legality of a sick person possessing pot for medical use or the possibility that local governments might take over the distribution of medical marijuana, an idea floated by San Francisco District Attorney Terence Hallinan. California’s Proposition 215, passed by voters in 1996, legalized the cultivation and medical use of marijuana by patients with AIDS, cancer, glaucoma and a variety of other illnesses.

The Justice Department filed civil suits in January seeking to halt operations of six clubs: Peron’s Cannabis Cultivators Club and Flower Therapy Medical Marijuana Club in San Francisco, and similar operations in Oakland, Santa Cruz, Ukiah and Fairfax. The Flower Therapy and Santa Cruz clubs have since closed and the Cannabis Cultivators Club renamed itself the Cannabis Healing Center.

The other 11 clubs in the state, including major ones in Los Angeles and San Jose, were not named in the suits but could now become targets.

U.S. Attorney Michael Yamaguchi hailed Breyer’s decision and asked the clubs to close down voluntarily.

"Federal law is clear and Judge Breyer’s opinion is clear - the distribution or cultivation of marijuana is unlawful," Yamaguchi said. "I call on all of the marijuana distribution clubs in California to take cognizance of this order and voluntarily shut down."

Also praising the decision was state Attorney General Dan Lungren, a leader in the effort to shut the clubs down through legal challenges and enforcement efforts soon after they opened.

"We’re pleased by the court’s decision," said Matt Ross, spokesman for Lungren’s office. "It’s consistent with what we have always held, which is that cannabis buyers’ clubs are not allowed under state or federal law."

Ross said the attorney general’s office would continue to fight in state Superior Court for a preliminary injunction to close down the Cannabis Healing Center.

Organizers at three of the four cannabis clubs mentioned in the decision vowed to defy the order while the director of the fourth one, the Ukiah Cannabis Buyer’s Club, said he was still weighing the risks.

"We’re looking at alternatives and seeing what we can do," said Marvin Lehrman, director of the Ukiah club, which treats 200 patients regularly. "It’s a daily feeling we have that we’re facing down the federal government and they can come at any moment. I see them as being heavy-handed and mean-spirited, but I’m not afraid of them."

Oakland Cannabis Club Executive Director Jeff Jones said he would defy the order and was awaiting his day in court.

"What we’re doing here is a necessity to patients," Jones said. "Because of Prop. 215, we feel that what we’re doing here is within the law."

Robert Raich, attorney for the Oakland club, said the judge’s decision opened up a variety of legal avenues to pursue in defense of the clubs, most notably arguing that marijuana is a medical necessity for sick patients and that citizens have constitutional rights to be free from pain and to dictate their own medical treatment.

Those arguments would be heard before a jury and must be either accepted or rejected unanimously, a chance Peron is willing to take.

"We believe we can defend ourselves," Peron said. "If we do so successfully, we’ll bring this issue into the national arena. We’re going to have our day in court."