Medical marijuana advocates beat back the government's efforts to obtain an injunction against California's cannabis clubs today, as US 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.

Breyer posed a series of probing questions to the government:

(3) Do the intrastate activities of the clubs have such a close relation to interstate commerce that they must fall under the CSA?
(Ed. note: Obviously, anything portable could be taken across state lines, but Proposition 215 applies on to California residents.)

(4) Has the government ever invoked this section of the CSA toenjoin action that was legal under state law?

(5) Is there a case for controversy if all the facilities are closed?

(6) The government alleges that the clubs' activities are not protected by 215. If they were totally within 215, would the government still ask for an injunction?
(Ed. note: This point could have significance for the Todd McCormick case and other Californians who are medical cannabis users. In the absence of charges of trafficking, and with a California doctor’s approval, the Federal government has no jurisdiction in a purely intrastate matter.)

(7) What efforts if any are being made to evaluate marijuana for reclassification to Schedule II?

Federal attorney Mark Quinlivan insisted that Proposition 215 had no bearing on the case, since state law is superseded by federal authority.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, wouldhave standing to make this argument. He said that the defendants could seek redress by petitioning the government to re-schedule marijuana.
(Ed. note: Breyer’s response to this reference to Laetrile is very significant. Laetrile was purported to be a treatment or cure, not a palliative. The evidence and judgement as to whether or not a substance is curative differ substantially from the claims of symptomatic relief.)

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 U. 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.

----

Dale Gieringer (415) 563-5858 // canorml@igc.apc.org