By Larry D. Hatfield Of the Examiner Staff

POT RULING DISREGARDS LEGALITY OF MEDICAL USE

A federal judge in San Francisco Thursday ordered the closing of Bay Area cannabis clubs, agreeing with the government that federal drug laws supercede the state initiative legalizing the medicinal use of marijuana.

U.S. District Judge Charles Breyer ruled in favor of U.S. Attorney Michael Yamaguchi’s suits for an injunction against the clubs.

But he made it clear he was not ruling on the legality of a sick individual possessing pot for medical use or on the possibility, raised by San Francisco District Attorney. Terence Hallinan, that local governments might take over the distribution of medical marijuana.

Federal narcotics laws make it unlawful to cultivate, distribute or possess marijuana. 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 U.S. Justice Department and Attorney General Dan Lungren have tried to shut the clubs down ever since.

In making the ruling, Breyer dismissed amci curiae briefs from San Francisco and officials in Oakland, Santa Cruz and West Hollywood opposing the federal position.

Peron said he expects federal marshals to go undercover next week to buy marijuana from the club with a doctor’s note and then report back to Judge Breyer that the club was defying the injunction. The judge will then likely order the club enjoined and shut down until a trial can be conducted in his courtroom, Peron said.

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.

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

In his 28-page ruling, Breyer said the only issue before him was whether the defendants’ admitted distribution of marijuana for use by seriously ill persons under a physician’s recommendation violates federal law.

The lawsuits did not challenge the constitutionality of Prop. 215, nor did they reflect a decision on the part of the federal government "to seek to enjoin a local governmental agency from carrying out the humanitarian mandate envisioned by the citizens of this state when they voted to approve this law," Breyer wrote.

"Flnding that there is a strong likelihood that defendants’ conduct violates the Controlled Substances Act, the court concludes that the supremacy clause of the United States Constitution requires that the court enjoin further violations of the law.
He said the government was likely to prevail at trial on the issue of whether the defendants have a fundamental right to medical marijuana. "The court, however, is not rulling as a matter of law that no such right exists ... (but) defendants have not established that the right to such treatment is ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’"