cannabisnews.com:  Marijuana Club Challenges Closure!





 Marijuana Club Challenges Closure!
Posted by FoM on April 13, 1999 at 19:46:07 PT
They want a Jury Trial!
Source: SF Gate
 SAN FRANCISCO Lawyers for a medical marijuana club told a federal appeals court Tuesday the club shouldn't have been closed without a jury trial at which patients could show their need for the drug. 
The Oakland Cannabis Buyers' Cooperative was shut down by a federal judge last October in a suit by the Clinton administration, which said any distribution of marijuana violated federal law, despite California's 1996 medical marijuana initiative. In arguments before the 9th U.S. Circuit Court of Appeals, the club said the closure violated the rights of its 2,000 patient-members and failed to recognize the legal effect of the city of Oakland's involvement in the club's operations. The city responded to U.S. District Judge Charles Breyer's original injunction by declaring last August that marijuana club officials were acting as city officers, invoking a federal law that protects state and local officers from liability while enforcing drug laws. But Breyer said the club was violating the drug law, not enforcing it. Annette Carnegie, a lawyer for the club, attacked Breyer's closure order on procedural grounds. Before finding the organization in contempt of court for violating his injunction against distributing marijuana, she said, Breyer should have required the government to identify members who received the drug on a particular day and allowed them a jury trial. If each identified patient can show that marijuana recommended by a doctor was the only way to relieve painful or life-threatening conditions associated with AIDS, cancer and other diseases, the law was not violated and the club should stay open, Carnegie said. Instead, the judge ordered closure after the club admitted it distributed marijuana on the day in question. Her argument, if accepted, would offer a potential defense to any marijuana club targeted by the government. The Clinton administration sued six Northern California clubs in 1997, saying the absolute federal ban on marijuana distribution overrode the state's attempt in Proposition 215 to legalize medical use of the drug. Two of the six clubs, in Fairfax and Ukiah, remain open, along with informal organizations in about a half-dozen communities in the state. The Oakland cooperative reopened last November as a center for hemp products and patient support, but Breyer authorized federal marshals to close it again if they hear allegations of marijuana distribution. Justice Department lawyer Mark Stern defended the closure order, saying the club was asking the court to ``rewrite the Controlled Substances Act based on very sincere and deeply held beliefs that Congress was wrong and the attorney general should reclassify'' marijuana. Courts have no such authority, he said. Stern said there was no legal or constitutional right to distribute marijuana and no authority for a claim of medical necessity, since Congress has declared marijuana has no medical use. Even if medical necessity were a defense, he said, the club couldn't claim it for all of its patients, because ``everybody doesn't have the same need.'' One member of the three-judge panel, Stephen Reinhardt, questioned Stern's argument that the government could shut down the club without identifying patients who were receiving marijuana illegally. Reinhardt sarcastically summed up the Justice Department's position by saying, ``We don't know who they are but we'll just find them guilty because we're the government.'' The panel gave no clear indication of its views on Breyer's closure order, however. Gerald Uelmen, a Santa Clara University law professor also representing the club, said Breyer should have honored Oakland's decision to designate club officials as city agents enforcing a local health ordinance. ``States and local governments have the primary responsibility of protecting the health and welfare of their citizens,'' Uelmen said. Unless the club is granted the same legal protection as narcotics officers are given in undercover drug sales, he said, the federal law immunizing state and local agents is meaningless. But Stern said Breyer properly found that the Oakland ordinance conflicted with federal drug laws. 
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