cannabisnews.com: The 9th Circuit Inhales 





The 9th Circuit Inhales 
Posted by FoM on September 16, 1999 at 12:54:56 PT
Source: Orange County Register
Whether or not September 13 will one day be seen as the day the federal policy of marijuana prohibition started to crumble, the decision a three-judge panel of the 9th Circuit U.S. Court of Appeals delivered Monday is important one with many potential lasting effects. 
The decision is promising for very ill people whose doctors believe they can be helped by using marijuana or cannabis. It doesn't clear away all the federal obstacles to full implementation of Proposition 215, which the voters passed in November 1996, but it eliminates several of the most stubborn evasions and arguments that have delayed a policy of abiding by the voters' decision. Specifically, the decision: http://www.ce9.uscourts.gov/web/newopinions.nsfthen click on "Opinions by Date," then on USA v Cannabis) directs the federal judge who ordered the closure of the Oakland Cannabis Buyers Club and other Northern California clubs to consider modifying his order to take "medical necessity" into account. The practical result is likely to be a reopening of those clubs (and others), operating under a narrower scope than is authorized by Sec. 11362.5 of the California Health and Safety Code (which Prop. 215 now is), but protected from federal prosecution.The decision eliminates the justification offered by Gov. Gray Davis for his reluctance to authorize full implementation of California's medical marijuana law because of potential conflicts with federal law. This was a federal court saying that even under federal law exceptions can be made for, as the court put it:"a class of people with serious medical conditions for whom the use of cannabis is necessary in order to treat or alleviate those conditions or their symptoms; who will suffer serious harm if they are denied cannabis; and for whom there is no legal alternative to cannabis for the effective treatment of their medical conditions because they have tried other alternatives and have found that they are ineffective, or that they result in intolerable side effects."The concept of medical necessity grows out of the old English Common Law tradition that there can be certain necessities that authorize breaking laws. If you see your child drowning in a neighbor's pool, for example, you can rescue him or her without being prosecuted for trespassing. State and federal courts have previously recognized medical necessity defenses against the strict prohibitory laws regarding marijuana; indeed, the federal government set up (but later suspended) a program of distributing marijuana at taxpayer expense to a few patients in response to such a case in the 1970s.Monday's decision, in effect, invites California Attorney General Bill Lockyer to study the decision, then issue — without any necessity for new laws being passed — a set of guidelines for law enforcement to recognize the rights of patients who meet certain criteria to have access to marijuana for medical uses. No new legislation is required for him to do this. As Robert Raich, the lead attorney in this case, told us, "the Sword of Damocles hanging over state officials — that the federal government will stymie any efforts to implement Prop. 215 — has been eliminated."The exemption for patients and doctors offered under Monday's federal decision is narrower than what California voters authorized. Under state law any patient with a recommendation from a licensed physician is legally exempt (though not practically so) from prosecution for possession, use or cultivation of marijuana. The 9th Circuit's necessity standard requires that "serious harm" result from denying cannabis and suggests that patients have to have explored alternative therapies first. But it also seems to create an exemption from distribution laws.It is difficult to exaggerate how important this decision is. It opens up the possibility that federal law — not just in the nine states covered by the 9th Circuit (six of which have passed medical marijuana laws by initiative) but eventually throughout the country — can be applied with a modicum of compassion and common sense rather than as strictly (and cruelly) as some Drug Warriors would prefer.The decision doesn't address the issue of "rescheduling" marijuana under the 1970 Controlled Substances Act. The Drug Enforcement Administration has kept marijuana on Schedule I under that act, which by law is reserved for drugs with a high potential for abuse, with no currently accepted medical use and a "lack of accepted safety." Clearly, as the government's recent Institute of Medicine report makes clear, marijuana does not fit that definition. If the federal government were serious about following its own laws it would place marijuana on a different schedule tomorrow (as it recently did for Marinol, the synthesized version of one of the active ingredients in the herb).But that's a decision for another day (a petition to reschedule is in play).There is a chance this might not be the last word, however. It could be appealed to the full 9th Circuit or to the U.S. Supreme Court. Federal lawyers have been silent so far. For now, the court has invited California officials to craft guidelines for the use of medical marijuana that will keep the federal government off their backs. They should accept the invitation immediately.Pubdate: September 15, 1999#1 Newspaper in Orange County, California Federal Appeals Court Opens Door For MMJ - 9/16/99http://www.cannabisnews.com/news/thread2901.shtml
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Comment #5 posted by Jeff Brown on September 19, 1999 at 18:05:22 PT:
9TH CIRCUIT DECISION
This is a great decision. I applaud the entire west coast. The west, especially California is usually ahead of the rest of the country. The should help the class action in Philadelphia of which I am a plaintiff. The class action currently has over 400 plaintiffs and is challenging the federal governments decision to limit the compassionate use program to only 8 persons. In Solidarity
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Comment #4 posted by FoM on September 16, 1999 at 16:34:41 PT:
Good News!
Hi Jean!It is wonderful to see this all evolve. I hope this will help you. Let me know!Peace, FoM
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Comment #3 posted by Jeaneous on September 16, 1999 at 15:28:02 PT:
Excellent
I think it is wonderful to see these judges finally show what compassion is about. I only hope others learn and follow their direction.
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Comment #2 posted by Jeaneous on September 16, 1999 at 15:26:03 PT:
Excellent
I think it is wonderful to see these judges finally show what compassion is about. I only hope others learn and follow their direction.
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Comment #1 posted by Jeaneous on September 16, 1999 at 15:25:53 PT:
Excellent
I think it is wonderful to see these judges finally show what compassion is about. I only hope others learn and follow their direction.
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