BREATH OF LIFE: FEDERAL COURT OUTLINES A MEDICINAL POT DEFENSE

Federal law bans the use of marijuana for all purposes, but is there a
defense for medicinal marijuana in federal court? The U.S. 9th Circuit
Court of Appeals thinks so, and has outlined a new and intriguing argument
for medicinal marijuana. The ruling potentially alters the judicial
landscape and challenges Gov. Gray Davis, who has largely refused to
address the state's medicinal marijuana law, Proposition 215, based on the
contention that the drug was illegal for medicinal purposes under federal law.

The test case centers on the Oakland Cannabis Buyers' Cooperative. City
officials had sought to shield the cooperative from prosecution by
designating its distributors as "agents" under laws that protect narcotic
officers who possess drugs. Federal prosecutors nonetheless sought a
federal injunction to shut down the cooperative based on the federal ban of
all marijuana use. The cooperative sought to argue that for some, the
marijuana was medically necessary. District Judge Charles Breyer concluded
there was no room in federal law for such a defense. He granted the
injunction to shut down the cooperative, which then appealed the decision.

The appellate court, in dramatic contrast to Breyer's ruling, has concluded
that Breyer should have balanced the legal ban on marijuana against an
argument of medical necessity. Justices Mary Schroeder, Stephen Reinhardt
and Barry Silverman unanimously instructed Breyer to reconsider the
injunction. The cannabis cooperative "presented evidence that there is a
class of people with serious medical conditions for whom the use of
cannabis is necessary," the justices wrote. "The government, by contrast,
has yet to identify any interest it may have in blocking the distribution
of cannabis to those with medical needs."

The practice of medicine is regulated largely by states, not Congress --
including determinations of what is medically necessary and what is not.
Local governments may have a role as well. Breyer may end up taking into
consideration how Oakland has declared a public health emergency because of
the lack of proper distribution channels for medicinal marijuana.

Davis, meanwhile, has trapped himself between his reflexive get-tough
anti-crime rhetoric and public support for medicinal marijuana. If federal
courts begin to consider medical necessity as a legitimate argument (they
may not; this appellate court is frequently overturned), state definitions
would become increasingly relevant. Davis and the Legislature should help
clarify the political intent of Proposition 215 as the courts continue to
muddle through marijuana's legal swamp.