MEDICAL NEED A FACTOR IN POT CASES, COURT SAYS

Health: Federal appeals panel rules that marijuana centers may distribute
drug if patient faces serious harm.

Will patients' needs be served by the court ruling?

SAN FRANCISCO--A federal appeals court created a potentially major opening
in federal drug laws Monday, ruling that medical marijuana centers may be
allowed to distribute cannabis if they can prove that the drug is needed to
protect patients against imminent medical harm.

In its decision, the three-judge panel of the 9th U.S. Circuit Court of
Appeals said that a federal judge should have considered patients' medical
needs for marijuana when he ordered a cannabis club in Oakland last year to
stop distributing the drug.

The ruling "means that the federal law is not an absolute barrier to
distribution of marijuana," said Santa Clara University law professor
Gerald F. Uelmen, who helped represent the Oakland center. "It requires
courts to exercise discretion to look at the circumstances of individual
patients and weigh that against the public interest."

The court did not overturn U.S. District Judge Charles Breyer's injunction
against the club, but said he must consider the case again, taking into
account evidence that some patients need cannabis to treat debilitating and
life-threatening conditions.

The decision could lead to the Oakland Cannabis Buyers Cooperative and
others being allowed to distribute marijuana to some severely ill patients,
said Robert Raich, another attorney for the center.

"It may provide a method under federal law in which medical patients, some
medical patients, can be provided with the medical cannabis they need . . .
legally," the Oakland attorney said.

California voters in November 1996 approved Proposition 215, which
permitted seriously ill patients to obtain and use marijuana with their
doctors' recommendations without being prosecuted under state law. Some
doctors and patients say that the drug quells nausea, eases pain and
restores appetite.

The Clinton administration, however, sued six Northern California clubs on
the grounds that a federal ban on marijuana distribution prevails over the
state initiative.

Oakland's center stopped distributing marijuana, three clubs closed and two
others are still open and being monitored by federal authorities.

The court ruling follows the collapse of an effort by legislators in
Sacramento to make Proposition 215 more workable by setting up a statewide
registry of medical marijuana users.

Faced with opposition from law enforcement and a likely veto from Gov. Gray
Davis, state Sen. John Vasconcellos (D-Santa Clara) abandoned his efforts,
at least for now, to win legislative approval of a registry. The plan had
been recommended by a special task force of law enforcement officials and
medical marijuana advocates put together by Atty. Gen. Bill Lockyer in
January.

In the federal court case, federal attorneys had no immediate comment
Monday on whether they will appeal the decision of the 9th Circuit panel.
Without an appeal, the case would return to Judge Breyer in San Francisco,
who would have to reconsider his injunction against the Oakland center
after reviewing evidence that marijuana is a necessity for some patients.

Protection From Harm

The 9th Circuit panel said the Oakland cooperative had presented sufficient
evidence that the injunction could be modified to reflect that some
patients with serious medical conditions need marijuana to treat their
illnesses or symptoms and will "suffer serious harm if they are denied
cannabis."

The evidence showed that for these patients, there was no legal alternative
to obtaining marijuana for the effective treatment of their ailments, the
court said.

It said the federal government failed to rebut the Oakland center's
evidence that "cannabis is the only effective treatment for a large group
of seriously ill individuals."

Judge Breyer must consider whether to "exempt from the injunction,
distribution to seriously ill individuals who need cannabis for medical
purposes," said the ruling by Judges Mary M. Schroeder, Stephen Reinhardt
and Barry G. Silverman.

Raich said the 9th Circuit decision may allow a narrower class of patients
than those singled out under Proposition 215 to buy and use cannabis. Such
patients would include those with AIDS and cancer, he said.

Mark Quinlivan, a U.S. Justice Department lawyer who is handling the
marijuana case, said he had not yet read the court's ruling and had not
determined whether to ask the 9th Circuit to reconsider its decision.

"We are going to have to read it in full before we have any comment on it,"
Quinlivan said.

In Sacramento, Vasconcellos' representative to the state task force said
the lawmaker will continue to work toward a compromise between medical
marijuana advocates and law enforcement officials, and to reintroduce a
state registry bill next year.

"This was far too complicated and emotional an issue to try and jam a
so-called compromise down anybody's throat," said Rand Martin, the task
force member. In addition, he said, "we were getting signals from the
governor's office that he was, at best, skeptical about the proposal as a
whole."

Hillary McLean, a spokeswoman for the governor, said Davis' "concern from
the outset was that under federal law the use of marijuana is illegal. The
governor did not want to see the state of California acting in conflict
with federal law. He had strong concerns about the bill."

Lockyer had asked the task force to find ways to make Proposition 215 more
workable. As written, the measure only gives medical marijuana users a
defense to use in court if they are arrested.

In July, the task force recommended the creation of a state registry that
would provide every patient who chose to register with an identification
card. The system was meant to protect patients from arrest and to simplify
enforcement of the law for police officers. Vasconcellos incorporated it
into SB 848, which he tabled on the final day of the legislative session.

"I'm certainly disappointed," Vasconcellos said in a statement announcing
that he was abandoning the bill this year.

After the task force had made its recommendations, several law enforcement
officials on the committee said they needed to seek approval from their
organizations for the proposals. To Lockyer and Vasconcellos' dismay, some
law enforcement agencies told them that they would oppose the bill unless
registration was mandatory.

Over the summer, Vasconcellos tried to broker a compromise, fashioning
language that would have required physicians who recommended that a patient
use medical marijuana to register that patient with the county health
department. The health department would then have forwarded the names to
the state health department, to be entered in the registry. Law enforcement
agencies embraced that idea, but it was rejected by medical marijuana
advocates, who argued that it violated the privacy of the physician-patient
relationship.

"All this was happening in the last two weeks of the session, with a
million other things going on," Martin of the task force said.

Medical marijuana advocates and law enforcement officials who participated
in the task force expressed disappointment Monday that no compromise was
found.

"This is a missed opportunity," said Pete Herley, chief of police in
Tiburon. Herley represented the California Police Chiefs Assn. on the task
force. His association would have supported the bill had the provision for
physician reporting been included, Herley said.

"We worked very hard for the last four months to develop a set of
guidelines which are sorely needed for patients, caregivers, physicians,
prosecutors and law enforcement," Herley said. "I thought everything was
settled until the very last minute."

"I'm really sad to hear it," said Karyn Sinunu, an assistant district
attorney for Santa Clara County who participated in the task force. Sinunu
said she preferred a mandatory registration system "because it is really
clean, it is as close as we can get to issuing a prescription for medical
marijuana," but she was willing to compromise and accept a voluntary system
"because I thought most people who were legitimate medical marijuana users
would take advantage of it."

Sinunu said she could understand the reluctance of some police agencies to
accept a voluntary system that would still have left a gray area of users
who were not registered. Still, she said, she thought the task force had
gone a long way toward establishing a rapport between medical marijuana
users and advocates and the police and district attorneys who were often at
odds with them.

Optimistic for the Future

Scott Imler, director of the Los Angeles Cannabis Resource Center, coauthor
of Proposition 215 and one of the patients on the task force, said he
believed the task force's efforts were not in vain.

"Of course I'm disappointed that still, three years after Proposition 215
passed, nobody can seem to do the right thing," Imler said. "But I don't
think this was a waste of time. Hopefully, between now and when this thing
is taken up again next year, we'll be able to get back together and work
something out."

Imler said he would have supported a mandatory registration system had
Davis indicated he would sign the bill. But most medical marijuana
advocates, he said, adamantly oppose a mandatory system, arguing that it
would make patients more vulnerable to federal prosecution, because
marijuana remains a banned substance under federal law, and would violate
the state's Constitution that says that an initiative passed by voters
cannot be amended by the Legislature.

"I think this failed because there was a little bit of obstinacy on the
part of both advocates and law enforcement," Imler said.