JUDGE REJECTS OAKLAND'S POT CLUB BUT DENIES IMMEDIATE SHUTDOWN

SAN FRANCISCO (AP) -- A federal judge on Monday rejected Oakland's attempt
to shield its medical marijuana club from federal drug laws by making it
part of city government, but refused to order the immediate shutdown of
clubs in Oakland and two other cities.

Instead, U.S. District Judge Charles Breyer said he may allow a jury to
decide whether patients at the clubs need marijuana to relieve pain and
survive treatment for cancer, AIDS and other illnesses.

Breyer rejected both a request by the Oakland Cannabis Buyers' Cooperative
to dismiss the federal government's suit and a motion by the government to
declare the clubs in contempt of court and close them without a trial. The
other two clubs are in Ukiah and the Marin County community of Fairfax.

The judge tentatively scheduled a hearing Sept. 28 on whether there should
be a trial, and allowed the clubs to remain open at least until then.

The clubs sprang up around California after passage of Proposition 215, the
November 1996 initiative that allows seriously ill patients to grow and use
marijuana for pain relief, with a doctor's recommendation, without being
prosecuted under state law.

But many of the clubs have been shut down through the efforts of Attorney
General Dan Lungren, who obtained state court rulings limiting the scope of
Proposition 215, and the Clinton administration's Justice Department, which
sued six clubs to enforce federal laws against marijuana distribution.

Breyer issued an injunction in May prohibiting the six Northern California
clubs from distributing marijuana while the government's suit was pending.
Three of the clubs have remained open, including the Oakland club, which
claims 2,000 members.

"We're going to remain open," the club's director, Jeff Jones, said after
Monday's hearing. "We feel what we're doing is a necessity to these
patients."

The club had hoped to win immunity from federal prosecution as a result of
Oakland's apparently unprecedented action Aug. 13, previously authorized by
the City Council, declaring club officials to be city agents who were
distributing marijuana to patients on the city's behalf.

In court, the club invoked a federal drug law that protects state and local
officers from legal liability while legally enforcing drug-related laws.
That law was intended to shield police from prosecution for undercover drug
transactions, but its wording also covers city agents who distribute medical
marijuana, argued Gerald Uelmen, a Santa Clara University law professor
representing the club.

"We're not dealing with a subversive effort to undercut the government's
drug war," Uelmen said. "This is a careful and good-faith effort to
implement the will of the people, consistent with federal law."

Breyer called the argument "creative" but "not persuasive." He said club
employees are not legally enforcing a drug-related law when their "purpose
is to violate federal law."

Uelmen said the club would appeal the ruling, though he did not know whether
an immediate appeal was possible.

But Breyer rejected government lawyers' arguments that there was conclusive
evidence the clubs were violating his injunction and should be shut down
immediately.

The judge said he may order a jury trial on the issue of "medical
necessity": the clubs' claim that violation of a federal drug law was the
only way to pain that was serious, and in some cases life-threatening. He
did not rule on the government's argument that a club would have to be
closed if necessity could not be proven for every one of its patients.

Copyright The Associated Press
Copyright The Sacramento Bee

Checked-by: Don Beck