JUDGE REJECTS CITY-RUN CANNABIS CLUB BUT DENIES IMMEDIATE SHUTDOWN

EDT 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.

Checked-by: Patrick Henry