OAKLAND CLUB TO DISTRIBUTE POT ON CITY'S BEHALF

OAKLAND--The city of Oakland on Thursday became the first city in the
United States to begin distributing marijuana to ease the symptoms of
the chronically ill.

In an action that City Councilman Nate Miley portrayed as an act of
moral courage, the city named operators of the Oakland Cannabis Buyers
Cooperative as officers of the city and said they will distribute
marijuana at their cooperative on the city's behalf.

Miley said the city hopes the action will shield the club from the U.S.
Justice Department's efforts to shut it down.

The city is counting on the Federal Controlled Substance Act--the same
act the federal government is using in its attempt to close the club--to
keep it open. A provision of the act says that officers enforcing local
drug ordinances are immune from prosecution for possessing, buying and
selling illegal drugs in the course of their police work.

Now that the cannabis club's members are "officers" of the city of
Oakland, the city hopes, they too will be considered immune from
prosecution.

However, the state attorney general's office said the action is probably
illegal, and even Miley acknowledged that the city is taking a risk.

"The city could be subject to civil and criminal prosecution" for the
program, Miley said, "but it's a risk we take...There are just moments
that demand that people come forward and do the right thing." He said
the city also will consider ways to directly distribute marijuana.

"We're aware of the Oakland decision and we're carefully reviewing it,"
said Gregory King, a spokesman for the Justice Department in Washington.

Oakland, a liberal city where former Gov. Edmund G. "Jerry" Brown Jr. is
scheduled to take office as mayor in January, has gone out on a limb
before. The city found itself in the midst of a national debate about
race, education and language in 1996 after the school board voted to
officially recognize black dialect, or "Ebonics," as a separate
language.

At the time, board members said their action was meant to save black
children by encouraging them to stay in school. On Thursday, Miley said
the city was interested in saving lives.

"We needed to be out on the frontier, to ensure that Proposition 215 can
be implemented," Miley said. "There are people in a lot of pain, who are
suffering and dying." Calling the club "a very important element in our
community," Miley said that the city "will do everything we can do
legally . .

. to ensure that the Oakland Cannabis Buyers Club continues to operate."
Medical marijuana advocates say the drug eases the symptoms of a wide
range of illnesses and can control nausea and pain suffered by some
chronically ill patients.

Voters passed Proposition 215, the medical marijuana initiative, in
November 1996. Since then, state Atty. Gen. Dan Lungren and the Justice
Department have sought, in separate court actions, to close California's
marijuana clubs. More than two dozen clubs, some of which had operated
underground, emerged across the state soon after the law passed.

All but a handful have since closed--some as a result of state and
federal actions, others because their officials were arrested by local
police departments for allegedly selling marijuana to people without a
doctor's recommendation.

Three Clubs Defied Order to Close In May, U.S. District Judge Charles
Breyer ordered six Northern California clubs to close. Ruling in a civil
suit brought by the U.S. attorney for the Northern District, Breyer said
that federal law, which prohibits any sale of marijuana because it is a
controlled substance, supersedes Proposition 215.

Three clubs--the Oakland club, one in Marin and one in Ukiah--chose to
defy Breyer's ruling and continue operating. Of those three, Oakland is
by far the largest, with about 1,800 members.

The Justice Department has asked Breyer to find the three clubs in
contempt of court and asked that federal marshals be allowed to shut
them down. A hearing on those motions is scheduled for Aug.

31 in San Francisco.

Seeking to head off a contempt ruling, the Oakland City Council took two
actions last month. It instructed its Police Department not to arrest
residents who possessed 1 1/2 pounds of marijuana or less for medical
purposes, several times the amount Lungren has said is allowable. The
council also passed an ordinance establishing the medical marijuana
distribution system, designating the Oakland cannabis club as the city's
distributor.

At an Oakland city hall news conference Thursday, Oakland Cannabis Club
director Jeff Jones--a clean-cut 24-year-old who says he became
committed to the cause of providing medical marijuana to patients after
watching his father die a painful death from cancer--and his staff were
publicly designated as officers of the city of Oakland.

Deputy City Manager Mike Nisperos said that the club's members all are
designated as officers. He said the designation does not put them on the
city's payroll or provide them with city benefits. It merely says that
they are acting on behalf of the city to enforce a city ordinance.

Attorneys for the cannabis club said that they will file a motion today
seeking to dismiss the federal case on the basis of the city's action.

"This designation will permit the Oakland Cannabis Buyers' Cooperative
staff to distribute medical cannabis within federal law," said Gerald
Uelmen, a University of Santa Clara law professor who helped represent
O.J. Simpson in his criminal case.

Uelmen was joined by prominent criminal defense lawyer James Brosnahan.

Uelmen said that the 1970 Federal Controlled Substances Act contains a
provision saying any officer of a city who is enforcing an ordinance on
controlled substances is immune from liability for civil or criminal
prosecution under the act.

The provision normally applies to drug agents, protecting them from
prosecution when they are buying or selling drugs in order to make
arrests. But Uelmen insisted that its wording is broad, and said he is
confident that the courts will rule in Oakland's favor.

"We are blowing a hole in the act," said Robert Raich, another attorney
representing the club. Raich said that any city in the nation could
similarly pass an ordinance allowing for the distribution of medical
marijuana and designate officers to do that.

"I think that we have moved the availability of medical cannabis to a
much more sure-footed stance all over this state, all over this
country," Raich told The Times in an interview before Thursday's news
conference.

Lungren Spokesman Calls Actions Illegal But a spokesman for Lungren
expressed skepticism at the attorneys' legal reasoning, saying he
thought Oakland's actions are illegal under state and federal law.

"Proposition 215 allows for three things," said spokesman Matt Ross.
"For a doctor to recommend the use of medical marijuana to a patient,
for a patient to use or grow marijuana for medical use, and for a
primary caregiver to provide it." A primary caregiver, Ross said, is
"someone who takes care of all of your needs, not just the need for
marijuana." "Today's actions by the Oakland Cannabis Buyers Club and the
city of Oakland," he said, "don't seem to meet any of those three
options." But Ross said Lungren's office has no plan to move against
Oakland or the cannabis club. It is up to the Alameda County district
attorney's office to do that, he said.

Alameda County Deputy Dist. Atty. Jeff Rubin said Wednesday that the
office would not get involved with the Oakland club unless law
enforcement officials found evidence of crimes being committed.

Lungren has maintained that the law never intended to legalize clubs
that sell marijuana to hundreds, even thousands of patients.

The state Supreme Court upheld that view, letting stand a lower court
ruling in a suit Lungren brought against the San Francisco Cannabis
Buyers Club, that the club could not be considered a caregiver under
Proposition 215.

In addition, Lungren has said that his office would consider patients
who grow marijuana themselves to be violating Proposition 215 if they
possess more than an ounce a month of processed marijuana, or the number
of plants needed to produce that amount.

Club operators and many patients argue that it is unrealistic to expect
every patient to be able to cultivate marijuana plants at home. They say
the clubs can ensure a safe supply and a safe delivery system at a
reasonable cost.

In May, Lungren won his battle to shut down the San Francisco Cannabis
Buyers Club, when Superior Court Judge William Cahill ruled it a public
nuisance and state drug enforcement agents padlocked it. The club
claimed to be serving about 9,000 patients, many of them suffering from
AIDS.

Copyright 1998 Los Angeles Times. All Rights Reserved

Checked-by: willtoo