OAKLAND DEPUTIZES POT CLUB

Move uses federal law exempting city agents

Oakland declared a medical marijuana club a city agency yesterday, becoming
the first city in the country to officially distribute pot for medicinal use.

The novel tactic steps up the counterattack against the federal
government's continuing efforts to shut down Northern California pot clubs.
It uses the government's own law in an attempt to give club members
immunity from civil or criminal liability.

In a ceremony at City Hall, city officials designated the staff, volunteers
and board of directors of the Oakland Cannabis Buyer's Cooperative as
officers of the city.

The Oakland club, which serves almost 1,800 chronically ill people from its
downtown office, has been operating since the passage of Proposition 215 in
1996. That initiative legalized marijuana for medical uses. The Oakland
club is one of three Northern California pot clubs that federal authorities
are trying to shut down by the end of this month.

A Justice Department spokesman warned that the battle is not over. ``I
would discourage them from jumping to any premature conclusions,'' said
spokesman Gregory King. He added only that his department is reviewing
Oakland's action.

Nonetheless, directors of the other two Northern California marijuana
clubs, in Fairfax and Ukiah, were encouraged by the news and said they plan
to try to gain the same status in their cities.

``This is wonderful news,'' said Marvin Lehrman, director of the Ukiah
Cannabis Buyer's Club, which serves 200 patients. ``Oakland has made a
pioneering step here.''

Making marijuana club workers deputies of the city is Oakland's latest move
since a federal judge issued a preliminary injunction in May ordering the
Oakland club and five others to close. Three have since shut down, but the
other three have defied the order, saying they have not violated federal law.

City leaders and medical marijuana advocates have expressed hope that their
new strategy, made possible by the passage of an Oakland ordinance approved
last month, will help them outmaneuver the federal government.

``This designation will permit the Oakland Cannabis Buyers' Cooperative to
distribute medical cannabis within federal law,'' said Gerald Uelmen, a
prominent Santa Clara attorney representing the club. Uelmen is best-known
as a member of the O.J. Simpson ``dream team.''

``That means the federal government has no case,'' he said.

Federal law, which supersedes state law, says marijuana used for any
purposes is illegal.

Using the federal law to make their case, attorneys for the club said that
by a section of the Federal Controlled Substances Act, the club is now
immune from federal criminal and civil liability. The section states that
any officer of a city who is enforcing an ordinance relating to controlled
substances cannot be prosecuted under the act.

The federal government's legal actions have been aimed at the Oakland,
Marin and Ukiah clubs and three others that have since closed -- two in San
Francisco, including Dennis Peron's Cannabis Healing Center on Market
Street, and one in Santa Cruz.

On August 31, U.S. District Judge Charles Breyer will decide whether to
strengthen his previous order by allowing federal agents to shut down the
clubs. Attorneys for the Oakland club plan to file a motion today asking
the judge to dismiss the federal petition in light of the city's new
ordinance.

Inside the cooperative's simple, well-lighted offices yesterday, defiant
club members and staff breathed a sigh of relief. To them, the city's
sanction of their program is a sign that they will survive.

``We're not going to go away,'' said Jim McClelland, the club's business
manager.

Scott Imler, director of the Los Angeles Cannabis Resource Center in West
Hollywood, called Oakland's actions an ``innovative idea'' and said he
thought it ``ironic'' that a loophole in the Controlled Substances Act that
was established to allow ``narcs to set people up in drug stings could be
turned around like that on the federal government.''

But he said he is not sure the tactic will prevent the club from being shut
down.

Imler said the federal government took actions to close down the Northern
California clubs because undercover agents were able to gain access to them
with phony documentation.

``I don't know if after-the-fact designation will be enough to stave off
the injunction already issued,'' Imler said. ``The cow may be out of the
barn before the door got closed.''

Robert Raich, an attorney representing the Oakland club, said the
undercover agents used ``lies and deceit.'' That they gained access does
not indicate the club is careless, he said.

``They had a sophisticated operation,'' he said. ``(The club's) procedures
were not lax.''

City officials also said yesterday that they are confident that the club is
run in a professional manner. The city reviewed the club's licensing and
tax status, security measures and insurance coverage before going forward
with the designation.

Medical marijuana advocates were upbeat.

``This gives me hope,'' said Lynnette Shaw, who runs Marin Alliance for
Medical Marijuana in Fairfax. ``We've been waiting to see what happened in
Oakland before moving forward.''

Fairfax Town Council member Frank Egger said town officials are supportive
of the Fairfax pot club, but he said he will contact Oakland's city
attorney to find out more about liability issues associated with the city's
action.

Oakland Councilman Nate Miley, an ardent advocate of the use of medicinal
marijuana, acknowledged yesterday that the city could be subject to state
and federal criminal and civil prosecution, but he said the city is willing
to take that risk.

``If the federal government wants to prosecute me or my colleagues, then
prosecute. Bring it on,'' he said.

The battle over medicinal marijuana has intensified since California voters
overwhelmingly passed Proposition 215.

Oakland has pushed to the forefront of the issue. In addition to its latest
maneuver, it has approved a policy allowing medical marijuana users to
store up to 1 1/2 pounds of the drug -- 24 times more than state law allows.

1998 San Francisco Chronicle

Checked-by: Mike Gogulski