FEDERAL JUDGE ORDERS CLOSURE OF POT CLUBS

Advocates hope to challenge the ruling in a jury trial

Siding with the Clinton administration, a U.S. district judge has ruled
that California pot clubs must stop selling medical marijuana in violation
of federal law. In a decision released yesterday, Judge Charles Breyer
found that whether or not medical marijuana clubs are legal under state
Proposition 215 they are not legal under federal statutes that take
precedence over California law.

U.S. Attorney Michael Yamaguchi, who filed a civil suit to force closure of
the clubs in January, called on state marijuana clubs to shut down
voluntarily. ``The clubs, and all those acting in concert with them, should
immediately cease their operations,'' he said. Breyer issued a preliminary
injunction, to take effect Tuesday, barring the clubs from distributing
marijuana to chronically ill members.

If made permanent, the injunction would eviscerate Proposition 215, without
passing judgment on its constitutionality. ``A state law which purports to
legalize the distribution of marijuana for any purpose . . . even a
laudable one, nonetheless directly conflicts with federal law,'' Breyer
wrote.

Defiant pot club operators said they were disappointed by Breyer's
decision, but nonetheless detected enough legal wiggle room in it to
believe that their fight to remain open can continue.

Because the judge issued a preliminary injunction, rather than the summary
judgment sought by Yamaguchi, club lawyers said they can challenge the
ruling in a trial before a jury in San Francisco, where voters passed
Proposition 215 by an 8 to 1 ratio. ``It is not against the law to save
lives,'' said Dennis Peron, founder of San Francisco's largest medical
marijuana club, which has been changing its name as fast as the courts have
been issuing injunctions. It is currently called the Cannabis Healing
Center, and boasts as many as 8,000 members.

The clubs will invoke a ``medical necessity defense,'' arguing that the
distribution of pot to those suffering from chronic illnesses can save
their lives.

They also intend to argue that there is an established constitutional right
to be ``free of pain'' and that marijuana acts as a pain reliever. ``We're
confident we can win before a jury,'' said Peron. ``We're going to win, and
change the medical marijuana laws throughout the country.

Medical marijuana is going to be legal in New Jersey.'' But Breyer's ruling
suggests that any federal court fight will be an uphill challenge, if only
because the case rests on the narrow but solid argument that federal law
prohibits marijuana possession except for research and that federal law
overrules conflicting state statutes.

The thin thread of hope for medical marijuana advocates is that Breyer did
not foreclose the possibility of a successful medical necessity defense in
a jury trial.

Breyer also left open the possibility that federal courts would not attempt
to stop the distribution of marijuana to the chronically ill by a
government entity -- just as the courts have not blocked the otherwise
illegal distribution of clean needles to drug users as an AIDS prevention
measure.

San Francisco attorney Jerrold Ladar, a former federal prosecutor, said the
judge's ruling does not mean an end to California pot clubs, but it
substantially raises the ante for those fighting to keep them open.
``They've got to leap on the barbed wire,'' he said.

``If they decide to violate the court order, at that point they will be
commiting several different offenses, including criminal contempt.''

Ladar said it is unclear whether the pot clubs would be allowed to remain
open during the course of a jury trial, which is likely to be lengthy and
would not be able to start for months.

``If they try to continue to operate, the court has the power to tell the
U.S. attorney to order U.S. marshals to padlock the doors and put a keeper
inside.''

Checked-by: jwjohnson@netmagic.net (Joel W. Johnson)