POT RULING DISREGARDS LEGALITY OF MEDICAL USE

A federal judge in San Francisco Thursday ordered the closing of Bay Area
cannabis clubs, agreeing with the government that federal drug laws
supercede the state initiative legalizing the medicinal use of marijuana.

U.S. District Judge Charles Breyer ruled in favor of U.S. Attorney Michael
Yamaguchi's suits for an injunction against the clubs.

But he made it clear he was not ruling on the legality of a sick individual
possessing pot for medical use or on the possibility, raised by San
Francisco District Attorney. Terence Hallinan, that local governments might
take over the distribution of medical marijuana.

Federal narcotics laws make it unlawful to cultivate, distribute or possess
marijuana. California's Proposition 215, passed by voters in 1996,
legalized the cultivation and medical use of marijuana by patients with
AIDS, cancer, glaucoma and a variety of other illnesses.

The U.S. Justice Department and Attorney General Dan Lungren have tried to
shut the clubs down ever since.

In making the ruling, Breyer dismissed amwi curiae briefs from San
Francisco and officials in Oakland, Santa Cruz and West Hollywood opposing
the federal position.

San Francisco Cannabis Club founder Dennis Peron said the ruling was
actually a good thing because it set him up for a federal trial that will
decide the issues of medical necessity and a state's constitutional right
to make its own laws.

"It sets us up for legalizing medical marijuana in all the states," Peron
said "Marijuana laws are on trial more than me and I think that's good.
Sometime's you've got to lose before you win."

Peron said he expects federal marshals to go undercover next week to buy
marijuana from the club with a doctor's note and then report back to Judge
Breyer that the club was defying the injunction. The judge will then likely
order the club enjoined and shut down until a trial can be conducted in his
courtroom, Peron said.

The Justice Department filed civil suits in January seeking to halt
operations of six clubs: Peron's Cannabis Cultivators Club and Flower
Therapy Medical Marijuana Club in San Francisco, and similar operations in
Oakland, Santa Cruz, Ukiah and Fairfax. The Flower Therapy and Santa Cruz
clubs have since closed.

The other 11 clubs in the state, including major ones in Los Angeles and
San Jose, were not named in the suits but are likely now to become targets.

In his 28-page ruling, Breyer said the only issue before him was whether
the defendants' admitted distribution of marijuana for use by seriously ill
persons under a physician's recommendation violates federal law.

The lawsuits did not challenge the constitutionality of Prop. 215, nor did
they reflect a decision on the part of the federal government "to seek to
enjoin a local governmental agency from carrying out the humanitarian
mandate envisioned by the citizens of this state when they voted to approve
this law," Breyer wrote.

"Flnding that there is a strong likelihood that defendants' conduct
violates the Controlled Substances Act, the court concludes that the
supremacy clause of the United States Constitution requires that the court
enjoin further violations of the

He said the government was likely to prevail at trial on the issue of
whether the defendants have a fundamental right to medical marijuana. "The
court, however, is not rulling as a matter of law that no such right exists
... (but) defendants have not established that the right to such treatment
is 'so rooted in the traditions and conscience of our people as to be
ranked as fundamental.'"

Breyer cautioned about "what this decision does not do.... The court has
not declared Proposition 215 unconstitutional. Nor has it enjoined the
possession of marijuana by a seriously ill patient for the patient's
personal medical use.... Nor has (it) foreclosed the possibility of a
medical necessity or constitutional defense in any proceeding in which it
is alleged a defendant has violated the injunction issued herein."

Checked-by: Richard Lake