Federal Judge Appears ‘Unswayed’ by Arguments in Favor of California’s Medical Marijuana Law

U.S. District Court Judge Charles Breyer on Friday appeared "unswayed" by arguments supporting the right of cannabis clubs in California to distribute marijuana to people who have a doctor's recommendation, the AP/San Diego Union-Tribune reports (Elias, AP/San Diego Union-Tribune, 4/20). California residents voted in 1996 to allow people with chronic illnesses such as AIDS to use marijuana for medicinal purposes. Last May, the U.S. Supreme Court ruled that under a 1970 federal law, marijuana has no medical benefits and cannot be prescribed by doctors. In the opinion, Justice Clarence Thomas noted that the court was only addressing the "medical necessity defense," and that questions regarding Congress' "ability to interfere with intrastate commerce, the right of states to experiment with their own laws and whether Americans have a fundamental right to marijuana as an avenue to be free of pain" remained unanswered. In January, the Oakland Cannabis Buyers Cooperative filed a motion asking Breyer to lift a federal injunction that bars the group from selling marijuana for medicinal purposes, focusing its arguments on the issues Thomas listed as unaddressed in the Supreme Court decision (California Healthline, 1/9). Taylor Carey, a special assistant California attorney general, on Friday argued that states' constitutional rights protect "wholly intrastate cultivation and distribution of cannabis" from prosecution under the 1970 Controlled Substances Act. Carey was joined by lawyers for marijuana cooperatives in Oakland, San Francisco, Fairfax and Ukiah in arguing against the injunction.

Annette Carnegie, the lawyer for the Oakland cooperative, questioned why the federal government was pursuing a permanent injunction in civil court, asking instead that prosecutors be forced to file in criminal court so that the clubs would "be assured jury trials and other constitutional rights." Mark Quinlivan, a lawyer for the U.S. Department of Justice, said that proceeding in criminal court would not be "in the interest of the public at large," and Breyer questioned whether he should consider "the issue of jury nullification" -- the likelihood that a jury of California residents, who approved medical marijuana in the referendum, would "refuse to convict" defendants in medical marijuana cases. Breyer added that the "only open issue" was whether the marijuana clubs "could assure him that, without being enjoined, they would not 'directly or indirectly' distribute marijuana for any reason." Carnegie said her client "will obey the law," to which Breyer replied, "I'm talking about the federal law. I'm not talking about the state law." Bill Panzer, the lawyer for the Marin Alliance for Medical Marijuana in Fairfax, said, "We would not ask the court to do anything to pressure the government to proceed criminally against my client," noting that the Bush administration had "proved willing" to prosecute medical marijuana distributors (Cooper, Sacramento Bee, 4/20). Breyer did not rule on the injunction Friday but said he will issue a written opinion in the future (AP/San Diego Union-Tribune, 4/20).