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Ciruit Rules in Favor of Pot Users



May 13,00
By Jason Hoppin
Source: Cal Law
Medical marijuana users won a court victory when the Ninth Circuit U.S. Court of Appeals reinstated a defense tossed out by a lower court judge.
The three-judge ruling allows users to argue before U.S. District Judge Charles Breyer that their pot-smoking is a fundamental right, a defense Breyer ruled was inadmissible in court.
The victory was foreshadowed by an Oakland medical
marijuana club's win last year in United States v. Oakland Cannabis Buyer's Cooperative, 190 F. 3d 1109. Breyer ruled in favor of the government's suit to shut down the pot club, but his decision was overturned by the same panel of appellate
judges, Judges Stephen Reinhardt, Mary Schroeder and Barry Silverman.
The Ninth Circuit's May 10 order will give several club patrons another opportunity to argue in favor of medical marijuana use in the Oakland Cannabis litigation.
"The district court entered its order of dismissal underlying this appeal before we decided the earlier appeal. Accordingly, we vacate the district court's order and remand for consideration in light of our prior opinion," read the unpublished opinion.
Breyer will now have to allow club members to put up a defense that smoking marijuana to alleviate ailments is a fundamental right. Reinhardt addressed the point in a separate concurrence.
"I would suggest ... the district judge consider whether the constitutional claim should be resolved on summary judgement, rather than on a motion to dismiss, given the Supreme Court's emphasis on examining, in substantive due
process cases, a claimed right's basis in 'our nation's history, legal traditions and practices.'"
The case is Unites States v. Oakland Cannabis Buyer's Cooperative, 99-15838.

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