Five months after the U.S. Supreme Court dealt a blow to medical marijuana
providers, the Oakland Cannabis Buyers Cooperative has launched a new
attack on the court order preventing it from distributing the drug.

"The Supreme Court really only ruled on a very narrow issue, the common-law
defense of medical necessity," Robert Raich, one of the cooperative's
attorneys, explained Tuesday.

"We're now going back to the 9th Circuit and saying, 'OK, here's a brief on
nothing but the Constitutional issues, so you won't be able to duck them
the way you did last time.' These are really powerful issues, they really
go to the fundamental structure of our republic."

The U.S. Department of Justice doesn't comment on pending cases.

In 1998, the department convinced U.S. District Judge Charles Breyer of San
Francisco to issue a preliminary injunction halting the cooperative's
distribution of marijuana to its 2,500 members.

The 9th U.S. Circuit Court of Appeals last year ruled the cooperative could
claim an exception to the federal Controlled Substances Act -- which lists
marijuana on its most restricted "schedule," meaning Congress believes it
has no valid medical use -- because the cooperative's members have a
medical necessity for the drug.

But the U.S. Supreme Court in May ruled 8-0 that medical necessity wasn't
reason enough for the cooperative to violate the federal ban on marijuana.

In a brief filed last week to the 9th U.S. Circuit Court of Appeals, the
cooperative argues three Constitutional issues the Supreme Court didn't
address in its May 14 ruling.

First, the brief says, the court can't halt this activity because the
federal government has control only over commerce between states, while
cultivating and distributing medicinal marijuana is a regulated activity
which "takes place wholly within the borders of the State of California."

Second, the brief says, the injunction unconstitutionally infringes upon
California's sovereign power to enact public health and safety measures.

And third, the brief argues, the injunction violates the rights to have
relief from pain, to prolong life and to consult with and act upon a
doctor's recommendation as granted by the Fifth and Ninth amendments.

Pubdate: Fri, 16 Nov 2001
Source: Oakland Tribune (CA)
Copyright: 2001 MediaNews Group, Inc. and ANG Newspapers
Author: Josh Richman, Staff Writer, Oakland Tribune
Bookmark: (Oakland Cannabis Court Case)