Oakland Club to Distribute Pot on City's Behalf
Friday, August 14, 1998
LA Times
OAKLAND--The city of Oakland on Thursday became the first city in the United States to begin distributing marijuana to ease the symptoms of the chronically ill.
In an action that City Councilman Nate Miley portrayed as an act of moral courage, the city named operators of the Oakland Cannabis Buyers Cooperative as officers of the city and said they will distribute marijuana at their cooperative on the city's behalf.
Miley said the city hopes the action will shield the club from the U.S. Justice Department's efforts to shut it down.
The city is counting on the Federal Controlled Substance Act--the same act the federal government is using in its attempt to close the club--to keep it open. A provision of the act says that officers enforcing local drug ordinances are immune from prosecution for possessing, buying and selling illegal drugs in the course of their police work.
Now that the cannabis club's members are "officers" of the city of Oakland, the city hopes, they too will be considered immune from prosecution.
However, the state attorney general's office said the action is probably illegal, and even Miley acknowledged that the city is taking a risk.
"The city could be subject to civil and criminal prosecution" for the program, Miley said, "but it's a risk we take. . . . There are just moments that demand that people come forward and do the right thing." He said the city also will consider ways to directly distribute marijuana.
"We're aware of the Oakland decision and we're carefully reviewing it," said Gregory King, a spokesman for the Justice Department in Washington.
Oakland, a liberal city where former Gov. Edmund G. "Jerry" Brown Jr. is scheduled to take office as mayor in January, has gone out on a limb before. The city found itself in the midst of a national debate about race, education and language in 1996 after the school board voted to officially recognize black dialect, or "Ebonics," as a separate language.
At the time, board members said their action was meant to save black children by encouraging them to stay in school. On Thursday, Miley said the city was interested in saving lives.
"We needed to be out on the frontier, to ensure that Proposition 215 can be implemented," Miley said. "There are people in a lot of pain, who are suffering and dying."
Calling the club "a very important element in our community," Miley said that the city "will do everything we can do legally . . . to ensure that the Oakland Cannabis Buyers Club continues to operate."
Medical marijuana advocates say the drug eases the symptoms of a wide range of illnesses and can control nausea and pain suffered by some chronically ill patients.
Voters passed Proposition 215, the medical marijuana initiative, in November 1996. Since then, state Atty. Gen. Dan Lungren and the Justice Department have sought, in separate court actions, to close California's marijuana clubs. More than two dozen clubs, some of which had operated underground, emerged across the state soon after the law passed.
All but a handful have since closed--some as a result of state and federal actions, others because their officials were arrested by local police departments for allegedly selling marijuana to people without a doctor's recommendation.
Three Clubs Defied Order to Close
In May, U.S. District Judge Charles Breyer ordered six Northern California clubs to close. Ruling in a civil suit brought by the U.S. attorney for the Northern District, Breyer said that federal law, which prohibits any sale of marijuana because it is a controlled substance, supersedes Proposition 215.
Three clubs--the Oakland club, one in Marin and one in Ukiah--chose to defy Breyer's ruling and continue operating. Of those three, Oakland is by far the largest, with about 1,800 members.
The Justice Department has asked Breyer to find the three clubs in contempt of court and asked that federal marshals be allowed to shut them down. A hearing on those motions is scheduled for Aug. 31 in San Francisco.
Seeking to head off a contempt ruling, the Oakland City Council took two actions last month. It instructed its Police Department not to arrest residents who possessed 1 1/2 pounds of marijuana or less for medical purposes, several times the amount Lungren has said is allowable. The council also passed an ordinance establishing the medical marijuana distribution system, designating the Oakland cannabis club as the city's distributor.
At an Oakland city hall news conference Thursday, Oakland Cannabis Club director Jeff Jones--a clean-cut 24-year-old who says he became committed to the cause of providing medical marijuana to patients after watching his father die a painful death from cancer--and his staff were publicly designated as officers of the city of Oakland.
Deputy City Manager Mike Nisperos said that the club's members all are designated as officers. He said the designation does not put them on the city's payroll or provide them with city benefits. It merely says that they are acting on behalf of the city to enforce a city ordinance.
Attorneys for the cannabis club said that they will file a motion today seeking to dismiss the federal case on the basis of the city's action.
"This designation will permit the Oakland Cannabis Buyers' Cooperative staff to distribute medical cannabis within federal law," said Gerald Uelmen, a University of Santa Clara law professor who helped represent O.J. Simpson in his criminal case. Uelmen was joined by prominent criminal defense lawyer James Brosnahan.
Uelmen said that the 1970 Federal Controlled Substances Act contains a provision saying any officer of a city who is enforcing an ordinance on controlled substances is immune from liability for civil or criminal prosecution under the act.
The provision normally applies to drug agents, protecting them from prosecution when they are buying or selling drugs in order to make arrests. But Uelmen insisted that its wording is broad, and said he is confident that the courts will rule in Oakland's favor.
"We are blowing a hole in the act," said Robert Raich, another attorney representing the club. Raich said that any city in the nation could similarly pass an ordinance allowing for the distribution of medical marijuana and designate officers to do that.
"I think that we have moved the availability of medical cannabis to a much more sure-footed stance all over this state, all over this country," Raich told The Times in an interview before Thursday's news conference.
Lungren Spokesman Calls Actions Illegal
But a spokesman for Lungren expressed skepticism at the attorneys' legal reasoning, saying he thought Oakland's actions are illegal under state and federal law.
"Proposition 215 allows for three things," said spokesman Matt Ross. "For a doctor to recommend the use of medical marijuana to a patient, for a patient to use or grow marijuana for medical use, and for a primary caregiver to provide it." A primary caregiver, Ross said, is "someone who takes care of all of your needs, not just the need for marijuana."
"Today's actions by the Oakland Cannabis Buyers Club and the city of Oakland," he said, "don't seem to meet any of those three options."
But Ross said Lungren's office has no plan to move against Oakland or the cannabis club. It is up to the Alameda County district attorney's office to do that, he said.
Alameda County Deputy Dist. Atty. Jeff Rubin said Wednesday that the office would not get involved with the Oakland club unless law enforcement officials found evidence of crimes being committed.
Lungren has maintained that the law never intended to legalize clubs that sell marijuana to hundreds, even thousands of patients. The state Supreme Court upheld that view, letting stand a lower court ruling in a suit Lungren brought against the San Francisco Cannabis Buyers Club, that the club could not be considered a caregiver under Proposition 215.
In addition, Lungren has said that his office would consider patients who grow marijuana themselves to be violating Proposition 215 if they possess more than an ounce a month of processed marijuana, or the number of plants needed to produce that amount.
Club operators and many patients argue that it is unrealistic to expect every patient to be able to cultivate marijuana plants at home. They say the clubs can ensure a safe supply and a safe delivery system at a reasonable cost.
In May, Lungren won his battle to shut down the San Francisco Cannabis Buyers Club, when Superior Court Judge William Cahill ruled it a public nuisance and state drug enforcement agents padlocked it. The club claimed to be serving about 9,000 patients, many of them suffering from AIDS.
In an action that City Councilman Nate Miley portrayed as an act of moral courage, the city named operators of the Oakland Cannabis Buyers Cooperative as officers of the city and said they will distribute marijuana at their cooperative on the city's behalf.
Miley said the city hopes the action will shield the club from the U.S. Justice Department's efforts to shut it down.
The city is counting on the Federal Controlled Substance Act--the same act the federal government is using in its attempt to close the club--to keep it open. A provision of the act says that officers enforcing local drug ordinances are immune from prosecution for possessing, buying and selling illegal drugs in the course of their police work.
Now that the cannabis club's members are "officers" of the city of Oakland, the city hopes, they too will be considered immune from prosecution.
However, the state attorney general's office said the action is probably illegal, and even Miley acknowledged that the city is taking a risk.
"The city could be subject to civil and criminal prosecution" for the program, Miley said, "but it's a risk we take. . . . There are just moments that demand that people come forward and do the right thing." He said the city also will consider ways to directly distribute marijuana.
"We're aware of the Oakland decision and we're carefully reviewing it," said Gregory King, a spokesman for the Justice Department in Washington.
Oakland, a liberal city where former Gov. Edmund G. "Jerry" Brown Jr. is scheduled to take office as mayor in January, has gone out on a limb before. The city found itself in the midst of a national debate about race, education and language in 1996 after the school board voted to officially recognize black dialect, or "Ebonics," as a separate language.
At the time, board members said their action was meant to save black children by encouraging them to stay in school. On Thursday, Miley said the city was interested in saving lives.
"We needed to be out on the frontier, to ensure that Proposition 215 can be implemented," Miley said. "There are people in a lot of pain, who are suffering and dying."
Calling the club "a very important element in our community," Miley said that the city "will do everything we can do legally . . . to ensure that the Oakland Cannabis Buyers Club continues to operate."
Medical marijuana advocates say the drug eases the symptoms of a wide range of illnesses and can control nausea and pain suffered by some chronically ill patients.
Voters passed Proposition 215, the medical marijuana initiative, in November 1996. Since then, state Atty. Gen. Dan Lungren and the Justice Department have sought, in separate court actions, to close California's marijuana clubs. More than two dozen clubs, some of which had operated underground, emerged across the state soon after the law passed.
All but a handful have since closed--some as a result of state and federal actions, others because their officials were arrested by local police departments for allegedly selling marijuana to people without a doctor's recommendation.
Three Clubs Defied Order to Close
In May, U.S. District Judge Charles Breyer ordered six Northern California clubs to close. Ruling in a civil suit brought by the U.S. attorney for the Northern District, Breyer said that federal law, which prohibits any sale of marijuana because it is a controlled substance, supersedes Proposition 215.
Three clubs--the Oakland club, one in Marin and one in Ukiah--chose to defy Breyer's ruling and continue operating. Of those three, Oakland is by far the largest, with about 1,800 members.
The Justice Department has asked Breyer to find the three clubs in contempt of court and asked that federal marshals be allowed to shut them down. A hearing on those motions is scheduled for Aug. 31 in San Francisco.
Seeking to head off a contempt ruling, the Oakland City Council took two actions last month. It instructed its Police Department not to arrest residents who possessed 1 1/2 pounds of marijuana or less for medical purposes, several times the amount Lungren has said is allowable. The council also passed an ordinance establishing the medical marijuana distribution system, designating the Oakland cannabis club as the city's distributor.
At an Oakland city hall news conference Thursday, Oakland Cannabis Club director Jeff Jones--a clean-cut 24-year-old who says he became committed to the cause of providing medical marijuana to patients after watching his father die a painful death from cancer--and his staff were publicly designated as officers of the city of Oakland.
Deputy City Manager Mike Nisperos said that the club's members all are designated as officers. He said the designation does not put them on the city's payroll or provide them with city benefits. It merely says that they are acting on behalf of the city to enforce a city ordinance.
Attorneys for the cannabis club said that they will file a motion today seeking to dismiss the federal case on the basis of the city's action.
"This designation will permit the Oakland Cannabis Buyers' Cooperative staff to distribute medical cannabis within federal law," said Gerald Uelmen, a University of Santa Clara law professor who helped represent O.J. Simpson in his criminal case. Uelmen was joined by prominent criminal defense lawyer James Brosnahan.
Uelmen said that the 1970 Federal Controlled Substances Act contains a provision saying any officer of a city who is enforcing an ordinance on controlled substances is immune from liability for civil or criminal prosecution under the act.
The provision normally applies to drug agents, protecting them from prosecution when they are buying or selling drugs in order to make arrests. But Uelmen insisted that its wording is broad, and said he is confident that the courts will rule in Oakland's favor.
"We are blowing a hole in the act," said Robert Raich, another attorney representing the club. Raich said that any city in the nation could similarly pass an ordinance allowing for the distribution of medical marijuana and designate officers to do that.
"I think that we have moved the availability of medical cannabis to a much more sure-footed stance all over this state, all over this country," Raich told The Times in an interview before Thursday's news conference.
Lungren Spokesman Calls Actions Illegal
But a spokesman for Lungren expressed skepticism at the attorneys' legal reasoning, saying he thought Oakland's actions are illegal under state and federal law.
"Proposition 215 allows for three things," said spokesman Matt Ross. "For a doctor to recommend the use of medical marijuana to a patient, for a patient to use or grow marijuana for medical use, and for a primary caregiver to provide it." A primary caregiver, Ross said, is "someone who takes care of all of your needs, not just the need for marijuana."
"Today's actions by the Oakland Cannabis Buyers Club and the city of Oakland," he said, "don't seem to meet any of those three options."
But Ross said Lungren's office has no plan to move against Oakland or the cannabis club. It is up to the Alameda County district attorney's office to do that, he said.
Alameda County Deputy Dist. Atty. Jeff Rubin said Wednesday that the office would not get involved with the Oakland club unless law enforcement officials found evidence of crimes being committed.
Lungren has maintained that the law never intended to legalize clubs that sell marijuana to hundreds, even thousands of patients. The state Supreme Court upheld that view, letting stand a lower court ruling in a suit Lungren brought against the San Francisco Cannabis Buyers Club, that the club could not be considered a caregiver under Proposition 215.
In addition, Lungren has said that his office would consider patients who grow marijuana themselves to be violating Proposition 215 if they possess more than an ounce a month of processed marijuana, or the number of plants needed to produce that amount.
Club operators and many patients argue that it is unrealistic to expect every patient to be able to cultivate marijuana plants at home. They say the clubs can ensure a safe supply and a safe delivery system at a reasonable cost.
In May, Lungren won his battle to shut down the San Francisco Cannabis Buyers Club, when Superior Court Judge William Cahill ruled it a public nuisance and state drug enforcement agents padlocked it. The club claimed to be serving about 9,000 patients, many of them suffering from AIDS.