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Drug Regulation

May the Court Allow Medical Dope Smoking? - United States v. Oakland Cannabis Buyers' Cooperative, 190 F.3d 1109 (9th Cir. 1999)

This case represents a skirmish in the war California and the Ninth Circuit are waging on the federal drug laws. Subsequent to referendum, California essentially legalized cannabis use, as long as the user made some claim as to medical necessity. The federal government sees cannabis use as a violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (the "Controlled Substances Act") and instructed the justice department to bring federal prosecutions to stop cannabis use that was permitted under California law. In this case the government sought an injunction against the Oakland Cannabis Buyers' Cooperative and others (collectively "OCBC") to prevent their distribution of cannabis. While the government could have prosecuted OCBC for felony drug possession and sale, we assume that they wanted to avoid the adverse publicity that would have ensued had they done so, since many of the individuals served have HIV and sympathetic treatment by the media.

The district court granted the injunction, holding that it had no authority to block an injunction based on valid federal law. The OCBC appealed, claiming that the injunction should not have been granted on grounds of a necessity defense to the Controlled Substances Act. (This is an attractive procedural device because it allows the necessity defense to be raised without the threat of jail time if it rejected.) After a very useful discussion of what injunctive orders can and cannot be appealed, the Circuit Court held that it would be proper to consider a medical necessity defense to the requested injunction, and instructed to district to reconsider its decision in light of the conditions for asserting a necessity defense as outlined in United States v. Aguilar, 883 F.2d 662, 693 (9th Cir.1989):

As a matter of law, a defendant must establish the existence of four elements to be entitled to a necessity defense: (1) that he was faced with a choice of evils and chose the lesser evil; (2) that he acted to prevent imminent harm; (3) that he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and (4) that there were no other legal alternatives to violating the law.

This ruling does not require the district court to modify its injunction, but it is likely to do so. The government may then contest the existence of the four factors or prosecute the OCBC under the Controlled Substances Act if it then distributes cannabis, which will allow OCBC to raise the medical necessity defense in its criminal trial.

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