Climate Change Project

Table of Contents



Drug Regulation

Defendants motion in opposition to the US request for an injunction in the Oakland Cannabis Buyer's Co-op case.

As published by Califorinia Norml.  Please see California NORML for More Information about this brief and other documents.

[ADDRESS Removed]

[ADDRESS Removed]

Specially appearing for Defendants

See signature pages for complete list
of parties joining in this pleading, Civil
L.R. 3-4(a)(1).




Plaintiff, ) Nos. C 98-00085 CRB
  )   C 98-00086 CRB
    v. )   C 98-00087 CRB
  )   C 98-00088 CRB
  )   C 98-00089 CRB
  )   C 98-20013 CRB

  Date: March 24, 1998
Time: 2:30 p.m.
Courtroom: 8

A. History of Medical Marijuana
B. History of Dispensaries
1. Substantive Due Process Protects Individuals from Government Actions That Violate Protected Personal Liberty Interests
2. The Due Process Clause Protects Clearly Established Fundamental Liberty Interests
3. The Substantive Due Process Interest At Issue Is Narrowly Defined
4. The Government Cannot Establish That The Broad Federal Proscription Against Distribution And Use Of Marijuana Is Narrowly Tailored To Meet A Compelling State Interest
1. Congress May Only Regulate Those Purely Intrastate Activities Which Have A Substantial Effect On Interstate Commerce
a). Pre-Lopez Cases
b). Post-Lopez Cases
2. Congress Did Not Intend The Controlled Substances Act To Reach Defendants' Activities
1. Joint Acquisition and Use of Cannabis for Medical Purposes Is Not "Distribution" or "Possession for Distribution" under the Federal Controlled Substances Act
2. Defendants Are Not in Violation of the Controlled Substances Act, Because They Are "Ultimate Users"
1. The Defense Of Medical Necessity Provides Complete Justification For The Defendants' Acts
2. The Defense of Entrapment is Available to the Extent That a Defense of Medical Necessity Would Be Precluded for Distribution to DEA Agents
1. Traditional Equitable Principles Apply To An Injunction Sought under Section 882
2. The Government Has Failed To Meet The Equitable Criteria For A Preliminary Injunction
a). The Government Has Failed To Show Probability Of Success On The Merits
b). The Government Has Not Established Irreparable Injury
c). Balance Of Hardships
d). Public Interest Favors Denial Of The Government's Motion
3. No Injunction Should Issue
4. Equitable Defenses Preclude Injunctive Relief
a). Unclean Hands
5. The Government Is Not Entitled To Summary Judgment And A Permanent Injunction
a). Because Genuine Issues of Fact Exist That Are Material to the Defenses Raised By Defendants, Summary Judgment and Permanent Injunctive Relief Are Inappropriate

Anderson v. Liberty Lobby, Inc.,
477 US 242 (1986)
Cruzan v. Director, MDH,
497 U.S. 261 (1990)477 US 242 (1986)
6, 8, 10, 11
Deshaney v. Winnebago Cty. Soc.Servs. Dept.,
489 U.S. 189 (1989)477 US 242 (1986)
Doe v. Bolton,
410 U.S. 179 (1973) 477 US 242 (1986)
Furman v. Georgia,
408 U.S. 238 (1972) 477 US 242 (1986)
6, 8
Ingraham v. Wright,
430 U.S. 651 (1977) 477 US 242 (1986)
6, 7
Johnson v. Yellow Cab Transit Co.,
321 U.S. 383 (1944) 477 US 242 (1986)
Los Angeles v. Lyons,
461 U.S. 95 (1983) 477 US 242 (1986)
Matthews v. United States,
485 U.S. 58 (1988) 477 US 242 (1986)
Matsushita v. Zenith Radio Corp.,
475 U.S. 574 (1986) 477 US 242 (1986)
Parenthood v. Casey,
505 U.S. 833 (1992) 477 US 242 (1986)
Precision Instrument v. Automotive Maintenance,
324 U.S. 806, (1945) 477 US 242 (1986)
Rochin v. California,
342 U.S. 165 (1952) 477 US 242 (1986)
Sherman v. United States,
356 U.S. 369 (1958) 477 US 242 (1986)
27, 28
Sorrels v. United States,
287 U.S. 435 (1932) 477 US 242 (1986)
Stafford v. Wallace,
258 U.S. 495 (1922) 477 US 242 (1986)
United States v. Bailey,
444 U.S. 394 (1980) 477 US 242 (1986)
United States v. Lopez,
514 U.S. 549 (1995) 477 US 242 (1986)
13, 14, 15, 16
United States v. Jacobson,
112 S.Ct. 1535 (1992) 477 US 242 (1986)
United States v. Russell,
411 U.S. 423 (1972) 477 US 242 (1986)
Washington v. Glucksberg,
___ U.S. ___, 117 S.Ct. 2258 (1997) 477 US 242 (1986)
4, 5, 6, 7, 8, 9, 11, 12
Weinberger v. Romero-Barcelo,
456 U.S. 305 (1982) 477 US 242 (1986)
Equal Employment Opportunity Comm. v. Recruit U.S.A.,
939 F.2d 746 (1991) 477 US 242 (1986)
Miller v. California Pacific Medical Center,
19 F.3d 449 (9th Cir. 1994) 477 US 242 (1986)
30, 32
Notaro v. United States,
363 F.2d 169 (9th Cir. 1966) 477 US 242 (1986)
United States v. Aguilar,
883 F.2d 662 (9th Cir.1989) 477 US 242 (1986)
United States v. Ashton,
24 Fed.Cas.No. 14,470, (C.C.D. Mass. 1834) 477 US 242 (1986)
United States v. Bartee,
479 F.2d 1390 (10th Cir. 1973) 477 US 242 (1986)
United States v. Burton,
894 F.2d 188 (6th Cir. 1990) 477 US 242 (1986)
23, 24
United States v. Desert Gold Mining Co.,
448 F.2d 1230 (9th Cir.1971) 477 US 242 (1986)
United States v. Escobar De Bright,
742 F.2d 1196 (9th Cir. 1984) 477 US 242 (1986)
United States v. Henson,
123 F.3d 1226 (9th Cir. 1997) 477 US 242 (1986)
United States v. Kim,
94 F.3d 1247 (9th Cir. 1996) 477 US 242 (1986)
15, 20
United States v. Montes-Zarate,
552 F.2d 1330 (9th Cir. 1977) 477 US 242 (1986)
United States v. Nutri-Cology, Inc.,
982 F.2d 394 (9th Cir.1992) 477 US 242 (1986)
United States v. Odessa Union Warehouse Co-op,
833 F.2d 172 (9th Cir. 1987) 477 US 242 (1986)
31, #32
United States v. Pappadopoulos,
64 F.3d 522 (9th Cir. 1995) 477 US 242 (1986)
United States v. Rodriquez-Camacho,
468 F.2d 1220, (9th Cir. 1972) 477 US 242 (1986)
14, 15, 16
United States v. Rush,
738 F.2d 497 (1st Cir. 1984) 477 US 242 (1986)
United States v. Staples,
85 F.3d 461 (9th Cir. 1996) 477 US 242 (1986)
United States v. Swiderski,
548 F.2d. 445 (2nd Cir. 1977) 477 US 242 (1986)
20, 21, 22
United States v. Thornton,
901 F.2d 738 (9th Cir. 1990) 477 US 242 (1986)
United States v. Tisor,
96 F.3d 370 (9th Cir. 1996) 477 US 242 (1986)
13, 14, 15
United States v. Visman,
919 F.2d 1390 (9th Cir. 1990) 477 US 242 (1986)
14, 15, 16, 20
United States v. Wright,
593 F.2d. 105 (1979) 477 US 242 (1986)
Conant v. McCaffrey,
172 F.R.D. 681 (N.D.Cal. 1997) 477 US 242 (1986)
18, 32, 33
United States v. Holmes,
26 Fed.Cas.No. 15, 383, (C.C.E.D. Pa. 1842) 477 US 242 (1986)
United States v. Randall,
104 Daily Wash.L.Rptr. 2249 (D.C. Super. 1976) 477 US 242 (1986)
23, 24
People v. Trippet,
56 Cal.App.4th 1532, (1997) 477 US 242 (1986)
State v. Bachman,
595 P.2d 287 (Hawaii 1979) 477 US 242 (1986)
State v. Diana,
604 P.2d 1312 (Wash.App. 1979) 477 US 242 (1986)
State v. Hastings,
801 P.2d 563 (Idaho 1990) 477 US 242 (1986)

    Defendants herein, by and through their respective counsel, specially appearing, submit the following Opposition to Plaintiff United States' Motion For Preliminary Injunction And Permanent Injunction And For Summary Judgment:


    On January 9th 1998, the Government filed the instant suit against six medical cannabis dispensaries pursuant to 21 USC 882. On January 30, 1998, over the government's objections, this Honorable Court granted defendants' Motion for Continuance and directed defendants to file Memoranda addressing the effect of federal law on defendants' activities protected by Proposition 215, codified as California Health & Safety Code 11362.5. Defendants submit their Opposition herein.

        A. History of Medical Marijuana
        The medicinal use of cannabis can hardly be characterized as a "recent" phenomenon. The first recorded use of marijuana medicinally was over five thousand years ago. During the reign of the Chinese Emperor, Chen Nung, it was written that cannabis provided relief for malaria, constipation, rheumatic pains, and other conditions.
        In the Anatomy of Melancholy, published in 1621, the English clergyman Robert Burton suggested the use of cannabis in the treatment of depression.. The New English Dispensary of 1764 recommended applying a cannabis compress to the skin to relieve inflammation.
        Between 1840 and 1900, more than 100 papers were published in Western medical literature concerning the medicinal benefits of cannabis. In 1839, Dr. W.B. O'Shaughnessy, a professor at the medical college of Calcutta wrote that a tincture made of hemp proved to be an effective analgesic.
        Cannabis was first listed in the United States Dispensatory in 1854. It was common during that era for commercial cannabis preparations to be available in drugstores. In 1860, Dr. R.R. M'Meens reported numerous medical uses for cannabis to the Ohio State Medical Society. In 1887, H.A. Hare wrote of the benefits of cannabis in the treatment of terminal patients. In 1891, Dr. J. B. Mattison urged physicians to use hemp as an analgesic and to treat such conditions as chronic rheumatism and migraine. In 1937, the United States passed the Marihuana Tax Act at the urging of Harry Anslinger, a government agent who had essentially been put out of business with the repeal of prohibition. Mr. Anslinger was instrumental in convincing the public of the dangers of marijuana thought such means as the film "refer madness"
        In 1938, Mayor Fiorello LaGuardia appointed a committee of scientists to study the medical, sociological, and psychological effects of marijuana use in New York. The study was published in 1944, finding no proof that major crime was associated with marijuana, or that it caused any aggressive or antisocial behavior. Harry Anslinger denounced this report and it was essentially ignored by the government.
        In 1970, Congress passed the Controlled Substances Act, at which time President Nixon appointed the Presidential Commission on Marihuana and Drug Abuse, aka the Shafer Commission, to study marijuana and report back to Congress. The purpose was to assist Congress in determining the appropriate scheduling of marijuana. When the Commission found that there was no basis for placing marijuana in Schedule I, Congress and the President virtually ignored its scientific judgment.          On September 6, 1988, after a Court order forced the DEA to hold two years of hearings before its own administrative law judge, the Honorable Francis L. Young ruled that approval by a significant minority of physicians was enough to met the standard of "currently accepted medical use in treatment in the United States" established by the Controlled Substances Act for a schedule II drug. Judge Young wrote that "marihuana, in its natural form, is one of the safest therapeutically active substances known to man.... One must reasonably conclude that there is accepted safety for use of marihuana under medical supervision. To conclude otherwise, on the record, would be unreasonable, arbitrary, and capricious." Judge Young's findings were, not surprisingly, ignored by the government.

        B. History of Dispensaries
        Proposition 215 was not the first effort in California to allow for the use of medicinal marijuana. In two consecutive years, the California legislature passed medical marijuana bills, only to see them vetoed by Gov. Pete Wilson. Finally, in 1996, the voters of the state placed an initiative on the ballot. It passed on November 5, 1996, receiving 56% of the vote. In response to the voters' demand that "seriously ill Californians have the right to obtain and use marijuana for medical purposes where the medical use is deemed appropriate by a physician", numerous medical cannabis dispensaries, including the defendants herein, sprang up to meet the needs of patients. These dispensaries provided safe and affordable medicine that patients had previously only found available on the black market, and then only at exorbitant prices and of questionable quality.


    Defendants herein contend that the government's pending motion should be denied. Defendants' argument can be summarized as follows:
        A. Substantive Due Process Bars The Government From Enforcing The Sections Of the Controlled Substances Act It Seeks To Apply To Defendants.
        B. The Controlled Substances Act Does Not Reach The Defendants' Activities Which Are Wholly Intrastate In Nature.
        C. Defendants' Activities Are Exempt From Application Of The Controlled Substances Act.
        D. Defendants' Activities Are Justified By The Defense Of Necessity.
        E. The Government Cannot Meet The Standards For The Injunctive Relief It Seeks.


            1. Substantive Due Process Protects Individuals
                from Government Actions That Violate
                Protected Personal Liberty Interests.

            The United States Supreme Court has established that individuals are protected under the Due Process clauses of the Fourteenth and Fifth Amendments from State or Federal intrusions into their "fundamental liberty interests". Substantive Due Process has come to stand for protection of numerous un-enumerated liberties. As Justice Rehnquist recently described in Washington v. Glucksberg, ___ U.S. ___, 117 S.Ct. 2258 (1997).

The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. . . . The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry; to have children; to direct the education and upbringing of one's children; to marital privacy; to use contraception; to bodily integrity; and to abortion. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment.
Glucksberg at 2267, (citations omitted).

            In applying Substantive Due Process analysis, the Chief Justice in Glucksberg explained that government action must be "narrowly tailored to serve a compelling [government] interest" where a "fundamental liberty interest" is involved. Such interests arise where the interest protected is firmly rooted in history and tradition and is carefully described:

Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition," ("so rooted in the traditions and conscience of our people as to be ranked as fundamental"), and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed" . . . . Second, we have required in substantive due process cases a "careful description" of the asserted fundamental liberty interest. Our Nation's history, legal traditions, and practices thus provide the crucial "guideposts for responsible decision-making," that direct and restrain our exposition of the Due Process Clause. As we stated recently . . . , the Fourteenth Amendment "forbids the government to infringe ... 'fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest."
Glucksberg, at 2268 (citations omitted).

            Justice Souter in his concurrence to Glucksberg argues the application of Substantive Due Process based on a "concept of 'ordered liberty'... comprising a continuum of rights to be free from 'arbitrary impositions and purposeless restraints.'" Glucksberg, at 2281- 2 (Souter, J., concurring). Justice Souter described his standard for a substantive due process right as follows:

This approach calls for the court to assess the relative "weights" or dignities of the contending interests .... [This] method is subject to two important constraints.... First, such a court is bound to confine the values that it recognizes to those truly deserving constitutional stature, either to those expressed in constitutional text, or those exemplified by the "the traditions from which [the nation] developed" or revealed by contrast with "the traditions from which it broke."

            The second constraint, again, simply reflects the fact that constitutional review, not judicial lawmaking, is a court's business here. ... It is only when the legislation's justifying principle, critically valued, is so far from being commensurate with the individual interest as to be arbitrarily or pointlessly applied that the statute must give way.

Glucksberg, at 2283 (Souter, J., concurring) (citations omitted).

            Under either the Rehnquist or Souter standard, the High Court would resolve Defendants' substantive due process claims similarly.

            2. The Due Process Clause Protects Clearly
                Established Fundamental Liberty Interests.

            Defendants' liberty interests meet the first prong of the Rehnquist analysis of substantive due process: The right of patients to obtain physician-recommended treatment that would alleviate pain and preserve life is strongly reflected in our nation's traditions and the Supreme Court's historic substantive due process analysis. The Court has found due process interests in preserving life and caring for oneself. Id. Moreover, substantive due process analysis indicates that the Fourteenth and Fifth Amendments protect a fundamental interest to receive palliative treatment for a painful medical condition. Id.
            "Many of the rights and liberties protected by the Due Process Clause sound in personal autonomy". Glucksberg, at 2271. There is no liberty more firmly established than the fundamental interest to be free from physical pain imposed by the government for arbitrary and capricious reasons. The highest Court in the land has continuously and persistently measured and evaluated Substantive Due Process claims in terms of the physical pain imposed upon the individual by government restraints. Furman v. Georgia, 408 U.S. 238 (1972). (Substantive Due Process implicated where death penalty imposed under a method inflicting "unnecessary pain"); Doe v. Bolton, 410 U.S. 179 (1973), (considerations of an individual's Substantive Due Process right to abortion include the fact that pregnancy requires one "to incur pain" and a "higher mortality rate"); Ingraham v. Wright, 430 U.S. 651 (1977) (school children's Substantive Due Process violated by corporal punishment, discussed infra); Los Angeles v. Lyons, 461 U.S. 95 (1983) (arrestee's Substantive Due Process violated by police utilizing unnecessarily painful chokeholds); Cruzan v. Director, MDH, 497 U.S. 261 (1990), (pain suffered by patient in persistent vegetative state relevant to inquiry of fundamental interest to deprive oneself of nutrition and hydration, discussed infra); Planned Parenthood v. Casey, 505 U.S. 833 (1992) ("anxieties," "physical constraints," and "pain" of women carrying child to term basis of Substantive Due Process right for a woman to elect an abortion); Rochin v. California, 342 U.S. 165 (1952) (violation of Substantive Due Process to pump arrestee's stomach to preserve evidence); and Washington v. Glucksberg, ___ U.S. ___ (1997) (terminally ill patient rights to palliative treatment implicate to Substantive Due Process, discussed infra).
            In Ingraham v. Wright, supra, the Supreme Court cited the long history and tradition of constitutional rights respecting individual integrity:

The Due Process Clause of the Fifth Amendment, later incorporated into the Fourteenth, was intended to give Americans at least the protection against governmental power that they had enjoyed as Englishmen against the power of the Crown. The liberty preserved from deprivation without due process included the right "generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Among the historic liberties so protected was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.

While the contours of this historic liberty interest in the context of our federal system of government have not been defined precisely, they always have been thought to encompass freedom from bodily restraint and punishment. It is fundamental that the state cannot hold and physically punish an individual except in accordance with due process of law.

This constitutionally protected liberty interest is at stake in this case. . . . where school authorities, acting under color of state law, inflict appreciable physical pain, we hold that [Due Process] liberty interests are implicated.

Ingraham, at 672-3 (footnotes and citations omitted) (emphasis added).

            Not only is the prevention of unnecessary pain established under the Due Process Clause, but is also clearly established as a basic enumerated fundamental right in regard to punishment under the Eighth Amendment barring cruel and unusual punishment. As was true in Ingraham, the High Court has drawn from the history of the Eighth Amendment in defining the parameters of Substantive Due Process. Where the issue of unnecessary pain is involved, Substantive Due Process is often analyzed as a parallel to the Eighth Amendment. Thus, in Furman v. Georgia, 408 U.S. 238 (1972), the Court surmised a confluence between the two approaches. "[C]ruel and unusual punishment and substantive due process become so close as to merge." Furman, at 359.
            The relevance of infliction of pain by the state as the basis for Substantive Due Process claims is not limited to those areas involving discipline or criminal punishment. Pain analysis was also highly relevant to Substantive Due Process analysis in Cruzan, supra. There, the Court considered whether the state of Missouri could require "clear and convincing" evidence that a patient wished to terminate artificial nutrition treatment after an automobile accident left her in a persistent vegetative state.
            Most recently, the Supreme Court considered whether an individual had a substantive due process right to have the assistance of a physician in committing suicide. Washington v. Glucksberg, supra. In that case, four terminally ill patients and their doctors petitioned the court for the permission to proceed with doctor-assisted suicides. As in the previous instances, the notion that the state would subject an individual to unnecessary pain weighed heavy in the minds of the Justices.
            Although the Court's opinion in Glucksberg was unanimous in result, it was not so in its reasoning. Justice O'Conner and four other Justices filed separate concurrences, each of which supports the position maintained by Defendants herein that Substantive Due Process protects an individual's right to obtain medical treatment that alleviates unnecessary pain. Her opinion makes clear that suffering patients are presumed to have access to any palliative medication that would alleviate pain even were such medication might hasten death. "[A] patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians". Glucksberg, at 2303 (emphasis added).
            Similarly, Justice Breyer's concurrence turned on issues of a consideration of the pain suffered by patients. Breyer's opinion suggested that a "right to die with dignity" may in fact be protected under the Constitution. He argued that such a right would include a right to "professional medical assistance" and "the avoidance of unnecessary and severe physical suffering." Glucksberg, at 2311 (J. Breyer, concurring). Justice Breyer made clear that the presence of pain was a determinative factor in his mind: "[I]n my view, the avoidance of severe physical pain (connected with death) would have to comprise an essential part of any successful claim". Id.
            Justice Souter's concurrence similarly stresses an individual's right to make decisions with one's own doctor along with considering the pain and incumbent indignity suffered by an individual. Justice Souter writes, "[The] liberty interest in bodily integrity was phrased . . . by [Justice] Cardozo when he said, '[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body' in relation to his medical needs." Glucksberg at 2288 (Souter, J., concurring). He explained further,

[T]he Court [has] recognized that the good physician is not just a mechanic of the human body whose services have no bearing on a person's moral choices, but one who does more than treat symptoms, one who ministers to the patient .... This idea of the physician as serving the whole person is a source of the high value traditionally placed on the medical relationship.
Glucksberg, at 2288-89, (citation omitted).

            Finally, Justice Stevens asserts with regard to the protected "sphere of substantive liberty":

Whatever the outer limits of the concept may be, it definitely includes protection for matters "central to personal dignity and autonomy." It includes, "the individual's right to make certain unusually important decisions that will affect his own, or his family's, destiny. The Court has referred to such decisions as implicating 'basic values,' as being 'fundamental,' and as being dignified by history and tradition.
Glucksberg, at 2307 (Stevens, J., concurring) (citation omitted).

            Defendants herein assert that they maintain a fundamental liberty interest in physician recommended treatment to alleviate physical pain in the face of governmental restraint. The Defendant dispensaries are cooperatives composed of members who are patients whose doctors have recommended cannabis for medical purposes. Many of the members are terminally ill cancer or AIDS patients. As a result of their conditions, they experience intense pain and nausea. Others are glaucoma patients, threatened with permanent blindness. Defendants can prove that cannabis is unique in its ability to relieve these symptoms. The government now seeks an injunction that would prevent these Defendants from obtaining this necessary treatment.
            In a similar vein, Defendants' interests are bolstered by a second established fundamental interest in the right to provide care for oneself. Although this right is usually implicated where an individual is incarcerated and does not have access to necessary medical treatment, the argument is equally applicable to a situation where the government denies medical treatment by enacting laws proscribing such:

[W]hen the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs -- e. g., food, clothing, shelter, medical care, and reasonable safety -- it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf -- through incarceration, institutionalization, or other similar restraint of personal liberty -- which is the "deprivation of liberty" triggering the protections of the Due Process Clause.
Deshaney v. Winnebago Cty. Soc.Servs. Dept., 489 U.S. 189, 200 (1989) (citation omitted).

            The government's restraint on the distribution of cannabis prevents the defendant patients from obtaining medical care for themselves, as protected by Deshaney. This is particularly egregious where the treatment sought is that to alleviate pain as discussed above.
            The interest of some of these member/patients in preventing unnecessary pain, in treating themselves, and in preserving eyesight, is surpassed only by a third firmly rooted liberty interest, that of preserving life. It is without question that an individual has a liberty interest in preserving his or her life. As the Supreme Court explained in Cruzan, supra, "[i]t cannot be disputed that the Due Process Clause protects an interest in life." Cruzan, at 281. Many of the cooperative members would needlessly place their lives in jeopardy were they denied the right to the medical use of cannabis. Many chemotherapy patients and AIDS patients are so plagued with nausea and discomfort that they are unable to eat. Without basic nourishment, their conditions are aggravated and they are essentially at risk of starving to death.
            Defendants herein present compelling circumstances. The history and traditions of Substantive Due Process make clear that bodily integrity is an area of fundamental importance. The interests protected, relief from pain, self care, and preservation of life, are so ingrained in our nation's traditions and are so firmly rooted in our concepts of ordered liberty that they are fundamental. The right to live, pain- free under the care of one's physician without arbitrary interference from the government, is at stake.

            3. The Substantive Due Process
                Interest At Issue Is Narrowly Defined.

            The Defendant patients assert Constitutional protection from the federal government's interference with their right legally to obtain cannabis, with a doctor's recommendation, for treatment of painful and life-threatening medical conditions. Unlike the plaintiff doctors in Glucksberg various Defendants in the instant action assert personal interests as the Controlled Substances Act applies specifically to them. Each of the Defendant cooperative's members has a medical condition for which a physician has recommended treatment with cannabis. Without the treatment some will suffer pain, some will risk blindness, and others will die of malnutrition. The only barrier to this treatment is the broad federal proscription against the distribution of marijuana. The interest asserted by Defendants is sufficiently defined to pass the "narrowly described" standard of the Rehnquist analysis. ///

            4. The Government Cannot Establish That The
                Broad Federal Proscription Against Distribution
                And Use Of Marijuana Is Narrowly Tailored
                To Meet A Compelling State Interest.

            As the Court laid out in Glucksberg, where fundamental liberty interests that are narrowly described are demonstrated, any restraint on those interests must be narrowly tailored to serve a compelling state interest. Defendants contend that the federal proscription against the possession and distribution of marijuana is unnecessarily overbroad and arbitrary where it restrains the terminally ill and others in chronic pain from obtaining an essential medication to alleviate their pain and in some cases contribute to the preservation of life1.
            Congress has recognized and declared that "[m]any... drugs... have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people." 21 USC 801(1). Congress has also declared that "[t]he illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people." 21 USC 801(2). Thus the government has a legitimate interest both in assuring that appropriate medicines are made available, and in stemming the abuse of controlled substances.
            In the case of numerous other substances, the government has acted to provide for medical use while limiting abuse. In the case of marijuana, however, the means employed by the government abysmally fail to accomplish the purpose stated in 21 USC 801(1) and are therefore an affront to the concept of Substantive Due Process.


            1. Congress May Only Regulate Those Purely
                Intrastate Activities Which Have A
                Substantial Effect On Interstate Commerce.

            In determining whether congress may properly regulate an activity pursuant to its power derived under the Commerce Clause, Courts have recognized that the activity to be regulated must fall into one of three categories.

"First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress's commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce." Lopez, --- U.S. at ---- - ----, 115 S.Ct. at 1629-30 (citations omitted); see also Perez, 402 U.S. at 150, 91 S.Ct. at 1359 (same).
<>U.S. v. Pappadopoulos, 64 F.3d 522, 525-526 (9th Cir. 1995).

            In the Lopez case, the Supreme Court declared the Gun-Free School Zones Act unconstitutional on the basis that the act purported to reach purely intrastate conduct that had no substantial effect on interstate commerce. United States v. Lopez, 514 U.S. 549 (1995). Relying on this holding, this Circuit found that a particular activity may be regulated by the Controlled Substances Act, (21 USC 801, et seq.), only if it can be found to fall into one of the three categories identified in Lopez. U.S. v. Tisor, 96 F.3d 370, 374 (9th Cir. 1996).
            It cannot be argued that defendants' activities constitute either 1) channels or 2) instrumentalities of interstate commerce. Defendants will be able to prove that their activities are purely intrastate in nature. Thus, in order for Congress to lawfully regulate defendants' activities through the promulgation and enforcement of the sections of the Controlled Substances Act now advanced by the Government, (21 USC 841, 846, and 856), the Government must establish that defendants' intrastate activities are substantially related to interstate commerce. Tisor, at 375.
            This Circuit has previously considered and rejected Commerce Clause challenges to prosecutions under the Controlled Substances Act, both before and after Lopez. However, a review of these cases, when juxtaposed against defendants' activities, establishes that they are materially distinguishable from the matter now before the Court.

                 a) Pre-Lopez Cases
                Prior to the Supreme Court's recent decision in Lopez, this Circuit considered four cases in which defendants, charged with one or more of the sections of the Controlled Substances Act now relied upon by the Government, challenged the applicability of the Act to their allegedly intrastate activities: U.S. v. Rodriquez-Camacho, 468 F.2d 1220, (9th Cir. 1972), (possession of 99 pounds of marijuana with intent to distribute, in violation of 21 U.S.C. 841); U.S. v. Montes-Zarate, 552 F.2d 1330 (9th Cir. 1977), (possession of marijuana with intent to distribute, in violation of 21 U.S.C. 841); U.S. v. Thornton, 901 F.2d 738 (9th Cir. 1990), (sale of PCP within 1000 feet of a school, in violation of 21 USC 845a, (currently 860), which provided for an enhancement to the penalty for violation of 841); and U.S. v. Visman, 919 F.2d 1390 (9th Cir. 1990), (Cultivation of marijuana, in violation of 841, 846, and 856).
                In these cases this Circuit recognized that Congress could regulate wholly intrastate activity only if it had an effect on interstate commerce. Rodriquez-Camacho, at 1221; see also Visman, at 1392.
                In finding such a relationship in each case, the court relied on Congressional findings, as set forth in 21 USC 801, that the intrastate activities in controlled substances affects interstate commerce. Rodriquez-Camacho, at 1221; Montes-Zarate at 1331; Thornton, at 741; Visman, at 1392.
                This Circuit recognized, however, that the Congressional findings in 21 USC 801 were not inherently dispositive, but created in effect a rebuttable presumption. "This court will certainly not substitute its judgment for that of Congress in such a matter unless the relation of the subject to interstate commerce and its effect upon it are clearly nonexistent. [Citation Omitted]." Rodriquez-Camacho, at 1222; Visman, at 1393.

                b) Post-Lopez Cases
                Following the Lopez decision, this Circuit revisited the question of regulation of intrastate activity under the Controlled Substances Act, considering four new challenges: U.S. v. Staples, 85 F.3d 461 (9th Cir. 1996), (use of firearm while distributing cocaine, in violation of 18 U.S.C. 924(c)(1), the underlying offense being a violation of 841); U.S. v. Kim, 94 F.3d 1247, 1248 (9th Cir. 1996), (possession of methamphetamine with the intent to distribute, in violation of 21 USC 841); U.S. v. Tisor, 96 F.3d 370 (9th Cir. 1996), (conspiracy to distribute and distribution of methamphetamine, in violation of 841 and 846); and U.S. v. Henson 123 F.3d 1226 (9th Cir. 1997), (distribution of PCP in violation of 841 and 846).
                In these cases considered in the aftermath of Lopez, this Circuit noted that Congress could properly regulate intrastate activity that "substantially affected interstate commerce." [Emphasis added]. Staples, at 463; see also Tisor, at 375; Henson, at 1233. Once again, the decisions in these cases rested upon Congressional findings that intrastate drug trafficking has a substantial effect on interstate commerce. Kim, at 1250;
                As the Tisor Court explained:

The challenged laws are part of a wider regulatory scheme criminalizing interstate and intrastate commerce in drugs. In adopting the Controlled Substances Act, Congress expressly found that intrastate drug trafficking had a "substantial affect" on interstate commerce. Accordingly, we hold that the Controlled Substances Act does not exceed Congressional authority under the Commerce Clause.
Tisor, at 375.

                Each of these cases, both pre- and post-Lopez, is materially distinguishable from the matter now before the Court on two distinct grounds: 1) each of the above cases involved intrastate activities that inarguably constituted violations of state law, as opposed to the case at bar where the defendants' activities are sanctioned by California Health & Safety Code 11362.5; and 2) each of these cases involved intrastate illicit drug trafficking activities in the same "class of activities" as those interstate activities prohibited by the Controlled Substances Act, while the defendants now before the Court, as will be established below, are involved in conduct that is not in the "class of activities" prohibited by the sections of the Controlled Substances Act relied upon by the government.

            2. Congress Did Not Intend The Controlled
                Substances Act To Reach Defendants' Activities.

            As noted above, Courts have consistently found that Congress may lawfully regulate those purely intrastate activities which substantially effect interstate commerce. In applying this principle to prosecutions under the Controlled Substances Act, Courts have deferred to Congressional findings that intrastate drug trafficking has just such a substantial effect on interstate drug trafficking. Just as consistently, though, it has been recognized that a Court will not defer to this Congressional finding where "the relation of the subject to interstate commerce and its effect upon it are clearly nonexistent." Stafford v. Wallace, 258 U.S. 495, 521, (1922); U.S. v. Rodriquez-Camacho, 468 F.2d 1220, 1222 (9th Cir. 1972); U.S. v. Visman, 919 F.2d 1390, 1392 (9th Cir. 1990).
            A review of the Congressional findings to which the Courts refer in the above-referenced decisions, in the context of defendants' conduct herein, is illustrative of the inapplicability of 841, 846, and 856 of the Controlled Substances Act to these defendants.
            The first Congressional finding, 21 USC 801(1), states:

    (1) Many of the drugs included within this subchapter have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people.
            Thus it is clear that Congress has recognized that a drug may serve a legitimate, beneficial medical purpose.2 In subsection (2), Congress recognized the converse:
    (2) The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people.
            Here Congress focus specifically on "illegal" and "improper" use which has a "detrimental" effect on health. The conduct of the defendants (providing cannabis for the relief of seriously ill patients who have obtained a recommendation and/or approval of a physician for the medical use of cannabis, all under color of state law) can only rationally be viewed as falling within the activities envisioned by Congress in subsection (1) as opposed to subsection (2).
            In subsection (3) Congress declared:
    (3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because --
    (a) after manufacture, many controlled substances are transported in interstate commerce,
    (b) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and
    (c) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession.
            Here Congress identified three distinct grounds for its conclusion that intrastate trafficking in controlled substances substantially effects interstate commerce.
            Congress first noted that controlled substances are often transported across state lines after manufacture. Such a concern is not applicable to defendants' activities. Defendants will be able to prove that they distribute individually small amounts of cannabis to a discreet class of persons for relatively immediate medicinal use in California, all in accordance with the state law that specifically prohibits diversion for nonmedical purposes. (See H&S 11362.5(b)(2)).
            Congress next recognized that controlled substances are often transported over state lines immediately prior to their distribution. Again this concern is not applicable to defendants' activities. Defendants will be able to prove that the medicinal cannabis they distribute is cultivated under controlled conditions in California.
            Finally Congress found that controlled substances are often transported over state lines immediately prior to their possession. As established above, this concern is equally inapplicable to defendants' activities as defendants will be able to prove that the medicinal cannabis they distribute is grown, distributed, and consumed wholly within the borders of California.
            Congress next found, in subsection (4), that:
    (4) local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.
            In considering this finding it is easy to see how defendants' activities, which are condoned by state law, have no relation to the illicit interstate trafficking Congress sought to proscribe. Unlike the intrastate trafficking considered by this Circuit in previous cases, defendants' activities in providing a medicine to a discreet class of persons do not have any effect on interstate illicit drug trafficking. Judge Fern Smith of this Honorable Court recognized such when she ruled that "the government's fears in this case are exaggerated and without evidentiary support. It is unreasonable to believe that use of medical marijuana by this discrete population for this limited purpose will create a significant drug problem." Conant v. McCaffrey, 172 F.R.D. 681, 694 n5 (N.D.Cal. 1997).
            Congress next found that:
    (5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, it is not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.
            If considering intrastate illicit drug trafficking versus interstate illicit drug trafficking, Congress' findings here are clearly applicable. However, the concerns evidenced by Congress in this subsection are once again allayed when viewed in the context of defendants' conduct. Defendants will be able to prove that the medicinal cannabis they distribute is clearly and unambiguously labeled as such. No reasonable person could confuse the labeled medicinal cannabis distributed by the defendants herein with illicit black market marijuana, or vice versa.
            In subsection (6) Congress noted that:
    (6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic.
            Again, it is clear that Congress is concerned with intrastate trafficking effecting interstate trafficking. As noted above and recognized by Judge Smith, the suppression of defendants' activities, clearly separate from and unrelated to black market drug trafficking, be it intrastate or interstate, is not essential to the control of illegal interstate commerce in drugs. In fact, the converse is true: Barring these defendants from providing a safe affordable source of medicinal cannabis will only serve to drive seriously ill patients into the waiting and willing arms of the black marketeers, thus swelling the interstate illicit drug trade. This certainly was not the intention of Congress in promulgating the Controlled Substances Act.
            Finally, Congress recognized the international attempt to curb the illicit traffic in drugs, finding that:
    (7) The united states is a party to the single convention on narcotic drugs, 1961, and other international conventions designed to establish effective control over international and domestic traffic in controlled substances.
            Here again, the emphasis is on "drug trafficking", a class of activity in which the defendants herein are not involved.
            Thus it is readily apparent that the Congressional findings stated in 21 USC 801 are not applicable to the defendants' conduct herein. When defendants' activities are observed under the illumination of these findings, it is clear that defendants' activities are not within the "class of activities" that adversely effect interstate commerce. (See U.S. v. Kim, 94 F.3d 1247, 1249 (9th Cir. 1996); U.S. v. Visman, 919 F.2d 1390, 1392-93 (9th Cir. 1990). The Government cannot show that defendants' purely intrastate activities have any substantial effect on interstate commerce. Under these circumstances, the Controlled Substance Act is unconstitutional as applied to these defendants.


            1. Joint Acquisition and Use of Cannabis for
                Medical Purposes Is Not "Distribution" or
                "Possession for Distribution" under the
                Federal Controlled Substances Act.

            In United States v. Swiderski, 548 F.2d. 445 (2nd Cir. 1977), two individuals purchased cocaine together, then shared it. After they were convicted of the federal crime of distribution, the Second Circuit Court of Appeal held that "where two or more individuals simultaneously and jointly acquire possession of a drug for their own use, intending only to share together, the only crime is personal drug abuse -- simple joint possession, without any intent to distribute the drug further." Id. at 450. The court reasoned that Congress, in making the penalties much harsher for distributing drugs than for possessing them, was concerned that distribution has the dangerous, unwanted effect of drawing additional participants into the web of drug abuse. Id. Because the concerns are not present in a situation of joint purchasers, it was error not to instruct the jury that it could find possession without any distribution. Id. at 452
            At a trial on the merits, Defendants herein would be able to demonstrate that under Swiderski, they are not guilty of the federal crimes of distribution, or possession for distribution, because their alleged control of medical cannabis is established through a cooperative enterprise, shared equally among all of the members thereto, for the exclusive medicinal use of each of them, individually. Defendants will be able to demonstrate that there are no third parties involved, nor is anyone else being brought into a "web" of drug use.
            Further, Defendants will be able to establish that this is an enterprise that is legal under the laws of the State of California. Cooperatives are a commonly authorized legal entity. The activity allegedly being conducted is lawful and authorized under the Compassionate Use Act of 1996 (H&S 11362.5).
            In the context of illicit drug transactions, the Ninth Circuit limited Swiderski to its facts in United States v. Wright, 593 F.2d. 105 (1979). In Wright, a person asked the defendant to purchase heroin, and gave him money for that purpose. The defendant went out on his own, procured the heroin, brought it back and then participated in its consumption. The court held that it was not error to deny a jury instruction based on the doctrine of joint possession, because the defendant "facilitated the transfer of the narcotic; he did not simply simultaneously and jointly acquire possession of a drug for their (his and another's) own use." Id.
            At a trial of this matter on the merits, Defendants in this case will be able to demonstrate that, unlike the situation in Wright, Defendants do not give money to others for the purposes of procuring drugs for recreational use. Rather, Defendants in this case act in concert as cooperatives to ensure the safe and affordable access to cannabis for medicinal purposes for each of the members. In Wright, the Court was concerned with defendants using the Swiderski defense in a "typical" drug deal. Here, any cannabis possessed is exclusively for medicinal purposes. The activity is not illicit, because it is medicinal in nature and authorized by California law.
            In United States v. Rush, 738 F.2d 497 (1st Cir. 1984), the Court upheld a Swiderski instruction in a case involving "tons" of marijuana. The Court concluded, "[T]he Swiderski defendants were entitled to pursue whatever factual defense they could support, however implausible it might seem to a finder of fact in this case they may have had a colorable alternative." Id. at 514. As the Court noted in United States v. Escobar De Bright:

[T]he general principle is well established that a criminal defendant is entitled to have a jury instruction on any defense which provides a legal defense to the charge against him and which has some foundation in the evidence, even though the evidence be weak, insufficient, inconsistent and doubtful of credibility.
Id., 742 F.2d 1196, 1198 (9th Cir. 1984).

            Here, the evidence is strong, sufficient, consistent, and credible and would almost certainly result in an acquittal of the Defendants by a jury.

            2. Defendants Are Not in
                Violation of the Controlled
                Substances Act, Because
                They Are "Ultimate Users".

            Section 802(27) of the Controlled Substances Act defines an "ultimate user" as "a person who has lawfully obtained, and who possesses a controlled substance for his own use or for the use of a member of his household ...." Under the Act, an ultimate user is permitted to possess a Schedule I controlled substance, including marijuana, without being in violation of the Act and without being required to register with the Attorney General.
            At a trial on the merits, Defendants would be able to demonstrate that they fit squarely into the "ultimate user" exemption of the Controlled Substances Act. Defendants could show that California Health & Safety Code 11362.5 authorizes their possession of cannabis. Further, under Swiderski, supra, any medical cannabis possessed by any of the Defendants as members of their respective cooperatives would be for the exclusive medicinal purposes of each of them under the doctrine of joint possession. See also, United States v. Bartee, 479 F.2d 1390 (10th Cir. 1973) (ultimate user "obtain[s] the drug for his own use").


            1. The Defense Of Medical Necessity Provides
                Complete Justification For The DefendantS' Acts.

            The common law defense of necessity is well-established as a defense to federal criminal prosecutions not involving homicides. United States v. Holmes, 26 Fed.Cas.No. 15, 383, p. 360 (C.C.E.D. Pa. 1842); United States v. Ashton, 24 Fed.Cas.No. 14,470, p. 873 (C.C.D. Mass. 1834). In United States v. Bailey, 444 U.S. 394, 414 (1980), the Supreme Court held that criminal defendants may assert the defense of necessity when charged with prison escape, provided they proffer the necessary evidence to support the claim. The defense of medical necessity is simply a specialized application of the common law defense of necessity available in all federal criminal prosecutions. 1 LaFave & Scott, Substantive Criminal Law, 5.4(c)(7), pp. 631-33 (1986). Although neither the Supreme Court nor this Circuit have ruled directly on the issue in the context of marijuana use, ample authority exists to recognize the viability of the defense of medical necessity in prosecutions for possession, distribution, and cultivation of marijuana.
            In United States v. Randall, 104 Daily Wash.L.Rptr. 2249, 2252 (D.C. Super. 1976), a defendant successfully asserted medical necessity as a defense to a charge of marijuana possession in the Washington D.C. Superior Court. He grew marijuana plants and used them to treat his own condition of glaucoma after conventional medications were ineffective. The court concluded that the defendant's right to preserve his sight outweighed the government's interest in outlawing the drug.
            In United States v. Burton, 894 F.2d 188 (6th Cir. 1990), the defendant, who also suffered from glaucoma, asserted a defense of medical necessity when charged with three counts of possession of marijuana with intent to distribute. The jury convicted him of the lesser offense of simple possession, however, and on appeal the Court declined to hold that the medical necessity defense was available to the possession charge, while noting, "Medical necessity has been recognized by some courts and by some authority." Id. at 191. The reason the court found the defense unavailable was that, subsequent to the Randall case, a government program was established to study the effects of marijuana on glaucoma sufferers, and the defendant failed to utilize this "reasonable legal alternative." Since the Burton decision, however, that experimental government program has been closed to additional applicants. Thus, the "reasonable legal alternative" is no longer available, and the Burton court's grudging acceptance of the medical necessity defense remains good law.
            The medical necessity defense has received a warmer reception in the Appellate Courts of many states of this Circuit. In State v. Hastings, 801 P.2d 563 (Idaho 1990), the Supreme Court of Idaho held that a defendant who claimed her use of marijuana was necessary to control the pain and muscle spasms associated with rheumatoid arthritis presented a legitimate defense of necessity, and it was "for the trier of fact to determine whether or not she has met the elements of that defense." Id. at 565. In State v. Diana, 604 P.2d 1312 (Wash.App. 1979), the Washington Court of Appeals, citing United States v. Randall, held that medical necessity was encompassed in the common law defense of necessity:

The wisdom of the Randall decision was recognized by the legislature in our State when it enacted the Controlled Substances Therapeutic Research Act, Laws of Washington 1979, Reg.Sess. Ch. 136, eff. March 27, 1979. That legislation recognizes marijuana as a medicinal drug and makes it available under controlled circumstances to alleviate the effects of glaucoma and cancer chemotherapy. The patient must be certified to the State Board of Pharmacy by a licensed physician. In addition, under the Act other disease groups may be included if pertinent medical data is presented to the Board.
We believe that the defendant here should be given the opportunity to demonstrate the alleged beneficial effect, if any, of marijuana on the symptoms of multiple sclerosis. Accordingly, we remand his case to the trial court, here the trier of fact, for determination of whether medical necessity exists.
604 P.2d at 1316-17.

            In State v. Bachman, 595 P.2d 287 (Hawaii 1979), the Hawaii Supreme court concluded "it is entirely possible that medical necessity could be asserted as a defense to a marijuana charge in a proper case." However, the Court held the defense was properly rejected in that case because the defense failed to proffer competent medical testimony "of the beneficial effects upon the defendant's condition of marijuana use, as well as the absence or ineffectiveness of conventional medical alternatives." Id. at 288.
            Most recently, the California Court of Appeal, assuming that a medical necessity defense is valid in California, and that it is composed of the same elements as the general necessity defense, concluded that the defendant's offer of proof was insufficient to meet those elements because she failed to establish she had no adequate alternative but to possess and transport the marijuana as charged. Nonetheless, based on the subsequent enactment of H&S 11362.5 and its retroactive application, the court remanded the case for a limited retrial to determine whether H&S 11362.5 provided a partial defense to the charges. People v. Trippet, 56 Cal.App.4th 1532, (1997).
            Thus, clear authority exists for the availability of a medical necessity defense in a federal criminal prosecution for marijuana distribution or possession with intent to distribute. The medical necessity defense is simply a corollary of the fully accepted common law defense of necessity, and presents a factual question for the jury to determine in a particular case.
            The Ninth Circuit has established a four part test regarding the availability of the necessity defense. To invoke the necessity defense Defendants must offer proof that: "(1) they were faced with a choice of evils and chose the lesser evil; (2) they acted to prevent imminent harm; (3) they reasonably anticipated a direct causal relationship between their conduct and the harm to be averted; and (4) they had no legal alternatives to violating the law." United States v. Aguilar, 883 F.2d 662, 693 (9th Cir.1989), cert. denied, 498 U.S. 1046, (1991).
            Defendants are able to prove each element of the necessity defense. Defendants faced a choice of evils. Thousands of people within the Defendants' geographic range suffer from debilitating and often deadly diseases, including cancer, AIDS, and glaucoma.
            A common cause of death for AIDS patients is wasting syndrome. Those afflicted lose all appetite and literally waste away from starvation. Similarly, chemotherapy often causes intense nausea and loss of appetite. Patients face the choice quitting chemotherapy or enduring it and risking starvation and malnutrition. For many people afflicted with these two diseases, cannabis provides relief as a pain reliever and, more importantly, as an appetite stimulant. In short, cannabis saves these people's lives. Similarly, many glaucoma patients find that cannabis is the only medication that effectively relieves the intraocular pressure in their eyes, a condition that threatens permanent blindness.
            But cannabis is, for many, difficult or impossible to obtain. The Defendants solve this problem by providing cannabis to their members. By doing so they run the risk of potentially running afoul of federal drug laws. Such is the choice of evils, and Defendants have clearly chosen the lesser one.
            The Defendants also meet the second and third prongs of the necessity test: The harm sought to be averted was (and continues to be) imminent and life threatening and the act of supplying cannabis is a necessary component to averting that harm.
            The fourth prong of the necessity defense is the one the government will most likely insist the Defendants have not met. The Defendants are prepared to show that there are no legal alternatives to the distribution of medical cannabis via the cannabis cooperatives. The Defendants will present evidence from doctors and patients showing that for many people Marinol or other "legal" drugs simply do not work in treating their symptoms. Cannabis, however, does work. Defendants will also show that their members have no legal or safe alternative to acquire marijuana from other sources, including the government. Additionally, Defendants will show that they have attempted (and continue to attempt) to change marijuana laws at the local, state, and federal level. Such legal alternatives have, for purposes of a necessity defense, been exhausted. Moreover, even if such legal alternatives as rescheduling were an option, such "alternatives" are not adequate to render the necessity defense unavailable to patients who will likely die, waste away, or go blind long before any rescheduling actually is accomplished.
            Defendants' actions fall squarely within those contemplated by the necessity defense as articulated by the Ninth Circuit. As such, Defendants possess a valid defense to the charges underlying the government's motions for an injunction.

            2. The Defense of Entrapment is Available
                to the Extent That a Defense of Medical
                Necessity Would Be Precluded for
                Distribution to DEA Agents.

            The entrapment defense was first recognized by the United States Supreme Court in Sorrels v. United States, 287 U.S. 435 (1932). The Court held that the defense should be available when the government instigates criminal activity by an otherwise innocent defendant. This subjective test, focused on the predisposition of the defendant, was reaffirmed in United States v. Russell, 411 U.S. 423 (1972).
            When examining a defendant's predisposition, the court looks to persistent and extended efforts by government agents to target the defendant. Illustrative is Sherman v. United States, 356 U.S. 369 (1958), where the government agent met the defendant while both were undergoing treatment for drug abuse. The government agent claimed he was suffering from withdrawal and repeatedly implored the defendant to provide a source for illicit drugs. The Court found the government conduct so extreme that it ruled Sherman was entrapped as a matter of law. In determining the defendant was not "predisposed," the Court distinguished the "unwary innocent" from the "unwary criminal," and examined both the personal characteristics of the defendant and the persistent and extended government behavior.
            Clearly, the defendants in this case were not predisposed to commit any crime. The cannabis dispensaries were established for the sole purpose of providing marijuana to patients with doctors' recommendations, to alleviate the nausea associated with cancer chemotherapy, AIDS treatment, and the symptoms of other debilitating diseases. The DEA initiated an extensive undercover sting operation lasting over seven months, to infiltrate the clubs under the guise of needing medical marijuana. The DEA created phony physician's orders, with an agent posing as a doctor to verify the orders. Similar to the egregious behavior in Sherman, the undercover DEA agents falsely simulated illness to gain the sympathy of the defendants, resulting in the entrapment of "unwary innocents."
            The defendants' reasonable belief that the marijuana they were providing to the DEA agents would be used for medicinal purposes confirms their lack of predisposition. The Cooperative Cannabis Buyers Clubs can be analogized to the drug treatment center in Sherman. Government infiltration of a humanitarian venture to alleviate pain should be viewed with great skepticism. Certainly a jury would be justified in questioning the vast investment of governmental investigative resources demonstrated here in order to seduce "unwary innocents' whose primary motivation is providing comfort and relief for those who are seriously ill. In part, the entrapment defense is an effective way of controlling the behavior of overzealous police who themselves create the "crime" they are responsible for suppressing.
            In Matthews v. United States, 485 U.S. 58 (1988), the defendant denied having committed the crime and simultaneously requested an instruction on entrapment. The lower court denied his request to present the entrapment defense to the jury, requiring that he admit the crime before he could assert the defense of entrapment. The Supreme Court reversed, holding that he was entitled to an entrapment instruction as long as a reasonable juror could find that entrapment existed. The Court restated the well- established rule applicable to all defenses:

As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.
Id. at 63.
            Once the defendant presents some evidence of entrapment, the prosecution bears the burden of proving beyond a reasonable doubt that the defendant was predisposed to commit the crime of which he is charged before he was approached by the government. Notaro v. United States, 363 F.2d 169 (9th Cir. 1966); United States v. Jacobson, 112 S.Ct. 1535, 1540-41 (1992). here, the only "predisposition" on the part of the defendants was a humane willingness to respond to the legitimate medical needs of the sick, in the context of a cooperative venture approved by state law. The government inducements to persuade them to provide marijuana to DEA agents who had no legitimate medical need would be entrapment as a matter of law.


            1. Traditional Equitable Principles Apply To
                An Injunction Sought under Section 882.

            Section 882 grants federal courts jurisdiction to enjoin violations of the Controlled Substances Act.

The district courts of the United States and all courts exercising general jurisdiction in the territories and possessions of the United States shall have jurisdiction in proceedings in accordance with the Federal Rules of Civil Procedure to enjoin violations of this subchapter.
21 USC 882(a).

            Although Congress has the power to limit a court's equitable jurisdiction, it has not done so here. The statute contains no language that suggests any limitation on a court's equitable powers. On the contrary, by explicitly stating that injunction proceedings must follow the Federal Rules of Civil Procedure, Congress intended courts to conduct 882 actions in the same manner as any other civil proceeding in equity.
            The Supreme Court squarely addressed the issue of the application of equitable principles to statutory enforcement actions in Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982). In Romero, the Court explained, "unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied." Id. at 313. As the Court further explained:

[A] major departure from the long tradition of equity practice should not be lightly implied... we construe the statute at issue in favor of that interpretation which affords a full opportunity for equity courts to treat enforcement proceedings... in accordance with their traditional practices, as conditioned by the necessities of the public interest which Congress has sought to protect.
Id. at 320.

            Section 882 does not restrict the court's jurisdiction in equity, and consequently the full scope of that jurisdiction applies.

            2. The Government Has Failed To Meet The
                Equitable Criteria For A Preliminary Injunction.

            The Ninth Circuit has established a four pronged analysis to use in determining whether to grant a preliminary injunction. A court should consider:

(1) [T]he likelihood of the moving party's success on the merits; (2) the possibility of irreparable injury to the moving party if relief is not granted; (3) the extent to which the balance of hardships favors the respective parties; and (4) in certain cases, whether the public interest will be advanced by granting the preliminary relief.
Miller v. California Pacific Medical Center, 19 F.3d 449, 456 (9th Cir. 1994) (en banc).

            The moving party must show:

[E]ither (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) the existence of serious questions going to the merits, the balance of hardships tipping sharply in its favor, and at least a fair chance of success on the merits. These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases."
Id. at 456.

            The government has failed to make the requisite showing under either test to warrant granting it a preliminary injunction.

                a). The Government Has Failed
                    To Show Probability Of
                    Success On The Merits.

                The government has not shown probability of success on the merits. To succeed on the merits the government must prove that Defendants violated 841(a)(1), 856(a)(1), and 846 of the Controlled Substances Act. The government in its moving papers has not done so. Even if the facts were, as the government claims, uncontroverted, the government has not shown violations of the Controlled Substances Act. As explained in detail above, the Controlled Substances Act cannot constitutionally reach the Defendants' behavior. Even if it could reach the Defendants' behavior, the Controlled Substances Act does not reach their behavior in this circumstance. Finally, even if the federal statutes were applied to the Defendants' acts, the Defendants possess valid defenses that would preclude a finding of probability of success on the merits for the government.

                b). The Government Has Not
                    Established Irreparable Injury.

                The government claims that it need not prove irreparable injury. It cites United States v. Odessa Union Warehouse Co-op, (833 F.2d 172 (9th Cir. 1987)), for the proposition that in statutory enforcement actions irreparable injury is presumed. Such a presumption is limited, however, to situations in which the statutory violation underlying the injunctive action is conceded. The Ninth Circuit sitting en banc clarified the limits of Odessa Union.

There, the traditional requirement of irreparable injury was inapplicable because the parties conceded that the federal statute involved was violated. However, when the violation is disputed (as it is here), Odessa Union does not relieve the governmental agency of its burden of showing that the statutory conditions are met. See Id. Rather, as we recently indicated in United States v. Nutri-Cology, Inc., 982 F.2d 394 (9th Cir.1992), the strength of the government's showing on the likelihood of prevailing on the merits will affect the degree to which it must prove irreparable injury.
Miller, 19 F.3d at 459 (emphasis added).

                In Nutri-Cology, because the statutory violation was disputed and the government did not establish likelihood of success on the merits, the court held, "the government is not entitled to a presumption, rebuttable or otherwise, of irreparable injury." Nutri-Cology, at 398.
                In the instant case Defendants do not concede that any federal statute is being violated. Whether or not such statutes are being violated is the central factual and legal issue in this action. Because the government has not shown probability of success on the merits, it is certainly not entitled to a presumption of irreparable injury.
                Other than relying on a presumption of irreparable injury, to which it is not entitled, the government has proffered no evidence to show any injury to the public caused by Defendants' acts. The government has made no such showing because it cannot make such a showing. As noted above, in a case arising out of another recent attempt by the federal government to interfere with patients' access to medical marijuana, a Judge Smith of this Honorable Court found the government's claims of injury and hardship unsubstantiated.

Moreover, the government's fears in this case are exaggerated and without evidentiary support. It is unreasonable to believe that use of medical marijuana by this discrete population for this limited purpose will create a significant drug problem.
Conant v. McCaffrey, 172 F.R.D. 681, 694 n5 (N.D. Cal. 1997).

                If the government truly possessed a good faith belief that the activities of the Defendants was causing irreparable injury, it would not have waited over two years from the opening of the first cooperative to its bringing this suit in equity. Likewise, the government could have brought criminal charges against members of cooperatives and shut them down long ago, rather than waiting to bring this politically opportune case.
                The use of medical cannabis by the members of the cooperatives that are defendants in this action cannot rationally be characterized as an irreparable injury to the United States.

                c). Balance Of Hardships

                The government has made no showing that the balance of hardships tips sharply in its favor. Just as with irreparable injury, the government has relied on an inapplicable presumption that the purported statutory violations it wishes to enjoin are per se hardships on the public. It has offered no evidence of any actual hardships suffered by the public as a result of the Defendants' operations. Even if the government were entitled to some presumption of hardship in this case, it has not shown that the balance tips sharply in its favor. As in Conant, the "government's fears are exaggerated and without evidentiary support." Id.
                Moreover, the government still possesses an adequate remedy at law. It will suffer no hardship by being denied the extraordinary remedy of an injunction. As with irreparable injury, if the government were truly burdened by the cooperatives' existence it could move to shut them down in criminal proceedings. That it has not attempted to do so makes the government's claims of hardship ring hollow.
                Defendants, in contrast, are prepared to show substantial hardships to be suffered by their members and by the general public if this court were to enjoin the Defendants. Collectively, the six cooperatives the government seeks to shut down serve the medical needs of several thousand patients. Numerous members are afflicted with AIDS, cancer, glaucoma, and other serious illnesses for which, for many, cannabis is the only effective treatment for intractable pain and conditions that could otherwise lead to death, blindness or other permanent debilitation. For the government to assertthat such hardships can be alleviated by petitioning the DEA to reschedule marijuana, Plaintiff's Motion at p. 18, (a process in which Defendants have attempted in the past and continue to pursue), shows a lack of compassion and a distorted view of reality that is truly frightening. The patients who Defendants serve suffer hardships that are immediate and life threatening. These cannot be alleviated by an administrative process that all parties agree could take years to effectuate, even if the government abandoned its arbitrary and capricious practices and dealt with this issue in good faith.

                d). Public Interest Favors Denial
                    Of The Government's Motion.

                Just as it does with irreparable injury and the balancing of hardships, the government relies on unsubstantiated presumptions it claims weigh in its favor. As with those other factors the government is only entitled to such a presumption when it has clearly shown a statutory violation. This Honorable Court must weigh such presumptions against the effect issuance of an injunction would have on the public interest. Inflicting substantial and life-threatening medical and legal hardships on patients who are reliant upon the Defendants surely offends the public interest. Moreover, issuance of an injunction that frustrates the declared intent of the majority of voters in California, that seriously ill people have access to medical marijuana, would clearly run contrary to the public interest.

            3. No Injunction Should Issue.

            As demonstrated above, the government has met none of the equitable criteria for the issuance of an injunction against defendants. Even if the government were able to establish that Defendants' actions were violative of federal law, the facts and circumstances of this case do not, as the government contends, require that an injunction automatically issue. The Supreme Court made this clear in Romero. "The grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law." Romero, at 313. The public interest and the balance of hardships dictate that no injunction should issue here.

            4. Equitable Defenses
                Preclude Injunctive Relief.

            The government's attempt to invoke equitable relief against defendants is barred by the doctrine of unclean hands.

                a). Unclean Hands

                The government cannot prevail in its attempt to prohibit the distribution of medical marijuana since it comes to the court with unclean hands. The applicability of the doctrine to government action was explained by the Ninth Circuit in Equal Employment Opportunity Commission v. Recruit U.S.A., 939 F.2d 746 (1991).

They [defendants] rely on the "clean hands" doctrine, which insists that one who seeks equity must come to the court without blemish. See, e.g., Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 387, 64 S.Ct. 622, 624, 88 L.Ed. 814 (1944). This maxim "is a self-imposed ordinance that closes the doors of a court of equity to one tainted with an inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant."Precision Instrument Mfg. Co. v. Automotive Maintenance Mach. Co., 324 U.S. 806, 814, 65 S.Ct. 993, 997, 89 L.Ed. 1381 (1945). This rule applies to the government as well as to private litigants. See United States v. Desert Gold Mining Co., 448 F.2d 1230, 1231 (9th Cir.1971).
Id. at 752.

                The government's record regarding marijuana in general and medical marijuana specifically demonstrates a pattern of bad faith that should preclude it from attaining equitable relief. The government has at least a twenty-five year history of bad faith and unclean hands in its dealings with medical marijuana. Such behavior is violative of the legislative intent of the Controlled Substances Act and of the United States' obligations under the Single Convention Treaty. It also flies in the face of virtually every comprehensive study commissioned by the government during the twentieth century. Defendants are prepared to show that 1) numerous and uncontroverted scientific studies exist firmly establishing the medical efficacy of marijuana and 2) the government has obstructed, suppressed or ignored all attempts by citizens to reschedule or otherwise make marijuana legally available for medical purposes. Having in bad faith resisted all attempts by Defendants and others to explicitly legalize medical marijuana under federal law, the government cannot now invoke equity in its attempts to squelch Defendants' good faith efforts to legally provide medical marijuana through the cooperatives. One who comes to equity must do so with clean hands. The government, in this instance, does not.
                Perhaps the most glaring example of the government's unclean hands is that of the Investigative New Drug (IND) program. Under the IND program the federal government provides marijuana to eight individuals suffering from a variety of ailments including cancer and glaucoma. The government claims in prosecuting this action that there are no medically accepted uses for marijuana, while, simultaneously, the DEA distributes marijuana for those very same medical purposes that the cooperatives serve. The government's own actions demonstrate the falsity of its arguments. Not only does the very existence of the IND program counter the government argument of no legitimate medical use for marijuana, but the government's administration of the program exhibits a complete lack of good faith. Only eight people currently receive marijuana under the program. No new enrollments are accepted. These eight people do not differ from the several thousand members of the cannabis clubs in any medical sense. Their illnesses are no more or less severe than those of the club members not part of the IND program. The only distinction is political. The IND patients were all enrolled prior to the War on Drugs of the 1980's. They also predate the AIDS epidemic. The government admits that it stopped approving applications under the program because it feared an upswing in applications by AIDS patients would "send the wrong message." The decision had nothing to do with the efficacy of marijuana as medicine. The history of the IND program demonstrates that the federal government has not dealt with medical marijuana in a rational, scientific good faith manner. For the government to seek injunctive relief here, when it has itself failed to treat its ailing citizens in an equitable fashion, runs afoul of all principles upon which equitable jurisdiction is based.

            5. The Government Is Not Entitled
                To Summary Judgement And
                A Permanent Injunction.

                a) Because Genuine Issues of Fact Exist
                    That Are Material to the Defenses Raised
                    by Defendants, Summary Judgment and
                    Permanent Injunctive Relief Are Inappropriate.

                If the Court does grant the government's request for a preliminary injunction it must not simultaneously grant its request for summary judgement and a permanent injunction. Even without considering issues of facts, it is apparent that plaintiffs have violated the procedural rules governing summary judgment, and as such, should be precluded from a final judgment. According to the summary judgment rules applicable to claimants, "[a] party seeking to recover upon a claim, ... may, at any time after the expiration of 20 days from the commencement of the action ..., move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof." Fed.R.Civ.P.56(a). Defendants were served with plaintiff's Motion for Preliminary and Permanent Injunction, and for Summary Judgment on January 8, 1998, thereby commencing this action. As demonstrated by the motion's title, plaintiffs included with their request for a preliminary injunction a request for summary judgment. Such a procedure of including at the commencement of the action a motion for summary judgment, is barred by the federal rules. To be in compliance, plaintiff was required to wait until 20 days after the filing of the complaint to move for summary judgment. Since the government failed to do so, the motion should be denied.
                Aside from plaintiff's procedural error, the existence of issues of material fact also warrants denial of plaintiff's motion. The threshold inquiry in summary judgment motions is "determining whether there is the need for a trial--whether, in other words, there are any factual issues that can be properly resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 US 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is genuine if the nonmovant's evidence is substantial enough to require trial. Id. at 249-250. All reasonable inferences to be drawn from the facts "must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
                efendants have sustained their burden of identifying for the Court a multitude of facts that illustrate the presence of genuine issues requiring a hearing. In outlining their defenses above, Defendants have made fact specific offers of proof regarding constitutional, legal, and equitable defenses to the government's charges.
                Since no legally adequate notice has been provided to Defendants, summary judgement at this juncture would be premature Moreover, as previously discussed, genuine issues of fact exist which mandate a hearing. By granting summary judgement on the basis of the currant record, Defendants would be effectively deprived of their day in court. Thus, the government's motion for summary judgement and permanent injunctive relief should be denied.


        The Government has brought the within action under 21 USC 882, a novel use of a statute for which there is a dearth of precedence. In so doing, the government has placed the defendants at a critical disadvantage. If the government had sought to prosecute Defendants criminally, Defendants would have been afforded the Constitutional protections of the Fourth, Fifth, and Sixth Amendments. By seeking to enjoin Defendant's lawyers the government is interfering with the right to counsel to such a degree that in a criminal context would surely be a Sixth Amendment violation. Perhaps most importantly, by first bringing a civil proceeding against Defendants, the government has placed them in an unavoidable Fifth Amendment conundrum. Defendants cannot adequately defend the civil proceedings without effectively waiving Constitutional rights against self-incrimination in any future criminal proceedings. At a minimum, before the government can seek equitable relief against defendants it must guarantee them immunity from any possible criminal prosecutions for the acts which it seeks to enjoin. The government cannot fairly contend that legal remedies are unavailable and at the same time waive the hammer of those very same legal remedies over the heads of Defendants.


    It is unfortunate that the federal government is undertaking this effort to prohibit access to the only supply of affordable, safe medical cannabis on which numerous seriously ill and suffering patients depend for relief. The federal government is acting in direct defiance to the will of the voters of California who clearly and unambiguously mandated that patients who can attain relief through the use of medical marijuana should be allowed to do so under a physician's care. The citizens of California have called on the federal government to make medical cannabis available. Instead the federal government has responded by initially threatening California physicians. When Judge Smith of this Honorable Court barred the government from making good on its threats, the government aimed its crosshairs at the sick and dying. Accordingly, defendants request that this Honorable Court deny the government's request for a preliminary injunction, permanent injunction and summary judgment.

Dated: February 27, 1998   Respectfully submitted,



Specially Appearing
for Defendants



Specially Appearing
for Defendants



1  Although Defendants do not present evidence in support of this claim in the present briefing, they certainly will be prepared to do so at an evidentiary hearing. Such evidence would include not only medical evidence verified by volumes of scientific research, but also thousands of testimonials from patients who have obtained relief from pain and other conditions and who have gained a life-saving appetite from the medical use of cannabis.

2  It is interesting to note that the government, in quoting 21 USC 801 in its Memorandum, left this particular subsection out of its argument. (See e.g. Government Memorandum in Oakland Case, 3:15)

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