{\rtf1\mac\deff0\deflang1024 {\fonttbl \f0\froman Century-Bold; \f1\froman Chaucer-DTC; \f2\froman CenturyExpanded; \f3\froman CenturyExpanded-Italic; \f4\froman Century-BoldItalic; } {\colortbl \red0\green0\blue0; } {\info {\title } {\author }{\subject }{\keywords } } {\stylesheet {\s253 \sbasedon0\snext0 heading 3;} {\s254 \sbasedon0\snext0 heading 2;} {\s255 \sbasedon0\snext0 heading 1;} {\f14553 \sbasedon222\snext0 Normal;} {\s2 \sbasedon0\snext0 Caption;} } \plain\fs24 \pard\plain\fi2560 \line \f0\fs20 \b No. 00-151 \b0 \par \par \pard\plain \line \s255\f1\fs40 In the Supreme Court of the United States \par \par \pard\plain\fi820 \line \f2\fs24 U\f2\fs19 NITED \f2\fs24 S\f2\fs19 TATES OF \f2\fs24 A\f2\fs19 MERICA\f2\fs24 , \f2\fs19 PETITIONER \par \line \f3\fs24 \i v. \i0 \par \par \pard\plain\fi460 \line \f2\fs24 O\f2\fs19 AKLAND \f2\fs24 C\f2\fs19 ANNABIS \f2\fs24 B\f2\fs19 UYERS\f2\fs24 Õ C\f2\fs19 OOPERATIVE AND \line \f2\fs24 J\f2\fs19 EFFREY \f2\fs24 J\f2\fs19 ONES \par \par \pard\plain\fi1100 \line \f3\fs18 \i ON PETITION FOR A WRIT OF CERTIORARI \line TO THE UNITED STATES COURT OF APPEALS \line FOR THE NINTH CIRCUIT \i0 \par \par \pard\plain\fi2140 \line \f0\fs20 \b APPENDIX TO THE \line PETITION FOR A WRIT OF CERTIORARI \b0 \par \par \pard\plain\fi3000 \line \f2\fs20 S\f2\fs16 ETH \f2\fs20 P. W\f2\fs16 AXMAN \par \pard\plain\fi3160 \line \f3\fs20 \i Solicitor General \i0 \par \pard\plain\fi3360 \line \f3\fs20 \i Counsel of Record \i0 \par \par \pard\plain\fi3000 \line \f2\fs20 D\f2\fs16 AVID \f2\fs20 W. O\f2\fs16 GDEN \par \pard\plain\fi3160 \line \f3\fs20 \i Acting Assistant Attorney \i0 \par \pard\plain\fi3360 \line \f3\fs20 \i General \i0 \par \par \pard\plain\fi3000 \line \f2\fs20 E\f2\fs16 DWIN \f2\fs20 S. K\f2\fs16 NEEDLER \par \pard\plain\fi3160 \line \f3\fs20 \i Deputy Solicitor General \i0 \par \par \pard\plain\fi3000 \line \f2\fs20 L\f2\fs16 ISA \f2\fs20 S\f2\fs16 CHIAVO \f2\fs20 B\f2\fs16 LATT \par \pard\plain\fi3160 \line \f3\fs20 \i Assistant to the Solicitor \i0 \par \pard\plain\fi3360 \line \f3\fs20 \i General \i0 \par \par \pard\plain\fi3160 \line \f3\fs20 \i Department of Justice \line Washington, D.C. 20530-0001 \line (202) 514-2217 \i0 \par \page\pard\plain \line \f2\fs20 TABLE OF CONTENTS \par \par \pard\plain \line \f2\fs22 Page \par \par \pard\plain \line \f2\fs22 Appendix A (Opinion of the Ninth Circuit \par \pard\plain \line \f2\fs22 Court of Appeals, Sept. 13, 1999) .............................. \par \pard\plain \line \f2\fs22 1a \par \pard\plain \line \f2\fs22 Appendix B (Order of the United States District \par \pard\plain \line \f2\fs22 Court for the Northern District of California, \line July 17, 2000) ................................................................. \par \line \f2\fs22 12a \pard\plain \line \f2\fs22 Appendix C (Amended Preliminary Injunction \par \par \pard\plain\fi160 \line \f2\fs22 Order of the United States District Court for \line the Northern District of California, July 17, \line 2000) ................................................................................ 15a \line \par Appendix D (Order in Case No. 98-00088 of the \par \pard\plain\fi160 \line \f2\fs22 United States District Court for the Northern \line District of California, Oct. 16, 1998) ......................... \par \par \pard\plain \line \f2\fs22 18a \par \pard\plain \line \f2\fs22 Appendix E (Memorandum and Order re: \par \pard\plain \line \f2\fs22 Motions in Limine and Order to Show Cause \line in Case No. 98-00088 of the United States \line District Court for the Northern District of \line California, Oct. 13, 1998) ............................................. \par \line \f2\fs22 20a \pard\plain \line \f2\fs22 Appendix F (Preliminary Injunction Order \par \par \pard\plain\fi160 \line \f2\fs22 of the United States District Court for the \line Northern District of California, May 19, \line 1998) ................................................................................ 39a \line \par Appendix G (Memorandum and Order of the \par \pard\plain\fi160 \line \f2\fs22 United States District Court for the Northern \line District of California, May 13, 1998) ......................... \par \par \pard\plain \line \f2\fs22 41a \par \pard\plain \line \f2\fs22 Appendix H (Order of the Ninth Circuit Court \line of Appeals denying rehearing and rehearing \line en banc, Feb. 29, 2000) ................................................ \par \par \pard\plain \line \f2\fs22 82a \par \pard\plain \line \f2\fs22 Appendix I (Statutory provisions) .............................. 83a \par \par \pard\plain \line \f2\fs22 (I) \par \page\pard\plain\fi2460 \line \f0\fs20 \b APPENDIX A \b0 \par \par \pard\plain\fi840 \line \f2\fs22 UNITED STATES COURT OF APPEALS \par \par \pard\plain\fi1520 \line \f2\fs22 FOR THE NINTH CIRCUIT \par \par \pard\plain\fi980 \line \f2\fs24 Nos. 98-16950, 98-17044 and 98-17137 \par \par \pard\plain\fi220 \line \f2\fs24 U\f2\fs19 NITED \f2\fs24 S\f2\fs19 TATES OF \f2\fs24 A\f2\fs19 MERICA\f2\fs24 , \f2\fs19 PLAINTIFF\f2\fs24 -APPELLEE \par \line \f3\fs24 \i v. \i0 \par \par \pard\plain\fi580 \line \f2\fs24 O\f2\fs19 AKLAND \f2\fs24 C\f2\fs19 ANNABIS \f2\fs24 B\f2\fs19 UYERS\f2\fs24 Õ C\f2\fs19 OOPERATIVE\f2\fs24 ; \line J\f2\fs19 EFFREY \f2\fs24 J\f2\fs19 ONES\f2\fs24 , \f2\fs19 DEFENDANTS\f2\fs24 -APPELLANTS \par \par \pard\plain\fi540 \line \f2\fs24 Appeal from the United States District Court \line For the Northern District of California \par \par \pard\plain\fi920 \line \f2\fs24 [Argued and Submitted: April 13, 1999 \par \pard\plain\fi1800 \line \f2\fs24 Decided: Sept. 13, 1999] \par \par \pard\plain\fi260 \line \f2\fs24 Before: S\f2\fs19 CHROEDER\f2\fs24 , R\f2\fs19 EINHARDT \f2\fs24 and S\f2\fs19 ILVERMAN\f2\fs24 , \line Circuit Judges. \par \par \pard\plain\fi240 \line \f2\fs22 PER CURIAM: \par \par \pard\plain\fi240 \line \f2\fs24 This interlocutory appeal involves a preliminary in- \line junction entered at the United StatesÕ request, to stop \line the distribution of cannabis in the wake of CaliforniaÕs \line initiative supporting the medical use of marijuana. The \line district court held that the distribution of marijuana by \line certain cannabis clubs and their agents, including \line appellant, Oakland Cannabis BuyersÕ Cooperative and \line Jeffrey Jones (collectively ÒOCBCÓ), likely violates the \par \par \pard\plain \line \f2\fs24 (1a) \par \page\pard\plain\fi2860 \line \f2\fs24 2a \par \par \pard\plain \line \f2\fs24 Comprehensive Drug Abuse Prevention and Control \line Act of 1970 (the ÒControlled Substances ActÓ), 21 \line U.S.C. ¤ 841(a)(1). \f3\fs24 \i See United States v. Cannabis \line Cultivators Club\i0 \f2\fs24 , 5 F.Supp.2d 1086, 1105 (N.D. Cal. \line 1998). The district court also indicated that it would \line consider in subsequent contempt proceedings a defense \line that a particular distribution was justified by a medical \line necessity. \f3\fs24 \i Id. \i0 \f2\fs24 at 1102. OCBC did not appeal the district \line courtÕs order enjoining the distribution of marijuana by \line cannabis clubs. Instead, OCBC seeks to appeal three \line subsequent orders: (a) an order denying OCBCÕs mo- \line tion to dismiss the complaint on the ground that an \line Oakland City ordinance makes it immune from liability \line under 21 U.S.C. ¤ 885(d); (b) an order subsequently \line purged and vacated that found OCBC in contempt of \line the injunction; and (c) an order denying OCBCÕs motion \line to modify the injunction to permit cannabis distribution \line to persons having a doctorÕs certificate that marijuana \line is a medical necessity for them. \par \par \pard\plain\fi240 \line \f2\fs24 We lack jurisdiction over the appeal from the denial \line of the motion to dismiss and from the contempt order \line that has been purged. We have jurisdiction over the \line appeal from the denial of the motion to modify. We do \line not vacate the injunction, but remand for the district \line court to consider modifying the order. \par \par \pard\plain\fi1440 \line \f0\fs22 \b Denial of the Motion to Dismiss \b0 \par \par \pard\plain\fi240 \line \f2\fs24 The district court denied the defendantsÕ motion to \line dismiss that was grounded in the Oakland City Coun- \line cilÕs attempt to immunize OCBC under the Controlled \line Substances Act. The district court held that section \line 885(d) of the Controlled Substances Act is intended to \line protect state law enforcement officials when they en- \par \page\pard\plain\fi2860 \line \f2\fs24 3a \par \par \pard\plain \line \f2\fs24 gage in undercover drug operations, and these defen- \line dants do not engage in such activities. \par \par \pard\plain\fi240 \line \f2\fs24 We lack jurisdiction of the appeal because the denial \line of a motion to dismiss is generally not appealable. \f3\fs24 \i See \line \i0 \f2\fs24 28 U.S.C. ¤¤ 1291 & 1292 (granting appellate juris- \line diction over final orders and limited interlocutory \line orders). The denial of the motion to dismiss is not one \line of the interlocutory orders that can be appealed under \line ¤ 1292, and it is not a final judgment under ¤ 1291. \par \line \f3\fs24 \i See\i0 \f2\fs24 , \pard\plain \line \f3\fs24 \i e.g., Credit Suisse v. United States Dist. Ct.\i0 \f2\fs24 , 130 F.3d \line 1342, 1345-46 (9th Cir. 1997). \par \par \pard\plain\fi240 \line \f2\fs24 OCBC contends we have jurisdiction under 28 U.S.C. \line ¤ 1292(a)(1) authorizing, \f3\fs24 \i inter alia\i0 \f2\fs24 , appellate juris- \line diction over an interlocutory order Òcontinuing . . . or \line refusing to dissolve or modify injunctions.Ó OCBC asks \line us to treat the district courtÕs denial of the motion to \line dismiss as, in effect, a continuance of the injunction and \line a refusal to dissolve it. OCBC relies upon \f3\fs24 \i Jung Hyun \line Sook v. Great Pacific Shipping Co.\i0 \f2\fs24 , 632 F.2d 100, 102 n. \line 4 (9th Cir. 1980). \par \par \pard\plain\fi240 \line \f2\fs24 The motion to dismiss in \f3\fs24 \i Jung Hyun Sook\i0 \f2\fs24 , however, \line was not a motion to dismiss the action in its entirety, \line but a motion intended specifically to dissolve an injunc- \line tion. There the district court had enjoined the further \line prosecution of a Jones Act suit pending the deter- \line mination of a petition to limit liability. \f3\fs24 \i Id. \i0 \f2\fs24 at 102. The \line district courtÕs denial of the motion to dismiss the limi- \line tation of liability petition was appealable because its \line denial continued in effect the injunction against further \line prosecution of the Jones Act suit. The purpose of the \line motion to dismiss in that case was not to decide the \line merits of the litigation, but only to dissolve the injun- \line ction. \f3\fs24 \i See \i0 \f2\fs24 16 Wright, Miller & Cooper, \f3\fs24 \i Federal Practice \i0 \par \page\pard\plain\fi2860 \line \f2\fs24 4a \par \par \pard\plain \line \f3\fs24 \i and Procedure\i0 \f2\fs24 , ¤ 3924.2, at 198-99 n.6 (2d ed. 1996). The \line motion to dismiss in this case was intended to resolve \line the entire dispute on the merits. While one effect of \line granting OCBCÕs motion to dismiss in this case would \line have been to dissolve the preliminary injunction, the \line broader purpose was to resolve the case in defendantsÕ \line favor. The general rule barring appeals from the denial \line of motions to dismiss, therefore, must apply. \f3\fs24 \i See Credit \line Suisse\i0 \f2\fs24 , 130 F.3d at 1345-46 (ÒThe district courtÕs denial \line of [defendantsÕ] motion to dismiss is not a Ôfinal decisionÕ \line within the meaning of 28 U.S.C. ¤ 1291, and it is there- \line fore not immediately reviewable.Ó). \par \par \pard\plain\fi240 \line \f2\fs24 Nor did the district courtÕs denial of the motion to \line dismiss constitute an order ÒcontinuingÓ the injunction \line within the meaning of 28 U.S.C. ¤ 1292(a)(1). An order \line that ÒcontinuesÓ an injunction under that statute is an \line order that extends the duration of the injunction that \line would otherwise have dissolved by its own terms. \f3\fs24 \i See \line \i0 \f2\fs24 16 Wright, Miller & Cooper, \f3\fs24 \i supra\i0 \f2\fs24 , at 196; \f3\fs24 \i see also \line Public Serv. Co. of Colorado v. Batt\i0 \f2\fs24 , 67 F.3d 234, 236-37 \line (9th Cir. 1995); \f3\fs24 \i In re Fugazy Express, Inc.\i0 \f2\fs24 , 982 F.2d \line 769, 777 (2d Cir. 1992). \par \par \pard\plain\fi240 \line \f2\fs24 OCBC also argues that the denial of the motion to \line dismiss is appealable as a Òcollateral orderÓ under the \line theory of the Supreme CourtÕs decision in \f3\fs24 \i Mitchell v. \line Forsyth\i0 \f2\fs24 , 472 U.S. 511, 105 S. Ct. 2806, 86 L.Ed.2d 411 \line (1985). \f3\fs24 \i Mitchell \i0 \f2\fs24 permits appeal from orders denying \line immunity from suit to government officials on damage \line claims for violations of federal rights. Such orders are \line immediately reviewable because the immunity at stake \line is not merely an immunity from liability but an Òim- \line munity from suitÓ that is effectively lost if a case goes \line to trial. \f3\fs24 \i See id. \i0 \f2\fs24 at 526, 105 S. Ct. 2806. Section 885(d) is \par \page\pard\plain\fi2860 \line \f2\fs24 5a \par \par \pard\plain \line \f2\fs24 not such an immunity from suit, but is on its face simply \line an immunity from liability. It provides that Òno civil or \line criminal liability will be imposedÓ upon law enforce- \line ment officers who engage in drug activity as part of \line their duties. 21 U.S.C. ¤ 885(d). Thus, OCBC can ob- \line tain effective review of its liability (or immunity) under \line the Controlled Substances Act after the district court \line has rendered a final judgment. \par \par \pard\plain\fi240 \line \f2\fs24 In addition, the order being appealed is not a Òcol- \line lateral orderÓ involving an important issue separate \line from the merits of the lawsuit. \f3\fs24 \i See Cohen v. Beneficial \line Indus. Loan Corp.\i0 \f2\fs24 , 337 U.S. 541, 546, 69 S. Ct. 1221, 93 \line L.Ed. 1528 (1949). The merits of the governmentÕs suit \line depend squarely upon whether or not OCBC is immune \line from liability under ¤ 885(d). \par \par \pard\plain\fi2000 \line \f0\fs22 \b The Contempt Order \b0 \par \par \pard\plain\fi240 \line \f2\fs24 OCBC appeals the district courtÕs order finding it in \line contempt and modifying the preliminary injunction so \line as to empower the U.S. Marshal to seize OCBCÕs \line offices. The court neither fined nor jailed members of \line OCBC as a result of the contempt. The district court \line subsequently vacated this modification to the injunction \line on October 30, 1998 after OCBC told the court that it \line would comply with the injunction. Consequently, \line OCBC was permitted to re-enter its offices. \par \par \pard\plain\fi240 \line \f2\fs24 The government argues that this appeal is moot be- \line cause the modification order was vacated and the con- \line tempt purged. ÒA long line of precedent holds that once \line a civil contempt order is purged, no live case or con- \line troversy remains for adjudication.Ó \par \line \f3\fs24 \i Thomassen v. \i0 \pard\plain \line \f3\fs24 \i United States\i0 \f2\fs24 , 835 F.2d 727, 731 (9th Cir. 1987); \f3\fs24 \i accord \line In re Campbell\i0 \f2\fs24 , 628 F.2d 1260, 1261 (9th Cir. 1980). \par \page\pard\plain\fi2860 \line \f2\fs24 6a \par \par \pard\plain \line \f2\fs24 However, a party asserting that an issue is moot must \line demonstrate that there is no reasonable expectation \line that the violation will recur. \f3\fs24 \i See County of Los Angeles \par \line v. Davis\i0 \f2\fs24 , 440 U.S. 625, 631, 99 S. Ct. 1379, 59 L.Ed.2d \line 642 (1979); \f3\fs24 \i Campbell\i0 \f2\fs24 , 628 F.2d at 1261. \par \par \pard\plain\fi240 \line \f2\fs24 This court has held that a purged contempt order is \line moot unless there is Ònear certaintyÓ that the violation \line will recur. \f3\fs24 \i Campbell\i0 \f2\fs24 , 628 F.2d at 1262. That is not the \line case here. In its reply brief, OCBC reiterates that it \line has promised the district court that it will comply with \line the injunction. The only way for the violation to recur \line is if OCBC breaks its promise. Clearly, it is not a Ònear \line certaintyÓ that OCBC will do so. Moreover, although \line the purged contempt order at issue in \f3\fs24 \i Campbell \i0 \f2\fs24 was \line not moot, the court explicitly limited its result to the \line facts of that case: ÒWe emphasize that were it not for \line the statement of the grand jury foreman [informing the \line witness that he would be required to testify again in \line the future], we would be inclined to find that the purg- \line ing of the contempt orders mooted the present ap- \line peals.Ó \f3\fs24 \i Id. \i0 \f2\fs24 at 1261. \par \par \pard\plain\fi240 \line \f2\fs24 OCBC also contends that the appeal of the contempt \line order is not moot because it is Òcapable of repetition, \line yet evading review.Ó An issue may evade review be- \line cause of an inherent limit in the duration of a chal- \line lenged action that prevents full litigation before it ends. \line \f3\fs24 \i See Phoenix Newspapers, Inc. v. United States Dist. \line Ct.\i0 \f2\fs24 , 156 F.3d 940, 945 (9th Cir. 1998). However, nothing \line inherently limited the duration of OCBCÕs contempt \line other than its own decision to purge. The appeal is now \line moot because OCBC voluntarily purged the contempt \line by declaring that it would comply with the injunction. \line Had OCBC chosen to remain in contempt to this day, \par \page\pard\plain\fi2860 \line \f2\fs24 7a \par \par \pard\plain \line \f2\fs24 the appeal would not be moot because this court could \line have provided a remedy. \par \par \pard\plain\fi240 \line \f2\fs24 OCBC argues that even if the denial of the motion to \line dismiss and the modification order are not in and of \line themselves appealable, the court should assert pendent \line appellate jurisdiction because they are Òinextricably in- \line tertwinedÓ with the denial of the motion to modify the \line injunction, which is appealable. \f3\fs24 \i See Swint v. Chambers \line County CommÕn\i0 \f2\fs24 , 514 U.S. 35, 51, 115 S. Ct. 1203, 131 \line L.Ed.2d 60 (1995). We have held that the Òinextricably \line intertwinedÓ doctrine should be narrowly construed; \line more is required than that separate issues rest on com- \line mon facts. \f3\fs24 \i See California v. Campbell\i0 \f2\fs24 , 138 F.3d 772, \line 778 (9th Cir.), \f3\fs24 \i cert. denied\i0 \f2\fs24 , 525 U.S. 822, 119 S. Ct. 64, \line 142 L.Ed.2d 51 (1998). The legal theories on which the \line motion to dismiss, the contempt order, and the motion \line to modify are independent of each other. Each required \line application of different legal principles. They are not \line therefore so ÒintertwinedÓ as to necessitate simultane- \line ous review. \par \par \pard\plain\fi1480 \line \f0\fs22 \b Denial of the Motion to Modify \b0 \par \par \pard\plain\fi240 \line \f2\fs24 OCBC contends that the district court abused its \line discretion by refusing to modify its injunction to permit \line cannabis distribution to patients for whom it is a medi- \line cal necessity. A few days after the district court issued \line its contempt citation instructing the Marshals to \line padlock its premises, OCBC asked the district judge to \line modify the injunction to allow continuing cannabis dis- \line tribution to patients whose physicians certify that (1) \line the patient suffers from a serious medical condition; (2) \line if the patient does not have access to cannabis, the \line patient will suffer imminent harm; (3) cannabis is nec- \line essary for the treatment of the patientÕs medical con- \par \page\pard\plain\fi2860 \line \f2\fs24 8a \par \par \pard\plain \line \f2\fs24 dition or cannabis will alleviate the medical condition or \line symptoms associated with it; (4) there is no legal alter- \line native to cannabis for the effective treatment of the \line patientÕs medical condition because the patient has \line tried other legal alternatives to cannabis and has found \line them ineffective in treating his or her condition or has \line found that such alternatives result in intolerable side \line effects. These factors were modeled on this courtÕs \line recognition of a necessity defense to violations of fed- \line eral law in \f3\fs24 \i United States v. Aguilar\i0 \f2\fs24 , 883 F.2d 662, 692 \line (9th Cir. 1989). \par \par \pard\plain\fi240 \line \f2\fs24 The denial of a motion to modify an injunction is inde- \line pendently appealable under ¤ 1292(a)(1) as one of the \line appealable interlocutory orders denominated in that \line section. Therefore, we have jurisdiction to review the \line order denying OCBCÕs motion for modification. \par \par \pard\plain\fi240 \line \f2\fs24 The district court summarily denied OCBCÕs motion, \line saying that it lacked the power to make the requested \line modification because Òits equitable powers do not per- \line mit it to ignore federal law.Ó In doing so, the district \line court misapprehended the issue. The court was not \line being asked to ignore the law. It was being asked to \line take into account a legally cognizable defense that \line likely would pertain in the circumstances. \par \par \pard\plain\fi240 \line \f2\fs24 The government did not need to get an injunction to \line enforce the federal marijuana laws. If it wanted to, it \line could have proceeded in the usual way, by arresting \line and prosecuting those it believed had committed a \line crime. Had the government proceeded in that fashion, \line the defendants would have been able to litigate their \line necessity defense under \f3\fs24 \i Aguilar \i0 \f2\fs24 in due course. How- \line ever, since the government chose to deal with potential \line violations on an anticipatory basis instead of prosecut- \par \page\pard\plain\fi2860 \line \f2\fs24 9a \par \par \pard\plain \line \f2\fs24 ing them afterward, the government invited an inquiry \line into whether the injunction should \f3\fs24 \i also \i0 \f2\fs24 anticipate likely \line exceptions. This gives rise to a drafting issueÑcrafting \line an injunction that is broad enough to prohibit illegal \line conduct, but narrow enough to exclude conduct that \line likely would be legally privileged or justified. \par \par \pard\plain\fi240 \line \f2\fs24 In \f3\fs24 \i Northern Cheyenne Tribe v. Hodel\i0 \f2\fs24 , we held that \line courts retain broad equitable discretion when it comes \line to injunctions against violations of federal statutes \line unless Congress has clearly and explicitly demon- \line strated that it has balanced the equities and mandated \line an injunction. 851 F.2d 1152, 1156 (9th Cir. 1988). \line Here, although the government may be entitled to its \line requested injunction, there is no evidence that Con- \line gress intended to divest the district court of its broad \line equitable discretion to formulate appropriate relief \line when and if injunctions are sought. Further, there is no \line indication that the Ò underlying substantive policyÓ of \line the Act mandates a limitation on the district courtÕs \line equitable powers. \f3\fs24 \i Id. \i0 \f2\fs24 at 1156. \par \par \pard\plain\fi240 \line \f2\fs24 The district court erred in another respect as well. In \line deciding whether to issue an injunction in which the \line public interest would be affected, or whether to modify \line such an injunction once issued, a district court must \line expressly consider the public interest on the record. \line The failure to do so constitutes an abuse of discretion. \line \f3\fs24 \i Northern Cheyenne Tribe\i0 \f2\fs24 , 851 F.2d at 1156; \f3\fs24 \i American \line Motorcyclist Association v. Watt\i0 \f2\fs24 , 714 F.2d 962, 965 (9th \line Cir. 1983); \f3\fs24 \i Caribbean Marine Serv. Co. v. Baldrige\i0 \f2\fs24 , 844 \line F.2d 668, 678 (9th Cir. 1988). OCBC has identified a \line strong public interest in the availability of a doctor- \line prescribed treatment that would help ameliorate the \par \page\pard\plain\fi2800 \line \f2\fs24 10a \par \par \pard\plain \line \f2\fs24 condition and relieve the pain and suffering of a large \line group of persons with serious or fatal illnesses. Indeed, \line the City of Oakland has declared a public health emer- \line gency in response to the district courtÕs refusal to grant \line the modification under appeal here. Materials submit- \line ted in support of OCBCÕs motion to modify the injunc- \line tion show that the proposed amendment to the injunc- \line tion clearly related to a matter affecting the public in- \line terest. Because the district court believed that it had \line no discretion to issue an injunction that was more \line limited in scope than the Controlled Substances Act \line itself, it summarily denied the requested modification \line without weighing or considering the public interest. \par \par \pard\plain\fi240 \line \f2\fs24 We have no doubt that the district court could have \line modified its injunction, had it determined to do so in the \line exercise of its equitable discretion. The evidence in the \line record is sufficient to justify the requested modifi- \line cation. OCBC submitted the declarations of many seri- \line ously ill individuals and their doctors who, despite their \line very real fears of criminal prosecution, came forward \line and attested to the need for cannabis in order to treat \line the debilitating and life threatening conditions. \par \par \pard\plain\fi240 \line \f2\fs24 In short, OCBC presented evidence that there is a \line class of people with serious medical conditions for \line whom the use of cannabis is necessary in order to treat \line or alleviate those conditions or their symptoms; who \line will suffer serious harm if they are denied cannabis; and \line for whom there is no legal alternative to cannabis for \line the effective treatment of their medical conditions be- \line cause they have tried other alternatives and have found \line that they are ineffective, or that they result in intoler- \line able side effects. \par \page\pard\plain\fi2800 \line \f2\fs24 11a \par \par \pard\plain\fi240 \line \f2\fs24 The government, by contrast, has yet to identify any \line interest it may have in blocking the distribution of can- \line nabis to those with medical needs, relying exclusively \line on its general interest in enforcing its statutes. It has \line offered \f3\fs24 \i no \i0 \f2\fs24 evidence to rebut OCBCÕs evidence that can- \line nabis is the only effective treatment for a large group of \line seriously ill individuals, and it confirmed at oral argu- \line ment that it sees no need to offer any. It simply rests on \line the erroneous argument that the district judge was \line compelled as a matter of law to issue an injunction that \line is coextensive with the facial scope of the statute. \par \par \pard\plain\fi240 \line \f2\fs24 The district court, accepting the governmentÕs argu- \line ment that it lacked the authority to grant the requested \line modification, failed to undertake the required analysis \line and summarily denied OCBCÕs request. Accordingly, \line we reverse the order denying the modification and re- \line mand. On remand, the district court is instructed to re- \line consider the appellantsÕ request for a modification that \line would exempt from the injunction distribution to seri- \line ously ill individuals who need cannabis for medical pur- \line poses. In particular, the district court is instructed to \line consider, in light of our decision in \f3\fs24 \i United States v. \line Aguilar\i0 \f2\fs24 , 883 F.2d 662, 692 (9th Cir. 1989), the criteria \line for a medical necessity exemption, and, should it modify \line the injunction, to set forth those criteria in the modifi- \line cation order. \par \par \pard\plain\fi240 \line \f2\fs24 The panel will retain jurisdiction over any further \line appeals in this case. \par \par \pard\plain\fi240 \line \f2\fs24 The case is REMANDED for further proceedings \line consistent with this opinion. \par \page\pard\plain\fi2800 \line \f2\fs24 12a \par \par \pard\plain\fi2460 \line \f0\fs20 \b APPENDIX B \b0 \par \par \pard\plain\fi580 \line \f2\fs22 IN THE UNITED STATES DISTRICT COURT \line FOR THE NORTHERN DISTRICT OF CALIFORNIA \par \par \pard\plain\fi2000 \line \f2\fs24 No. C 98-00088 CRB \par \par \pard\plain\fi820 \line \f2\fs24 U\f2\fs19 NITED \f2\fs24 S\f2\fs19 TATES OF \f2\fs24 A\f2\fs19 MERICA\f2\fs24 , \f2\fs19 PLAINTIFF \par \line \f3\fs24 \i v. \i0 \par \par \pard\plain\fi180 \line \f2\fs24 O\f2\fs19 AKLAND \f2\fs24 C\f2\fs19 ANNABIS \f2\fs24 B\f2\fs19 UYERS\f2\fs24 Õ C\f2\fs19 OOPERATIVE\f2\fs24 , \f2\fs19 ET AL\f2\fs24 ., \line \f2\fs19 DEFENDANTS \par \par \pard\plain\fi1840 \line \f2\fs24 [Filed: July 17, 2000] \par \par \pard\plain\fi2580 \line \f0\fs22 \b ORDER \b0 \par \par \pard\plain\fi240 \line \f2\fs24 Now before the Court is defendantsÕ motion to mod- \line ify the injunction issued on May 19, 1998, or in the alter- \line native, to dissolve the injunction. After carefully con- \line sidering the papers filed by the parties, and having had \line the benefit of oral argument, the motion to modify the \line injunction is GRANTED. \par \par \pard\plain\fi240 \line \f2\fs24 In \f3\fs24 \i United States v. Oakland Cannabis BuyersÕ Coop-\i0 \f2\fs24 \line \f3\fs24 \i erative,\i0 \f2\fs24 190 F.3d 1109 (9th Cir. 1999), the Ninth Circuit \line reversed the CourtÕs order denying defendantsÕ motion \line to modify the injunction and instructed the Court Òto \line reconsider the [defendantsÕ] request for a modification \line that would exempt from the injunction distribution to \line seriously ill individuals who need cannabis for medical \line purposes.Ó \f3\fs24 \i Id. \i0 \f2\fs24 at 1115. In doing so, the court held that \line this Court must consider the public interest, and that \par \page\pard\plain\fi2800 \line \f2\fs24 13a \par \par \pard\plain \line \f2\fs24 the evidence in the record Òshow[s] that the proposed \line amendment to the injunction clearly related to a matter \line affecting the public interest.Ó \par \line \f3\fs24 \i Id. \i0 \f2\fs24 at 1114. Significantly, \pard\plain \line \f2\fs24 the Ninth Circuit also held that the government had not \line Òidentif[ied] any interest it may have in blocking the \line distribution of cannabis to those with medical needs, \line relying exclusively on its general interest in enforcing \line its statutes.Ó \par \line \f3\fs24 \i Id. \i0 \f2\fs24 The court noted that the government \pard\plain \line \f2\fs24 Òhas offered \line \f3\fs24 \i no \i0 \f2\fs24 evidence to rebut OCBCÕs evidence that \par \pard\plain \line \f2\fs24 cannabis is the only effective treatment for a large \line group of seriously ill individuals.Ó \par \line \f3\fs24 \i Id. \i0 \par \pard\plain\fi240 \line \f2\fs24 On remand the government has still not offered any \line evidence to rebut defendantsÕ evidence that cannabis is \line medically necessary for a group of seriously ill indi- \line viduals. Instead, the government continues to press \line arguments which the Ninth Circuit rejected, including \line the argument that the Court must find that enjoining \line the distribution of cannabis to seriously ill individuals is \line in the public interest because Congress has prohibited \line such conduct in favor of the administrative process \line regulating the approval and distribution of drugs. As a \line result of the governmentÕs failure to offer any new evi- \line dence in opposition to defendantsÕ motion, and in light \line of the Ninth CircuitÕs opinion, the Court must conclude \line that modifying the injunction as requested is in the \line public interest and exercise its equitable discretion to \line do so. \par \par \pard\plain\fi240 \line \f2\fs24 Accordingly, the injunction issued on May 19, 1998 \line will be modified as follows: \par \par \pard\plain\fi460 \line \f2\fs24 The foregoing injunction does not apply to the \line distribution of cannabis by the Oakland Cannabis \line BuyersÕ Cooperative and Jeffrey Jones to patient- \line members who (1) suffer from a serious medical \par \page\pard\plain \line \f2\fs24 14a \par \par \pard\plain\fi460 \line \f2\fs24 condition, (2) will suffer imminent harm if the \line patient-member does not have access to cannabis, \line (3) need cannabis for the treatment of the patient- \line memberÕs medical condition, or need cannabis to al- \line leviate the medical condition or symptoms associ- \line ated with the medical condition, and (4) have no \line reasonable legal alternative to cannabis for the ef- \line fective treatment or alleviation of the patient- \line memberÕs legal medical condition or symptoms \line associated with the medical condition because the \line patient-member has tried all other legal alterna- \line tives to cannabis and the alternatives have been \line ineffective in treating or alleviating the patient- \line memberÕs medical condition or symptoms associ- \line ated with the medical condition, or the alternatives \line result in side effects which the patient-member \line cannot reasonably tolerate. \par \par \pard\plain\fi240 \line \f2\fs24 The Court DENIES defendantsÕ motion to dissolve \line the injunction. Nothing in the Ninth CircuitÕs decision \line suggests that the Court should dissolve the injunction, \line especially in light of the above modification. \par \par \pard\plain\fi240 \line \f0\fs22 \b IT IS SO ORDERED. \b0 \par \par \pard\plain \line \f2\fs24 Dated: July 17, 2000 \par \par \pard\plain\fi1800 \line \f3\fs24 \i /s/ \i0 \f2\fs22 CHARLES R. BREYER \par \pard\plain\fi2340 \line \f2\fs24 C\f2\fs19 HARLES \f2\fs24 R. B\f2\fs19 REYER \line \f2\fs24 United States District Judge \par \page\pard\plain\fi2620 \line \f2\fs24 15a \par \par \pard\plain\fi2280 \line \f0\fs20 \b APPENDIX C \b0 \par \par \pard\plain\fi400 \line \f2\fs22 IN THE UNITED STATES DISTRICT COURT \line FOR THE NORTHERN DISTRICT OF CALIFORNIA \par \par \pard\plain\fi1880 \line \f2\fs24 No. C 98-0088 CRB \par \par \pard\plain\fi620 \line \f2\fs24 U\f2\fs19 NITED \f2\fs24 S\f2\fs19 TATES OF \f2\fs24 A\f2\fs19 MERICA\f2\fs24 , P\f2\fs19 LAINTIFF \par \line \f3\fs24 \i v. \i0 \par \par \pard\plain \line \f2\fs24 O\f2\fs19 AKLAND \f2\fs24 C\f2\fs19 ANNABIS \f2\fs24 B\f2\fs19 UYERS\f2\fs24 Õ C\f2\fs19 OOPERATIVE\f2\fs24 , \f2\fs19 ET AL\f2\fs24 ., \line \f2\fs19 DEFENDANTS \par \pard\plain\fi1960 \line \f2\fs24 [Filed: July 17, 2000] \par \par \pard\plain\fi400 \line \f0\fs22 \b AMENDED PRELIMINARY INJUNCTION ORDER \b0 \par \par \pard\plain\fi240 \line \f2\fs24 For the reasons stated in its Memorandum and Order \line dated May 13, 1998 and its Order dated July 17, 2000, it \line is hereby ORDERED as follows: \par \line 1. Defendants Oakland Cannabis BuyersÕ Coopera- \line tive and Jeffrey Jones are hereby preliminarily en- \line joined, pending further order of the Court, from engag- \line ing in the manufacture or distribution of marijuana, or \line the possession of marijuana with the intent to manu- \line facture and distribute marijuana, in violation of 21 \line U.S.C. ¤ 841(a)(1); and \par \line 2. Defendants Oakland Cannabis BuyersÕ Coopera- \line tive and Jeffrey Jones are hereby preliminarily en- \line joined from using the premises of 1755 Broadway, Oak- \par \page\pard\plain\fi2800 \line \f2\fs24 16a \par \par \pard\plain \line \f2\fs24 land, California for the purposes of engaging in the \line manufacture and distribution of marijuana; and \par \line 3. Defendant Jeffrey Jones is hereby preliminarily \line enjoined from conspiring to violate the Controlled Sub- \line stances Act, 21 U.S.C. ¤ 841(a)(1) with respect to the \line manufacture or distribution of marijuana, or the pos- \line session of marijuana with the intent to manufacture and \line distribute marijuana. \par \line 4. It shall not be a violation of this injunction for de- \line fendants to seek and obtain legal advice from their at- \line torneys. \par \line 5. Pursuant to Federal Rule of Civil Procedure \line 65(d), this injunction shall bind the defendants, their \line officers, agents, servants, employees, successors, and \line attorneys, and upon those persons in active concert or \line participation with them who receive notice of the order \line by personal service or otherwise. \par \line 6. The foregoing injunction does not apply to the dis- \line tribution of cannabis by the Oakland Cannabis BuyersÕ \line Cooperative and Jeffrey Jones to patient-members who \line (1) suffer from a serious medical condition, (2) will \line suffer imminent harm if the patient-member does not \line have access to cannabis, (3) need cannabis for the treat- \line ment of the patient-memberÕs medical condition, or \line need cannabis to alleviate the medical condition or \line symptoms associated with the medical condition, and (4) \line have no reasonable legal alternative to cannabis for the \line effective treatment or alleviation of the patient-mem- \line berÕs medical condition or symptoms associated with \line the medical condition because the patient-member has \line tried all other legal alternatives to cannabis and the \line alternatives have been ineffective in treating or allevia- \par \page\pard\plain\fi2800 \line \f2\fs24 17a \par \par \pard\plain \line \f2\fs24 ting the patient-memberÕs medical condition or symp- \line toms associated with the medical condition, or the alter- \line natives result in side effects which the patient-member \line cannot reasonably tolerate. \par \par \pard\plain\fi240 \line \f0\fs22 \b IT IS SO ORDERED. \b0 \par \par \pard\plain \line \f2\fs24 Dated: July 17, 2000 \par \par \pard\plain\fi1800 \line \f3\fs24 \i /s/ \i0 \f2\fs22 CHARLES R. BREYER \par \pard\plain\fi2340 \line \f2\fs24 C\f2\fs19 HARLES \f2\fs24 R. B\f2\fs19 REYER \line \f2\fs24 United States District Judge \par \page\pard\plain\fi2440 \line \f2\fs24 18a \par \par \pard\plain\fi2000 \line \f0\fs20 \b APPENDIX D \b0 \par \par \pard\plain\fi360 \line \f2\fs22 IN THE UNITED STATES DISTRICT COURT \par \par \pard\plain \line \f2\fs22 FOR THE NORTHERN DISTRICT OF CALIFORNIA \par \pard\plain\fi1040 \line \f2\fs24 No. C 98-00085 CRB, C 98-00086 CRB, \line C 98-00087 CRB, C 98-00088 CRB, \line C 98-00245 CRB. \par \par \pard\plain\fi1500 \line \f2\fs24 U\f2\fs19 NITED \f2\fs24 S\f2\fs19 TATES\f2\fs24 , \f2\fs19 PLAINTIFF \par \line \f3\fs24 \i v. \i0 \par \par \pard\plain\fi180 \line \f2\fs24 C\f2\fs19 ANNABIS \f2\fs24 C\f2\fs19 ULTIVATORS \f2\fs24 C\f2\fs19 LUB\f2\fs24 , \f2\fs19 ET AL\f2\fs24 ., \f2\fs19 DEFENDANTS \par \par \pard\plain\fi1840 \line \f2\fs19 AND \f2\fs24 R\f2\fs19 ELATED \f2\fs24 C\f2\fs19 ASES \par \par \pard\plain\fi1860 \line \f2\fs24 [Filed: Oct. 16, 1998] \par \par \pard\plain\fi1360 \line \f0\fs22 \b ORDER IN CASE NO. 98-00088 \b0 \par \par \pard\plain\fi320 \line \f0\fs22 \b (OAKLAND CANNABIS BUYERSÕ COOPERATIVE) \b0 \par \par \pard\plain\fi240 \line \f2\fs24 On October 13, 1998, the Court issued a Memoran- \line dum and Order modifying the preliminary injunction \line order issued on May 19, 1998 (Òthe October 13th \line OrderÓ). The Court stayed the October 13th Order \line until 5:00 p.m. today. Now before the Court is de- \line fendantsÕ ex parte application for a further stay pend- \par \page\pard\plain\fi2800 \line \f2\fs24 19a \par \par \pard\plain \line \f2\fs24 ing appeal and for modification of the preliminary \line injunction order. \par \par \pard\plain\fi240 \line \f2\fs24 Good cause appearing therefore, defendantsÕ request \line that the Court continue the stay of the October 13, 1998 \line Order to permit defendants to file an emergency re- \line quest for a stay in the Ninth Circuit Court of Appeals is \line GRANTED. The Court hereby STAYS the October \line 13th Order until 5:00 p.m. Monday, October 19, 1998, \line \f3\fs24 \i provided defendants file their request for an emergency \line stay with the Ninth Circuit Court of Appeals by the \line close of business today\i0 \f2\fs24 , Friday, October 16, 1998. All \line further requests for a stay must be directed to the \line Ninth Circuit Court of Appeals. \par \par \pard\plain\fi240 \line \f2\fs24 DefendantsÕ request for a stay pending resolution of \line their appeal is DENIED. DefendantsÕ request to \line modify the preliminary injunction is also DENIED. \par \par \pard\plain\fi260 \line \f0\fs22 \b IT IS SO ORDERED. \b0 \par \par \pard\plain \line \f2\fs24 Dated: October 16, 1998 \par \par \pard\plain\fi1980 \line \f2\fs24 /s/ CHARLES R. BREYER \line C\f2\fs19 HARLES \f2\fs24 R. B\f2\fs19 REYER \line \f2\fs24 United States District Judge \par \page\pard\plain\fi2800 \line \f2\fs24 20a \par \par \pard\plain\fi2340 \line \f0\fs20 \b APPENDIX E \b0 \par \par \pard\plain\fi720 \line \f2\fs22 IN THE UNITED STATES DISTRICT COURT \par \par \pard\plain\fi340 \line \f2\fs22 FOR THE NORTHERN DISTRICT OF CALIFORNIA \par \par \pard\plain\fi920 \line \f2\fs24 No. C 98-00085 CRB, C 98-00086 CRB, \line C 98-00087 CRB, C 98-00088 CRB, \line C 98-00245 CRB \par \par \pard\plain\fi1500 \line \f2\fs24 U\f2\fs19 NITED \f2\fs24 S\f2\fs19 TATES\f2\fs24 , \f2\fs19 PLAINTIFF \par \line \f3\fs24 \i v. \i0 \par \par \pard\plain\fi180 \line \f2\fs24 C\f2\fs19 ANNABIS \f2\fs24 C\f2\fs19 ULTIVATORS \f2\fs24 C\f2\fs19 LUB\f2\fs24 , \f2\fs19 ET AL\f2\fs24 ., \f2\fs19 DEFENDANTS \par \par \pard\plain\fi1840 \line \f2\fs19 AND \f2\fs24 R\f2\fs19 ELATED \f2\fs24 C\f2\fs19 ASES \par \par \pard\plain\fi1860 \line \f2\fs24 [Filed: Oct. 13, 1998] \par \par \pard\plain\fi640 \line \f0\fs22 \b MEMORANDUM AND ORDER RE: MOTIONS \b0 \par \par \pard\plain\fi720 \line \f0\fs22 \b IN LIMINE AND ORDER TO SHOW CAUSE \b0 \par \par \pard\plain\fi1780 \line \f0\fs22 \b IN CASE NO. 98-00088 \b0 \par \par \pard\plain\fi820 \line \f0\fs22 \b (Oakland Cannabis BuyersÕ Cooperative) \b0 \par \par \pard\plain\fi240 \line \f2\fs24 Now before the Court are plaintiffÕs motions in limine \line to exclude defendantsÕ affirmative defenses and the \line CourtÕs Order to Show Cause why defendants are not in \line contempt of the CourtÕs May 19, 1998 order. After \line carefully considering the papers and evidence sub- \par \page\pard\plain\fi2800 \line \f2\fs24 21a \par \par \pard\plain \line \f2\fs24 mitted by the parties, and having had the benefit of oral \line argument on October 5, 1998, plaintiffÕs motions are \line GRANTED. The Court further finds that defendants \line have not offered any evidence to controvert plaintiffÕs \line evidence that defendantsÕ violated the May 19, 1998 \line preliminary injunction order. Thus, defendants are in \line contempt of the injunction. \par \par \pard\plain\fi2160 \line \f0\fs22 \b BACKGROUND \b0 \par \par \pard\plain\fi240 \line \f2\fs24 On May 19, 1998, the Court issued an order pre- \line liminarily enjoining defendants Oakland Cannabis \line BuyersÕ Cooperative (ÒOCBCÓ) and Jeffrey Jones, from, \line among other things, Òengaging in the manufacture or \line distribution of marijuana, or the possession of mari- \line juana with the intent to manufacture or distribute \line marijuana, in violation of 21 U.S.C. ¤ 841(a)(1),Ó and \line Òusing the premises of 1755 Broadway, Oakland, Cali- \line fornia for the purposes of engaging in the manufacture \line and distribution of marijuana.Ó Upon motion of the \line plaintiff, and after hearing oral argument and con- \line sidering the papers submitted by the parties, the Court \line ordered defendants to show cause Òwhy they should not \line be held in civil contempt of the CourtÕs May 19, 1998 \line Preliminary Injunction Order by distributing marijuana \line and by using the premises of 1755 Broadway, Oakland, \line California, for the purpose of distributing marijuana, on \line May 27, 1998.Ó The show cause order was based upon \line evidence submitted by plaintiff as follows: \par \par \pard\plain\fi240 \line \f2\fs24 (1) On May 20, 1998, one day after the Court \line entered the injunction, defendants OCBC and Jeffrey \line Jones issued a press release entitled ÒOakland Co- \line operative to Openly Dispense Medical Marijuana for \line First Time Since Preliminary Injunction Ð U.S. \par \page\pard\plain\fi2800 \line \f2\fs24 22a \par \par \pard\plain \line \f2\fs24 Attorney to be Notified: HIV, Multiple Sclerosis and \line Other Seriously Ill Patients to Receive Pot at 11:00 \par \line a.m., Thursday May 21, Oakland Buyers Cannabis Co- \line operative, 1755 Broadway, Oakland.Ó \par \par \pard\plain\fi240 \line \f2\fs24 (2) A declaration from Special Agent Peter Ott that \line on May 21, 1998, he entered the OCBC in an under- \line cover capacity and observed approximately fourteen \line sales or distributions of what appeared to be marijuana \line by persons associated with the OCBC, including Jeffrey \line Jones, several of which were made in front of news \line cameras. \par \par \pard\plain\fi240 \line \f2\fs24 (3) Evidence that the World Wide Web site of the \line OCBC, which indicates that it was updated on June 1 \line and August 12, 1998, states: ÒCurrently, we are pro- \line viding medical cannabis and other services to over 1,300 \line members.Ó \par \par \pard\plain\fi240 \line \f2\fs24 (4) A declaration from Special Agent Bill Nyfeler \line that on May 27, 1998 he placed a recorded telephone call \line to the OCBC, at (510) 832-5346. The individual who \line answered the phone informed Special Agent Nyfeler \line that the OCBC was still open for business, and told \line Special Agent Nyfeler the clubÕs business hours. \par \par \pard\plain\fi240 \line \f2\fs24 (5) A declaration from Special Agent Dean Arnold \line that on June 16, 1998 he placed a recorded telephone \line call to the OCBC, at (510) 843-5346. An unidentified \line male answered the telephone and informed Special \line Agent Arnold that the OCBC was open for business \line and was accepting new members. The unidentified \line male further informed Special Agent Arnold about the \line requirements of becoming an OCBC member, the hours \line that the club was open (11 a.m. - 1 p.m., and 5 p.m. - 7 \par \page\pard\plain\fi2800 \line \f2\fs24 23a \par \line p.m.), and the location of the OCBC, at 1755 Broadway \line Avenue, in Oakland. \par \par \pard\plain\fi240 \line \f2\fs24 (6) Evidence that in an article entitled \f3\fs24 \i Marijuana \line Clubs Defy JudgeÕs Order \i0 \f2\fs24 by Karyn Hunt, which \line appeared on May 22, 1998, in \f3\fs24 \i AP Online\i0 \f2\fs24 , defendant \line Jeffrey Jones is quoted as stating, ÒWe are not closing \line down. We feel what we are doing is legal and a medical \line necessity and weÕre going to take it to a jury to prove \line that.Ó \par \par \pard\plain\fi240 \line \f2\fs24 The CourtÕs show cause order specifically advised \line defendants that their response to the order should \line include sworn declarations outlining the factual basis \line for any affirmative defenses which they wish to offer. \par \par \pard\plain\fi240 \line \f2\fs24 In response to the show cause order, defendants \line argue (1) that plaintiff has not made a prima facie show- \line ing that defendants violated the CourtÕs injunction, and \line (2) in the alternative, that defendants have submitted \line evidence sufficient to support their affirmative defenses \line of Òjoint user,Ó Ònecessity,Ó and Òsubstantive due pro- \line cess.Ó Defendants incorporate all declarations pre- \line viously filed in this case, and have submitted 12 new \line declarations, including declarations from eight OCBC \line patients. The patients testify as to their need for \line marijuana to alleviate the symptoms of their serious \line illnesses or disabilities. Of the eight patients, none \line states that he or she received marijuana from de- \line fendants on May 21, 1998, although four, Michael M. \line Alcalay, M.D., M.P.H., Albert Dunham, Kenneth Estes, \line and Yvonne Westbrook attest that they were present \line at the OCBC on that date. The other four do not \line declare that they were present at the OCBC on May 21. \par \page\pard\plain\fi2800 \line \f2\fs24 24a \par \par \pard\plain\fi240 \line \f2\fs24 Several of the declarants, including Dr. Alcalay, the \line OCBC Medical Director, Laura A. Galli, R.N., an OCBC \line patient and volunteer nurse, and James D. McClelland, \line the OCBC Chief Financial Officer and an OCBC board \line member, testify as to the OCBCÕs strict requirements \line for admission to the OCBC. In addition, defendants \line offer the expert testimony of Harvard physician Lester \line Grinspoon, M.D. and John P. Morgan, M.D., Professor \line of Pharmacology at City University of New York as to \line the medical benefits of marijuana and why other drugs, \line such as Marinol, are not a reasonable alternative for \line some patients. At defendantsÕ request, the Court also \line takes judicial notice of the physician declarations filed \line in \f3\fs24 \i Conant v. McCaffrey\i0 \f2\fs24 , 97-0139 FMS. \par \par \pard\plain\fi240 \line \f2\fs24 Plaintiff has moved in limine to exclude defendantsÕ \line affirmative defenses and defendants have moved for an \line order granting use immunity to defendants Jeffrey \line Jones and other witnesses who are unwilling to testify \line in this action without such immunity. The Court heard \line oral argument on October 5, 1998, and thereafter took \line the matter under submission. \par \par \pard\plain\fi2280 \line \f0\fs22 \b DISCUSSION \par \line I. THE MOTIONS FOR IMMUNITY. \b0 \par \par \pard\plain\fi240 \line \f2\fs24 District courts generally do not have the authority to \line confer use immunity for defense witnesses who invoke \line the Fifth Amendment privilege against self-incrimi- \line nation. \f3\fs24 \i See United States v. Baker\i0 \f2\fs24 , 10 F.3d 1374, 1414 \line (9th Cir. 1993). In \f3\fs24 \i Simmons v. United States\i0 \f2\fs24 , 390 U.S. \line 377 (1968), however, the Supreme Court held that \line Òwhen a defendant testifies in support of a motion to \line suppress evidence on Fourth Amendment grounds, his \par \page\pard\plain\fi2800 \line \f2\fs24 25a \par \par \pard\plain \line \f2\fs24 testimony may not thereafter be admitted against him \line at trial on the issue of guilt unless he makes no \line objection.Ó \f3\fs24 \i Id. \i0 \f2\fs24 at 394 (Òwe find it unconscionable that \line one constitutional right should have to be surrendered \line in order to assert anotherÓ). The Third Circuit sub- \line sequently extended \f3\fs24 \i Simmons \i0 \f2\fs24 to a criminal defendant \line confronted with the dilemma of whether to offer \line favorable testimony at his bail hearing, which testi- \line mony was required because of a presumption of \line dangerousness arising under the Bail Reform Act, or \line safeguard his Fifth Amendment right not to testify. \line \f3\fs24 \i See United States v. Perry\i0 \f2\fs24 , 788 F.2d 100, 115-16 (3d Cir. \line 1986). The \f3\fs24 \i Perry \i0 \f2\fs24 court held that the trial court should \line have granted the defendant use immunity because the \line defendantÕs testimony at the bail hearing was Òneces- \line sary to vindicate the most fundamental of all consti- \line tutional rights, the right of liberty from civil incar- \line ceration.Ó \f3\fs24 \i Id. \i0 \f2\fs24 at 116. \par \par \pard\plain\fi240 \line \f2\fs24 Defendant Jones argues that he, too, is being forced \line to choose between his Fifth Amendment privilege and \line his right of liberty since he might be fined or even \line jailed as a sanction if he is found in contempt. Plaintiff, \line however, has represented that it is not seeking fines or \line incarceration to compel Jones to comply with the \line CourtÕs injunction and the Court will not consider such \line remedies. As Jones is not being forced to choose be- \line tween competing constitutional rights, \f3\fs24 \i Simmons \i0 \f2\fs24 and \line \f3\fs24 \i Perry \i0 \f2\fs24 are inapplicable even assuming they apply to \line defendants in a civil contempt proceeding. \par \par \pard\plain\fi240 \line \f2\fs24 Defendants also argue that the Court can and should \line grant use immunity to defendantsÕ witnesses to protect \line defendantsÕ right to due process and a fair trial. In \line \f3\fs24 \i United States v. Lord\i0 \f2\fs24 , 711 F.2d 887, 890-92 (9th Cir. \par \page\pard\plain\fi2800 \line \f2\fs24 26a \par \par \pard\plain \line \f2\fs24 1983), and \f3\fs24 \i United States v. Westerdahl\i0 \f2\fs24 , 945 F.2d 1083, \line 1085-87 (9th Cir. 1991), the Ninth Circuit recognized \line that a defendant may be denied a fair trial as a result of \line the governmentÕs failure to provide use immunity to \line the testimony of a defense witness. \f3\fs24 \i Lord \i0 \f2\fs24 and \f3\fs24 \i Wester- \line dahl \i0 \f2\fs24 are inapplicable to these contempt proceedings for \line two reasons. \par \par \pard\plain\fi240 \line \f2\fs24 First, both cases were criminal prosecutions where \line the defendantÕs right to liberty was at stake. De- \line fendants have not cited any cases, and the Court is \line aware of none, in which the \f3\fs24 \i Lord \i0 \f2\fs24 and \f3\fs24 \i Westerdahl \line \i0 \f2\fs24 principle has been extended to civil cases. \par \par \pard\plain\fi240 \line \f2\fs24 Second, the Ninth Circuit requires some prima facie \line evidence of prosecutorial misconduct before a grant of \line immunity may be given. \f3\fs24 \i See Baker\i0 \f2\fs24 , 10 F.3d at 1414; \line \f3\fs24 \i Westerdahl\i0 \f2\fs24 , 945 F.2d at 1086; \f3\fs24 \i Lord\i0 \f2\fs24 , 711 F.2d at 892. In \line \f3\fs24 \i Westerdahl\i0 \f2\fs24 , for example, the government had granted \line immunity to a key prosecution witness, but had refused \line to immunize defendantÕs potentially exculpatory wit- \line ness. The court held that the district court should have \line held an evidentiary hearing to determine if the \line government Òintentionally distorted the facts.Ó \par \line \f3\fs24 \i Id. \i0 \f2\fs24 at \pard\plain \line \f2\fs24 1087. Defendants have not made such a prima facie \line showing here. At best, all that defendants have shown \line is that plaintiff has refused to immunize defendantsÕ \line witnesses, forcing the witnesses to decide whether to \line testify in the contempt proceeding or potentially incri- \line minate themselves. Such a choice cannot in and of \line itself constitute misconduct since a defendant Òhas no \line absolute right not to be forced to choose between \line testifying in a civil matter and asserting his Fifth \line Amendment privilege.Ó \par \line \f3\fs24 \i Keating v. Office of Thrift \i0 \pard\plain \line \f3\fs24 \i Supervision\i0 \f2\fs24 , 45 F.3d 322, 326 (9th Cir. 1995). \par \page\pard\plain \line \f2\fs24 27a \par \par \par \line \f0\fs22 \b II. THE MOTIONS IN LIMINE. \b0 \par \par \pard\plain\fi260 \line \f0\fs22 \b A. The Legal Standard. \b0 \par \par \pard\plain\fi240 \line \f2\fs24 A defendant is entitled to have the judge instruct the \line jury on his theory of defense only if it is Ò Ôsupported by \line law and has some foundation in evidence.Õ Ó \par \line \f3\fs24 \i United \i0 \pard\plain \line \f3\fs24 \i States v. Gomez-Osorio, \i0 \f2\fs24 957 F.2d 636, 642 (9th Cir. \line 1992). A district judge may preclude a party from \line offering evidence in support of a defense, including a \line necessity defense, by granting a motion in limine. \f3\fs24 \i See \line United States v. Aguilar\i0 \f2\fs24 , 883 F.2d 662, 692 (9th Cir. \line 1989); \f3\fs24 \i United States v. Dorrell\i0 \f2\fs24 , 758 F.2d 427, 430 (9th \line Cir. 1985). ÒThe sole question presented in such \line situations is whether the evidence, as described in the \line offer of proof, is insufficient as a matter of law to \line support the proffered defense.Ó \par \line \f3\fs24 \i Dorrell\i0 \f2\fs24 , 758 F.2d at \pard\plain \line \f2\fs24 430. ÒIf it is, then the trial court should exclude the \line defense and the evidence offered in support.Ó \par \line \f3\fs24 \i Id. \i0 \par \pard\plain \line \f0\fs22 \b B. The ÒJoint UserÓ Defense. \b0 \par \par \pard\plain\fi240 \line \f2\fs24 In \f3\fs24 \i United States v. Swiderski\i0 \f2\fs24 , 548 F.2d 445 (2nd Cir. \line 1977), defendants, husband and wife, were charged with \line violating 21 U.S.C. ¤ 841(a) by possessing cocaine with \line intent to distribute. \f3\fs24 \i See id. \i0 \f2\fs24 at 447. The Second Circuit \line held that Òa statutory ÔtransferÕ could not occur be- \line tween two individuals in joint possession of a controlled \line substance simultaneously acquired for their own use.Ó \line \f3\fs24 \i United States v. Wright\i0 \f2\fs24 , 593 F.2d 105, 107 (9th Cir. \line 1979) (discussing \f3\fs24 \i Swiderski\i0 \f2\fs24 ). The court thus concluded \line that the trial judge erred by denying Òthe jury the \line opportunity to find that the defendants, who bought the \line drugs in each otherÕs physical presence, intended \par \page\pard\plain\fi2800 \line \f2\fs24 28a \par \par \pard\plain \line \f2\fs24 merely to share the drugsÓ and thus, not to distribute \line them. \f3\fs24 \i Id.\i0 \f2\fs24 ; \f3\fs24 \i Swiderski\i0 \f2\fs24 , 548 F.2d at 450. \par \par \pard\plain\fi240 \line \f2\fs24 Defendants here, unlike the defendants in \f3\fs24 \i Swiderski\i0 \f2\fs24 , \line have not offered any evidence of the literal joint pur- \line chase of the marijuana they are alleged to have distri- \line buted on May 27, 1998. Defendants contend nonethe- \line less that because the OCBC is operated as a coopera- \line tive, the marijuana is effectively purchased together by \line all its members and is consumed together by all its \line members since the marijuana is only distributed to \line members of the cooperative. Thus, defendants argue, \line they are entitled to a \f3\fs24 \i Swiderski \i0 \f2\fs24 instruction. \par \par \pard\plain\fi240 \line \f2\fs24 The Court declines to extend \f3\fs24 \i Swiderski \i0 \f2\fs24 to the facts \line as presented by defendantsÕ proffer, namely a medical \line marijuana cooperative. As the Court has previously \line noted, \f3\fs24 \i Swiderski \i0 \f2\fs24 involved a simultaneous purchase \line by a husband and wife who testified they intended to \line use the controlled substance immediately. Applying \line \f3\fs24 \i Swiderski \i0 \f2\fs24 to a medical marijuana cooperative would \line extend \f3\fs24 \i Swiderski \i0 \f2\fs24 to a situation in which the controlled \line substance is not literally purchased simultaneously for \line immediate consumption. \f3\fs24 \i See United States v. Cannabis \line Cultivators Club\i0 \f2\fs24 , 5 F.Supp.2d 1086, 1101 (N.D. Cal. \line 1998). In light of the fact that \f3\fs24 \i Swiderski \i0 \f2\fs24 has never been \line so extended, and in light of the fact that is has not been \line adopted by the Ninth Circuit, the Court concludes that \line such a defense is not available on the facts proffered by \line defendants as a matter of law. \par \par \pard\plain\fi240 \line \f0\fs22 \b C. The Necessity Defense. \b0 \par \par \pard\plain\fi240 \line \f2\fs24 To be entitled to a jury instruction on the defense of \line necessity, defendants must offer evidence (1) that they \par \page\pard\plain\fi2800 \line \f2\fs24 29a \par \par \pard\plain \line \f2\fs24 were faced with a choice of evils and chose the lesser \line evil; (2) they acted to prevent imminent harm; (3) they \line reasonably anticipated a direct causal relationship \line between their conduct and the harm to be averted; and \line (4) that there were no legal alternatives to violating the \line law. \f3\fs24 \i See United States v. Aguilar\i0 \f2\fs24 , 883 F.2d 662, 693 \line (9th Cir. 1989). Defendants have produced evidence \line that marijuana has a medical benefit to many persons \line and that for some persons marijuana is the only drug \line that can alleviate their pain and other debilitating \line symptoms. They also have submitted evidence that \line they carefully screen their members to ensure that they \line have a physicianÕs recommendation for marijuana use. \line Further, the Court will assume, without deciding, that \line the four OCBC patients who have submitted declara- \line tions and admit to having been present at the OCBC on \line May 21, 1998, have submitted sufficient evidence as to \line their need for marijuana to permit a trier of fact to \line determine if they have a legal necessity for marijuana. \par \par \pard\plain\fi240 \line \f2\fs24 Plaintiff argues that a necessity defense based upon a \line medical need for marijuana is never available under any \line circumstances as a defense to a violation of the Con- \line trolled Substances Act because Congress implicitly \line rejected such a defense by placing marijuana in \line Schedule I. The Court need not address this issue, \line however, because it concludes that defendants have not \line produced sufficient evidence in their offer of proof to \line permit a defense of necessity to the charge that they \line violated the injunction. \par \par \pard\plain\fi240 \line \f2\fs24 In \f3\fs24 \i Aguilar\i0 \f2\fs24 , the Ninth Circuit considered a necessity \line defense offer of proof similar to that offered by de- \line fendants here. The \f3\fs24 \i Aguilar \i0 \f2\fs24 defendants were charged \line with violations of the immigration laws, arising from \par \page\pard\plain\fi2800 \line \f2\fs24 30a \par \par \pard\plain \line \f2\fs24 their providing sanctuary to Central American refu- \line gees. With respect to the specificity required of a \line necessity offer of proof, the court held: \par \par \pard\plain\fi360 \line \f2\fs24 We also doubt the sufficiency of the proffer to \line establish imminent harm. \f3\fs24 \i The offer fails to specify \line that the particular aliens assisted were in danger of \line imminent harm\i0 \f2\fs24 . Instead, it refers to general atro- \line cities committed by Salvadoran, Guatemalan, and \line Mexican authorities. The only indication that appel- \line lants intended to show that the aliens involved in \line this action faced imminent harm was their proffer \line that they adopted a process to screen aliens in order \line to assure themselves that those helped actually \line were in danger. \f3\fs24 \i This allegation fails for lack of \line specificity. \i0 \par \par \pard\plain \line \f3\fs24 \i Id. \i0 \f2\fs24 at 692 n.28 (emphasis added). DefendantsÕ proffer \line here likewise fails to identify evidence that demon- \line strates that each of the particular persons to whom \line they distributed marijuana on May 21, 1998 was in \line danger of imminent harm. \par \par \pard\plain\fi240 \line \f2\fs24 Plaintiff has submitted the declaration of a Special \line Agent Ott who testifies that he personally witnessed \line fourteen marijuana transactions on May 21, 1998. \line Moreover, defendantsÕ evidence suggests that they may \line have distributed marijuana to as many as 191 ÒvisitorsÓ \line to the OCBC on May 21, 1998. Defendants, however, \line have proffered evidence as to only four patients who \line admit to visiting the OCBC on May 21. Assuming that \line these four patients obtained marijuana from the OCBC \line on May 21, defendants have, at best, offered a necessity \line defense to only four of the fourteen transactions identi- \line fied by plaintiff, putting aside the fact that defendantsÕ \line own evidence suggests there were as many as 191 \par \page\pard\plain\fi2800 \line \f2\fs24 31a \par \par \pard\plain \line \f2\fs24 marijuana transactions that day. Such a proffer does \line not meet the specificity requirements of \f3\fs24 \i Aguilar\i0 \f2\fs24 , \line namely, that defendants proffer evidence that the \line particular persons to whom they distributed marijuana \line were as a matter of fact in danger of imminent harm. \line As the Court stated before the injunction was issued, \line Òfor the defense of necessity to be available here, \line \f3\fs24 \i defendants would have to prove that each and every \line patient \i0 \f2\fs24 to whom it provides cannabis is in danger in \line imminent harm; that the cannabis will alleviate the \line harm for that particular patient; and that the patient \line had no other alternatives, for example, that no other \line legal drug could have reasonably averted the harm.Ó \line \f3\fs24 \i Cannabis Cultivators Club\i0 \f2\fs24 , 5 F. Supp.2d at 1102 (em- \line phasis added). Defendants have not done so in \line response to the show cause order, and they have not \line offered that they could do so at a jury trial. \par \par \pard\plain\fi240 \line \f2\fs24 Moreover, under \f3\fs24 \i Aguilar\i0 \f2\fs24 , defendantsÕ evidence as to \line the OCBCÕs stringent admission requirements and \line their evidence as to the medical benefits of marijuana \line generally, rather than to the particular persons to \line whom defendants distributed marijuana on May 21, is \line immaterial as a matter of law. The defendants must \line show that \f3\fs24 \i each \i0 \f2\fs24 person to whom they distributed mari- \line juana was actually in danger of imminent harm. It is not \line sufficient that defendants reasonably believed each \line person to be in such danger. \par \par \pard\plain\fi240 \line \f2\fs24 Defendants contend that a jury should be allowed to \line consider their necessity defense because their evidence \line demonstrates that on May 21, 1998 they were in sub- \line stantial compliance with the CourtÕs injunction. Under \line defendantsÕ reasoning, however, a defendant would be \line excused from complying with the Controlled Sub- \par \page\pard\plain\fi2800 \line \f2\fs24 32a \par \par \pard\plain \line \f2\fs24 stances Act because \f3\fs24 \i some\i0 \f2\fs24 , but not all, of the people to \line whom they distributed marijuana had a legal necessity. \line No case of which this Court is aware has ever allowed \line such a blanket exemption to the criminal laws. \par \par \pard\plain\fi240 \line \f2\fs24 Defendants argue in the alternative that their proffer \line could not be more specific because plaintiff failed to \line identify the specific persons to whom plaintiff alleges \line defendants distributed marijuana. The Order to Show \line Cause, however, was limited to a single day and the \line plaintiffÕs evidence as to the government agentÕs per- \line sonal observation of fourteen marijuana transactions \line in the OCBCÑtransactions which the defendants \line announced publicly in advance and invited the public, \line including the United States Attorney for the Northern \line District of California, to witnessÑoccurred during a \line fifteen to twenty minute period. PlaintiffÕs evidence \line thus places particular transactions at issue. If de- \line fendants did not distribute marijuana on May 21, 1998, \line they could offer evidence that they did not. If they did \line distribute marijuana that day, such distribution vio- \line lated the injunction. \f3\fs24 \i See Cannabis Cultivators Club\i0 \f2\fs24 , 5 \line F. Supp.2d at 1100 (holding that the Controlled Sub- \line stances Act Òdoes not exempt the distribution of mari- \line juana to seriously ill persons for their personal medical \line useÓ). If they believe their violations of the injunction \line are excused by the defense of necessity, it is incumbent \line upon defendants to come forward with the evidence to \line support their defense as to each violation. They have \line not done so for all, or even most, of the transactions at \line issue. Accordingly, their defense of necessity fails as a \line matter of law. \par \page\pard\plain \line \f2\fs24 33a \par \par \pard\plain \line \f0\fs22 \b D. Substantive Due Process. \b0 \par \par \pard\plain\fi240 \line \f2\fs24 Defendants contend that they are not in contempt \line because the OCBC members have a fundamental right \line to Òa demonstrated and effective treatment as recom- \line mended by their physician that can alleviate their \line agony, preserve their sight, and save their lives.Ó \line Assuming, without deciding, that such a fundamental \line right exists, the defense fails for the same reason their \line necessity defense fails; defendants have failed to proffer \line evidence that each and every person to whom they \line distributed marijuana needed the marijuana to protect \line such a fundamental right. \f3\fs24 \i See Cannabis Cultivators \line Club\i0 \f2\fs24 , 5 F. Supp.2d at 1103. To hold otherwise would \line mean that because defendants have a substantive due \line process defense to some of the marijuana distributions \line in which they engaged, they are excused from all of \line their violations of the injunction. Defendants have not \line cited any case law or legal principles that would permit \line such an exemption from the federal laws. \par \line \f0\fs22 \b II. THE CONTEMPT PROCEEDINGS. \b0 \par \par \pard\plain\fi240 \line \f0\fs22 \b A. Whether Defendants Are In Contempt. \b0 \par \par \pard\plain\fi240 \line \f2\fs24 The Court preliminarily enjoined defendants from \line violating the Controlled Substances Act pursuant to 21 \line U.S.C. section 882(a). As this Court has previously \line noted, 21 U.S.C. section 882(b) provides that Ò[i]n case \line of an alleged violation of an injunction or restraining \line order issued under this section, trial shall, upon demand \line of the accused, be by jury in accordance with the \line Federal Rules of Civil Procedure.Ó The plaintiff none- \line theless argues that the Court should find defendants in \par \page\pard\plain\fi2800 \line \f2\fs24 34a \par \par \pard\plain \line \f2\fs24 contempt without a jury trial because plaintiffÕs evi- \line dence of defendantsÕ violation of the CourtÕs injunction \line is uncontroverted. \par \par \pard\plain\fi240 \line \f2\fs24 In the Ninth Circuit, a civil contempt proceeding is a \line trial within the meaning of Federal Rule of Civil Pro- \line cedure 43(a), rather than a hearing on a motion within \line the meaning of Rule 43(e). \f3\fs24 \i See Hoffman v. Beer \line Drivers and SalesmenÕs Local Union No. 888\i0 \f2\fs24 , 536 F.2d \line 1268, 1277 (9th Cir. 1976). A trial with live testimony, \line however, is not always required before contempt sanc- \line tions may be issued. In \f3\fs24 \i Peterson v. Highland Music, \line Inc.\i0 \f2\fs24 , 140 F.3d 1313 (9th Cir. 1998), \f3\fs24 \i cert. pet. filed \i0 \f2\fs24 Sep. \line 14, 1998, for example, the district court commenced \line contempt proceedings by issuing an order to show \line cause. The court then had the parties file affidavits and \line extensively brief the relevant issues. The court did not, \line however, hold an evidentiary hearing (or trial) with live \line testimony. Instead, the district court issued its con- \line tempt sanctions at the end of the hearing on the order \line to show cause. \f3\fs24 \i See id. \i0 \f2\fs24 at 1324. \par \par \pard\plain\fi240 \line \f2\fs24 The Ninth Circuit affirmed the imposition of the con- \line tempt sanctions. The court held that while ÒordinarilyÓ \line a court should not impose contempt sanctions on the \line basis of affidavits, Ò Ô[a] trial court may in a contempt \line proceeding narrow the issues by requiring that affi- \line davits on file by controverted by counter-affidavits and \line may thereafter treat as true the facts set forth in \line uncontroverted affidavits.Õ Ó \par \line \f3\fs24 \i Id. \i0 \f2\fs24 (quoting \f3\fs24 \i Hoffman\i0 \f2\fs24 , 536 \pard\plain \line \f2\fs24 F.2d at 1277). The court concluded that such procedures \line do not violate due process. \par \par \pard\plain\fi240 \line \f2\fs24 Defendants contend that the Court must grant them \line a jury trial on the issue of contempt because Ò[f]act- \par \page\pard\plain\fi2800 \line \f2\fs24 35a \par \par \pard\plain \line \f2\fs24 finding is usually a function of the jury, and the trial \line court rarely rules on a defense as a matter of law.Ó \line \f3\fs24 \i United States v. Contento-Pachon, \i0 \f2\fs24 723 F.2d 691, 693 \line (9th Cir. 1984). Defendants also urge that a court \line should exclude evidence of a defense only if the evi- \line dence is insufficient as a matter of law to support the \line defense. \f3\fs24 \i See id. \i0 \f2\fs24 The Court agrees. Here, however, the \line Court has ruled that the evidence submitted by de- \line fendants is insufficient as a matter of law to support the \line defenses of Òjoint user,Ó Ònecessity,Ó and Òsubstantive \line due process.Ó The question presented is thus whether \line there are any ÒfactsÓ for a jury to decide. Defendants \line have offered no facts whatsoever to controvert plain- \line tiff Õs evidence that defendants distributed marijuana at \line the OCBC on May 21, 1998. Nor have they identified \line any evidence that they could present to a jury that they \line have not already presented that would create a dispute \line of fact. \f3\fs24 \i If there are no facts to be decided by a jury, \line there is no reason to have a jury trial\i0 \f2\fs24 . \par \par \pard\plain\fi240 \line \f2\fs24 The Court has reviewed the statute conferring the \line right to a jury trial and concludes that its decision that \line defendants are entitled to a jury trial only if there is a \line material dispute of fact is not inconsistent with the \line statute. Congress provided defendants with a right to a \line jury trial Òin accordance with the Federal Rules of Civil \line Procedure.Ó 21 U.S.C. ¤ 882(b). Thus, this is not a \line criminal proceeding in which a defendant is entitled to a \line jury trial even if there are no disputes of fact. \f3\fs24 \i Compare \line \i0 \f2\fs24 21 U.S.C. ¤ 882(b) \par \line \f3\fs24 \i with \i0 \f2\fs24 18 U.S.C. ¤ 3691 (ÒWhenever a \pard\plain \line \f2\fs24 contempt charged shall consist in willful disobedience of \line any lawful writ, process, order, rule, decree, or com- \line mand of any district court of the United States by doing \line or omitting any act or thing in violation thereof, and the \line act or thing done or omitted also constitutes a criminal \par \page\pard\plain\fi2800 \line \f2\fs24 36a \par \par \pard\plain \line \f2\fs24 offense under any Act of Congress, or under the laws of \line any state in which it was done or omitted, \f3\fs24 \i the accused, \line upon demand therefor, shall be entitled to trial by a \line jury, which shall conform as near as may be to the \line practice in other criminal cases\i0 \f2\fs24 Ó) (emphasis added). \line Moreover, since the trial is to be conducted in ac- \line cordance with the Rules of Civil Procedure, Rule 50 \line with respect to ÒJudgment as a Matter of LawÓ applies. \line If the question of whether defendants violated the \line CourtÕs order on May 21, 1998 were tried to a jury, \line the Court would be obligated to grant judgment in \line accordance with Rule 50 since there is no dispute that \line defendants violated the injunction and the Court has \line concluded that defendants do not have a defense to \line their violations as a matter of law. \par \par \pard\plain\fi240 \line \f2\fs24 Defendants also argue that plaintiff Õs evidence is \line insufficient to support a finding of contempt by clear \line and convincing evidence, even without considering \line defendantsÕ affirmative defenses. The Court disagrees. \line Plaintiff submitted uncontroverted evidence that de- \line fendants issued a press release announcing that they \line were going to distribute marijuana at the OCBC on \line May 21, 1998. Plaintiffs also produced uncontroverted \line evidence that a government agent visited the OCBC at \line the time defendants announced they were going to \line distribute marijuana and that the agent personally \line witnessed fourteen marijuana transactions. This un- \line controverted evidence is clear and convincing evidence \line that defendants violated the injunction and thus are in \line contempt of May 19, 1998 order. \par \page\pard\plain \line \f2\fs24 37a \par \par \pard\plain \line \f0\fs22 \b B. The Remedy For DefendantsÕ Contempt. \b0 \par \par \pard\plain\fi240 \line \f2\fs24 Plaintiff asks the Court to compel defendants to \line comply with the injunction by modifying the May 19, \line 1998 order to empower the United States Marshal to \line enforce the injunction. Plaintiff does not ask the Court \line to fine defendants or to incarcerate defendant Jeffrey \line Jones to compel compliance and the Court will not do \line so. The Court concludes that the remedy proposed by \line plaintiff is reasonable and designed to enforce \line compliance. \par \par \pard\plain\fi240 \line \f2\fs24 The Court understands defendantsÕ argument that in \line this action the Court is sitting in equity and therefore \line must consider the human suffering that will be caused \line by plaintiffÕs success in closing down the OCBC. While \line the Court is sitting in equity, however, its equitable \line powers to not permit it to ignore federal law. Federal \line law prohibits the distribution of marijuana to seriously \line ill persons for their personal medical use. \f3\fs24 \i See Cannabis \line Cultivators Club\i0 \f2\fs24 , 5 F. Supp.2d at 1100. The Court ac- \line cordingly proposes to modify its May 19, 1998 pre- \line liminary injunction in 98-00088 to provide as follows: \par \par \pard\plain\fi360 \line \f2\fs24 The United States Marshal is empowered to enforce \line this Preliminary Injunction. In particular, the \line United States Marshal is authorized to enter the \line premises of the Oakland Cannabis BuyersÕ Coopera- \line tive at 1755 Broadway, Oakland, California, at any \line time of the day or night, evict any and all tenants, \line inventory the premises, and padlock the doors, until \line such time that defendants can satisfy the Court that \line they are no longer in violation of the injunctive \line order and that they would in good faith thereafter \line comply with the terms of the order. \par \page\pard\plain\fi2800 \line \f2\fs24 38a \par \par \pard\plain \line \f2\fs24 The Court will stay the imposition of the modification to \line the injunction until 5:00 p.m. on Friday, October 16, \line 1998 to give defendants the opportunity to seek interim \line appellate relief. \par \par \pard\plain\fi2220 \line \f0\fs22 \b CONCLUSION \b0 \par \par \pard\plain\fi240 \line \f2\fs24 For the foregoing reasons, plaintiffÕs motions to \line preclude defendantsÕ affirmative defenses of Òjoint \line user,Ó Ònecessity,Ó and Òsubstantive due process,Ó are \line GRANTED. The Court concludes further that \line defendants have not offered any evidence to controvert \line plaintiffÕs evidence that defendantsÕ [\f3\fs24 \i sic\i0 \f2\fs24 ] distributed \line marijuana at the OCBC on May 21, 1998 in violation of \line the CourtÕs May 19, 1998 preliminary injunction order \line and therefore that there are no factual disputes to be \line tried to a jury. The Court accordingly finds defendants \line in contempt of its May 19, 1998 order. In order to \line compel defendants to comply with the injunction, the \line Court will modify the injunction to empower the United \line States Marshal to enforce the injunction order. \par \par \pard\plain\fi240 \line \f0\fs22 \b IT IS SO ORDERED. \b0 \par \par \pard\plain \line \f2\fs24 Dated: October 13, 1998 \par \par \pard\plain\fi1980 \line \f2\fs24 /s/ \f2\fs22 CHARLES R. BREYER \par \pard\plain\fi2520 \line \f2\fs24 C\f2\fs19 HARLES \f2\fs24 R. B\f2\fs19 REYER \line \f2\fs24 United States District Judge \par \page\pard\plain\fi2800 \line \f2\fs24 39a \par \par \pard\plain\fi2340 \line \f0\fs20 \b APPENDIX F \b0 \par \par \pard\plain\fi720 \line \f2\fs22 IN THE UNITED STATES DISTRICT COURT \par \par \pard\plain\fi340 \line \f2\fs22 FOR THE NORTHERN DISTRICT OF CALIFORNIA \par \par \pard\plain\fi1880 \line \f2\fs24 No. C 98-00088 CRB \par \par \pard\plain\fi820 \line \f2\fs24 U\f2\fs19 NITED \f2\fs24 S\f2\fs19 TATES OF \f2\fs24 A\f2\fs19 MERICA\f2\fs24 , \f2\fs19 PLAINTIFF \par \line \f3\fs24 \i v. \i0 \par \par \pard\plain\fi340 \line \f2\fs24 O\f2\fs19 AKLAND \f2\fs24 C\f2\fs19 ANNIBAS \f2\fs24 [\f3\fs24 \i sic\i0 \f2\fs24 ] B\f2\fs19 UYERS\f2\fs24 Õ C\f2\fs19 OOPERATIVE \line AND \f2\fs24 J\f2\fs19 EFFREY \f2\fs24 J\f2\fs19 ONES\f2\fs24 , \f2\fs19 DEFENDANTS \par \par \pard\plain\fi1860 \line \f2\fs24 [Filed: May 19, 1998] \par \par \pard\plain\fi1020 \line \f0\fs22 \b PRELIMINARY INJUNCTION ORDER \b0 \par \par \pard\plain\fi240 \line \f2\fs24 For the reasons stated in its Memorandum and Order \line dated May 13, 1998, it is hereby ORDERED as follows: \par \line 1. Defendants Oakland Cannibas [\f3\fs24 \i sic\i0 \f2\fs24 ] BuyersÕ Coop- \line erative and Jeffrey Jones are hereby preliminarily en- \line joined, pending further order of the Court, from en- \line gaging in the manufacture or distribution of marijuana, \line or the possession of marijuana with the intent to \line manufacture and distribute marijuana, in violation of 21 \line U.S.C. ¤ 841(a)(1); and \par \line 2. Defendants Oakland Cannibas [\f3\fs24 \i sic\i0 \f2\fs24 ] BuyersÕ Coop- \line eration and Jeffrey Jones are hereby preliminarily en- \line joined from using the premises at 1755 Broadway, \par \page\pard\plain\fi2800 \line \f2\fs24 40a \par \par \pard\plain \line \f2\fs24 Oakland, California for the purposes of engaging in the \line manufacture and distribution of marijuana; and \par \line 3. Defendant Jeffrey Jones is hereby preliminarily \line enjoined from conspiring to violate the Controlled Sub- \line stances Act, 21 U.S.C. ¤ 841(a)(1) with respect to the \line manufacture or distribution of marijuana, or the pos- \line session of marijuana with the intent to manufacture and \line distribute marijuana. \par \line 4. It shall not be a violation of this injunction for \line defendants to seek and obtain legal advice from their \line attorneys. \par \line 5. Pursuant to Federal Rule of Civil Procedure \line 65(d), this injunction shall bind the defendants, their \line officers, agents, servants, employees, successors, and \line attorneys, and those persons in active concert or \line participation with them who receive notice of the order \line by personal service or otherwise. \par \par \pard\plain\fi180 \line \f0\fs22 \b IT IS SO ORDERED. \b0 \par \par \pard\plain \line \f2\fs24 Dated: May 19, 1998 \par \par \pard\plain\fi1980 \line \f2\fs24 /s/ CHARLES R. BREYER \line C\f2\fs19 HARLES \f2\fs24 R. B\f2\fs19 REYER \line \f2\fs24 United States District Judge \par \page\pard\plain\fi1980 \line \f2\fs24 41a \par \par \pard\plain\fi1520 \line \f0\fs20 \b APPENDIX G \b0 \par \par \pard\plain\fi340 \line \f2\fs22 UNITED STATES DISTRICT COURT \par \par \pard\plain\fi80 \line \f2\fs22 NORTHERN DISTRICT OF CALIFORNIA \par \par \pard\plain\fi300 \line \f2\fs24 Nos. C 98-0085 CRB, C 98-0086 CRB, \line C 98-0087 CRB, C 98-0088 CRB, \line C 98-0089 CRB and C 98-0245 CRB. \par \par \pard\plain \line \f2\fs24 U\f2\fs19 NITED \f2\fs24 S\f2\fs19 TATES OF \f2\fs24 A\f2\fs19 MERICA\f2\fs24 , \f2\fs19 PLAINTIFF \par \line \f3\fs24 \i v. \i0 \par \par \pard\plain\fi240 \line \f2\fs24 C\f2\fs19 ANNABIS \f2\fs24 C\f2\fs19 ULTIVATORS \f2\fs24 C\f2\fs19 LUB\f2\fs24 ; \f2\fs19 AND \line \f2\fs24 D\f2\fs19 ENNIS \f2\fs24 P\f2\fs19 ERON\f2\fs24 , \f2\fs19 DEFENDANTS \line AND \f2\fs24 R\f2\fs19 ELATED \f2\fs24 A\f2\fs19 CTIONS \par \par \pard\plain\fi1180 \line \f2\fs24 [Filed: May 13, 1998] \par \par \pard\plain\fi600 \line \f0\fs22 \b MEMORANDUM AND ORDER \b0 \par \par \pard\plain \line \f2\fs22 BREYER\f2\fs24 , District Judge. \par \par \pard\plain\fi2080 \line \f0\fs22 \b INTRODUCTION \b0 \par \par \pard\plain\fi240 \line \f2\fs24 The issue presented by these related lawsuits is \line whether defendantsÕ admitted distribution of marijuana \line for use by seriously ill persons upon a physicianÕs re- \line commendation violates federal law, 21 U.S.C. ¤ 841(a), \line and if so, whether defendantsÕ conduct in this regard \line should be enjoined pursuant to the injunctive relief \line provisions of the federal Controlled Substances Act. \par \page\pard\plain \line \f2\fs24 42a \par \par \pard\plain \line \f3\fs24 \i See \i0 \f2\fs24 21 U.S.C. ¤ 882(a). This is the \line \f3\fs24 \i only \i0 \f2\fs24 issue before the \par \pard\plain \line \f2\fs24 Court. These lawsuits, for example, do not challenge \line the constitutionality of Proposition 215, the medical \line marijuana initiative, as a whole. Nor do they reflect a \line decision on the part of the federal government to seek \line to enjoin a local governmental agency from carrying out \line the humanitarian mandate envisioned by the citizens of \line this State when they voted to approve this law. \par \par \pard\plain\fi240 \line \f2\fs24 These cases also do not present the question of \line whether all conduct exempt from prosecution under the \line state drug laws by Proposition 215 violates federal law. \line For example, the Court is not deciding whether a \line seriously ill person who possesses marijuana for per- \line sonal use upon a physicianÕs recommendation is in \line violation of federal law. Rather, the sole issue here is \line whether defendantsÕ conduct, which may be lawful \line under state law, may nevertheless violate federal law \line and can thus be enjoined. \par \par \pard\plain\fi240 \line \f2\fs24 Finding that there is a strong likelihood that de- \line fendantsÕ conduct violates the Controlled Substances \line Act, the Court concludes that the Supremacy Clause of \line the United States Constitution requires that the Court \line enjoin further violations of the Act. \par \par \pard\plain\fi2160 \line \f0\fs22 \b BACKGROUND \b0 \par \par \pard\plain\fi240 \line \f0\fs22 \b A. \b0 \f4\fs22 \b \i Proposition 215 and the Federal Drug Laws. \i0 \b0 \par \par \pard\plain\fi240 \line \f2\fs24 In November 1996, 56% of those participating in the \line state-wide election voted in favor of Proposition 215, \line the ÒMedical Use of MarijuanaÓ initiative, known also \line as the ÒCompassionate Use ActÓ (the ÒActÓ). The Act \line makes it legal under California law for seriously ill \par \page\pard\plain\fi2800 \line \f2\fs24 43a \par \par \pard\plain \line \f2\fs24 patients and their primary caregivers to possess and \line cultivate marijuana for use by the seriously ill patient if \line the patientÕs physician recommends such treatment. In \line particular, it exempts a seriously ill patient, or the \line patientÕs primary caregiver, from prosecution under \line California Health and Safety Code ¤ 11357, relating to \line the possession of marijuana, and ¤ 11358, relating to the \line cultivation of marijuana. \f3\fs24 \i See \i0 \f2\fs24 California Health & \line Safety Code ¤ 11362.5(d). \par \par \pard\plain\fi240 \line \f2\fs24 As a result of the passage of Proposition 215, several \line individuals, including defendants, organized Òmedical \line cannabis dispensariesÓ to meet the needs of seriously ill \line patients. These nonprofit dispensaries provide mari- \line juana to seriously ill patients upon a physicianÕs recom- \line mendation. According to defendants, these patients \line previously had to purchase marijuana, if they were able \line to purchase it at all, on the black market at exorbitant \line prices and of questionable quality. \par \par \pard\plain\fi240 \line \f2\fs24 At the time that CaliforniaÕs voters approved the \line initiative, federal lawÑthe Comprehensive Drug Abuse \line Prevention and Control Act of 1970 (the ÒControlled \line Substances ActÓ)Ñdid, and still does, strictly prohibit \line the manufacture and distribution of marijuana, and the \line possession of marijuana with the intent to manufacture \line or distribute. \f3\fs24 \i See \i0 \f2\fs24 21 U.S.C. ¤ 841(a)(1). In particular, \line the Controlled Substances Act established a compre- \line hensive regulatory scheme which placed controlled \line substances in one of five ÒSchedulesÓ depending on each \line substanceÕs potential for abuse, the extent to which \line each may lead to psychological or physical dependence, \line and whether each has a currently accepted medical use \line in the United States. \f3\fs24 \i See \i0 \f2\fs24 21 U.S.C. ¤ 812(b). Congress \line determined that ÒSchedule IÓ substances have a Òhigh \par \page\pard\plain\fi2800 \line \f2\fs24 44a \par \par \pard\plain \line \f2\fs24 potential for abuse,Ó Òno currently accepted medical use \line in treatment in the United States,Ó and a lack of \line accepted Òsafety for use of the drug or substance under \line medical supervision.Ó 21 U.S.C. ¤ 812(b)(1). Schedule I \line substances are strictly regulated; no physician may \line dispense any Schedule I controlled substance to any \line patient outside of a strictly controlled research project \line registered with the DEA, and approved by the Secre- \line tary of Health and Human Services, acting through the \line Food and Drug Administration (ÒFDAÓ). \par \line \f3\fs24 \i See \i0 \f2\fs24 21 U.S.C. \pard\plain \line \f2\fs24 ¤ 823(f). Congress placed marijuana in Schedule I at the \line time it passed the Controlled Substances Act and its \line designation has not changed since then. \f3\fs24 \i See \i0 \f2\fs24 21 U.S.C. \line ¤ 812(c)(c)(10) [ \f3\fs24 \i sic\i0 \f2\fs24 ]. \par \par \pard\plain\fi240 \line \f0\fs22 \b B. \b0 \f4\fs22 \b \i The California Courts and Proposition 215. \i0 \b0 \par \par \pard\plain\fi240 \line \f2\fs24 In \f3\fs24 \i People v. Trippet\i0 \f2\fs24 , 56 Cal. App. 4th 1532, 66 \line Cal.Rptr.2d 559 (1997), the California Court of Appeal, \line First District, interpreted Proposition 215 for the first \line time in a published decision. It held that although \line Proposition 215 does not exempt a seriously ill patient \line and her primary caregiver from Health and Safety \line Code ¤ 11360, which prohibits the transportation of \line marijuana, a defendant in a criminal case might have a \line Proposition 215 defense to a charge of illegally trans- \line porting marijuana if Òthe quantity transported and the \line method, timing and distance of the transportation are \line reasonably related to the patientÕs current medical \line needs.Ó \f3\fs24 \i Trippet\i0 \f2\fs24 , 56 Cal. App. 4th at 1550-51, 66 Cal. \line Rptr.2d 559. The court reasoned that Proposition 215 \line would make no sense if a patientÕs primary caregiver \line would be guilty of a crime for Òcarrying otherwise \line legally cultivated and possessed marijuana down a hall- \par \page\pard\plain\fi2800 \line \f2\fs24 45a \par \par \pard\plain \line \f2\fs24 way to the patientÕs room.Ó \line \f3\fs24 \i Id. \i0 \f2\fs24 at 1550, 66 Cal.Rptr.2d \par \pard\plain \line \f2\fs24 559. \par \par \pard\plain\fi240 \line \f2\fs24 Three months later, a different division of the same \line court decided \f3\fs24 \i People ex rel. Lungren v. Peron\i0 \f2\fs24 , 59 Cal. \line App. 4th 1383, 70 Cal.Rptr.2d 20 (1997). A unanimous \line court held that the defendants in that action, Dennis \line Peron and the San Francisco Cannabis Cultivators \line Club, both defendants here, are not primary caregivers \line within the meaning of the statute. A majority of that \line court disagreed with \f3\fs24 \i Trippet \i0 \f2\fs24 by also holding that while \line Proposition 215 exempts seriously ill patients and their \line caregivers from California law prohibiting the pos- \line session and cultivation of marijuana (Health & Safety \line Code ¤ 11357, ¤ 11358), it does not, under any circum- \line stances, exempt them from Health and Safety Code \line ¤ 11359 and ¤ 11360, which prohibit the sale or giving \line away of marijuana. \f3\fs24 \i Id. \i0 \f2\fs24 at 1392, 70 Cal. Rptr.2d 20. The \line California Supreme Court denied review of that de- \line cision on February 25, 1998. \par \par \pard\plain\fi240 \line \f0\fs22 \b C. \b0 \f4\fs22 \b \i The Federal Lawsuits. \i0 \b0 \par \par \pard\plain\fi240 \line \f2\fs24 Less than a month after the \f3\fs24 \i Peron \i0 \f2\fs24 decision, and more \line than a year after CaliforniaÕs voters approved Pro- \line position 215, the United States filed six separate law- \line suits against six independent cannabis dispensaries and \line individuals associated with the management of the \line dispensaries.1 The federal government alleges that \par \par \pard\plain\fi240 \line \f2\fs14 1 \f2\fs20 The defendants in the related actions are: Cannabis Culti- \line vators Club and Dennis Peron (98-0085); Marin Alliance for \line Medical Marijuana and Lynette Shaw (98-0086); Ukiah Cannabis \line BuyersÕ Club, Cherrie Lovett, Marvin Leherman and Mildred \line Leherman (98-0087); Oakland Cannabis BuyersÕ Cooperative and \line Jeffrey Jones (98-0088); Flower Therapy Medical Marijuana Club, \par \page\pard\plain\fi2800 \line \f2\fs24 46a \par \par \pard\plain \line \f2\fs24 defendantsÕ manufacture and distribution of marijuana, \line and possession with the intent to manufacture and \line distribute marijuana, violates 21 U.S.C. ¤ 841(a)(1); \line defendantsÕ use of a facility (i.e., the locations of the \line dispensaries) for the purpose of manufacturing and \line distributing marijuana violates 21 U.S.C. ¤ 856(a)(1); \line and that the individual defendantsÕ conspiracy to violate \line the Controlled Substances Act violates 21 U.S.C. ¤ 846. \line The lawsuits seek to preliminarily and permanently \line enjoin defendantsÕ conduct pursuant to the statute \line which provides the federal district courts with juris- \line diction to enjoin violations of the Controlled Substances \line Act. \f3\fs24 \i See \i0 \f2\fs24 21 U.S.C. ¤ 882(a). \par \par \pard\plain\fi240 \line \f2\fs24 On the same day the federal government filed its \line lawsuits, it filed motions for a preliminary injunction, \line permanent injunction and summary judgment in each \line action. In support of its motions, the government \line submitted the affidavits of several government agents \line who attest to their undercover purchases of marijuana \line from defendants at the various defendant dispensaries. \par \par \pard\plain\fi240 \line \f2\fs24 The six lawsuits were randomly assigned to various \line judges of this District. Pursuant to Local Rule 3-12, all \line six were reassigned to this Court as related cases. The \line Court held a status conference on January 30, 1998, to \line address defendantsÕ request for additional time to \line respond to the federal governmentÕs motions. At the \line status conference, and in their papers in support of \line their request for a continuance, defendants advised the \line Court that they strenuously dispute the factual asser- \line tions in the affidavits with respect to the sale of \par \par \pard\plain \line \f2\fs20 John Hudson, Mary Palmer and Barbara Sweeney (98-0089); and \line Santa Cruz Cannabis Buyers Club (98-0245). \par \page\pard\plain\fi2800 \line \f2\fs24 47a \par \par \pard\plain \line \f2\fs24 marijuana to non-seriously ill persons and persons with- \line out a physicianÕs recommendation, and contend that \line much of the federal governmentÕs evidence was ob- \line tained in violation of the fourth amendment. Over the \line federal governmentÕs objection, the Court granted \line defendants an extension of time to respond. The Court \line further ordered that \par \par \pard\plain\fi360 \line \f2\fs24 [f]or purposes of plaintiffÕs motions, the parties shall \line assume that defendantsÕ alleged conduct falls \line squarely within that permitted by California Pro- \line position 215, California Health & Safety Code \line ¤ 11362.5. For example, the parties shall assume \line that all defendants are Òprimary caregiversÓ within \line the meaning of the statute, that all persons to whom \line defendants distribute or dispense marijuana are \line seriously ill, and that a physician has determined \line that the personÕs health would benefit from the use \line of marijuana and has made an oral or written recom- \line mendation to that effect. Whether the government \line illegally obtained the evidence upon which it bases \line its motions shall not be addressed at this time. \par \par \pard\plain \line \f2\fs24 February 9, 1998 Order. By its Order, the Court sought \line to avoid a factual dispute as to whether Proposition 215 \line applies to defendantsÕ conduct. \par \par \pard\plain\fi240 \line \f2\fs24 Prior to the hearing on the federal governmentÕs \line motions, defendants filed a motion to dismiss for lack of \line jurisdiction on the ground that Congress does not have \line authority under the Commerce Clause to regulate de- \line fendantsÕ conduct. Defendants also moved to dismiss on \line the ground that the Court should abstain pursuant to \line various abstention doctrines. \par \page\pard\plain\fi2800 \line \f2\fs24 48a \par \par \pard\plain\fi240 \line \f2\fs24 The Court also received memoranda in opposition to \line the federal governmentÕs motion from \f3\fs24 \i amici curiae \line \i0 \f2\fs24 City and County of San Francisco, as represented by \line the San Francisco District Attorney, and other cities in \line which defendant dispensaries are located. The City and \line County of San Francisco and the other cities urge the \line Court not to adopt the injunctive relief sought by the \line federal government because of the adverse conse- \line quences an injunction would have on the public health \line of their citizens. In particular, the San Francisco \line District Attorney asks the Court to limit any injunction \line so as not to exclude distribution to those patients for \line whom marijuana is a medical necessity, possibly by the \line City and County of San Francisco itself. \f3\fs24 \i See \i0 \f2\fs24 Memoran- \line dum of \f3\fs24 \i Amicus Curiae \i0 \f2\fs24 District Attorney of San \line Francisco at 11. \par \par \pard\plain\fi240 \line \f2\fs24 The Court held a hearing on all pending motions on \line March 24, 1998. All parties, and \f3\fs24 \i amici curiae \i0 \f2\fs24 San \line Francisco District Attorney, argued at the hearing. \line The Court requested that the parties submit additional \line briefing on issues raised at the hearing and took the \line matter under submission on April 16, 1998. \par \par \pard\plain\fi2280 \line \f0\fs22 \b DISCUSSION \b0 \par \par \pard\plain\fi240 \line \f2\fs24 The Supremacy Clause of Article VI of the United \line States Constitution mandates that federal law super- \line sede state law where there is an outright conflict \line between such laws. \f3\fs24 \i See Gibbons v. Ogden\i0 \f2\fs24 , 22 (9 Wheat) \line U.S. 1, 210, 6 L.Ed. 23 (1824); \f3\fs24 \i Free v. Bland\i0 \f2\fs24 , 369 U.S. \line 663, 666, 82 S. Ct. 1089, 8 L.Ed.2d 180 (1962); \f3\fs24 \i Industrial \line Truck AssÕn, Inc. v. Henry\i0 \f2\fs24 , 125 F.3d 1305, 1309 (9th \line Cir. 1997) (state law is preempted Òwhere it is impos- \line sible to comply with both state and federal require- \par \page\pard\plain\fi2800 \line \f2\fs24 49a \par \par \pard\plain \line \f2\fs24 ments, or where state law stands as an obstacle to the \line accomplishment and execution of the full purpose and \line objectives of CongressÓ). Recognizing this basic prin- \line ciple of constitutional law, defendants do not contend \line that Proposition 215 supersedes federal law, 21 U.S.C. \par \pard\plain \line \f2\fs24 ¤ 841(a). Indeed, Proposition 215 on its face purports \line only to exempt certain patients and their primary \line caregivers from prosecution under certain \f3\fs24 \i California \line \i0 \f2\fs24 drug lawsÑit does not purport to exempt those pa- \line tients and caregivers from the federal laws. One of the \line ballot arguments in favor of the initiative in fact states: \line ÒProposition 215 allows patients to cultivate their own \line marijuana simply because federal law prevents the sale \line of marijuana and a state initiative cannot overrule those \line laws.Ó \f3\fs24 \i Peron\i0 \f2\fs24 , 59 Cal.App.4th at 1393, 70 Cal.Rptr.2d 20 \line (quoting Ballot Pamphlet, Proposed Amends. to Cal. \line Const. with arguments to voters, Gen.Elec. (Nov. 5, \line 1996 p. 60)). \par \par \pard\plain\fi240 \line \f2\fs24 Defendants argue instead that the Court should \line dismiss the federal governmentÕs actions on abstention \line grounds and on the ground that 21 USC ¤ 841(a) ex- \line ceeds CongressÕs authority under the Commerce \line Clause. Assuming that the Court has jurisdiction, \line defendantsÕ arguments fall into three categories: (1) \line defendants have not violated the federal law; (2) \line defendants have valid defenses to their violation of the \line law; and (3) equitable principles preclude injunctive \line relief. We now turn to each of these arguments. \par \page\pard\plain \line \f2\fs24 50a \par \par \par \line \f0\fs22 \b I. Jurisdiction. \b0 \par \par \pard\plain \line \f0\fs22 \b A. \b0 \f4\fs22 \b \i Abstention\i0 \b0 \f0\fs22 \b . \b0 \par \par \pard\plain\fi240 \line \f2\fs24 We start with the proposition that the federal courts \line have an Òunflagging obligationÓ to exercise their juris- \line diction. \f3\fs24 \i See Colorado River Water Conservation Dist. \par \line v. United States\i0 \f2\fs24 , 424 U.S. 800, 817, 96 S. Ct. 1236, 47 \line L.Ed.2d 483 (1976); \f3\fs24 \i Miofsky v. Superior Court\i0 \f2\fs24 , 703 F.2d \line 332, 338 (9th Cir. 1983). While the defendants have \line asked the Court to abstain, abstention is an Òextra- \line ordinary and narrow exception to the duty of a district \line court to adjudicate a controversy properly before it.Ó \line \f3\fs24 \i Colorado River Water Conservation Dist.\i0 \f2\fs24 , 424 U.S. at \line 813, 96 S. Ct. 1236 (quoting \f3\fs24 \i County of Allegheny v. \line Frank Mashuda Co.\i0 \f2\fs24 , 360 U.S. 185, 189, 79 S. Ct. 1060, 3 \line L.Ed.2d 1163 (1959)). Defendants contend that the Òex- \line traordinary and narrowÓ exception to this duty exists \line here under \f3\fs24 \i Burford, Pullman \i0 \f2\fs24 or \f3\fs24 \i Colorado River\i0 \f2\fs24 , ab- \line stention doctrines. \par \line \f0\fs22 \b 1. \b0 \f4\fs22 \b \i Burford \i0 \b0 \f0\fs22 \b Abstention. \b0 \par \par \pard\plain\fi240 \line \f3\fs24 \i Burford \i0 \f2\fs24 abstention is based on comity. It may be \line appropriate if the lawsuit involves difficult questions of \line state law, resolution of which is a matter of substantial \line local concern transcending the result in the case at bar. \line Federal courts may abstain in such cases if federal \line adjudication would be disruptive of state efforts to \line establish a coherent policy with respect to the matter at \line issue. \f3\fs24 \i See New Orleans Public Service, Inc. v. City \line Council of New Orleans\i0 \f2\fs24 , 491 U.S. 350, 362, 109 S. Ct. \line 2506, 105 L.Ed.2d 298 (1989); \f3\fs24 \i Burford v. Sun Oil Co.\i0 \f2\fs24 , \line 319 U.S. 315, 334, 63 S. Ct. 1098, 87 L.Ed. 1424 (1943). \line \f3\fs24 \i Burford \i0 \f2\fs24 abstention is appropriate only if the following \line factors are met: \par \page\pard\plain \line \f2\fs24 51a \par \par \pard\plain\fi640 \line \f2\fs24 (1) that the state has concentrated suits involv- \line ing the local issue in a particular court; (2) the \line federal issues are not easily separable from compli- \line cated state law issues with which the state courts \line have special competence; and (3) that federal review \line might disrupt state efforts to establish a coherent \line policy. \par \par \pard\plain \line \f3\fs24 \i Tucker v. First Maryland Savings & Loan, Inc\i0 \f2\fs24 ., 942 \line F.2d 1401, 1404-05 (9th Cir. 1991). \par \par \pard\plain\fi240 \line \f2\fs24 Defendants contend that questions of who is a Òpri- \line mary caregiverÓ within the meaning of Health and \line Safety Code ¤ 11362.5, and precisely what conduct is \line permitted by Proposition 215, are difficult and uncer- \line tain issues of state law. For example, defendants \line contend that there is a question whether Proposition \line 215 exempts the transportation as well as cultivation \line and use of medical marijuana from CaliforniaÕs drug \line laws. \f3\fs24 \i Compare Peron\i0 \f2\fs24 , 59 Cal. App. 4th at 1393-95, 70 \line Cal.Rptr.2d 20 \f3\fs24 \i with Trippet\i0 \f2\fs24 , 56 Cal. App. 4th at 1550- \line 51, 66 Cal. Rptr.2d 559. They also assert that Òmedical \line marijuanaÓ is Òa policy problem of substantial import,Ó \line the importance of which transcends the result in this \line case. They assert that Ò[b]y potentially invalidating \line Proposition 215 on preemption grounds, this court \line would effectively halt CaliforniaÕs attempt to make \line section 11362.5 compatible with federal law.Ó De- \line fendantsÕ Memorandum in Support of Motion to Dismiss \line at 7. \par \par \pard\plain\fi240 \line \f2\fs24 These lawsuits, however, are not appropriate candi- \line dates for \f3\fs24 \i Burford \i0 \f2\fs24 abstention. At a minimum, the \line second requirement for such abstention is not present. \line The federal issueÑwhether defendantsÕ conduct vio- \par \page\pard\plain\fi2800 \line \f2\fs24 52a \par \par \pard\plain \line \f2\fs24 lates federal lawÑis unrelated to the state questions \line identified by defendants, whether defendantsÕ conduct \line is legal under state law. Proposition 215 may exempt \line defendantsÕ conduct from prosecution under CaliforniaÕs \line criminal laws and, for purposes of the federal govern- \line mentÕs motion, the Court has assumed that it does. But \line the only issue in these lawsuits is whether defendantsÕ \line conduct violates federal law. \f3\fs24 \i See New Orleans Public \line Service, Inc.\i0 \f2\fs24 , 491 U.S. at 362, 109 S. Ct. 2506 (\f3\fs24 \i Burford \line \i0 \f2\fs24 abstention is inappropriate where federal issues con- \line trol). \par \par \pard\plain\fi240 \line \f2\fs24 None of the cases cited by defendants in support of \line \f3\fs24 \i Burford \i0 \f2\fs24 abstention involved a lawsuit, such as these, \line where the resolution of the state law issues was im- \line material. In \f3\fs24 \i FiremanÕs Fund Ins. Co. v. Quackenbush\i0 \f2\fs24 , \line 87 F.3d 290 (9th Cir. 1996), for example, the Ninth Cir- \line cuit affirmed the district courtÕs application of \f3\fs24 \i Burford \line \i0 \f2\fs24 abstention to an action challenging the constitutionality \line of Proposition 103 (insurance rate rollback initiative) \line because the federal issues were Òintimately conjoinedÓ \line with difficult and unresolved issues of state law. \f3\fs24 \i Id. \i0 \f2\fs24 at \line 297. Here, in contrast, the scope of Proposition 215 is \line not at issue since the constitutionality of the initiative is \line not being challenged. All that is at issue in these \line actions is whether defendantsÕ conduct violates federal \line law. The Court need not examine state law to answer \line that question. \par \line \f0\fs22 \b 2. \b0 \f4\fs22 \b \i Pullman \i0 \b0 \f0\fs22 \b Abstention. \b0 \par \par \pard\plain\fi240 \line \f2\fs24 DefendantsÕ opposition memorandum argued that \line abstention is appropriate under an additional doctrine, \line \f3\fs24 \i Railroad CommÕn of Texas v. Pullman Co.\i0 \f2\fs24 , 312 U.S. \line 496, 61 S. Ct. 643, 85 L.Ed. 971 (1941). Under \f3\fs24 \i Pullman \i0 \par \page\pard\plain\fi2800 \line \f2\fs24 53a \par \par \pard\plain \line \f2\fs24 abstention a federal court may defer hearing a case \line when Ò Ôa federal constitutional issue . . . might be \line mooted or presented in a different posture by a state \line court determination of pertinent state law.Õ Ó \par \line \f3\fs24 \i C-Y \i0 \pard\plain \line \f3\fs24 \i Development Co. v. City of Redlands\i0 \f2\fs24 , 703 F.2d 375, 377 \line (9th Cir. 1983) (quoting \f3\fs24 \i County of Allegheny v. Frank \line Mashuda Co.\i0 \f2\fs24 , 360 U.S. 185, 189, 79 S. Ct. 1060, 3 \line L.Ed.2d 1163 (1959)). A lawsuit must meet three \line criteria for \f3\fs24 \i Pullman \i0 \f2\fs24 abstention to be appropriate: \par \par \pard\plain\fi640 \line \f2\fs24 (1) the complaint must touch a sensitive area of \line social policy into which the federal courts should not \line enter unless there is no alternative to adjudication; \line (2) a definitive ruling on the state issues by a state \line court could obviate the need for constitutional \line adjudication by the federal court; and (3) the proper \line resolution of the potentially determinative state law \line issue is uncertain. \par \par \pard\plain \line \f3\fs24 \i Kollsman v. City of Los Angeles\i0 \f2\fs24 , 737 F.2d 830, 833 (9th \line Cir. 1984). Defendants submit that the Court should \line abstain until the California courts have had an op- \line portunity to define more clearly what state law permits \line in order to minimize any conflict between state and \line federal laws. \par \par \pard\plain\fi240 \line \f3\fs24 \i Pullman \i0 \f2\fs24 abstention is nonetheless inappropriate be- \line cause the second criterion, and therefore the third, are \line inapplicable. As stated above, whether state law \line permits defendantsÕ conduct, and to what extent it \line permits defendantsÕ conduct, is immaterial. The issue \line here is whether that conduct is prohibited by federal \line law. Thus, a definitive ruling on the state issues, i.e., \line the scope of Proposition 215, will not obviate the need \line for deciding the constitutional issues presented by this \par \page\pard\plain\fi2800 \line \f2\fs24 54a \par \par \pard\plain \line \f2\fs24 lawsuit, including the alleged due process right to be \line free from pain. \par \line \f0\fs22 \b 3. \b0 \f4\fs22 \b \i Colorado River \i0 \b0 \f0\fs22 \b Abstention. \b0 \par \par \pard\plain\fi240 \line \f2\fs24 In the interest of Òwise judicial administration,Ó \line federal courts may stay a case involving a question of \line federal law where a concurrent state action is pending \line in which substantially similar issues are raised. \f3\fs24 \i See \line Colorado River Water Conservation Dist. v. United \line States\i0 \f2\fs24 , 424 U.S. 800, 817, 96 S. Ct. 1236, 47 L.Ed.2d 483 \line (1976). Ò[F]ederal abstention and deference to parallel \line state proceedings is appropriate under \f3\fs24 \i Colorado River \line \i0 \f2\fs24 even when none of the more established doctrines \line apply.Ó \f3\fs24 \i FiremanÕs Fund\i0 \f2\fs24 , 87 F.3d at 297. While no one \line factor is determinative, the Supreme Court has listed a \line number of factors to consider in deciding whether such \line abstention is appropriate. These factors include, Òthe \line desireabilty of avoiding piecemeal litigation,Ó and Òthe \line order in which the jurisdiction was obtained by the con- \line current forums,Ó \par \line \f3\fs24 \i Colorado River\i0 \f2\fs24 , 424 U.S. at 818-19, 96 \pard\plain \line \f2\fs24 S. Ct. 1236; whether the state court proceedings are \line adequate to Òprotect the federal litigantÕs rights,Ó \line \f3\fs24 \i Moses H. Cone Memorial Hospital v. Mercury Con- \line struction Corp.\i0 \f2\fs24 , 460 U.S. at 23, 103 S. Ct. 927; and the \line risk of conflicting results. \f3\fs24 \i See Colorado River\i0 \f2\fs24 , 424 U.S. \line at 818, 96 S. Ct. 1236. \par \par \pard\plain\fi240 \line \f2\fs24 Defendants assert that the state proceeding in \line \f3\fs24 \i People v. Peron \i0 \f2\fs24 is substantially similar to these actions \line since it involves a challenge to the same conduct at \line issue here and seeks the same relief sought hereÑan \line injunction. \par \page\pard\plain\fi2800 \line \f2\fs24 55a \par \par \pard\plain\fi240 \line \f2\fs24 The Court concludes, however, that the \f3\fs24 \i People v. \line Peron \i0 \f2\fs24 proceeding is not substantially similar. First, it \line does not involve all the parties to this lawsuit. Thus, \line the federal governmentÕs interests in these actions with \line respect to the defendants who are not defendants in \line \f3\fs24 \i Peron \i0 \f2\fs24 may not be adequately represented by that \line proceeding. Second, the issues are different. In \f3\fs24 \i Peron\i0 \f2\fs24 , \line the State seeks to enjoin defendant PeronÕs conduct on \line the ground that it violates state law; that is, that it does \line not fall within the conduct permitted by Proposition \line 215. Here, in contrast, the federal government seeks to \line enjoin defendantsÕ conduct on the ground that it vio- \line lates federal law; it is immaterial whether that conduct \line falls within that permitted by Proposition 215. Since \line the issues are not similar there is no risk of conflicting \line results. None of the cases cited by defendants involved \line a situation like here, where the federal government \line seeks to enforce federal law in federal court. In such a \line situation, this Court is required to exercise its juris- \line diction. \par \par \pard\plain\fi240 \line \f0\fs22 \b B. \b0 \f4\fs22 \b \i Interstate Commerce Clause\i0 \b0 \f0\fs22 \b . \b0 \par \par \pard\plain\fi240 \line \f2\fs24 Since there is no basis for abstention, we now turn to \line the question of jurisdiction. Congress has the authority \line to regulate an activity pursuant to the Commerce \line Clause of the United States Constitution if the activity \line regulated falls into one of three categories: \par \par \pard\plain\fi360 \line \f2\fs24 First, Congress may regulate the use of the chan- \line nels of interstate commerce. . . . Second, Con- \line gress is empowered to regulate and protect the in- \line strumentalities of interstate commerce, or persons \line or things interstate commerce, or persons or things \line in interstate commerce, even though the threat may \par \page\pard\plain \line \f2\fs24 56a \par \par \pard\plain\fi360 \line \f2\fs24 come only from intrastate activities. . . . Finally \line \par CongressÕ commerce authority includes the power \line to regulate those activities having a substantial \line relation to interstate commerce. \par \par \pard\plain \line \f3\fs24 \i United States v. Lopez\i0 \f2\fs24 , 514 U.S. 549, 558-59, 115 S. Ct. \line 1624, 131 L.Ed.2d 626 (1995) (citations omitted). In \line \f3\fs24 \i Lopez\i0 \f2\fs24 , the Supreme Court held that the Gun-Free \line School Zones Act of 1990 (ÒSchool Zones ActÓ) exceeds \line CongressÕs Commerce Clause authority. The School \line Zones Act made it a federal offense Òfor any individual \line knowingly to possess a firearm at a place that the \line individual knows, or has reasonable cause to believe, is \line a school zone.Ó 18 U.S.C. ¤ 922(q)(1)(A)(1988 ed. Supp. \par \line V). The Court held that the School Zones Act Òhas \line nothing to do with ÔcommerceÕ or any sort of economic \line activity. . . . \par \line \f2\fs24 and is not an essential part of a larger \pard\plain \line \f2\fs24 regulation of economic activity, in which the regulatory \line scheme could be undercut unless the intrastate activity \line were regulated.Ó \par \line \f3\fs24 \i Id. \i0 \f2\fs24 at 561, 115 S. Ct. 1624. It noted \pard\plain \line \f2\fs24 that neither the statute nor the legislative history in- \line cluded any congressional findings regarding the effects \line of gun possession in a school zone on interstate com- \line merce, and rejected the governmentÕs theories as to \line such effects. \f3\fs24 \i Id. \i0 \f2\fs24 at 562, 115 S. Ct. 1624. \par \par \pard\plain\fi240 \line \f2\fs24 Defendants contend that this Court is without juris- \line diction to hear these related cases because Congress \line does not have the authority to regulate defendantsÕ \line conduct under the Commerce Clause, just as it does not \line have authority to regulate possession of a firearm in a \line school zone. They submit that all of their activities are \line purely intrastate; therefore, pursuant to \f3\fs24 \i Lopez\i0 \f2\fs24 , the \par \page\pard\plain\fi2800 \line \f2\fs24 57a \par \par \pard\plain \line \f2\fs24 Controlled Substances Act is unconstitutional as ap- \line plied to them. \par \par \pard\plain\fi240 \line \f2\fs24 Congress has the power Òto declare that an entire \line class of activities affects commerce.Ó \par \line \f3\fs24 \i Maryland v. \i0 \pard\plain \line \f3\fs24 \i Wirtz\i0 \f2\fs24 , 392 U.S. 183, 192, 88 S. Ct. 2017, 20 L.Ed.2d 1020 \line (1968). ÒThe only question for the courts then is \line whether the class is within the reach of the federal \line power.Ó \f3\fs24 \i Id.\i0 \f2\fs24 ; \f3\fs24 \i see also United States v. Darby\i0 \f2\fs24 , 312 U.S. \line 100, 120-21, 61 S. Ct. 451, 85 L.Ed. 609 (1941) (where \line ÒCongress itself has said that a particular activity \line affects the commerce,Ó the only function of a court Ò[i]n \line passing on the validity of legislation . . . is to \line determine whether the particular activity regulated or \line prohibited is within the reach of the federal powerÓ). \line ÒWhere the class of activities is regulated and that class \line is within the reach of federal power, the courts have no \line power Ôto excise, as trivial, individual instancesÕ of the \line class.Ó \f3\fs24 \i Perez v. United States\i0 \f2\fs24 , 402 U.S. 146, 154, 91 S. \line Ct. 1357, 28 L.Ed.2d 686 (1971). \par \par \pard\plain\fi240 \line \f2\fs24 Congress has made detailed findings that the \f3\fs24 \i intra- \line state \i0 \f2\fs24 manufacture, distribution, and possession of con- \line trolled substances, as a class of activities, Òhave a \line substantial and direct effect upon interstate com- \line merce.Ó 21 U.S.C. ¤ 801(3). In particular, Congress \line found that, Òafter manufacture, many controlled sub- \line stances are transported in interstate commerce,Ó \f3\fs24 \i id. \i0 \par \pard\plain \line \f2\fs24 ¤ 801(3)(A); that Òcontrolled substances distributed \line locally usually have been transported in interstate \line commerce immediately before their distribution,Ó \f3\fs24 \i id. \line \i0 \f2\fs24 ¤ 801(3)(B); that Òcontrolled substances possessed com- \line monly flow through interstate commerce immediately \line prior to such possession,Ó \f3\fs24 \i id. \i0 \f2\fs24 ¤ 801(4); that Ò[l]ocal \line distribution and possession of controlled substances \par \page\pard\plain\fi2800 \line \f2\fs24 58a \par \par \pard\plain \line \f2\fs24 contribute to swelling the interstate traffic in such \line substances,Ó \f3\fs24 \i id. \i0 \f2\fs24 ¤ 801(4); and that Ò[c]ontrolled sub- \line stances manufactured and distributed intrastate cannot \line be differentiated from controlled substances manu- \line factured and distributed interstate,Ó \f3\fs24 \i id\i0 \f2\fs24 . ¤ 801(5). \line Therefore, Ò[f]ederal control of the intrastate incidents \line of the traffic in controlled substances is essential to the \line effective control of the interstate incidents of such \line traffic.Ó \f3\fs24 \i Id. \i0 \f2\fs24 ¤ 801(6). Since \f3\fs24 \i Lopez \i0 \f2\fs24 was decided, the \line Ninth Circuit has held that CongressÕs enactment of the \line Controlled Substances Act is constitutionally permissi- \line ble under the Commerce Clause. \f3\fs24 \i See United States v. \line Bramble\i0 \f2\fs24 , 103 F.3d 1475, 1479-80 (9th Cir. 1996); \f3\fs24 \i United \line States v. Tisor\i0 \f2\fs24 , 96 F.3d 370, 373-75 (9th Cir. 1996), \f3\fs24 \i cert. \line denied\i0 \f2\fs24 , 519 U.S. 1140, 117 S. Ct. 1012, 136 L.Ed.2d 889 \line (1997); \f3\fs24 \i United States v. Kim\i0 \f2\fs24 , 94 F.3d 1247, 1249-50 (9th \line Cir. 1996); \f3\fs24 \i United States v. Staples\i0 \f2\fs24 , 85 F.3d 461, 463 \line (9th Cir.), \f3\fs24 \i cert. denied\i0 \f2\fs24 , 519 U.S. 938, 117 S. Ct. 318, 136 \line L.Ed.2d 233 (1996). \par \par \pard\plain\fi240 \line \f2\fs24 Defendants respond that the Ninth Circuit cases are \line inapplicable to the facts of these actions because those \line cases involved (1) conduct that was prohibited under \line state law; and (2) intrastate illicit drug trafficking \line activities in the same Òclass of activitiesÓ as those inter- \line state activities prohibited by the Controlled Substances \line Act. Here, in contrast, defendants argue that their \line conductÑthe distribution of marijuana to seriously ill \line patients for the patientÕs personal medical useÑis not \line within that class of activities and does not substantially \line effect interstate commerce. \par \par \pard\plain\fi240 \line \f2\fs24 There can be no debate that when Congress passed \line the Controlled Substances Act it was primarily con- \line cerned with traditional for-profit drug trafficking \par \page\pard\plain\fi2800 \line \f2\fs24 59a \par \par \pard\plain \line \f2\fs24 rather than the not-for-profit supply of medical \line marijuana to seriously patients in accordance with state \line law. Even assuming, however, that defendantsÕ \line activities are within a different Òclass of activitiesÓ from \line that which Congress expressly considered, their \line activities are not within a class that, by its nature, does \line not have a substantial effect on interstate commerce. \line Whereas defendantsÕ conduct in the particular in- \line stances at issue here may not have had any effect on \line intrastate commerce, and for purposes of the federal \line governmentÕs motion the Court assumes that at an \line evidentiary hearing defendants could prove that all \line marijuana was cultivated locally, distributed locally, \line and consumed locally by California residents, it is not \line true that the class of activities within which defendantsÕ \line conduct fallsÑnon-profit distribution of medical \line marijuanaÑnecessarily does not affect interstate \line commerce. \par \par \pard\plain\fi240 \line \f2\fs24 Medical marijuana may be grown locally, or out of the \line state or country, and there is nothing in the nature of \line medical marijuana that limits it to intrastate cultiva- \line tion. Similarly, it may be transported across state lines \line and consumed across state lines. In \f3\fs24 \i Lopez\i0 \f2\fs24 , in contrast, \line the class of activities prohibitedÑmere \par \line \f3\fs24 \i possession \i0 \f2\fs24 of a \pard\plain \line \f2\fs24 firearm near a schoolÑdoes not have a substantial \line effect on interstate commerce. This case, unlike \f3\fs24 \i Lopez\i0 \f2\fs24 , \line is not about mere possession but rather about distri- \line bution, a class of activities that, even if done for the \line humanitarian purpose of serving the legitimate health \line care needs of seriously ill patients, can affect interstate \line commerce. \par \par \pard\plain\fi240 \line \f2\fs24 To hold that the Controlled Substances Act is un- \line constitutional as applied here would mean that in every \par \page\pard\plain\fi2800 \line \f2\fs24 60a \par \par \pard\plain \line \f2\fs24 action in which a plaintiff seeks to prove a defendant \line violated federal law, an element of every case-in-chief \line would be that the defendantÕs specific conduct at issue, \line based on facts proved at an evidentiary hearing or trial, \line substantially affected interstate commerce. No case so \line holds and the Court declines to do so for the first time \line here. Accordingly, the Court has jurisdiction to hear \line this matter. \par \line \f0\fs22 \b II. The Federal GovernmentÕs Motion. \b0 \par \par \pard\plain\fi240 \line \f2\fs24 We now turn to the relief sought by the federal \line government and whether the federal government has \line met its burden. \par \par \pard\plain\fi240 \line \f0\fs22 \b A. \b0 \f4\fs22 \b \i The Motion for a Preliminary Injunction is the \i0 \b0 \par \par \pard\plain\fi720 \line \f4\fs22 \b \i Only Motion Before the Court. \i0 \b0 \par \par \pard\plain\fi240 \line \f2\fs24 The federal government styled its moving papers as \line a motion for Òpreliminary injunction, permanent injunc- \line tion and summary judgment.Ó It filed this hybrid \line motion the same day it filed the six related lawsuits. \line Defendants correctly object to the motion for summary \line judgment on the ground that the Federal Rules of Civil \line Procedure permit a motion for summary judgment by a \line plaintiff Òat any time after the expiration of 20 days \line from the commencement of the action.Ó Fed. R. Civ. P. \line 56(a). The federal governmentÕs motion for summary \line judgment was thus premature. The federal govern- \line ment contends that it orally renoticed the motions \line during the scheduling conference on January 30, 1998. \line The CourtÕs February 9, 1998 Order, however, set the \line briefing schedule for the federal governmentÕs motion \line for \f3\fs24 \i preliminary injunction \i0 \f2\fs24 only; it made no mention of \line a motion for summary judgment. If the federal govern- \par \page\pard\plain\fi2800 \line \f2\fs24 61a \par \par \pard\plain \line \f2\fs24 ment believed the Court was in error, it had an obli- \line gation to so notify the Court and the defendants at that \line time. As it failed to do so, the only federal government \line motion pending is the motion for a preliminary \line injunction. \par \par \pard\plain\fi240 \line \f0\fs22 \b B. \b0 \f4\fs22 \b \i Preliminary Injunction Standard. \i0 \b0 \par \par \pard\plain\fi240 \line \f2\fs24 The general standards for a preliminary injunction \line are well-established. The court considers: (1) likelihood \line of success on merits; (2) possibility of irreparable harm \line to the moving party if the injunction is not granted; \line (3) the balance of hardships; and (4) in certain cases, \line whether the public interest will be advanced by grant- \line ing preliminary relief. \f3\fs24 \i See Miller v. California Pacific \line Medical Center\i0 \f2\fs24 , 19 F.3d 449, 456 (9th Cir. 1994); \f3\fs24 \i United \line States v. Odessa Union Warehouse Co-op, \i0 \f2\fs24 833 F.2d \line 172, 174 (9th Cir. 1987). The moving party must show \line Òeither (1) a combination of probable success on the \line merits and the possibility of irreparable harm, or (2) the \line existence of serious questions going to the merits, the \line balance of hardships tipping sharply in its favor, and at \line least a fair chance of success on the merits.Ó \par \line \f3\fs24 \i Miller\i0 \f2\fs24 , 19 \pard\plain \line \f2\fs24 F.3d at 456 (quoting \f3\fs24 \i Senate of California v. Mosbacher\i0 \f2\fs24 , \line 968 F.2d 974, 977 (9th Cir. 1992)). ÒThese two formula- \line tions represent two points on a sliding scale in which \line the required degree of irreparable harm increases as \line the probability of success decreases.Ó \par \line \f3\fs24 \i Odessa Union\i0 \f2\fs24 , \pard\plain \line \f2\fs24 833 F.2d at 174. \par \par \pard\plain\fi240 \line \f2\fs24 The standard is modified somewhat when the federal \line government seeks to enforce a statute: \par \par \pard\plain\fi360 \line \f2\fs24 In statutory enforcement cases where the govern- \line ment has met the Òprobability of success prongÓ of \line the preliminary injunction test, we presume it has \par \page\pard\plain \line \f2\fs24 62a \par \par \pard\plain\fi360 \line \f2\fs24 met the Òpossibility of irreparable injuryÓ prong be- \line cause the passage of the statute is itself an implied \line finding by Congress that violations will harm the \line public. Therefore, further inquiry into irreparable \line injury is unnecessary. However, in statutory en- \line forcement cases where the government can make \line only a Òcolorable evidentiary showingÓ of a violation, \line the court must consider the possibility of irrepar- \line able injury. \par \par \pard\plain \line \f3\fs24 \i United States v. Nutri-cology, Inc\i0 \f2\fs24 ., 982 F.2d 394, 398 \line (9th Cir. 1992). Since this is an action by the federal \line government to enforce a statute, the injunction must be \line granted if the federal government establishes a pro- \line bability of success on the merits since, in such cases, the \line possibility of irreparable harm is presumed. \par \par \pard\plain\fi240 \line \f2\fs24 Defendants argue that the Ninth Circuit has sug- \line gested that if the defendants do not concede a statutory \line violation, the presumption of irreparable harm does not \line apply. \f3\fs24 \i See Miller\i0 \f2\fs24 , 19 F.3d at 459 (noting that in \f3\fs24 \i Odessa \line Union \i0 \f2\fs24 Òthe traditional requirement of irreparable in- \line jury was inapplicable because the parties conceded that \line the federal statute involved was violatedÓ). \par \line \f3\fs24 \i Miller\i0 \f2\fs24 , \pard\plain \line \f2\fs24 however, specifically held that the presumption applies \line if the defendant concedes the statutory violation \f3\fs24 \i or \i0 \f2\fs24 the \line government demonstrates Òthat it is likely to prevail on \line the merits.Ó \par \line \f3\fs24 \i Id. \i0 \f2\fs24 at 460. \pard\plain\fi240 \line \f2\fs24 Defendants also contend that the presumption of \line irreparable harm, even if it may apply, is rebuttable. In \line \f3\fs24 \i Miller \i0 \f2\fs24 and \f3\fs24 \i Nutri-cology, \i0 \f2\fs24 however, the Ninth Circuit \line held that if the government establishes a likelihood of \line success on the merits, Òfurther inquiry into irreparable \line harm is unnecessary.Ó \f3\fs24 \i Miller\i0 \f2\fs24 , 19 F.3d at 459; \f3\fs24 \i Nutri- \i0 \par \page\pard\plain\fi2800 \line \f2\fs24 63a \par \par \pard\plain \line \f3\fs24 \i cology\i0 \f2\fs24 , 982 F.2d at 398. Such a presumption is not \line unique to government statutory enforcement actions. \line In copyright actions, the party claiming infringement \line enjoys a similar presumption of irreparable harm upon \line a showing of likelihood of success on the merits. \f3\fs24 \i See\i0 \f2\fs24 , \par \line \f3\fs24 \i e.g., Apple Computer v. Formula IntÕl Inc.\i0 \f2\fs24 , 725 F.2d \line 521, 525 (9th Cir. 1984). \par \par \pard\plain\fi240 \line \f2\fs24 Thus, before deciding whether the presumption of \line irreparable injury applies in these cases, the Court \line must determine if the federal government has \line established a probability of success on the merits, or \line only a colorable evidentiary showing, or neither. \par \par \pard\plain\fi240 \line \f0\fs22 \b C. \b0 \f4\fs22 \b \i Probability of Success on the Merits. \i0 \b0 \par \par \pard\plain\fi240 \line \f2\fs24 Federal law prohibits the knowing or intentional \line manufacture, distribution, or possession with intent to \line manufacture or distribute a controlled substance. \f3\fs24 \i See \line \i0 \f2\fs24 21 U.S.C. ¤ 841(a). It is undisputed that marijuana is a \line controlled substance within the meaning of ¤ 841(a). It \line is equally undisputed that defendants distribute mari- \line juana. Defendants do not challenge the federal govern- \line mentÕs evidence to the extent it establishes that de- \line fendants provide marijuana to seriously ill patients or \line their primary caregivers for personal use by the patient \line upon a physicianÕs recommendation. \par \par \pard\plain\fi240 \line \f2\fs24 Defendants contend that the federal government has \line nonetheless not established a probability of success on \line the merits because it has not proved that federal law \line applies to defendantsÕ conduct. In particular, de- \line fendants submit that (1) federal law applies only to \line illicit or illegal distribution of marijuana, and not to \line medical marijuana which is legal under state law; (2) \par \page\pard\plain\fi2800 \line \f2\fs24 64a \par \par \pard\plain \line \f2\fs24 defendants are Òjoint usersÓ and therefore cannot be \line guilty of ÒdistributionÓ; and (3) defendants are exempt \line from the law as Òultimate users.Ó Defendants argue \line alternatively that even if the law applies to their con- \line duct, the common law defense of necessity justifies \line their conduct and, in any event, the statute as applied \line violates substantive due process. \par \line \f0\fs22 \b 1. Whether Federal Law Reaches \b0 \par \par \pard\plain\fi1960 \line \f0\fs22 \b DefendantsÕ Conduct. \par \line a. \b0 \f4\fs22 \b \i Proposition 215 and Federal Law. \i0 \b0 \par \par \pard\plain\fi240 \line \f2\fs24 Section 903 of the Controlled Substances Act pro- \line vides that no provision of the Act \par \par \pard\plain\fi360 \line \f2\fs24 shall be construed as indicating an intent on the part \line of the Congress to occupy the field in which that \line provision operates, including criminal penalties, to \line the exclusion of any State law on the same subject \line matter which would otherwise be within the author- \line ity of the State, unless there is a positive conflict \line between that provision of this subchapter and that \line State law so that the two cannot consistently stand \line together. \par \par \pard\plain \line \f2\fs24 21 U.S.C. ¤ 903. Defendants argue that this section \line places the burden on the federal government to prove \line that state law, Health and Safety Code ¤ 11362.5, is in \line positive conflict with federal law, 21 U.S.C. ¤ 841(a), \line and that there is no way the two can stand together. \line The federal government cannot meet that burden, they \line contend, because Ò[i]t is unreasonable to believe that \line use of medical marijuana by this discrete population for \line this limited purpose [medical treatment] will create a \line significant drug problem.Ó \par \line \f3\fs24 \i Conant v. McCaffrey\i0 \f2\fs24 , 172 \pard\plain \line \f2\fs24 F.R.D. 681, 694 n. 5 (N.D. Cal. 1997). \par \page\pard\plain\fi2800 \line \f2\fs24 65a \par \par \pard\plain\fi240 \line \f2\fs24 DefendantsÕ argument misapprehends the scope of \line Proposition 215, federal law, and these lawsuits. De- \line fendants are correct that Proposition 215 does not \line conflict with federal law, but not for the reasons ad- \line vanced by defendants, i.e., that medical marijuana is not \line illegal. Proposition 215 does not conflict with federal \line law because on its face it does not purport to make legal \line any conduct prohibited by federal law; it merely \line exempts certain conduct by certain persons from the \line California drug laws. Thus, whether defendantsÕ con- \line duct falls within the scope of Proposition 215 is im- \line material. Defendants do not argue, as they cannot, that \line simply because state law does not prohibit their con- \line duct federal law may not do so. \f3\fs24 \i See United States v. \line Rosenberg\i0 \f2\fs24 , 515 F.2d 190, 198 n. 14 (9th Cir. 1975). \par \par \pard\plain\fi240 \line \f2\fs24 Notwithstanding the operative language of Pro- \line position 215, its declared purposeÑÒ[t]o ensure that \line seriously ill Californians have the right to obtain and \line use marijuana for medical purposes.Ó Ò. . . and that \line such patients and their primary caregivers are not \line subject to criminal prosecution or sanction,Ó Health & \line Safety Code ¤ 11362.5(A) & (B)Ñsuggests that Cali- \line forniaÕs voters want to exempt medical marijuana from \line prosecution under federal, as well as state law, even if \line that is not what they enacted. A state law which \line purports to legalize the distribution of marijuana for \line any purpose, however, even a laudable one, nonetheless \line directly conflicts with federal law, 21 U.S.C. ¤ 841(a). \line Section 841 prohibits the distribution of marijuana \line except for use in an approved research project. It does \line not exempt the distribution of marijuana to seriously ill \line persons for their personal medical use. \par \page\pard\plain\fi2800 \line \f2\fs24 66a \par \line \f0\fs22 \b b. \b0 \f4\fs22 \b \i Joint Users Defense. \i0 \b0 \par \par \pard\plain\fi240 \line \f2\fs24 In \f3\fs24 \i United States v. Swiderski\i0 \f2\fs24 , 548 F.2d 445 (2d Cir. \line 1977), defendants, husband and wife, were charged with \line violating 21 U.S.C. ¤ 841(a) by possessing cocaine with \line intent to distribute. \f3\fs24 \i See id. \i0 \f2\fs24 at 447. The Second Circuit \line held that Òa statutory ÔtransferÕ could not occur be- \line tween two individuals in joint possession of a controlled \line substance simultaneously acquired for their own use.Ó \line \f3\fs24 \i United States v. Wright\i0 \f2\fs24 , 593 F.2d 105, 107 (9th Cir. \line 1979) (discussing \f3\fs24 \i Swiderski\i0 \f2\fs24 ). The court thus concluded \line that the trial judge erred by denying Òthe jury the \line opportunity to find that the defendants, who bought \line the drugs in each otherÕs physical presence, intended \line merely to share the drugsÓ and thus, not to distribute \line them. \f3\fs24 \i Id.\i0 \f2\fs24 ; \f3\fs24 \i Swiderski\i0 \f2\fs24 , 548 F.2d at 450. \par \par \pard\plain\fi240 \line \f2\fs24 Defendants contend that like the defendants in \line \f3\fs24 \i Swiderski\i0 \f2\fs24 , they have not violated the federal law pro- \line hibiting the distribution of marijuana. At a trial on the \line merits they submit that they will prove that their \line control of medical marijuana is established Òthrough a \line cooperative enterprise, shared equally among all of the \line members thereto, for the exclusive medicinal use of \line each of them, individuallyÓ and that no third parties are \line involved and Ònor is anyone else brought into a ÔwebÕ of \line drug use.Ó They also contend that they Òdo not give \line money to others for the purposes of procuring drugs for \line recreational use,Ó rather, they Òact in concert as co- \line operatives to ensure the safe and affordable access \line to cannabis for medicinal purposes for each of the \line members.Ó DefendantsÕ Opposition Memorandum at 21. \line For purposes of the federal governmentÕs motion for \line preliminary injunction, the Court will assume that \par \page\pard\plain\fi2800 \line \f2\fs24 67a \par \par \pard\plain \line \f2\fs24 defendants could produce evidence to support their \line offer of proof. \par \par \pard\plain\fi240 \line \f3\fs24 \i Swiderski\i0 \f2\fs24 , and the other cases cited by defendants, \line involved the question of whether the defendants in \line those actions were entitled to a Òjoint usersÓ jury in- \line struction. The issue here, however, is whether the \line federal government has established that it is likely to \line prevail at trial in establishing that \f3\fs24 \i Swiderski \i0 \f2\fs24 does not \line apply to defendantsÕ conduct. The Court concludes that \line it has. \f3\fs24 \i Swiderski \i0 \f2\fs24 involved a simultaneous purchase \line by a husband and wife who testified they intended to \line use the controlled substance immediately. Applying \line \f3\fs24 \i Swiderski \i0 \f2\fs24 to a medical marijuana cooperative would \line extend \f3\fs24 \i Swiderski \i0 \f2\fs24 to a situation in which the controlled \line substance is not literally purchased simultaneously for \line immediate consumption. In light of the fact that \line \f3\fs24 \i Swiderski \i0 \f2\fs24 has never been so extended, and in light of \line the fact that it has not been adopted by the Ninth \line Circuit, the Court concludes that it is reasonably likely \line that such a defense would not prevail at a trial ad- \line dressing whether injunctive relief should be granted. \par \par \pard\plain\fi240 \line \f2\fs24 The Court cautions, however, that it is not ruling that \line defendants are not entitled to such a defense at trial or \line in a contempt proceeding for violation of a preliminary \line or permanent injunction, or that defendants could not \line as a matter of law defeat a motion for summary judg- \line ment with evidence of mere possession. The CourtÕs \line ruling is narrow. Based on defendantsÕ offer of proof, \line which does not include any detailed factual allegations, \line the Court concludes that the federal government is \line likely to prevail at trial. \par \page\pard\plain\fi2800 \line \f2\fs24 68a \par \line \f0\fs22 \b c. \b0 \f4\fs22 \b \i Ultimate User Defense\i0 \b0 \f0\fs22 \b . \b0 \par \par \pard\plain\fi240 \line \f2\fs24 Defendants contend that they have not violated the \line Controlled Substances Act because they are Òultimate \line users.Ó An Òultimate userÓ is Òa person who has law- \line fully obtained, and who possesses, a controlled sub- \line stance for his own use or for the use of a member of his \line household.Ó 21 U.S.C. ¤ 802(25). Defendants are not \line ultimate users because they have not lawfully obtained \line the marijuana at issue. As stated above, the fact that it \line may be lawful under state law for defendants to culti- \line vate and possess marijuana for medical purposes, does \line not make it lawful under federal lawÑthe only law at \line issue here. At present, the only way in which mari- \line juana may be lawfully obtained is in a controlled re- \line search setting conducted pursuant to a FDA approved \line protocol, and where the researcher has been registered \line with the DEA. \f3\fs24 \i See \i0 \f2\fs24 21 U.S.C. ¤ 823(f); 21 C.F.R. \par \pard\plain \line \f2\fs24 ¤ 1301.13(e). \par \line \f0\fs22 \b 2. The Medical Necessity Defense. \b0 \par \par \pard\plain\fi240 \line \f2\fs24 Defendants argue that even if the Controlled Sub- \line stances Act prohibits their conduct, the injunction must \line nevertheless be denied because they are entitled to the \line common law defense of necessity. To invoke the de- \line fense, defendants must prove (1) that they were faced \line with a choice of evils and chose the lesser evil; (2) they \line acted to prevent imminent harm; (3) they reasonably \line anticipated a direct causal relationship between their \line conduct and the harm to be averted; and (4) that there \line were no legal alternatives to violating the law. \f3\fs24 \i See \line United States v. Aguilar\i0 \f2\fs24 , 883 F.2d 662, 693 (9th Cir. \line 1989). Several state courts have recognized the appli- \line cability of the necessity defense in marijuana criminal \par \page\pard\plain\fi2800 \line \f2\fs24 69a \par \par \pard\plain \line \f2\fs24 prosecutions. \f3\fs24 \i See\i0 \f2\fs24 , \f3\fs24 \i e.g., State v. Hastings\i0 \f2\fs24 , 118 Idaho 854, \line 801 P.2d 563 (1990); \f3\fs24 \i State v. Diana\i0 \f2\fs24 , 24 Wash. App. 908, \line 604 P.2d 1312 (1979); \f3\fs24 \i State v. Bachman\i0 \f2\fs24 , 61 Haw. 71, 595 \line P.2d 287 (1979). \par \par \pard\plain\fi240 \line \f2\fs24 Defendants submit that they can prove each element \line of the defense. First, their members will die, go blind, \line or suffer severe pain without cannabis; yet, obtaining \line cannabis Òis, for many difficult or impossible to obtain.Ó \line Thus, defendants contend, they are faced with two \line evils, letting their members die, go blind or suffer \line severe pain, or risk running afoul of federal law and \line that they have chosen the lesser evil. They can \line meet the second and third requirements, they argue, \line because the harm to be averted is imminent and life- \line threatening and supplying cannabis to their members is \line necessary to prevent that harm. Finally, they assert \line they have no reasonable alternative; for many people \line legal drugs simply do not work in treating their symp- \line toms and they have no legal or safe alternative to \line obtaining marijuana. \par \par \pard\plain\fi240 \line \f2\fs24 The federal government responds that defendants do \line have a legal and reasonable alternativeÑa petition to \line reschedule marijuana from a Schedule I to a Schedule \line II controlled substance. \f3\fs24 \i See \i0 \f2\fs24 21 U.S.C. ¤ 811(a). Re- \line scheduling to Schedule II would permit physicians to \line prescribe marijuana for therapeutic purposes. The \line Court doubts whether a rescheduling petition is a rea- \line sonable alternative for all seriously ill patients whose \line physicians have recommended marijuana for therapeu- \line tic purposes. For example, such a petition was filed in \line 1972 and did not receive a final ruling from the Admin- \line istrator of the Drug Enforcement Agency until 1992, \line and a final decision on appeal until 1994. \f3\fs24 \i See Alliance \i0 \par \page\pard\plain\fi2800 \line \f2\fs24 70a \par \par \pard\plain \line \f3\fs24 \i for Cannabis Therapeutics v. Drug Enforcement Ad-\i0 \f2\fs24 \line \f3\fs24 \i ministrator,\i0 \f2\fs24 15 F.3d 1131 (D.C. Cir. 1994). Needless to \line say, it hardly seems reasonable to require an AIDS, \line glaucoma, or cancer patient to wait twenty years if the \line patient requires marijuana to alleviate a current medi- \line cal problem. \par \par \pard\plain\fi240 \line \f2\fs24 The Court, however, need not dispositively decide \line whether a reasonable alternative exists. The Court \line concludes that the federal government is likely to pre- \line vail at trial on its claim that the defense of necessity \line does not preclude the granting of the injunctive relief \line sought here. As the federal government points out, the \line defense of necessity has never been allowed to exempt \line a defendant from the criminal laws on a blanket basis. \line To put it another way, for the defense to be available \line here, defendants would have to prove that each and \line every patient to whom it provides cannabis is in danger \line of imminent harm; that the cannabis will alleviate the \line harm for that particular patient; and that the patient \line had no other alternatives, for example, that no other \line legal drug could have reasonably averted the harm. \line Defendants do not contend that they could offer such \line proof. For example, they state that they could offer \line evidence that Òfor manyÓ people, legal drugs are not \line effective. That is not the same as saying that for each \line of every person to whom they provide, and will provide, \line marijuana, legal drugs are not effective such that mari- \line juana is a necessity. \par \par \pard\plain\fi240 \line \f2\fs24 The Court is not ruling, however, that the defense of \line necessity is wholly inapplicable to these lawsuits. If a \line preliminary or permanent injunction is granted, and the \line federal government alleges that defendants have vio- \line lated the injunction, there will be specific facts and \par \page\pard\plain\fi2800 \line \f2\fs24 71a \par \par \pard\plain \line \f2\fs24 circumstances before the Court from which the Court \line can determine if the jury should be given a necessity \line instruction as a defense to the alleged violation of the \line injunction. As such facts are not presently before the \line Court, it is premature for the Court to decide whether \line such a defense is available. \par \par \pard\plain\fi240 \line \f2\fs24 By concluding that medical necessity is not an ap- \line propriate defense to the issuance of an injunction, the \line Court is not placing defendants in the difficult position \line of deciding whether to go forward with their conduct, \line which they sincerely believe is absolutely necessary, \line or abiding by the injunction. As defendants point \line out, with or without the injunction they must decide \line whether to violate federal law; they are bound by \line federal law even in the absence of an injunction. \par \line \f0\fs22 \b 3. Substantive Due Process. \b0 \par \par \pard\plain\fi240 \line \f2\fs24 The Due Process Clause of the United States Consti- \line tution Òprovides heightened protection against govern- \line ment interference with certain fundamental rights and \line liberty interests.Ó \par \line \f3\fs24 \i Washington v. Glucksberg\i0 \f2\fs24 , 521U.S. \pard\plain \line \f2\fs24 702, ÑÑ, 117 S. Ct. 2258, 2267, 138 L.Ed.2d 772 (1997). \line Where a Òfundamental liberty interestÓ is involved, \line government action restricting that interest must be \line Ònarrowly tailored to serve a compelling [federal \line government] interest.Ó \par \line \f3\fs24 \i Id. \i0 \f2\fs24 117 S. Ct. at 2268; \f3\fs24 \i see also \i0 \pard\plain \line \f3\fs24 \i id. \i0 \f2\fs24 (Òthe Fourteenth Amendment Ôforbids the govern- \line ment to infringe . . . ÒfundamentalÓ liberty interests \line at all, no matter what process is provided, unless the \line infringement is narrowly tailored to serve a compelling \line state interestÕ Ó (citation omitted)). A fundamental li- \line berty interest must be Ò Ôdeeply rooted in this NationÕs \line history and tradition,Õ Ó and Ò Ôimplicit in our concept of \par \page\pard\plain\fi2800 \line \f2\fs24 72a \par \par \pard\plain \line \f2\fs24 ordered liberty,Õ such that Ôneither liberty nor justice \line would exist if they were sacrificed.Õ Ó \f3\fs24 \i Id. \i0 \f2\fs24 (citation \line omitted). The right must also be Òcarefully described.Ó \line \f3\fs24 \i Id. \i0 \par \par \pard\plain\fi240 \line \f2\fs24 Defendants contend that the preliminary injunction \line should be denied because the relief soughtÑan order \line enjoining defendants from the manufacture or distri- \line bution, or possession with intent to distribute mari- \line juana, or conspiring to do the sameÑviolates their \line substantive due process rights. In particular, de- \line fendants assert that such an injunction would infringe \line their fundamental right to be free from unnecessary \line pain, to receive palliative treatment for a painful medi- \line cal condition, to care for oneself, and to preserve oneÕs \line own life. \f3\fs24 \i See generally Washington v. Glucksberg\i0 \f2\fs24 , 521 \line U.S. 702, 117 S. Ct. 2258, 138 L.Ed.2d 772; \f3\fs24 \i DeShaney v. \line Winnebago Cty. Dept. of Social Serv.\i0 \f2\fs24 , 489 U.S. 189, 200, \line 109 S. Ct. 998, 103 L.Ed.2d 249 (1989). They argue that \line they are not asserting a constitutional right to the \line medical drug of their choice, even if the drug had not \line been proved effective, as was the case in the actions \line challenging federal governmentÕs restrictions on lae- \line trile, \f3\fs24 \i see\i0 \f2\fs24 , \f3\fs24 \i e.g., Rutherford v. United States\i0 \f2\fs24 , 616 F.2d 455 \line (10th Cir. 1980); \f3\fs24 \i Carnohan v. United States\i0 \f2\fs24 , 616 F.2d \line 1120 (9th Cir. 1980), but rather that they have a right to \line Òa demonstrated and effective treatment as recom- \line mended by their physician that can alleviate their \line agony, preserve their sight, and save their lives.Ó De- \line fendantsÕ Supplemental Opposition Memorandum at 9. \par \par \pard\plain\fi240 \line \f2\fs24 The Court concludes that the federal government is \line likely to prevail at trial on the issue of whether de- \line fendants have a fundamental right to medical mari- \line juana. The Court, however, is not ruling as a matter of \par \page\pard\plain\fi2800 \line \f2\fs24 73a \par \par \pard\plain \line \f2\fs24 law that no such right exists. It holds that on the \line record presently before the Court, defendants have not \line established that the right to such treatment is Òso \line rooted in the traditions and conscience of our people as \line to be ranked as fundamental.Ó \par \line \f3\fs24 \i Washington v. Glucks-\i0 \f2\fs24 \line \f3\fs24 \i berg,\i0 \f2\fs24 521 U.S. at ÑÑ, 117 S. Ct. at 2268 (quoting \line \f3\fs24 \i Palko \i0 \pard\plain \line \f3\fs24 \i v. Connecticut\i0 \f2\fs24 , 302 U.S. 319, 325, 58 S. Ct. 149, 82 L.Ed. \line 288 (1937)). Nor have defendants established that they \line have standing to assert such a defense as to their \line distribution of marijuana to seriously ill persons other \line than themselves. \par \par \pard\plain\fi240 \line \f2\fs24 Moreover, the Court need not dispositively resolve \line this constitutional issue because even assuming de- \line fendants had established that such a fundamental right \line exists, and that they have standing to assert such a \line right, this defense, like the defense of necessity, is \line inapplicable to this injunction action. Defendants are \line asking the Court to deny the injunction and, in effect, \line exempt their conduct from the federal laws as a whole. \line In order for the Court to conclude that defendants have \line a substantive due process defense to an injunction \line barring them from violating federal law, the Court \line would have to find that the substantive due process \line right of each and every patient to whom the defendants \line will dispense marijuana in the future will be violated if \line the government prevents defendants from doing so. \line Such a defense may be available in a contempt pro- \line ceeding where the trier of fact is presented with a \line particular transaction to a particular patient under a \line particular set of facts. \f3\fs24 \i See Washington v. Glucksberg\i0 \f2\fs24 , \line 521 U.S. atÑÑn. 24, 117 S. Ct. at 2275 n. 24 (holding \line that Washington StateÕs ban on assisted suicide is not \line unconstitutional as applied to terminally ill patients \line generally, but that the CourtÕs decision does not Òfore- \par \page\pard\plain\fi2800 \line \f2\fs24 74a \par \par \pard\plain \line \f2\fs24 close the possibility that an individual plaintiff seeking \line to hasten her death, or a doctor whose assistance was \line sought, could prevail in a more particularized chal- \line lengeÓ). It is not available, however, to exempt \line generally the distribution of medical marijuana from \line the federal drug laws. \par \par \pard\plain\fi240 \line \f0\fs22 \b D. \b0 \f4\fs22 \b \i Whether the Preliminary Injunction Should Be \i0 \b0 \par \par \pard\plain\fi720 \line \f4\fs22 \b \i Granted. \i0 \b0 \par \par \pard\plain\fi240 \line \f2\fs24 For the foregoing reasons, the Court concludes that \line the federal government has established that it is likely \line to prevail on the merits of its claim that defendants are \line in violation of federal law. As set forth above, in a \line statutory enforcement action brought by the federal \line government, irreparable harm is presumed if the \line government establishes that it is likely to prevail on the \line merits. \f3\fs24 \i Nutri-cology, \i0 \f2\fs24 982 F.2d at 398 (Òfurther inquiry \line into irreparable injury is unnecessaryÓ); \f3\fs24 \i see also id. \line \i0 \f2\fs24 (Òthe passage of the statute is itself an implied finding \line by Congress that violations will harm the publicÓ). \par \par \pard\plain\fi240 \line \f2\fs24 Defendants argue that injunctive relief is nonetheless \line unwarranted because this Court is sitting as a court of \line equity and must therefore consider the traditional de- \line fenses to the granting of equitable relief, including the \line unclean hands of the moving party. They contend that \line these principles, plus the fact that the federal govern- \line ment is seeking injunctive relief at all, require the \line denial of injunctive relief. \par \line \f0\fs22 \b 1. The Propriety of Seeking Injunctive Relief. \b0 \par \par \pard\plain\fi240 \line \f2\fs24 The government rarely seeks injunctions pursuant to \line 21 U.S.C. ¤ 882(a). The Court has located only five \par \page\pard\plain\fi2800 \line \f2\fs24 75a \par \par \pard\plain \line \f2\fs24 published opinions in which the federal government \line sought relief based on the statute. \f3\fs24 \i See\i0 \f2\fs24 , \f3\fs24 \i e.g., United \line States v. Leasehold Interest in 121 Nostrand Avenue\i0 \f2\fs24 , \line 760 F. Supp. 1015, 1035 (E.D.N.Y. 1991); \f3\fs24 \i United States \par \line v. Williams\i0 \f2\fs24 , 416 F. Supp. 611, 614 (D.D.C. 1976). At \line oral argument, and in their supplemental memoranda, \line defendants insist that the federal government has \line chosen to bring a civil injunctive action rather than \line charge defendants with a violation of the criminal laws, \line in order to deprive defendants of the same right to a \line jury trial to which they would be entitled in a criminal \line action. \par \par \pard\plain\fi240 \line \f2\fs24 Defendants do not contend that the government is \line attempting to deprive them of a right to a jury in \line general. 21 U.S.C. ¤ 882(b) provides that Ò[i]n case of \line an alleged violation of an injunction or restraining order \line issued under this section, trial shall, \f3\fs24 \i upon demand of \line the accused\i0 \f2\fs24 , be by a \f3\fs24 \i jury \i0 \f2\fs24 in accordance with the \line Federal Rules of Civil Procedure.Ó 21 U.S.C. ¤ 882(b) \line (emphasis added). If the Court issues an injunction, \line defendants have a right to a jury in any proceeding in \line which it is alleged that they have violated the injunc- \line tion. Defendants instead contend that a jury trial in \line accordance with the Federal Rules of Civil Procedure \line will provide them with fewer procedural protections \line than a criminal trial. For example, in civil proceedings \line a party may make a motion for summary judgment; no \line such procedure, however, is available in a criminal trial; \line and in a civil proceeding, under Federal Rule of Civil \line Procedure 48, a jury may be composed of six persons, \line whereas in a criminal trial a defendant is guaranteed a \line trial by a jury of twelve. \par \page\pard\plain\fi2800 \line \f2\fs24 76a \par \par \pard\plain\fi240 \line \f2\fs24 These procedural differences do not compel a con- \line clusion that the federal government is acting in bad \line faith. First, in any contempt proceeding, the Court will \line determine the appropriate number of jurors, up to \line twelve, which still must return a unanimous verdict. \line \f3\fs24 \i See \i0 \f2\fs24 Fed. R. Civ. P. 48 (Ò[u]nless the parties otherwise \line stipulate, (1) the verdict shall be unanimousÓ). Second, \line even assuming that the federal government could \line bring a motion for summary judgment in a contempt \line proceedingÑand it is not clear from the plain language \line of section 882(b) that it couldÑsummary judgment may \line be granted, and a party denied the fight to a jury, only \line if \f3\fs24 \i no reasonable jury \i0 \f2\fs24 could find for the nonmoving \line party. \f3\fs24 \i See Matsushita Elec. Ind. Co. v. Zenith Radio\i0 \f2\fs24 , \line 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986). \par \line \f0\fs22 \b a. Unclean Hands \b0 \par \par \pard\plain\fi240 \line \f2\fs24 The Òclean handsÓ doctrine \par \par \pard\plain\fi360 \line \f2\fs24 insists that one who seeks equity must come to the \line court without blemish. . . . This maxim Òis a self- \line imposed ordinance that closes the doors of a court of \line equity to one tainted with an inequitableness or bad \line faith relative to the matter in which he seeks relief, \line however improper may have been the behavior of \line the defendant.Ó . . . This rule applies to the \line government as well as to private litigants . . . \par \par \pard\plain \line \f3\fs24 \i Equal Employment Opportunity CommÕn v. Recruit \line U.S.A., \i0 \f2\fs24 939 F.2d 746, 752 (9th Cir. 1991) (citations \line omitted). Defendants contend that the federal govern- \line ment comes before this Court with unclean hands \line because it refuses to acknowledge that marijuana has a \line medical use and reschedule it as a Schedule II con- \par \page\pard\plain\fi2800 \line \f2\fs24 77a \par \par \pard\plain \line \f2\fs24 trolled substance which would permit seriously ill \line patients to be treated with marijuana. \par \par \pard\plain\fi240 \line \f2\fs24 The federal governmentÕs conduct is Òunclean,Ó \line defendants assert, because the federal government \line itself has commissioned studies which have established \line marijuanaÕs medical efficacy and then ignored these \line studies. Defendants highlight the fact that while the \line federal government continues to maintain that there \line are no medically accepted uses for marijuana, the DEA \line is simultaneously distributing marijuana to eight people \line under the Investigative New Drug program for medical \line purposes. Those eight people were enrolled years ago, \line defendants submit, before the Òwar on drugs,Ó and the \line DEA has refused to enroll any more patients, not \line because of concerns as to the safety of marijuana, but \line for political reasons. Defendants also point out that in \line 1970, Congress appropriated a million dollars for a com- \line mission to recommend appropriate marijuana legisla- \line tion. Public Law 91-513, ¤ 601(e) (Oct. 27, 1970). The \line commission, known as the ÒShafer Commission,Ó re- \line commended decriminalizing possession and casual dis- \line tribution of small amounts of marijuana. \f3\fs24 \i See Mari- \line huana: A Signal of Misunderstanding; First Report of \line the National Commission on Marihuana and Drug \line Abuse\i0 \f2\fs24 , 152 (1972). Congress, however, refused to re- \line schedule marijuana. Finally, defendants argue that the \line DEA ignored the recommendation of its own Admini- \line strative Law Judge that marijuana be changed to a \line Schedule II controlled substance[.] \f3\fs24 \i See \i0 \f2\fs24 DefendantsÕ \line Supplemental Opposition Memorandum at 23. \par \par \pard\plain\fi240 \line \f2\fs24 The federal government disputes that the Shafer \line Commission recommended decriminalizing marijuana. \line Rather, it contends the Commission merely recom- \par \page\pard\plain\fi2800 \line \f2\fs24 78a \par \par \pard\plain \line \f2\fs24 mended increased support for studies to evaluate the \line efficacy of medical marijuana. \f3\fs24 \i See First Report, supra\i0 \f2\fs24 , \line at 176. \par \par \pard\plain\fi240 \line \f2\fs24 The fact remains, however, that medical marijuana \line advocates have been unsuccessful in convincing the \line federal government decision makers that marijuana \line should be reclassified as a Schedule II controlled sub- \line stance and thus made available to seriously ill patients \line upon a physicianÕs recommendation. That does not \line mean that the federal government has acted with \line unclean hands. Indeed, as late as 1994, a federal court of \line appeal affirmed the Drug Enforcement Agency Admini- \line stratorÕs decision not to reschedule. \f3\fs24 \i See Alliance for \line Cannabis Therapeutics v. Drug Enforcement Admini-\i0 \f2\fs24 \line \f3\fs24 \i stration,\i0 \f2\fs24 15 F.3d 1131 (D.C. Cir. 1994). \par \par \pard\plain\fi240 \line \f2\fs24 The federal government has advised the Court that a \line petition for reclassification has been filed and that on \line December 17, 1997, the DEA referred the petition to \line the Secretary of Health and Human Services (ÒHHSÓ) \line upon determining that the petition raised scientific and \line medical issues that had not previously been evaluated \line by HHS as part of any prior scheduling action. \f3\fs24 \i See \line \i0 \f2\fs24 Federal GovernmentÕs Post-Hearing Memorandum at \par \line 13. One would expect the Secretary to act expedi- \line tiously on the petition in light of the expressed concerns \line of the citizens of California. \par \par \pard\plain\fi2220 \line \f0\fs22 \b CONCLUSION \b0 \par \par \pard\plain\fi240 \line \f2\fs24 Because of the Supremacy Clause of the United \line States Constitution, the only issue before the Court is \line whether defendantsÕ conduct violates federal law. The \line Court concludes that the federal government has \par \page\pard\plain\fi2800 \line \f2\fs24 79a \par \par \pard\plain \line \f2\fs24 established that it is likely that it does. As these \line lawsuits are brought to enforce a statute, namely, the \line Controlled Substances Act, irreparable harm is pre- \line sumed and the injunction must be granted. \par \par \pard\plain\fi240 \line \f2\fs24 Once again, however, the Court must caution as to \line what this decision does not do. The Court has not \line declared Proposition 215 unconstitutional. Nor has it \line enjoined the possession of marijuana by a seriously ill \line patient for the patientÕs personal medical use upon a \line physicianÕs recommendation. Nor has the Court fore- \line closed the possibility of a medical necessity or consti- \line tutional defense in any proceeding in which it is alleged \line a defendant has violated the injunction issued herein. \par \par \pard\plain\fi240 \line \f2\fs24 Finally, the San Francisco District Attorney has \line raised the issue of possible local governmental distri- \line bution of medical marijuana. Such a question is not \line before the Court and, in any event, is purely specu- \line lative as it is uncertain whether the federal government \line would even seek to enjoin such conduct by a local \line government entity under strictly controlled conditions. \line For example, as the San Francisco District Attorney \line mentioned at oral argument, the distribution of clean \line needles to heroin addicts violates federal law, \f3\fs24 \i see \i0 \f2\fs24 21 \line U.S.C. ¤ 863, yet the federal government has not filed \line suit to enjoin the City and County of San FranciscoÕs \line distribution of such needles. Indeed, HHS recently \line stated that community programs promoting the distri- \line bution of clean needles reduces the spread of AIDS and \line does not encourage drug use. \f3\fs24 \i See \i0 \f2\fs24 Health and Human \line Services Press Release, Ò \f3\fs24 \i Research Shows Needle Ex- \line change Programs Reduce HIV Infections Without \line Increasing Drug Use\i0 \f2\fs24 Ó (April 20, 1998). From this \line publicly stated position, one could conclude that the \par \page\pard\plain\fi2800 \line \f2\fs24 80a \par \par \pard\plain \line \f2\fs24 federal government will not enforce the drug para- \line phernalia statute in light of local community efforts to \line prevent the spread of AIDS. The Court recognizes that \line local governmental distribution of medical marijuana to \line seriously ill patients raises political issues which may \line not require judicial intervention. \par \par \pard\plain\fi240 \line \f2\fs24 Attached to this Memorandum and Order is a pro- \line posed form of preliminary injunction in 98-00085. The \line injunction in each case will be identical except for the \line name of the defendants and the location of the dis- \line pensary. The parties are directed to file a written sub- \line mission with this Court by 5:00 p.m. on Monday, May \line 18, 1998 as to the form of the order. The Court will \line issue the preliminary injunction shortly thereafter. \par \par \pard\plain\fi240 \line \f0\fs22 \b IT IS SO ORDERED. \b0 \par \par \pard\plain\fi1980 \line \f0\fs22 \b [PROPOSED] ORDER \b0 \par \par \pard\plain\fi240 \line \f2\fs24 For the reasons stated in its Memorandum and Order \line dated May 13, 1998, is hereby ORDERED as follows: \par \line 1. Defendants Cannabis Cultivators Club and \line Dennis Peron are hereby preliminarily enjoined, pend- \line ing further order of the Court, from engaging in the \line manufacture or distribution of marijuana, or the pos- \line session of marijuana with the intent to manufacture \line and distribute marijuana, in violation of 21 U.S.C. \par \pard\plain \line \f2\fs24 ¤ 841(a)(1); and \par \line 2. Defendants Cannabis Cultivators Club and \line Dennis Peron are hereby preliminarily enjoined from \line using the premises of 1444 Market Street, San \par \page\pard\plain\fi2800 \line \f2\fs24 81a \par \par \pard\plain \line \f2\fs24 Francisco, California for the purposes of engaging in \line the manufacture and distribution of marijuana; and \par \line 3. Defendant Dennis Peron is hereby preliminarily \line enjoined from conspiring to violate the Controlled Sub- \line stances Act, 21 U.S.C. ¤ 841(a)(1) with respect to the \line manufacture or distribution of marijuana, or the pos- \line session of marijuana with the intent to manufacture and \line distribute marijuana. \par \line 4. It shall not be a violation of this injunction for \line defendant Dennis Peron to seek and obtain legal advice \line from his attorneys. \par \par \pard\plain\fi240 \line \f0\fs22 \b IT IS SO ORDERED. \b0 \par \page\pard\plain\fi2800 \line \f2\fs24 82a \par \par \pard\plain\fi2460 \line \f0\fs20 \b APPENDIX H \b0 \par \par \pard\plain\fi840 \line \f2\fs22 UNITED STATES COURT OF APPEALS \par \par \pard\plain\fi1520 \line \f2\fs22 FOR THE NINTH CIRCUIT \par \par \pard\plain\fi1180 \line \f2\fs24 Nos. 98-16950, 98-17044, 98-17137 \line D.C. No. (C98-00088-CRB (Northern California)) \par \par \pard\plain\fi220 \line \f2\fs24 U\f2\fs19 NITED \f2\fs24 S\f2\fs19 TATES OF \f2\fs24 A\f2\fs19 MERICA\f2\fs24 , \f2\fs19 PLAINTIFF\f2\fs24 -APPELLEE \par \line \f3\fs24 \i v. \i0 \par \par \pard\plain\fi580 \line \f2\fs24 O\f2\fs19 AKLAND \f2\fs24 C\f2\fs19 ANNABIS \f2\fs24 B\f2\fs19 UYERS\f2\fs24 Õ C\f2\fs19 OOPERATIVE\f2\fs24 ; \line J\f2\fs19 EFFREY \f2\fs24 J\f2\fs19 ONES\f2\fs24 , \f2\fs19 DEFENDANTS\f2\fs24 -APPELLANTS \par \par \pard\plain\fi1960 \line \f2\fs24 [Filed: Feb. 29, 2000] \par \par \pard\plain\fi2540 \line \f0\fs24 \b ORDER \b0 \par \par \pard\plain\fi260 \line \f2\fs24 Before: S\f2\fs19 CHROEDER\f2\fs24 , R\f2\fs19 EINHARDT\f2\fs24 , and S\f2\fs19 ILVERMAN\f2\fs24 , \line Circuit Judges. \par \par \pard\plain\fi240 \line \f2\fs24 The panel as constituted above has voted to deny the \line Petition for Rehearing and to deny the Petition for Re- \line hearing En Banc. \par \par \pard\plain\fi240 \line \f2\fs24 The full court was advised of the petition for re- \line hearing en banc and no judge of the court has requested \line to vote on the petition for rehearing en banc. Fed. R. \line App. P. 35. \par \par \pard\plain\fi240 \line \f2\fs24 The petition for rehearing and the petition for \line rehearing en banc are denied. \par \page\pard\plain\fi2800 \line \f2\fs24 83a \par \par \pard\plain\fi2500 \line \f0\fs20 \b APPENDIX I \par \line \b0 \f2\fs24 1. Section 811 of Title 21 of the United States Code \line states in relevant part as follows: \par \par \pard\plain \line \f0\fs22 \b Authority and criteria for classification of substances \b0 \par \par \pard\plain \line \f0\fs20 \b (a) Rules and regulations of Attorney General; hearing \b0 \par \par \pard\plain\fi180 \line \f2\fs24 The Attorney General shall apply the provisions of \line this subchapter to the controlled substances listed in \line the schedules established by section 812 of this title and \line to any other drug or other substance added to such \line schedules under this subchapter. Except as provided in \line subsections (d) and (e) of this section, the Attorney \line General may by ruleÑ \par \par \pard\plain\fi640 \line \f2\fs24 (1) add to such a schedule or transfer between \line such schedules any drug or other substance if heÑ \par \par \pard\plain\fi1440 \line \f2\fs24 (A) finds that such drug or other sub- \line stance has a potential for abuse, and \line (B) makes with respect to such drug or \line other substance the findings prescribed by sub- \line section (b) of section 812 of this title for the \line schedule in which such drug is to be placed; or \par \par \pard\plain\fi620 \line \f2\fs24 (2) remove any drug or other substance from the \line schedules if he finds that the drug or other sub- \line stance does not meet the requirements for inclusion \line in any schedule. \par \par \pard\plain \line \f2\fs24 Rules of the Attorney General under this subsection \line shall be made on the record after opportunity for a \line hearing pursuant to the rulemaking procedures pre- \line scribed by subchapter II of chapter 5 of title 5. Pro- \line ceedings for the issuance, amendment, or repeal of such \par \page\pard\plain\fi2800 \line \f2\fs24 84a \par \par \pard\plain \line \f2\fs24 rules may be initiated by the Attorney General (1) on \line his own motion, (2) at the request of the Secretary, or \line (3) on the petition of any interested party. \par \par \pard\plain \line \f0\fs22 \b (b) Evaluation of drugs and other substances \b0 \par \par \pard\plain\fi360 \line \f2\fs24 The Attorney General shall, before initiating pro- \line ceedings under subsection (a) of this section to control a \line drug or other substance or to remove a drug or other \line substance entirely from the schedules, and after \line gathering the necessary data, request from the \line Secretary a scientific and medical evaluation, and his \line recommendations, as to whether such drug or other \line substance should be so controlled or removed as a \line controlled substance. In making such evaluation and \line recommendations, the Secretary shall consider the \line factors listed in paragraphs (2), (3), (6), (7), and (8) of \line subsection (c) of this section and any scientific or \line medical considerations involved in paragraphs (1), (4), \line and (5) of such subsection. The recommendations of the \line Secretary shall include recommendations with respect \line to the appropriate schedule, if any, under which such \line drug or other substance should be listed. The evalua- \line tion and the recommendations of the Secretary shall be \line made in writing and submitted to the Attorney General \line within a reasonable time. The recommendations of the \line Secretary to the Attorney General shall be binding on \line the Attorney General as to such scientific and medical \line matters, and if the Secretary recommends that a drug \line or other substance not be controlled, the Attorney \line General shall not control the drug or other substance. \line If the Attorney General determines that these facts and \line all other relevant data constitute substantial evidence \line of potential for abuse such as to warrant control or \line substantial evidence that the drug or other substance \par \page\pard\plain\fi2800 \line \f2\fs24 85a \par \par \pard\plain \line \f2\fs24 should be removed entirely from the schedules, he shall \line initiate proceedings for control or removal, as the case \line may be, under subsection (a) of this section. \par \par \pard\plain \line \f0\fs22 \b (c) Factors determinative of control or removal from \b0 \par \par \pard\plain\fi540 \line \f0\fs22 \b schedules \b0 \par \par \pard\plain\fi540 \line \f2\fs24 In making any finding under subsection (a) of this \line section or under subsection (b) of section 812 of this \line title, the Attorney General shall consider the following \line factors with respect to each drug or other substance \line proposed to be controlled or removed from the sched- \line ules: \par \par \pard\plain\fi640 \line \f2\fs24 (1) Its actual or relative potential for abuse. \par \par \pard\plain\fi640 \line \f2\fs24 (2) Scientific evidence of its pharmacological ef- \line fect, if known. \par \par \pard\plain\fi640 \line \f2\fs24 (3) The state of current scientific knowledge re- \line garding the drug or other substance. \par \par \pard\plain\fi640 \line \f2\fs24 (4) Its history and current pattern of abuse. \par \par \pard\plain\fi640 \line \f2\fs24 (5) The scope, duration, and significance of abuse. \par \par \pard\plain\fi640 \line \f2\fs24 (6) What, if any, risk there is to the public health. \par \par \pard\plain\fi640 \line \f2\fs24 (7) Its psychic or physiological dependence li- \line ability. \par \par \pard\plain\fi640 \line \f2\fs24 (8) Whether the substance is an immediate pre- \line cursor of a substance already controlled under this \line subchapter. \par \line \f0\fs20 \b * * * * * \b0 \par \page\pard\plain\fi2800 \line \f2\fs24 86a \par \line 2. Section 812(b)(1) of Title 21 of the United States \line Code states as follows: \par \par \pard\plain \line \f0\fs22 \b (b) Placement on schedules; findings required \b0 \par \par \pard\plain\fi360 \line \f2\fs24 Except where control is required by United States \line obligations under an international treaty, convention, \line or protocol, in effect on October 27, 1970, and except in \line the case of an immediate precursor, a drug or other \line substance may not be placed in any schedule unless the \line findings required for such schedule are made with \line respect to such drug or other substance. The findings \line required for each of the schedules are as follows: \par \par \pard\plain\fi640 \line \f2\fs24 (1) SCHEDULE I.Ñ \par \par \pard\plain\fi1180 \line \f2\fs24 (A) The drug or other substance has a high \line potential for abuse. \par \par \pard\plain\fi1180 \line \f2\fs24 (B) The drug or other substance has no \line currently accepted medical use in treatment in \line the United States. \par \par \pard\plain\fi1180 \line \f2\fs24 (C) There is a lack of accepted safety for use \line of the drug or other substance under medical \line supervision. \par \page\pard\plain\fi2800 \line \f2\fs24 87a \par \line 3. Section 823(f) of Title 21 of the United States \line Code states as follows: \par \par \pard\plain \line \f0\fs22 \b (f) Research by practitioners; pharmacies; research \b0 \par \par \pard\plain\fi460 \line \f0\fs22 \b applications; construction of Article 7 of the Con- \line vention on Psychotropic Substances \b0 \par \par \pard\plain\fi460 \line \f2\fs24 The Attorney General shall register practitioners \line (including pharmacies, as distinguished from phar- \line macists) to dispense, or conduct research with, con- \line trolled substances in schedule II, III, IV, or V, if the \line applicant is authorized to dispense, or conduct research \line with respect to, controlled substances under the laws of \line the State in which he practices. The Attorney General \line may deny an application for such registration if he \line determines that the issuance of such registration would \line be inconsistent with the public interest. In determining \line the public interest, the following factors shall be \line considered: \par \par \pard\plain\fi640 \line \f2\fs24 (1) The recommendation of the appropriate State \line licensing board or professional disciplinary author- \line ity. \par \par \pard\plain\fi640 \line \f2\fs24 (2) The applicantÕs experience in dispensing, or \line conducting research with respect to controlled sub- \line stances. \par \par \pard\plain\fi640 \line \f2\fs24 (3) The applicantÕs conviction record under \line Federal or State laws relating to the manufacture, \line distribution, or dispensing of controlled substances. \par \par \pard\plain\fi640 \line \f2\fs24 (4) Compliance with applicable State, Federal, or \line local laws relating to controlled substances. \par \par \pard\plain\fi640 \line \f2\fs24 (5) Such other conduct which may threaten the \line public health and safety. \par \page\pard\plain\fi2800 \line \f2\fs24 88a \par \par \pard\plain \line \f2\fs24 Separate registration under this part for practitioners \line engaging in research with controlled substances in \line schedule II, III, IV, or V, who are already registered \line under this part in another capacity, shall not be \line required. Registration applications by practitioners \line wishing to conduct research with controlled substances \line in schedule I shall be referred to the Secretary, who \line shall determine the qualifications and competency of \line each practitioner requesting registration, as well as the \line merits of the research protocol. The Secretary, in \line determining the merits of each research protocol, shall \line consult with the Attorney General as to effective pro- \line cedures to adequately safeguard against diversion of \line such controlled substances from legitimate medical or \line scientific use. Registration for the purpose of bona fide \line research with controlled substances in schedule I by a \line practitioner deemed qualified by the Secretary may be \line denied by the Attorney General only on a ground \line specified in section 824(a) of this title. Article 7 of the \line Convention on Psychotropic Substances shall not be \line construed to prohibit, or impose additional restrictions \line upon, research involving drugs or other substances \line scheduled under the convention which is conducted in \line conformity with this subsection and other applicable \line provisions of this subchapter. \par \line 4. Section 841(a) of Title 21 of the United States \line Code states as follows: \par \par \pard\plain \line \f0\fs22 \b Prohibited acts A \b0 \par \par \pard\plain \line \f0\fs22 \b (a) Unlawful acts \b0 \par \par \pard\plain\fi540 \line \f2\fs24 Except as authorized by this subchapter, it shall \line be unlawful for any person knowingly or intentionallyÑ \par \page\pard\plain \line \f2\fs24 89a \par \par \pard\plain\fi640 \line \f2\fs24 (1) to manufacture, distribute, or dispense, or \line possess with intent to manufacture, distribute, or \line dispense, a controlled substance; or \par \par \pard\plain\fi640 \line \f2\fs24 (2) to create, distribute, or dispense, or possess \line with intent to distribute or dispense, a counterfeit \line substance. \par \line 5. Section 882(a) of Title 21 of the United States \line Code states as follows: \par \par \pard\plain \line \f0\fs22 \b Injunctions \b0 \par \par \pard\plain \line \f0\fs22 \b (a) Jurisdiction \b0 \par \par \pard\plain\fi460 \line \f2\fs24 The district courts of the United States and all \line courts exercising general jurisdiction in the territories \line and possessions of the United States shall have \line jurisdiction in proceedings in accordance with the \line Federal Rules of Civil Procedure to enjoin violations of \line this subchapter. \par \line 5. Pub. L. 105-277, Div. F, 112 Stat. 2681, 760-761, \line 105th Cong., 2d Sess., (1998) states as follows: \par \par \pard\plain\fi200 \line \f2\fs22 DIVISION FÑNOT LEGALIZING MARIJUANA FOR \par \par \pard\plain\fi2020 \line \f2\fs22 MEDICINAL USE \par \par \pard\plain \line \f2\fs24 It is the sense of the Congress thatÐ \par \par \pard\plain\fi240 \line \f2\fs24 (1) certain drugs are listed on Schedule I of the Con- \line trolled Substances Act if they have a high potential for \line abuse, lack any currently accepted medical use in \line treatment, and are unsafe, even under medical super- \line vision; \par \page\pard\plain\fi2800 \line \f2\fs24 90a \par \par \pard\plain\fi240 \line \f2\fs24 (2) the consequences of illegal use of Schedule I \line drugs are well documented, particularly with regard to \line physical health, highway safety, and criminal activity; \par \par \pard\plain\fi240 \line \f2\fs24 (3) pursuant to section 401 of the Controlled Sub- \line stances Act, it is illegal to manufacture, distribute, or \line dispense marijuana, heroin, LSD, and more than 100 \line other Schedule I drugs; \par \par \pard\plain\fi240 \line \f2\fs24 (4) pursuant to section 505 of the Federal Food, \line Drug and Cosmetic Act, before any drug can be ap- \line proved as a medication in the United States, it must \line meet extensive scientific and medical standards \line established by the Food and Drug Administration to \line ensure it is safe and effective; \par \par \pard\plain\fi240 \line \f2\fs24 (5) marijuana and other Schedule I drugs have not \line been approved by the Food and Drug Administration to \line treat any disease or condition; \par \par \pard\plain\fi240 \line \f2\fs24 (6) the Federal Food, Drug and Cosmetic Act \line already prohibits the sale of any unapproved drug, \line including marijuana, that has not been proven safe and \line effective for medical purposes and grants the Food and \line Drug Administration the authority to enforce this pro- \line hibition through seizure and other civil action, as well \line as through criminal penalties; \par \par \pard\plain\fi240 \line \f2\fs24 (7) marijuana use by children in grades 8 through \line 12 declined steadily from 1980 to 1992, but, from 1992 to \line 1996, has dramatically increased by 253 percent among \line 8th graders, 151 percent among 10th graders, and 84 \line percent among 12th graders, and the average age of \line first-time use of marijuana is now younger than it has \line ever been; \par \page\pard\plain\fi2800 \line \f2\fs24 91a \par \par \pard\plain\fi240 \line \f2\fs24 (8) according to the 1997 survey by the Center on \line Addition and Substance Abuse at Columbia University, \line 500,000 8th graders began using marijuana in the 6th \line and 7th grades; \par \par \pard\plain\fi240 \line \f2\fs24 (9) according to that same 1997 survey, youths \line between the ages of 12 and 17 who use marijuana are 85 \line times more likely to use cocaine than those who abstain \line from marijuana, and 60 percent of adolescents who use \line marijuana before the age of 15 will later use cocaine; \line and \par \par \pard\plain\fi240 \line \f2\fs24 (10) the rate of illegal drug use among youth is \line linked to their perceptions of the health and safety risks \line of those drugs, and the ambiguous cultural messages \line about marijuana use are contributing to a growing \line acceptance of marijuana use among children and \line teenagers; \par \par \pard\plain\fi240 \line \f2\fs24 (11) Congress continues to support the existing \line Federal legal process for determining the safety and \line efficacy of drugs and opposes efforts to circumvent this \line process by legalizing marijuana, and other Schedule I \line drugs, for medicinal use without valid scientific evi- \line dence and the approval of the Food and Drug Admini- \line stration; and \par \par \pard\plain\fi240 \line \f2\fs24 (12) not later than 90 days after the date of the \line enactment of this ActÐ \par \par \pard\plain\fi640 \line \f2\fs24 (A) the Attorney General shall submit to the \line Committees on the Judiciary of the House of Repre- \line sentatives and the Senate a report onÐ \par \page\pard\plain \line \f2\fs24 92a \par \par \pard\plain\fi780 \line \f2\fs24 (i) the total quantity of marijuana eradi- \line cated in the United States during the period from \line 1992 through 1997; and \par \par \pard\plain\fi780 \line \f2\fs24 (ii) the annual number of arrests and pro- \line secutions for Federal marijuana offenses during \line the period described in clause (i); and \par \par \pard\plain\fi240 \line \f2\fs24 (B) the Commissioner of Foods and Drugs shall \line submit to the Committee on Commerce of the \line House of Representatives and the Committee on \line Labor and Human Resources of the Senate a report \line on the specific efforts underway to enforce sections \line 304 and 505 of the Federal Food, Drug and Cos- \line metic Act with respect to marijuana and other \line Schedule I drugs. \par \page}