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\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