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Oakland Cannabis Buyers' Cooperative

 

 

No. 00-16411
(Related Case No. 98-16950,98-17044, 98-17137,99-15838, 99-15844,99-15879)
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,
V.

OAKLAND CANNABIS BUYERS' COOPERATIVE
and JEFFREY JONES,
Defendants-Appellees.

Appeal from Orders Modifying Injunction by the United States District Court
for the Northern District of California
Case No. C 98-00088 CRB, entered on July 17, 2000, by Judge Charles R. Breyer.

MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE IN SUPPORT OF APPELLEES IN SUPPORT OF AFFIRMANCE

JOHN RUSSO
City Attorney
BARBARA J. PARKER
Chief Assistant City Attorney
City Hall
One Frank Ogawa Plaza, 6th Floor
Oakland, California 94612
Telephone (510)238-3601
Attorneys for Amicus Curiae City of Oakland, California


The City of Oakland, California ("City") respectfiilly moves this Court, Pursuant to Federal Rule of Appellate Procedure 29, for leave to file the brief submitted herewith, as amicus curiae in support of the Defendants-Appellees. Counsel for Plaintiff-Appellant, Dana Martin, indicated that Plaintiff-Appellant does not object to the filing of this amicus brief.As more fi~lly explaine~ in the brief itself, the City is interested in the matter because it implicates the city's independent duty to protect the health and safety of its citizens and to promote the public interest. Moreover, exercising its police power, the City by Ordinance established a Medical Cannabis Distribution Program, and desigr~ated the Oakland Cannabis Buyers' Cooperative ("OCBC") the City's designee to administer the Program. Additionally, the OCBC and its agents, employees, and directors are Officers of the City of Oakland. Finally, as a result of this litigation, the City declared a Public Health Emergency with respect to safe, affordable access to medical cannabis. Pursuant to State law, the City renews that Emergency every two weeks.
The outcome of this litigation will directly affect both the public safety and the public health in the City of Oakland. Wherefore, the City of Oakland, California respectfully moves this Court for leave to file the accompanying Brief of Amicus Curiae rn Support of Appellees.
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Dated: September 2, 2000
Respectfully submitted,
CITY OF OAKLAND, CALIFORNIA

By:
JOHN i~~SO~ City Attorney
BARBARA J. PARKER
Chief Assistant City Attorney
Attorneys for Amicus Curiae City of Oakland, California




















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No.00-16411
(Related Case No.98-16950, 98-17044, 98-17137, 99-15838, 99-15844, 99-15879)IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,
V.
OAKLAND CANNABIS BUYERS' COOPERATIVE
and JEFFREY JONES,
Defendants-Appellees.

Appeal from Orders Moditying li~j unction by the United States District Court
for the Northern District of California
Case No. C 98-00088 CRB, entered on July 17, 2000, by Judge Charles R. Breyer.

BRIEF OF AMICUS CURIAE IN SUPPORT OF APPELLEES
IN SUPPORT OF AFFIRMANCE

JOHN RUSSO
City Attorney
BARBARA J. PARKER
Chief Assistant City Attorney
City Hall
One Frank Ogawa Plaza, 6th Floor
Oakland, California 94612
Telephone (510) 238-3601Attorneys for Amicus Curiae City of Oakland, CaliforniaTABLE OF CONTENTS

I.INTRODUCTION 1
II. UNBIASED RESEARCH CONSISThNTLY ACKNOWLEDGES
THE MEDICAL UTILITY OF CANNABIS 2
A. Indian Hemp Drugs Commission 2
B. AMA Opposition to the Marijuana Tax Act 3
C. LaGuardia Committee 5
D. Shafer Commission 6
E. Dutch Policy 11
F. DEA Administrative Findings 11
0. New England Journal of Medicine 12
H. Sociological Research 13
I. British House of Lords 14
J. Institute of Medicine 15
K. Ontario Court of Appeal 17
III. CONCLUSION 18
TABLE OF AUTHORITIES
CASES
Queen V. Parker, No. C28732, slip op. (Ont. App. July 31, 2000) 17, 18STATUTES
Public L. No.91-513, 601(e) (October27, 1970) 7 Public L. No.91-513, 601(d)(4) (October27, 1970) 7
LEGISLATIVE MATERIALS
Taxation of Marihuana: Hearings on HR. 6385 Before the House Comm.
on Ways and Means, 75th Cong., 1st Sess. (1937) 5 Taxation ofMarihuana: Hearing on HR. 6906 Before Subcomm. of theSenate Comm. on Finance, 75th Cong., 1st Sess. (1937) 4, 51970 U.S. Code Cong. & Admin. News 4579 7
MISCELLANEOUS
D. Baum, Smoke and Mirrors: The War on Drugs and the Politics ofFailure(1996) 8, 9, 10Feldman & Mandel, "Providing Medical Marijuana: The Importance of
Cannabis Clubs," J ofPsychoactive Drugs, Apr.-June 1998 14Institute of Medicine, Mar ijuana and Medicine, Assessing the Science Base
(1999) 15,16
Kassirer, M.D., "Federal Foolishness and Marijuana," New Eng. J of
Medicine, Jan.30, 1997 13
R. King, The Drug Hang- Up: America '5 Fifty- Year Folly (1972) 6
Marihuana: A Signal ofMisunderstanding, First Report of the National
Commission on Marihuana and Drug Abuse (1972) 9, 10Mayor's Comm. on Marihuana, The Marihuana Problem in the City of New York. Sociological, Medical, Psychological and PharmacologicalStudies (1944) 5, 6T. Mikuriya, M.D., Ed., Marijuana: Medical Papers 1839-1972 (1973) 2Ministry of Welfare, Health and Cultural Affairs, Dutch Drug Policy: SomeFacts and Figures (1992) 11D. Musto, M.D., "The 1937 Marijuana Tax Act" reprinted in T. Mikuriya,
M.D., Ed., Marijuana: Medical Papers (1972) 4, 5
Netherlands Institute for Alcohol and Drugs, Fact Sheet: Cannabis Policy
(1995) 11
R. Randall, Marijuana, Medicine & the Law (1989) 12
Report of the Indian Hemp Drugs Commission (1894) 2, 3Select Committee on Science and Technolo~, Ninth Report, "Cannabis: TheScientific and Medical Evidence" (1998) 15







I. INTRODUCTION
Amicus Curiae, the City of Oakland, California ("City"), has an independent duty to protect the health and safety of its citizens and to promote the public interest. Exercising its police power, in order to provide medicine to seriously ill patients, the City by Ordinance established a Medical Cannabis Distribution Program, and designated the Oakland Cannabis Buyers' Cooperative ("OCBC") the City's designee to administer the Program. The City declared a Public Heath Emergency with respect to safe, affordable access to medical cannabis. Pursuant to State law, the City renews that Emergency every two weeks.The City expresses its unwavering support for the OCBC, which functions as a model corporate citizen and acts as a true asset to our community. The OCBC is a responsible, professionally run organization, administering the City of Oakland's medical cannabis distribution program. The OCBC is most emphatically not a way for persons to procure recreational marijuana. Instead, the OCBC has always held true to its goal of complying with the law and providing affordable cannabis of medical quality in a clean, safe environment to benefit meticulously screened medical patients. The OCBC maintains close working relationships within all relevant branches of the City
1
government, mcluding the Police Department, and enhances both the public safety and the public health in the City of Oakland.
II. UNBIASED RESEARCH CONSISTENTLY ACKNOWLEDGES THE MEDICAL UTILITY OF CANNABIS.
Humans have used cannabis as an effective medicine for over 3,000 years. T. Mikuriya, M.D., Ed., Marijuana: Medical Papers 1839-197Z xiv (1973). See Ex. A. Every objective, independent study for over a century has recommended permitting patients access medical cannabis, or has recommended decriminalizing marijuana generally and therefore needed to make no specific recommendation regarding medical cannabis.A. Indian Hemp Dru~s CommissionIn 1893 the British Parliament appointed the Indian Hemp Drugs Commission, which undertook a monumental inquiry that remains relevant today in assessing cannabis policies. The Commission decisively concluded,
Total prohibition of the cultivation of the hemp plant for narcotics, and of the manufacture, sale or use of the drugs derived from it, is neither necessary nor expedient in consideration of their ascertained effects ... and of the possibility of its driving consumers to have recourse to other stimulants or narcotics which may be more deleterious....
Report ofthe Indian Hemp Drugs Commission, 740.1. (1894). See Ex. B. The Commission studied the failure of cannabis prohibition in other countries that tried it, and reported that "in the case of other countries, where the use of the drugs has2




been prohibited, the Commission do not find in the literature available to them many arguments for prohibition." Id. at 562. Explaining the methodology it would use, the Commission stated,Starting, therefore, from the position that what is known of the hemp drugs in the past is not sufficient to justi~ their prohibition in India, and that for such a measure there must be strong justification based on ascertained facts scientifically and systematically examined, the first question for the Commission is to decide whether such justification is to be found in the evidence before them, and the second whether, if this is so, prohibition is feasible and advisable on other grounds.
Id. at 563. In summarizing the Commission's conclusion on this point, the Report stated, t'The Commission consider that the effects are not such as to call for prohibition, and on the general principles discussed in the opening paragraphs of this chapter, such interference would be unjustifiable." Id. at 565. The Report then described its extensive and objective review of the evidence and concluded, "The weight of the evidence above abstracted is almost entirely against prohibition." Id. at 585.B. AMA Opposition to the Marijuana Tax ActFollowing repeal of the failed "noble experiment" of alcohol prohibition, certain newspapers and politicians whipped up hysteria concerning the newlyrenamed drug "marijuana." Ignoring the wise advice of the Indian Hemp Drugs Commission and the American Medical Association, Congress in 1937 passed the

3
first federal marijuana prohibition act, the Marihuana Tax Act. When testif~ing before Congress, the administration "caused the officials to ignore anything qualifying or minimizing the evils of marihuana.... [T] he political pressure to put 'something on the books' and the doubt that it could be done combined to make the marihuana hearings a classic example of bureaucratic overkill." D. Musto, M.D., "The 1937 Marijuana Tax Act" '~printed in T. Mikuriya, M.D., Ed., Marijuana:Medical Papers, supra, 419, 432-3 (1972). See Ex. C. The administration's "goal, however, was to have a prohibitive law to the fullest extent possible. Exceptions, particularly trade or medical exceptions, would make enforcement considerably more expensive...." Id. at 435 (emphasis added). At the Congressional hearings, the American Medical Association's (AMA's) spokesman William C. Woodard, M.D., "was barraged with hostile questions.... Nevertheless, he was able to get his message across: there was no need to burden the health profession with the bill's restrictions.. . ." Id. at 436.In a letter to the subcommittee's chair, dated July 10, 1937, Dr. Woodard plainly stated, "I have been instructed by the board of trustees of the American Medical Association to protest on behalf of the association against the enactment in its present form of so much of H. R. 6906 as relates to the medicinal use of cannabis and its preparations and derivatives." Taxation ofMarihuana: Hearing on
4
HR. 6906 Before Subcomm. of the Senate Comm. on Finance, 75th Cong., 1st Sess. 33 (1937). See Ex. D. The AMA correctly warned that "the prevention of the use of the drug for medicinal purposes can accomplish no good end whatsoever. How far it may serve to deprive the public of the benefits of a drug that on further research may prove to be of substantial value, it is impossible to foresee." Id. In his testimony, Dr. Woodard sp~ke at length against the bill, but said, "It is with great regret that I fmd myself in opposition to any measure that is proposed by the Government." Taxation ofMarihuana: Hearings on HR. 6385 Before the House Comm. on Ways and Means, 75th Cong., 1st Sess. 87 et seq. (1937). See Ex. E. Dismissing logic, evidence, experience, and medical advice, Congress passed the Marijuana Tax Act. As a historical explanation,Dr. Woodward's arguments were ignored. One reason for his poor showing was that the AMA had aroused a lot of hostility by its successful defeat of President Roosevelt's plan to include health insurance in the Social Security Act. In a way. . ., the most "liberal'1 spokesmen were among the most eager to effect the protection of the public through the prohibition of cannabis."
Musto, supra at 436.C. LaGuardia CommitteeTo protect "the health, safety, and welfare of our citizens," New York City Mayor Fiorello LaGuardia appointed a committee to make a thorough scientific mvestigation concerning marijuana (the "LaGuardia Committee"). Mayor's Comm.
5





on Marihuana, The Marihuana Problem in the City ofNew York. Sociological, al, Psychological and Pharmacological Studies, v (1944). See Ex. F.'ollowing an extensive five-year study, during the height of "reefer madness" ~en.a, the committee concluded: "The publicity concerning the catastrophic ,~ects of marihuana smoking in New York City is unfounded." Id. at 25. vertheless, the prohibition ofinarijuana, including medical cannabis, continuedinabated, and persists to this day.
Naturally, the results of this unbiased scientific study were a threat to the ug prohibition bureaucracy. Accordingly, "Even before the LaGuardia study was
[federal Bureau of Narcotics Commissioner Harry] Anslinger began to Loot at it.... The Narcotics Bureau allegedly brought heavy pressures to bear in ying to suppress the report..., and the Committee's findings were in fact held up Learly three years before being made public. R. King, The Drug Hang-Up:America's Fifty-Year Folly 84 (1972).D. Shafer CommissionWhen passing the Controlled Substances Act, Congress appropriated $1,000,000 to commission a thorough study to provide recommendations for appropriate marijuana legislation. According to the legislative history, "~S]ection 601 of the bill provides for establishment of a Presidential Commission on

6
I
Marihuana and Drug Abuse. The recommendations of this Commission will be of aid in determining the appropriate disposition of this question in the future." 1970 U.S. Code Cong. & Admin. News 4579. Unfortunately, as discussed below, Congress promptly ignored the recommendations of that Commission.
Congress instructed the Commission to "conduct a comprehensive study and investigation of the causes of drug abuse and their relative significance. The Commission shall... submit to the President and the Congress a fmal report which shall contain... such recommendations for legislation and administrative actions as it deems appropriate." Public Law 91-513, 601(e) (October27, 1970). Specifically with respect to marijuana, Congress mandated, "The Commission shall~ a study of marihuana including, but not limited to, the following areas: ... ) an evaluation of the efficacy of existing marihuana laws; (C) a study of the macology of marihuana and its immediate and long-term effects, both ~iological and psychological...." Id. at 601 (d)( 1).The Commission became known as the "Shafer Commission." Its members .e not "soft" on drugs. One historian described its composition as follows:
The new Presidential Commission Qn Marijuana was shaping up to be a reefer-madness folly. Its chairman, hand-picked by Nixon, was the retired Republican governor of Pennsylvania, Raymond Shafer, a known drug hawk. The commission was stacked with conservative doctors. Senator Harold Hughes of Iowa -- who never tired of frightening Congress with drug horror stories -- was one of four
7




congressional members. Of the rest, only Jacob Javits could be said to be remotely reasonable, and even he was no legalizer. Worst of all, the commission's executive director -- the man who decided whom to call for testimony -- had been involved in some of the darkest recent episodes in drug policy. His name was Michael Sonnenreich.
D. Baum, Smoke and Mirrors: The War on Drugs and the Politics ofFailure 52 (1996). Despite its composition, the Shafer Commission -- as has every other entity that conducted an honest review of the facts -- made recommendations contrary to current government policy regarding cannabis.Sonnenreich was no ideologue. He'd been assigned to gather the facts about marijuana use, and these were the facts he was finding. He also hadn't yet heard any medical evidence convincing him the stuff was as dangerous as the "reefer-madness crowd" liked to say it was. The gateway theory, he thought, was "crap." One afternoon, while poring over some medical research in his office, Sonnenreich suddenly looked up at his assistant and said, "There's nothing the matter with this drug."
Having come to that conclusion, and appalled by the waste of court time, corrections money, and young lives on the alter of marijuana prohibition, Sonnenreich and his staff set out.... It wasn't that he thought marijuana was "good"; he still believed smoking it was foolish. But it was clear to his lawyer's eye that criminalizing it was cheapening the criminal justice system and overwhelming the prisons.
Id. at 63.In response to "the threshold question: why has the use of marihuana reached problem status in the public mind?" the Shafer Commission concluded that the answer was not with its health effects, the behavior it causes, or any

8




pharmacological property of the drug. Rather, according to the Commission, "Marihuana becomes more than a drug; it becomes a symbol" of the "counterculture." Id. at 71.A final cost of the possession laws is the disrespect which the laws and their enforcement engender in the young. Our young cannot understand why society chooses to criminalize a behavior with so little visible ill-effect or adverse social impact.. . . And the disrespect for the possession laws fosters a disrespect for all law and the system in general.
On top of all this is the distinct impression among the youth that some police may use the marihuana laws to arrest people they don't like for other reasons, whether it be their politics, their hair style, or their ethnic background.

For all these reasons, we reject the total prohibition approach and its variations.
Marihuana: A Signal ofMisunderstanding, First Report of the National Commission on Marihuana and Drug Abuse, 145-6 (1972). See Ex. G.Ultimately, the Shafer Commission recommended decriminalization of marijuana:
POSSESSION OF MAAIHUANA FOR PERSONAL USE WOULD NO LONGER BE AN OFFENSE....
CASUAL DISTRIBUTION OF SMALL AMOUNTS OF
MARIHUANA FOR NO REMUNERATION, OR
INSIGMFICANT REMUNE~ON NOT
INVOLVING PROFIT WOULD NO LONGER BE AN
OFFENSE.
9
Id. at 152. POSSESSION IN PUBLIC OF ONE OUNCE OR UNDER OF MARIHUANA WOULD NOT BE AN OFFENSE....
POSSESSION IN PUBLIC OF MORE THAN ONE OUNCE OF MARIHUANA WOULD BE A CRIMINAL OFFENSE PUNISHABLE BY A FINE OF $100.
Id at 154.Perhaps because marijuana was a "symbol" for members of a "counterculture" who were enemies of Richard Nixon, and the marijuana laws provided a convenient vehicle by which to punish those enemies, President Nixon ignored the recommendations of his own Commission's Report.
"I read it and reading it did not change my mind," Ni xon told reporters during an impromptu Oval Office press conference a couple of days after its release. He offered no reason for his decision. None of the big newsweeklies reported on the commission's fmdings.... [A] commission of Nixon's own choosing recommended legalization, and the press let Nixon bury the story.
B:aum, supra, at 72. Congress, also, ignored the recommendations of the Commission it established, and has never reconsidered the classification of marijuana in light of the Shafer Commission's recommendations.Because of the Commission's recommendation for full decriminalization of marijuana, there was no need for it to make separate recommendations permitting medical cannabis use.

10

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For decades the government has refused to recognize the medical value of abis, or the plight of patients who can benefit from it. It is duplicitous for the
verument now to ask this court of equity to reverse the district court's amended junction when the government's own independent analysis does not justify the vernment's position. Indeed, it is unconscionable for the government now to ask
s Honorable Court to invoke its equitable power in complicity with such plicity.
E. Dutch PolicyIronically, although the U.S. government ignored the Schafer Commission's report, the Dutch relied in part upon the report when developing their successful marijuana policy, as established in a 1975 white paper to Parliament. Ministry of Welfare, Health and Cultural Affairs, Dutch Drug Policy: Some Facts and Figures 1-2 (1992). See Ex H. In Holland, authorities do not prosecute the sale of personal-use quantities of marijuana (i.e., no more than 30 grams per transaction). Netherlands Institute for Alcohol and Drugs, Fact Sheet: Cannabis Policy 2 (1995). See Ex. I. As a result, the prevalence of marijuana use among school children is relatively low: just 2.7%. Dutch Drug Policy at 8.F. DEA Administrative FindingsIn 1988 the DEA's own Administrative Law Judge, Francis L. Young,

11
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ducted extensive evidentiary hearings regarding the medical efficacy and safety cannabis. On the basis of a thorough review of the record, Judge Young issued Opinion & Recommended Ruling, Findings of Fact, Conclusions of Law and ision of Administrative Law Judge (t'Decision"). Reprinted in 2 R. Randall, rijuana, Medicine & the Law 403-446 (1989).In the Decision, Judge Young recommended that the DEA Administrator chedule marijuana from Schedule I. Id. at 445-6.The evidence in this record clearly shows that marijuana has been accepted as capable of relieving the distress of great numbers of very ill people, and doing so with safety under medical supervision. It would be unreasoning, arbitrary and capricious for the DEA to continue to stand between those sufferers and the benefit of this substance in light of the evidence in this record.
~ at 445. Moreover, the Decision, in numerous other contexts, terms elements ~quiring marUuana' 5 inclusion in Schedule I as "unreasonable, arbitrary and ~pricious." Id. at 427, 438, 444. With regard to the safety of cannabis, the E)ecision stated, "Marijuana, in its natural form, is one of the safest therapeutically active substances known to man. By any measure of rational analysis marijuana can be safely used within a supervised routine of medical care." Id. at 440. Unfortunately, the Decision was advisory, not mandatory. The DEA ignored its Administrative Law Judge, ignored the evidence in the record, and contended that cannabis has "no currently accepted medical use;" so it remains in Schedule I.12
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G. New En~land Journal of MedicineIn 1997 the prestigious New England Journal ofMedicine weighed in, editorializing thata federal policy that prohibits physicians from alleviating suffering by prescribing marijuana for seriously ill patients is misguided, heavy-handed, and inhumane.... It is also hypocritical to forbid physicians to prescribe marUuana while permitting them to use morphine and meperidine to relieve extreme dyspnea and pain. With both these drugs the difference between the dose that relieves symptoms and the dose that hastens death is very narrow; by contrast, there is no risk of death from smoking marijuana.
Kassirer, M.D., "Federal Foolishness and Marijuana," New Eng. J ofMedicine, Jan. 30, 1997 at 366. See Ex. K. The Journal was prescient when it opined,Some physicians will have the courage to challenge the continued proscription of marUuana for the sick. Eventually, their actions will force the courts to adjudicate between the rights of those at death's door and the absolute power of bureaucrats whose decisions are based more on reflexive ideology and political correctness than on compassion.
Id.
H. Sociological ResearchIn addition to the medical research, sociological research also illustrates the benefits of medical cannabis providers:
After almost two years of investigation into the functions of cannabis clubs, . . . as social scientists the authors conclude that the cannabis clubs are not only a desirable method but a preferred method for the distribution of medical marijuana. Without question, of the
13
available ways of providing cannabis, the CBCs provide the safest and least expensive commercial method for patients to purchase medical marijuana.
Feldman & Mandel, "Providing Medical Marijuana: The Importance of Cannabis Clubs," J ofPsychoactive Drugs, Apr.-June 1998, at 179, 185. See Ex. L. The researchers explained:





k
Members who probably would have been content to find only a legitimate source of medical marijuana were even more pleased to discover that the setting itself served therapeutic purposes for them by providing a natural environment in which to socialize with others who were struggling not only with serious disease but who were frequently isolated, frightened, and depressed. As a result, members often stated that the socialization they encountered and the friends they made at the clubs were health producing. Most frequently members referred to these friendship circles as "support groups" because they offered mutual help in a number of critical emotional areas: adjusting to a terminal illness, or managing the grief which accompanies the many deaths an epidemic like HIVIAIDS leaves in its wake.
Id. With respect to the government's position, the study stated, "At the moment, the DEA simply ignores all scientific and medical evidence, and with apparent blindness continues to argue that marijuana has no legitimate medical use." Id.The study concluded that "[a]s a new and promising strategy, the cannabis club concept is boldly imaginative and, according to our investigations, highly effective in providing its sick and terminally ill members both a medicine and a social setting which has improved the quality of their lives." Id.

14
I. British House of LordsIn November 1998, the Science and Technology Committee of the British House of Lords recommended that physicians be able to prescribe cannabis for their patients. Select Committee on Science and Technology, Ninth Report, "Cannabis:The Scientific and Medical Evidence" 1998. See Ex. M. Following twelve public hearings, the House of Lords Committee reported, "[W]e have received enough anecdotal evidence... to convince us that cannabis almost certainly does have genuine medical applications...." Id. at 8.2.In a recommendation analogous to Judge Young's in the United States, the House of Lords report stated, "We therefore recommend that the Government should take steps to transfer cannabis and cannabis resin from Schedule 1..., 50 as to allow doctors to prescribe an appropriate preparation of cannabis...." Id. 8.6.J. Institute of MedicineThe recent comprehensive scientific review conducted by the National Academy of Sciences Institute of Medicine ("IOM") in 1999 concluded that cannabis can be a safe and effective medicine for seriously ill patients with no other legal alternatives:
"The accumulated data indicate a potential therapeutic value for cannabinoid drugs, particularly for symptoms such as pain relief, control of nausea and vomiting, and appetite stimulation...." Institute of Medicine, Mar jjuana and Medicine, Assessing the Science15

m
Base, 3 (1999)..1... [T]here will likely always be a subpopulation of patients who do not respond well to other medications. The combination of cannabinoid drug effects (anxiety reduction, appetite stimulation, nausea reduction, and pain relief) suggests that cannabinoids would be moderately well-suited for certain conditions such as chemotherapy-induced nausea and vomiting and AIDS wasting." Id. at 3-4."...[T]he adverse effects of marijuana use are within the range of effects tolerated for other medications." Id. at 5"...[T]he short-term immunosuppressive effects [of cannabis] are not well established but if they exist, are not likely great enough to preclude a legitimate medical use." Jd."There is no conclusive evidence that marUuana causes cancer in humans,, including cancer usually related to tobacco use...." Id. at119.
"Until the development of rapid onset antiemetic drug delivery systems, there will likely remain a sub-population of patients for whom standard antiemetic therapy is effective and who suffer from debilitating emesis [vomiting]. It is possible that the harmful effects of smoking marijuana for a limited period of time might be outweighed by the antiemetic benefits of marijuana, at least for patients for whom standard antiemetic therapy is effective and who suffer from debilitating emesis.. . ." Id. at 154."Terminal cancer patients raise different issues. For those patients, the medical harms of smoking are of little consequence. For terminal patients suffering debilitating pain or nausea and for whom all indicated medications have failed to provide relief, the medical benefits of smoking marijuana might outweigh the harms." Id. at 159.Also, a patient can avoid many of the posited alleged health risks by ingesting cannabis through means other than smoking (e.g., by use of vaporization, eating,
16

m
capsules, suppositories, tincture, compress, etc.) and by utilizing more potent strains or forms of cannabis to reduce the amount of it required in order to achieve the desired result. This IOM report reinforces what OCBC's patient-members already know -- that cannabis has therapeutic value. Of particular relevance is the fact that the IOM encouraged allowing patients to conduct "n-of-l" studies while other research progresses.
In conducting its study, the IOM visited the OCBC and specifically acknowledged its contributions. See Ex. N (June 22, 1999, letter from IOM to Jeffer~~ Jones).K. Ontario Court of AppealThe Court of Appeal for Ontario very recently held invalid the Canadian marijuana prohibition law because that law does not make provision for the medical use of cannabis. Queen V. Parker, No. C28732, slip op. at 210 (Ont. App. July 31, 2000). See Ex. 0. The court did suspend its ruling for 12 months in order to give Parliament time to amend the law. Jd. at 207.Although obviously not binding precedent on any U.S. court, the case is persuasive authority. Canada, our close neighbor to the north, uses a legal system also based on the Common Law.
The court's decision is comprehensive and thorough. It observes that the

17
history of marijuana regulation in Canada [as in the United States] "is, in fact, an embarrassing history based upon misinformation and racism." The court relies, inter alia, upon the recent Institute of Medicine report, supra, to proclaim, "There is no apparent support for a blanket prohibition on medicinal use of marihuana and to the contrary some recognition that at the moment there may be no alternative than to permit patients to smoke marihuana to relieve the symptoms for certain serious illnesses." Id. at 142 (emphasis added). Moreover, the court quotes from the House of Lords report, supra:[P]eople who use cannabis for medical reasons are caught in the front line of the, war against drug abuse. This makes criminals of people whose intentions are innocent, it adds to the burden on enforcement agencies, and it brings the law into disrepute. Legalising medical use on prescription, in the way that we recommend, would create a clear separation between medical and recreational use, under control of the health care professions. We believe it would in fact make the line against recreational use easier to hold.
Id.
III. CONCLUSION
Humankind has recognized cannabis as an effective medicine for many centuries. Every unbiased reputable report, from anywhere in the world, for over one hundred years has recognized the medical value of cannabis or has counseled against an outright prohibition on it, such as that currently in place in the United States. Cannabis prohibition in this country is a vestige of hysterical
18

misinformation and racism. Courts, and voters, throughout the world recognize the obvious fact that seriously ill patients need legal access to a medicine that works, particularly as with medical necessity, when it is the only medicine that works. The district court's amended injunction objectively permits a small, select group of patients to have simple access to the medicine they desperately need, in the best traditions of our legal heritage~For the foregoing reasons, the City of Oakland respectfiilly asks this Court to affirm the orders and amended ir~junction of the district court.

Dated: September ~ 2000
Respectfi~lly submitted,
CITY OF OAKLAND, CALIFORNIA



City Attorney
BARBARA J. PARKER
Chief Assistant City Attorney
Attorneys for Amicus Curiae City of Oakland, California




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CERTIFICATE OF COMPLIANCE

I certify that:
Pursuant to Fed. R. App. P.29(d) and 9th Cir. R. 32-1, the attached amicus brief is proportionally spaced, has a typeface of 14 points, and contains less than 7,000 words.

September ~~~2000
~J~N RUSSO
City Attorney
1
PROOF OF SERVICE
United States of America V. Oakland Cannabis Buyers' Cooperative, et al. United States Court of Appeals for the Ninth Circuit, Case No.00-16411

I am a resident of the State of California, over the age of eighteen years, and not a partyto the within action. My business address is City Hall, One Frank Ogawa Plaza, 6th Floor, Oakland, California 94612. On September 26 , 2000, I served the foregoing document:Brief of Amicus Curiae in Support of Appellees in Support of Affirmance
by placing two copies of the document listed above in a sealed envelope with postage thereon flilly prepaid, in the United States mail at Oakland, California, addressed as set forth below.
See attached service list.
I am readily familiar with the City of Oakland's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on the same day with postage thereon flilly prepaid in the ordinary course of business.
I declare under penalty of perjury under the laws of the State of California that the above is true and correct.
Executed on September 26 ,2000, at Oakland, California.

~in'Ericsson












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Service List
United States of AmericaMark B. Stem
Dana 3. Martin
U.S. Department of Justice
601 D Street, N.W., Room 9108
Washington,D.C. 20530
Mark T. Quinlivan
U.S. Department of Justice
901 E Street, N.W., Room 1048
Washington, D.C. 20530Oakland Cannabis Buyers' Cooi,erative et al.Robert A. Raich
Robert A. Raich, P.C.
1970 Broadway, Suite 1200
Oakland, California 94&12
Gerald F. Uelmen
Santa Clara University
School of Law
Santa Clara, California 95053
James 3. Brosnahan
Annette P. Carnegie
John H. Quinn
Morrison & Foerster
425 Market StreetSan Francisco, California 94105
Cannabis Cultivator's Club et al.
3. Tony Serra
Brendan R. Cummings
Pier 5 North
San Francisco, California 94111
Brendan R. Cuilngs
P.O. Box 4944
Berkeley, California 94704
Marin Allirnoc fr Medical Mariiuan~ et al.William G. Panzer370 Grand Avenue, Suite 3Oakland, California 94610
Ukiali Cananbis Buyers' Club~ et al.
Susan B. Jordan
515 South School Street
Ukiah, California 95482
David Nelson
106 North School Street
Ukiali, California 95482
Patient-Intervenors
Thomas V. Loran, III
Margaret S. Schroeder
Pillsbury Madison & Sutro
50 Fremont Street, 5th FloorP.O. Box 7880
San Francisco, California 94120
Amici Curiae
Peter Barton Huff
Linda LeCraw
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20044
Alice P. Mead
Catherine I. Hanson
California Medical Association
221 Main Street, Third Floor
P.O. Box 7690
San Francisco, California 94120

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