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Thursday, February 28, 2013

City Attorney Contact: (510) 238-3148
Morrison & Foerster Contact: (415) 268-6063

Oakland City Attorney and Morrison & Foerster Appeal Federal Court Ruling in Medical Cannabis Case

Appeal asks Ninth Circuit Court to uphold Oakland’s right to permit and regulate medical cannabis businesses

SAN FRANCISCO, CA – The City of Oakland filed an appeal Wednesday in its lawsuit seeking to prevent the federal government from seizing a building used by a City-permitted medical cannabis dispensary.

The appeal was filed after the U.S. District Court ruled in January that Oakland had no standing to sue the federal government – despite the unique and serious harm to legitimate medical patients, Oakland taxpayers and the City’s regulatory rights that would result from the federal government’s forfeiture of the building located at 1840 Embarcadero.

Oakland also filed a motion Wednesday to stay the forfeiture proceedings pending the appeal.

“Under recent U.S. Supreme Court precedent, the City of Oakland should be allowed to bring a separate lawsuit to challenge the drug forfeiture proceeding, because otherwise the city and its 400,000 residents would have no remedy for the unique and serious harms resulting from the forfeiture case,” said Morrison & Foerster litigation partner Cedric Chao, who is leading the City’s trial team. “The government’s position that Oakland can be barred from court is unjust and absurd. That is not what Congress intended, nor what the Supreme Court holds. Access to the courts is fundamental to the ‘rule of law.’”

Oakland’s lawsuit asserts that the City relied on numerous assurances by federal officials, including statements by President Obama and the U.S. Department of Justice, that dispensaries complying with state law would be allowed to operate. Based on those statements, Oakland has operated a regulatory system for medical cannabis dispensaries that includes annual auditing of dispensaries’ financial statements, employee background checks, issuance of permits and other measures to ensure compliance with state and local law. Oakland’s system provides medicine to thousands of legitimate patients and brings in millions of dollars in tax revenue.

The City's lawsuit, filed in October, does not seek damages, but asks the court to enjoin and declare unlawful the federal government's attempt to close down the dispensary.

"This lawsuit is about protecting the rights of patients who qualify for this vital medicine under California law,” City Attorney Barbara Parker said. “In the midst of Oakland’s public safety crisis, it is a tragic waste for the federal government to spend its time and resources cracking down on health care providers operating under California law.”

In 1996, California voters passed Proposition 215, the "Compassionate Use Act," which was intended to ensure that seriously ill Californians would have the right to obtain and use marijuana for medical purposes upon the recommendation of a physician and would not be subject to criminal prosecution or sanction. The Compassionate Use Act encouraged the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana. In 2003, the California Legislature passed the "Medical Marijuana Program Act," which provided guidelines for the implementation of the Compassionate Use Act, including a voluntary patient identification card program. The benefits of medical cannabis to patients suffering from chronic pain associated with debilitating illnesses such as cancer, AIDS, and multiple sclerosis are well documented.

For court documents and more information, go to: http://www.oaklandcityattorney.org/Notable/medical%20cannabis%20case.html