potlede.jpgFour disabled Californians who want to use medical marijuana lost a bid to a federal appeals court in San Francisco Monday to seek a new path to carving out an exception to U.S. laws criminalizing the drug.

A panel of the 9th U.S. Circuit Court of Appeals by a 2-1 vote rejected an effort by the plaintiffs to invoke the anti-discrimination provisions of the federal Americans with Disabilities Act as a basis for a right to obtain medical marijuana to alleviate severe pain.

Circuit Judge Raymond Fisher wrote, “We recognize that the plaintiffs are gravely ill,” but said, “Congress has made clear…that federal law does not authorize plaintiffs’ medical marijuana use.”

California’s voter-approved Compassionate Use Act of 1996 allows seriously ill patients to use marijuana with a doctor’s approval. But the federal laws prohibiting the use of the drug supersede state laws.

Previous attempts by patients and medical marijuana advocates to seek an exception to the federal laws have been unsuccessful.

In 2001, in a case concerning the Oakland Cannabis Buyers’ Cooperative, the U.S. Supreme Court rejected the use of the doctrine of medical necessity as a defense against the federal laws.

In 2005, the high court turned down Oakland patient Angel Raich’s argument that locally grown, noncommercial marijuana was beyond the reach of Congress’s power to regulate interstate commerce.

More recently, lawsuits challenging a crackdown on large-scale marijuana dispensaries by federal prosecutors in California have been thus far unsuccessful.

In the case before the 9th Circuit, four Orange County residents sought to sue the cities of Costa Mesa and Lake Forest under the Americans with Disabilities Act for allegedly discriminating against them by closing down local marijuana dispensaries.

They based their claim on a provision of the ADA that says people can be defined as disabled, and therefore covered by the anti-discrimination provisions of the law, when they use an illegal drug under the supervision of a licensed health care professional.

But the appeals court majority said that exception would apply only to uses specifically authorized under the federal Controlled Substances Act, such as an experimental test of a drug, and not to use of the drug under California’s law.

Matthew Pappas, a lawyer for the plaintiffs, said his clients are disappointed and are considering an appeal to an 11-judge panel of the circuit court.

Jeffrey Dunn, a lawyer for Lake Forest, said, ‘At the end of the day, no state, county or city can enact an ordinance that conflicts with federal law.

“It’s all about being consistent with federal law,” he said.

Julia Cheever, Bay City News

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