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Medical pot not protected by disabilities act, 9th Circuit rules

By Maura Dolan, Los Angeles Times –

LOS ANGELES — Medical marijuana patients cannot use a federal disability law to prevent cities from shutting down pot dispensaries, a federal appeals court decided Monday.

A three-judge panel of the 9th U.S. Circuit Court of Appeals upheld the dismissal of a lawsuit filed by severely disabled medical marijuana users against Costa Mesa and Lake Forest, Calif. The suit charged that the Orange County cities were violating the Americans With Disabilities Act by closing down dispensaries that distributed medical marijuana.

The court said the disabilities law does not protect patients who claim to face discrimination on the basis of medical marijuana use.

“We recognize that the federal government’s views on the wisdom of restricting medical marijuana use may be evolving,” wrote Judge Raymond C. Fisher. “But for now Congress has determined that, for purposes of federal law, marijuana is unacceptable for medical use.”

Fisher, a President Bill Clinton appointee, acknowledged that the suit was brought by “gravely ill” people and involved “not only their right to live comfortably, but also their basic human dignity.” He also noted that California has embraced medical marijuana as an effective treatment for patients with debilitating pain.

The patients who sued insisted that Congress’ decision not to interfere with a 2010 medical marijuana law in Washington, D.C., amounted to tacit approval of the drug. D.C. laws take effect only if Congress fails to pass a joint resolution of disapproval within 90 days.

But the 9th Circuit said Congress’ failure to disapprove the medical cannabis law did not amount to an endorsement.

Judge Marsha S. Berzon, also a Clinton appointee, said in a partial dissent that the disabilities law, while ambiguous, may be read to protect the rights of medical marijuana patients. “At the same time, it seems most likely that Congress did not intend the ADA to require the cities to permit marijuana dispensaries,” Berzon wrote.

Jeffrey V. Dunn, who represented Lake Forest in the case, said the nearly 40 dispensaries in the city have been shut down. “My take-away on this is no city or county or a state, for that matter, can enact laws or ordinances that conflict with federal law,” Dunn said.

Matthew Pappas, a lawyer for the medical marijuana patients, said he would ask a larger panel of the 9th Circuit to review the case. He called the majority ruling “incorrect” and complained that patients must now drive long distances to obtain their medicine.

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