Raich v. Gonzales

subsеquent removal of the Therefore, allegation Appren- I find would apply. report. fact of his 2004 re- Id. presentence contained in his di error because to the proved admitted or objected moval was never to the alle- Similarly, Lopez never jury. Id. presen- in his deportation of a 2004 gation report. tence ar Apprendi Lopez raises

Because appeal, the first time on review gument for arguments significantly, [Lopez’s] “Most Id. at standard. plain is under the error effectively con sentencing to the court Lopez must therefore prevail, To 1093. under that a sentence enhancement ceded (2) error, plain, an was establish 1326(b) Id. Had appropriate.” § would be rights. his that affected substantial an subsequent to Lopez not been removed Olano, v. United States conviction, statutory felony aggravated (1993). have been two maximum sentence would satisfied, are requirements Even if those 1326(a). at § But sen years. 8 U.S.C. correct may exercise our discretion to we “ “agree[d]” counsel with tencing, Lopez’s ‘seriously only if the forfeited error it of 30 court’s tentative sentence the district fairness, public integrity, affects the ” months, exceeding sentence judicial proceedings.’ reputation 1326(a) maximum but consis statutory § F.3d Cabaccang, v. United States under tent with an enhanced sentence Cir.2007) (quoting United 1326(b). district By accepting § Evans-Martinez, F.3d v. sentence, “effec Lopez tentative court’s (9th Cir.2006)). chronological tively conceded” relevant already held that “the enhance We have of conviction and removal. Covi sequence sentence, based on the 1326] ment of[a an-Sandoval, 462 F.3d removal, subsequent finding factual of a plain error.” Covian-Sando constitute^] Therefore, Lopez cannot meet his bur- val, However, Lopez’s 462 F.3d at 1098. rights showing that his substantial den of violated, and rights were not substantial affirm the sen- were violated. We should relief, because he thus he cannot obtain plain was not imposition tence because its that af “in a manner prejudiced was not error under Olano. ... proceed fected the outcome Buckland, v. ings.” United States (9th Cir.2002) (en banc) (in 558, 568 omitted). In Covi- quotation

ternal marks

an-Sandoval, inquiry that the we noted beyond a reasonable it clear

“whether was jury a rational would have

doubt the er guilty

found the defendant absent

ror,” that, “[e]ritieally, the defendant raising a the burden of reasonable

bears RAICH; Doe, McClary Angel John prior removal].” as to fact [of doubt One; Doe, Number Number John at 1098. 462 F.3d Two, Plaintiffs-Appellants, had not met this We held Covian con- “practically burden because he had subsequent removed that he was cede^]” Attorney GONZALES, Gener- Alberto R. felony. aggravated his conviction for an Attorney General; al, objected to as United States Specifically,

Id. he had never Tandy,* Karen as Administrator Drug Enforcement Administra

tion, Defendants-Appellees.

No. 03-15481. Appeals,

United Court

Ninth Circuit.

Argued and Submitted March 2006.

Filed March * Administration, Tandy predeces- Drug Karen pursuant substituted for her Enforcement sor, Hutchinson, 43(c)(2). R.App. Asa as Administrator of the Fed. P. injunc- declaratory and seek

Appellants alleged unconstitu- relief based on tive Act, Substances tionality of the Controlled that medical and a declaration the Controlled enforcement of precludes March them. On against Act Substances appel- court denied district injunction. a preliminary motion for lants’ following remand hear this matter on We decision Gonzales Supreme Court’s (2005). set For the reasons below, court. we affirm the district forth SCHEMES STATUTORY Act I. The Controlled Comprehensive Congress passed the Act of Prevention and Control Drug Abuse (briefed) Oakland, CA A. Robert 91-513, No. 84 Stat. Pub.L. Barnett, (argued) Boston Randy E. drug enforcement comprehensive a create Boston, MA, Law, for University School of Substances regime it called the Controlled plaintiffs-appellants. Act, Congress § es- 801-971. U.S.C. Quinlivan, T. Assistant United Mark of “controlled tablished five “schedules” Boston, MA, the de- Attorney, for 802(6). § U.S.C. substances.” fendants-appellees. placed par- on a substances are Controlled potential on their ticular schedule bаsed abuse, accepted medical use for their treatment, psycholog- physical and the of the sub- consequences ical of abuse 812(b). Marijua- § 21 U.S.C. stance. See na I controlled substance. Schedule PREGERSON, ARLEN Before C. I(e)(10). 812(c), § For a Sched. U.S.C. PAEZ, BEAM,** Judges. Circuit I a Schedule designated substance to be PREGERSON, Judge. Circuit (1) substance, it must be found: controlled high potential “has a McClary that the substance Plaintiff-Appellant Angel abuse”; (“Raich”) that the substance “has no ill for seriously Raich is a individual in treat- currently accepted medical use marijuana purposes uses for medical who States”; ment the United physician. recommendation of her on the “[tjhere safety for use accepted is a lack of under permitted use is California Such other substance under medi- drug of the or remaining plaintiffs-appellants The law. 812(b)(1). § supervision.” cal U.S.C. marijuana for growing assist Act sets forth The Controlled treatment. ** Beam, by designation. sitting United Honorable C. Arlen Senior Circuit, Eighth Judge States Circuit for which the Act procedures schedules Use encourage “[t]o strives the federal 811(a). § modified. See U.S.C. governments and state to implement a plan provide for the safe and affordable Act, Under the Controlled Substances it marijuana distribution of to all patients in knowingly intentionally is unlawful to or оf marijuana.” need Id. “manufacture, distribute, or dispense, 11362.5(b)(1)(C). § manufacture, possess with intent dis- tribute, or dispense, controlled sub- To goal, achieve its Compassionate stance,” except provided as otherwise in Use Act exempts from liability under Cali- 841(a)(1). § statute. U.S.C. Pos- drug fornia’s patient, laws “a or ... substance, session except of controlled as patient’s primary caregiver, possesses who authorized under Controlled Sub- marijuana or cultivates personal Act, stances is also unlawful. See 21 medical purposes patient upon the 844(a). § U.S.C. written or oral recommendation or approv- 11362.5(d). physician.” § al of a Id. II. Compassionate Use Act California’s 1996' FACTUAL & PROCEDURAL passed Proposition California voters HISTORY which Compas- is codified as the Appellant Angel McClary Raich ais Cal- sionate Use Act of 1996 (“Compassionate ifornian marijuana who uses for medical Act”). Safety Use See Cal. Health & Code treatment. Raich has diagnosed been with Compassionate 11362.5. The Act Use is more than conditions, ten serious medical permit intended to Californians to use including inoperable tumor, an brain a sei- purposes by for medical ex- disorder, zure life-threatening weight loss, empting patients, primary caregivers, and nausea, and pain several chronic disorders. physicians liability from under California’s doctor, Raich’s Lucido, Dr. Frank Henry drug explicitly laws. The Act states that explored testified that he had virtually ev- its to purpose is ery legal alternative, treatment and that ill seriously ensure Californians all were either ineffective or resulted right have the to obtain and mari- use intolerable side effects. Dr. Lucido pro- juana for medical purposes where vided a thirty-five list of medications that medical use is deemed appropriate and were because of their unworkable n side ef- has been recommended a physician fects. who person’s has determined that Marijuana, hand, prov- on the other has health would benefit from the use of great en to be of medical value for Raich. marijuana cancer, in the treatment of using marijuana Raich has been as a medi- anorexia, AIDS, pain, chronic spasticity, nearly eight years, every cation for two arthritis, glaucoma, migraine, or waking every day. hours of Dr. Lucido marijuana other illness for which pro- that, Raich, states foregoing marijuana for vides relief. treatment be fatal. As the district 11362.5(b)(1)(A). § Id. Another purpose “[tjraditional it, put court medicine has Compassionate of the Use Act is en- “[t]o utterly Ashcroft, Raich v. failed[Raich].” patients sure that primary and their care- (N.D.Cal.2003). F.Supp.2d givers marijuana who obtain and use marijuana medical Raich is purposes upon the unable cultivate recommenda- Instead, physician subject tion of a for her own are not to crimi- use. Raich’s caregiv- ers, nal prosecution sanction.” Id. John Number and Doe One John Doe 11362.5(b)(1)(B). The Compassionate Two, They Number cultivate it for her. against not be enforced Act could charge. stances Raich free of marijuana to provide unlawful con- plaintiffs allegedly action as joined this them because their They have Raich’s protect anonymously order under the common law justified duct was marijuana. access to medical necessity. of doctrine to a response law action arose This plaintiffs-appel- On October of another the home raid on enforcement injunction. preliminary for a lants moved user, plaintiff- marijuana former the district court denied On March August On Diane Monson.1 appellant order. See published the motion Department County Butte Sheriffs' 918. Ashcroft, F.Supp.2d Raich v. County Attor- Butte District deputies, the that, “despite the court found The district Drug federal ney, agents and from for medical can- need gravity plaintiffs’ of (“DEA”) came to Agency Enforcement of nabis, the сoncrete interest despite agents took DEA home. After Monson’s provide it for individuals like California marijuana plants, six control of Monson’s them,” had not appellants established between state fed- three-hour standoff “ of a minimum’ required ‘irreducible The Butte Coun- eral authorities ensued. on the merits under of likelihood success attorney concluded ty deputies and district at Id. 931. the law of Circuit.” was of that Monson’s use Act. The we reversed and Use December Compassionate under the On conferring with the after court agents, DEA to the district remanded this matter District Attorney for the Eastern injunction. See preliminary to enter California, pos- that Monson concluded 1222, 1235 Ashcroft, 352 F.3d Raich v. in violation federal plants sessed Cir.2003). plaintiffs-ap- that the heldWe agents DEA seized de- law. The likeli- strong had demonstrated pellants marijuana plants. stroyed Monson’s six on the merits their hood of success Act, the future and the Fearing raids in that the Controlled Substances claim of their medici- being deprived prospect of them, Congress’s exceeded applied Monson, marijuana, nal authority. See id. Commerce Clause sued the United plaintiffs John Doe plaintiffs-appel- not reach didWe and the Administrator Attorney General remaining arguments in favor lants’ court on DEA in federal district Oc- injunсtion. id. at 1227. preliminary 9, sought suit declarato- tober 2002. The timely the Su- petitioned The Government Specifically, injunctive relief. ry and for writ of certiorari. preme Court a (1) that argued: the plaintiffs-appellants granted certiorari on June Supreme Court Act unconstitu- was Controlled Substances Raich, 28, v. 542 U.S. 2004. See Ashcroft leg- them applied tional as because 2909, 936, 124 159 L.Ed.2d 811 Congress’s Commerce islation exceeded (2004). (2) through authority; Clause 6, 2005, Court On June Act, Congress im- Controlled Substances and held that Con- opinion our vacated police power permissibly exercised authority in- Clause gress’s Commerce of California un- is reserved to State intra- purely power prohibit cludes (3) Amendment; der the Tenth marijuana. and use of cultivation state Act unconstitution- Controlled at 2215. v. See Gonzales rights fundamental ally infringed their us the case to The Court remanded Ninth by the Fifth and Amend- protected remaining (4) ments; plaintiffs-appellants’s address that the Controlled Sub- and 12, action 2005. on December Plaintiff-Appellant Monson withdrew from legal support preliminary theories in of a son’s withdrawal from this action does not injunction. remand, See id. change On the fact that agents DEA have— renews her claims ‍‌​​‌‌​​‌‌​​​‌‌‌‌‌‌‌​​‌​‌​‌​‌‌​​‌​‌​​​‌​​‌‌​​​​‌‌‍based on common law again and destroy and medical —seize necessity, rights protected fundamental by marijuana possessed by gravely ill Califor- Amendments, nians, the Fifth and Ninth and including Finally, Raich. it is clear rights reserved to the states under the that Raich’s injury threatened may be fair- argues Tenth Amendment. She also for ly traced defendants, to the and that a the first time that the Controlled Sub- injunction favorable from this court would Act, terms, stances its prohibit does not injury. redress Raich’s threatened her from possessing using marijuana if A district court’s decision re permitted to do so under state law. We garding preliminary injunctive relief jurisdiction have interlocutory over this subject to limited review. See Harris v. 1292(a)(1). under appeal 28 U.S.C. (9th Bd. Supervisors, 366 F.3d Cir.2004). The court should be reversed STANDING & STANDARD only if it abused its discretion or based its OF REVIEW decision on an erroneous standard or satisfy To requirements of clearly on findings erroneous of fact. See standing, constitutional plaintiff “the must A preliminary injunction id. must sup suffered, have with, or be threatened an ported by fact, findings of reviewed for injury actual traceable to the defendant clear error. See Hawkins v. Comparet- likely to be redressed favorable Cassani, (9th 251 F.3d Cir. judicial Daniels, decision.” v. Mujahid 2001). The district court’s conclusions of (9th Cir.2005) 413 F.3d (citing law are reviewed de novo. See Brown v. Kemna, v. Spencer 118 S.Ct. Cal. Dep’t Transp., 321 F.3d (1998)). 140 L.Ed.2d 43 Further (9th Cir.2003). more, (1) injury must be: concrete and particularlized, imminent, actual DISCUSSION conjectural or hypothetical. See Unit “The standard granting a pre ed States v. Antelope, 1132 liminary injunction plaintiffs balances the (9th Cir.2005). likelihood of success against relative areWe that the require convinced hardship parties.” to the Clear Channel Outdoor, ments of constitutional standing have been Inc. City Los Angeles, 340 met here.2 Although Cir.2003). Raich has not suf F.3d We have two any past injury, fered she is faced with the different determining criteria for whether threat that the Government will seize preliminary injunctive relief warranted. prosecute her for criteria, “Under the traditional plaintiff violations of drug federal law. The threat show strong must likelihood of suc posed by deprivation (2) of her medical merits, treat on cess the possibility of ment is serious and concrete: Raich’s doc irreparable injury plaintiff pre to[the] if tor testified that foregoing (3) medical mari liminary granted, relief is not a balance juana might treatment (4) be fatal. The hardships favoring plaintiff, of threat is not speculative conjectural: (in or public advancement interest cer cases).” agents DEA previously seized and Sonoran, de tain See Save Our Inc. stroyed the Flowers, (9th of 1113, former v. 408 F.3d 1120 Cir. 2005) (internal plaintiff-appellant omitted). Diane Monson. Mon- quotations We We Supreme 1, also note that the Court did case. See v. 545 U.S. 125 Gonzales question standing not constitutional this S.Ct. 162 L.Ed.2d 1. 858 “reasonable, alternative had no whereby a actor alternative test use an

also v. States violating the law.” United to injunction plain- if the may grant court 394, 410, 62 (1) 100 S.Ct. 444 U.S. Bailey, a combination either: tiff demonstrates (1980); Wayne 2 R. see also and the 575 on the merits L.Ed.2d probable of success Law 10.1 LaFave, that injury, or Substantive Criminal irreparable of possibility (2d As we Supp.2005). and the bal- ed. 2003 & are raised at 116 questions serious favor. sharply recognized, in his hardships tips have ance of id. sense, necessity defense In some legisla- act as individual allows us to formulations two alternative The criminal tures, amending particular a sliding scale points on “represent two excep- a one-time crafting provision irreparable degree of the required which review, it, subject court when to tion of suc probability as the harm increases formally do the legislature would real separate not They are cess decreases. For circumstances. under those same single reaches of outer tests but rather who by allowing prisoners es- example, City v. Baby Tam & Co. continuum.” justifica- claim the burning jail cape Cir. Vegas, 154 F.3d Las the law- necessity, we assume tion of 1998) (internal cita quotation marks makеr, confronting problem, would omitted). tions exception an law allowed for have escapes. prison proscribing Necessity I. Law Common Schoon, F.2d v. States United has a argues that she first Raich (9th Cir.1991). 196-97 of her on the merits likelihood success law common doctrine claim recognized that Supreme Court has The government the federal necessity bars necessity defense exists law a common the Controlled Substances enforcing from explicitly not a statute does even when use of medically-necessary against Act her Bailey, 444 defense. See include the is faced marijuana.3 avers she (Blackmun, J., 425, 100 dis- S.Ct. obey the to either a choice of evils: with difficulty in conclud- senting) (having “no Act and endure ex Controlled the defenses of ing Congress intended death, or vio possibly cruciating pain and necessity available” to be duress Sub of the Controlled late the terms defendant); n. at 415 escape id. prison relief from her Act and obtain stances J., majority opin- (Rehnquist, suffering. physical ion) majority’s “principal (noting that dissent, therefore, with the difference “traditionally cov- necessity defense necessity] of [the not to the existence as physical forces where ered the situation . importance of sur- to the illegal defense but as beyond the control rеndered actor’s it”).4 an element render of two evils” conduct lesser Court decision necessity 4. Dicta in a recent before Raich’s claim 3. We address vitality ongoing of common questioned the process due substantive constitutional majority in United defense. The law ought Congress Act of because "an claim Buyers’ Coopera- v. Oakland Cannabis if the Constitution be construed to violate tive, avail- possible construction remains other ("Oakland ”), Cannabis L.Ed.2d California, able.” Gilmore question whether open "it is an that stated Cir.2000) (quoting NLRB v. Catholic 998 authority recog- to ever have courts federal 1313, 59 Bishop, 99 necessity provided defense not stat- a nize (1979)). ultimately majority conceded But the ute.” possibility the "Court ha[d] the discussed Re- Aguilar, Raich the United States v. Whether A. Satisfies (9th Cir.1989). Law quirements Common of Necessity We first ask Defense5 whether Raich was faced a with choice of evils and whether she Here, although ultimately we conclude chose the lesser physician evil. Raich’s injunctive that Raich entitled presented uncontroverted evidence that relief on the basis of her common law Raich “cannot be without cannabis as med- claim, that, necessity briefly in we note icine” because she quickly would suffer light compelling of the facts before the “prеcipitous medical deterioration” and court, appears satisfy district Raich very “could well” If obeys die. Raich a requirements asserting threshold for ne- Controlled Substances Act she will have to cessity defense under our case law. We pain endure including intolerable severe following general have set forth the stan- pain chronic in jaw her face and muscles necessity dards for a defense: temporomandibular joint due to dysfunc- law, a a As matter of defendant must bruxism, tion and pain severe chronic and establish existence of four elements burning chronic from fibromyalgia (1) necessity to a be entitled defense: days, forces her to be flat on her back for that he was faced with a choice of evils excruciating pain from non-epileptic sei- (2) evil; and chose the lesser that he zures, heavy bleeding severely painful (3) harm; prevent acted to imminent periods menstrual due to a uterine fibroid reasonably anticipated that he a causal tumor, weight and acute resulting pos- loss relation his conduct and the between sibly in death due to a life-threatening avoided; harm to be there wasting Aternatively, disorder.6 were no other alternatives to vio- can violate the Controlled Substances Act lating the law. debilitating avoid thе bulk of those necessity altogether relationship defense without re- and then turn to the defense’s jecting (citing Bailey, it.” Id. 444 U.S. at the Controlled Substances Act and the relief 624). sepa- 100 S.Ct. Three Justices filed a See, Cannabis, sought. e.g., Oakland Cannabis, noting rate concurrence in Oakland 490-95, 121 S.Ct. 1711. gratuitously that "the Court casts doubt on necessity 'whether can ever be a defense’ to litany 6. This of ailments makes no mention of explicitly federal statute that does not the fact that Raich was confined to a wheel- it, provide calling for such defense into pain manage- chair before she found effective question by misleading reference to its exis- marijuana, ability inment which restored her ” 'open question.’ tence as an Id. at to walk. The seriousness of her conditions J., (Stevens, concurring) (quoting S.Ct. 1711 overemphasized: cannot be the ex- majority opinion) (emphasis original). physical psychological pain treme led "[Ojur precedent expressed has no doubt attempt Raich to suicide. We are mindful that viability about the de- common-law pain totally occupies psychic "extreme fense, even in the context of federal criminal pain world” and that "in serious claims provide many statutes that do not it in so body utterly nullify the claims (citing Bailey, words.” Id. 444 U.S. at Kreimer, wоrld.” Seth F. The Second Time 624). Tragedy: Suicide and the Assisted Cases We do not believe that the Oakland Cannabis Wade, Heritage Hastings Roe v. Const. century dicta abolishes more of com- than L.Q. 863, (citations 895 & n. 157 omit- See, necessity jurisprudence. e.g., mon law Q.B.D. ted). Raich has shown remarkable fortitude Regina Dudley Stephens, & (1884). pursuing rights this action to vindicate the despite precarious physical of the infirm 5. As the Court did in Oakland Can- condition. nabis, underlying princi- we first address defense, ples of the common law included violent side effects the intolerable The evidence marijuana. by using pains shakes, palpi- nausea, itching, rapid heart that, light of demonstrates persuasively agree that tations, We condition, and insomnia. Raich satisfies her medical any legal have appear to Raich does not necessity defense. of the prong first marijuana use.8 alternative to acting to Raich is next ask whether We satisfy the appears medical evi- to Although harm. All imminent prevent defense, that, necessity if Raich it for a suggests predicate in the record factual dence acute marijuana, Court’s stop using clear whether to is not were would wasting disorders Can- pain and States Oakland chronic decision United The Government immediately resume. a ne- Cooperаtive forecloses Buyers’ nabis severity of her condi- dispute of a seri- cessity prosecution does to a defense pain would that her or the likelihood tions ill under the Controlled ously defendant marijuana. deprived if recur she n. Act. 532 U.S. established Raich has therefore (2001). Simi- 149 L.Ed.2d 722 faces is imminent. harm she the Controlled Substances larly, whether legislative “determina- encompasses Act Raich reason- whether Prong three asks values,” id. tion connection be- anticipated a causal ably necessity defense is preclude that would harm conduct and the her unlawful tween are question. These an unanswered also that Raich’s believe to be avoided. We issues, conclu- light and in of our difficult is reason- in the causal connection belief necessity claim is Here, that Raich’s physician tes- sion below Raich’s licensed able. spe- the context of a connection between resolved within to the causal best tified to use and her need under the Controlled Sub- physical prosecution condition cific did not dis- marijuana. Act, fully The Government would be where the issue stances evidence. Because this medical them pute attempt to answer joined, we do not the medi- clearly demonstrated Raich has here. correlation, prong has sаtisfied

cal she Necessity a Viable B. Whether three.7 Defense Likelihood Success Raich a Gives Raich had Finally, we ask whether this Action on the Merits on for Dr. violating the law. alternatives to legal Injunctive Relief clear that Raich testimony makes Lucido’s compelling fac Irrespective Raich “has tried no alternatives: had claim, for Raich’s tual basis to legal alternatives essentially all other has a likelihood of success whether Raich been alternatives have cannabis and the injunctive merits in this action ef- on the in intolerable side ineffective or result question. We conclude is a different explained relief physician Raich’s fects.” 823(f) Secretary (authorizing prong the dan- U.S.C. connection limits 7. The causal necessity exception permit medi- ger could Services to that a medical Health and Human exceptions floodgates widespread open implement practitioners design and re- cal substances, Act. A the Controlled Substances using I protocols Schedule search present, "necessity” absolutely claimant must basis). case-by-base marijuana, including on a has, allegedly testimony as Raich Union American Civil Liberties Amici curiae at the direction of action was taken unlawful Policy Project and Marijuana Foundation and a doctor. Doblin, abundantly clear that Ph.D make Rick pro- "alternative.” The is not a tenable suggests that certain feder- Government 8. The accepted gram highly restricted and has not might programs allow Raich al exist which marijuana patients since 1992. new medical See, e.g., marijuana lawfully. obtain that Raich has not demonstrated that she found an alternative treatment that did not likely obtaining injunctive will succeed in violate the law—a alternative to vio- necessity ground. relief on the lating the Controlled Act— longer Raich could no necessity assert a necessity defense is an af That say, defense. ‍‌​​‌‌​​‌‌​​​‌‌‌‌‌‌‌​​‌​‌​‌​‌‌​​‌​‌​​​‌​​‌‌​​​​‌‌‍is to a necessity de- firmative defense that removes criminal fense is best considered in the context of a liability for violation of a criminal statute. concrete case where a allegedly statute is LaFave, 2See Substantive Criminal Law violated, and a specific prosecution results 9.1(a) (2d § Supp.2005). ed. 2003 & Ne Indeed, from the violation. oversight and cessity essentially justification for the necessity enforcement of a defense-based prohibited conduct: the “harm caused injunction prove would impracticable: justified legally behavior remains a ongoing vitality injunction could recognized harm that is to be avoided hinge on including factors Raich’s medical Robinson, possible.” whenever Paul H. condition or advances in lawful medical (1984 24(a) § Criminal Law Defenses & technology. Nothing the common law Supp.2006-2007). A common law necessi suggests or our cases that the existence of ty singles defense thus out conduct that is a necessity empowers defense this court to criminal, “therwise cir which under the enjoin the enforcement of the Controlled socially acceptable cumstances Substances Act as to one defendant. which liability deserves neither criminal LaFave, necessity nor even censure.” Because common law prevents Substantive 9.1(a)(3) (2d criminal liability, Criminal Law ed. 2003 & but not permit does us to omitted). Supp.2005) (quotation enjoin prosecution The ne for what remains a le- harm, cessity protect gally defense selves to recognized defen we hold Raich liability. dant from criminal has not shown a likelihood of success on the merits on her medical necessity claim Though necessity defense be injunction.9 for an criminal available in the context of a prose- cution, it does not follow that a court II. Substantive Due Process prospectively enjoin should enforcement of Raich contends that the district court a statute. Raich’s violation of thе Con- erred failing protect her fundamental legally trolled Substances Act is a recog- rights. argument Her focuses on unenu- harm, nized but defense rights protected by merated the Fifth and Raich liability shields from for criminal Ninth Amendments to the un- Constitution prosecution during such time as she satis- theory process.10 der a of substantive due Thus, fies the defense. if Raich were to make a recovery miraculous that obviated Process, A. Generally Substantive Due marijuana, her need for medical her neces- sity-based justification defense Although would no the Fifth Amendment’s longer Similarly, exist. if Dr. Lucido Due only Process Clause states that “[n]o 2006) ignore 9. We (noting constitutionally cognizable cannot that the unusual circum- arrest, citation, danger stances of this case raise the of acute harm can occur "at or even earlier,” preconviction criticizing government’s po- harms. The arrest of Raich or suppliers, or the confiscation of her medi- sition that "would allow the state to criminal- cite, protected phys- cal ize a behavior or would cause Raich severe condition and arrest, circumstances, jail, prosecute and even right ical trauma. Under the individuals for violations, resulted”). long might so as no conviction obtain relief from the courts for preconviction harm based on common law necessity. generally City together Los Jones 10. We refer to these claims as the Angeles, process 1129-31 Cir. substantive due claim. must, that cer- judgment life, and sensitive liber- deprived ... shall

person particularly of care- process require without due tain interests ty, property, or Const, V, unques- amend. it law,” scrutiny see U.S. of the state needs asserted ful protections tionably provides substantive abridgment. justify their fundamental unenumerated for certain Ullman, 497, 543, 81 S.Ct. 367 U.S. Poe v. guar- Due Process Clause rights.11 “The (1961) (Harlan, J„ 1752, 989 6 L.Ed.2d and the process, than fair more antees (citations omitted); also see dissenting) than the includes more ‘liberty’ protects it 849, 2791 at Casey, 505 U.S. S.Ct. Washing- physical restraint.” of absence was position Harlan’s (noting that Justice 702, 719, 117 Glucksberg, 521 U.S. ton in v. Con by the Court Griswold adopted (1997); 2258, see L.Ed.2d 772 1678, necticut, 479, 85 S.Ct. 381 U.S. Penn. v. S.E. Planned Parenthood also of (1965)). These contentions L.Ed.2d 510 2791, 833, 847, 112 S.Ct. Casey, 505 U.S. Amendment, in Ninth support find the (1992) (“It tempting, as is L.Ed.2d 674 “[tjhe in that enumeration provides which the of feder- curbing of discretion a means Constitution, rights, of certain shall the liberty encom- suppose that judges, al deny disparage or others be construed already rights than those no more passes Const, people.” U.S. by retained the against feder- to the individual guaranteed amend. IX. provisions of express al interference set Glucksbеrg, Supreme In Court to the Consti- eight first Amendments of the substantive has never forth the two elements But of course this tution. Court (internal analysis. citation omit- process that view.” due accepted ted)). forty it over put As Justice Harlan First, regularly have observed we years ago: pro- specially the Due Process Clause liberty guaran- scope full of the [T]he rights and lib- fundamental tects those cannot by the Due Process Clause teed are, objectively, “deeply erties which precise limited found history and tradi- rooted in this Nation’s guarantees else- specific of the terms tion,” concept of “implicit and in the in the Constitution. provided

where lib- liberty,” such “neither ordered a of isolated ‘liberty’ is not series This they if were erty justice would exist nor taking out in pricked terms points Second, required have we sacrificed.” speech, the freedom property; a substantive-due-process cases right keep religion; and press, description” of asserted “careful arms; un- from bear freedom and liberty interest. fundamental seizures; and searches and reasonable 720-21, at 117 S.Ct. Glucksberg, 521 U.S. which, It on. rational continuum so omitted). (citations a freedom broadly speaking, includes long history has Court arbitrary imposi- all substantial from recognizing unenumerated fundamental restraints, purposeless tions pro- by substantive due rights protected recognizes, also reasonable what which guarantees counterpart, Due Pro- Amendment Although the Fifth Amendment's Fifth here, finding process. also in- applicable cases fair The Clause cess Clause more than rights under Fourteenth component provides substantive cludes substantive equally are Due Process Clause Amendment’s against government heightened protection in- Granville, Troxel v. relevant. rights with certain fundamental terference 2054, 120 S.Ct. added) (in- (emphasis liberty interests.” ("We (2000) long that the recognized have omitted)). quotation marks ternal citation Clause, like its Due Process Amendment's cess, history even before the term evolved into its this nation’s and traditions and See, usage. e.g., Casey, modern 505 U.S. implicit in concept of ordered liberty. (to 112 S.Ct. 120 L.Ed.2d 674 B. Breadth abortion); Wade, the Fundamental Right have an Roe v. 410 U.S. 93 S.Ct. 35 L.Ed.2d 147 Glucksberg instructs courts to adopt a (same); Baird, Eisenstadt v. 405 U.S. narrow definition of the interest stake. (to 31 L.Ed.2d 349 See 521 U.S. at 117 S.Ct. 2258 Griswold, contraception); use (“[W]e have a carefully tradition of for- (to 479, 1678, 85 14 S.Ct. L.Ed.2d 510 use mulating the interest at stake in substan- contraception, privacy); Loving to marital cases.”); Flores, tive-due-process see also 1, 1817, Virginia, v. 388 U.S. 87 S.Ct. 18 302[, 507 U.S. at 113 S.Ct. (noting 1439] (1967) (to marry); L.Ed.2d 1010 Rochin v. that the liberty asserted interest must be 165, 205, California, 342 72 U.S. S.Ct. 96 construed narrowly to avoid unintended (1952) (to bodily L.Ed. 183 integrity); consequenсes). Substantive process due Williamson, Skinner v. Oklahoma ex rel. requires a “careful description of the as- 535, 1110, 316 U.S. 62 S.Ct. 86 L.Ed. 1655 serted fundamental liberty interest.” (1942) (to children); Society have Pierce v. Glucksberg, 721, 521 U.S. at 117 S.Ct. Sisters, 571, 268 U.S. 45 S.Ct. 69 omitted). (quotation and citations (1925) (to L.Ed. 1070 direct the education children); upbringing Meyer and of one’s Glucksberg involved a substantive due Nebraska, v. 262 U.S. 43 S.Ct. 67 process challenge Washington state’s (1923) (same). L.Ed. 1042 But the Court 705-06, ban on assisted suicide. See id. at against has cautioned the expan- doctrine’s 117 S.Ct. in 2258. The Court Glucksberg sion. Glucksberg, 521 U.S. at 117 rejected suggestion that the interest (stating S.Ct. 2258 the Court must stake was “right right to die” or “the expansion restrain the of substantive due humane, death,” to choose a dignified process guideposts responsi- “because question instead held that the narrow be- ble in decisionmaking this uncharted area fore the ‘liberty’ Court was “whether the are scarce and open-ended” and because specially protected by the Due Process judicial protec- extension constitutional right Clause includes a to commit suicide tion for an pro- asserted substantive due right which itself includes to assistance right “placets] cess the matter outside the 722-23, doing so.” Id. at 117 S.Ct. 2258. public arena of legislative debate and ac- reject- Another case that considered and (citations omitted)); Flores, tion” Reno v. ed several rights asserted fundamental in- 292, 302, 507 U.S. 113 S.Ct. unaccompanied juveniles volved alien who L.Ed.2d 1 (noting that doc- “[t]he custody are in the immigration authori- judicial trine of requires self-restraint us Flores, 294[, ties. See 507 U.S. at to exercise the utmost care whenever we rejected S.Ct. The Flores Court ground 1439]. are asked to break new in this (quoting proposed field” v. Harker Heights, right Collins fundamental of “free- 115, 125, physical dom from restraint” because it (1992))). was an depiction not accurate of the true Flores, issue in the case. See 507 U.S. at mind, Bearing that rubric we consider 1439], 302[, 113 S.Ct. The Court also re- process Raich’s substantive due claim. In jected “right the formulation of the of a case, present it helpful begin is with custody child to be released from all other step the second description of the —the custody into the right parents, legal guard- asserted fundamental its deter- —before mining ian, Instead, whether the right deeply rooted or even close relatives.” Id. Yet, does careful statement narrow Raich’s examined the Flores Court right accurately reflect narrowly has no available a child who “right of Conspicuously vindicate. that she seeks to relative, legal guardian, or close parent, fundamental missing from Raich’s asserted responsi- government and fоr whom she seeks the centerpiece: that right is its custody of a will- ble, in the placed to be bodily preserve to use right than rather private custodian ing-and-able preserve integrity, pain, avoid government- government-operated aof Flores, and Glucksberg, Cru- life.12 As Id.; see child-care institution.” selected zan, carefully stated right must Texas, also Lawrence ensuing before the narrowly identified 156 L.Ed.2d Accordingly, we will analysis proceed. can narrowly defined fundamental (recognizing marijua- use of centerpiece add the activi- in consensual sexual engage —the right proposed right.13 na—to Raich’s sodomy, in the including homosexual ty, intrusion). government home without becomes Accordingly, question liberty specially pro- interest

whether In- Asserted Fundamental C. Raich’s em- Process by the Due Clause tected terest deci- life-shaping right to make braces a medical advice to physician’s on a use sion has a fundamen asserts that she Raich bodily integrity, marijuana preserve to life-shaping to right “mak[e] tal life, preserve pain, and avoid intolerable necessary preserve to that are decisions and medications prescribed other when all body, intolerable integrity of her avoid remedies have failed. life.” preserve and We physical pain, carefully interest Raiсh’s crafted note that Right the Asserted D. Whether that rights fundamental comprises several Nation’s “Deeply Rooted in This part recognized at least have been and “Im- History and Tradition” Lawrence, 539 See Supreme Court. Concept Ordered in the plicit of 574, (recognizing 2472 123 S.Ct. U.S. at Liberty” [respect] demands that “the Constitution asserted We turn to whether the making autonomy person for the Nation’s in this right “deeply rooted choices”); Casey, 505 at U.S. [personal] tradition,” in the and history “implicit 849, of (noting importance 2791 112 S.Ct. “nei liberty,” that concept of ordered such 852, at “bodily integrity”); id. protecting they if liberty justice nor would exist ther (observing a woman’s 112 2791 that S.Ct. at Glucksberg, U.S. were sacrificed.” 521 intimate and “suffering personal” is too 720-21, 117 2258. suffering by compel to such government marijuana has beyond dispute that carry a It is requiring pregnancy woman medically and other- term). long history of use— suggestion of persuasive the required. 13. We also find degree specificity is In 12. This Health, Association Director, curiae California Medical amicus Dept. 497 v. Mo. Cruzan that the Nurses Association: and California 2841, L.Ed.2d 224 110 S.Ct. 111 U.S. incorporate to the fact reference definition (1990), right the Court declined to frame right "on that seeks to establish this Raich die, right unqualified instead as an that re- physician's We also advice.” think right a "constitu specifically construed be a last I substance sort to a Schedule resort, should lifesaving right tionally protected to refuse right by lim- and therefore narrow 279, 110 hydration nutrition.” at Id. pre- iting "when other it to circumstances all S.Ct. 2841. have failed.” medications scribed country. Marijuana argues wise—in this was not years the last ten regulated Congress under federal law until have been characterized an emerging passed the Marihuana Tax Act of marijuana’s awareness of medical value. 75-348, No. (repealed Pub.L. Stat. 551 She contends that rising number of 1970), marijuana prohibited was not passed states have permit laws that Congress under federal law until passed medical use of or recognize its the Controlled Substances Act in 1970. therapeutic value is additional evidence See at Gonzales 125 S.Ct. right that the is fundamental. Raich avers There is considerable evidence that efforts right the asserted in this case should regulate marijuana use in early- protected on the “emerging awareness” century targeted twentieth recreational model that Court used in use, permitted but medical use. Rich- Texas, Lawrence v. at U.S. Whitebread, ard J. Bonnie & Charles H. S.Ct. 2472. The Forbidden Fruit and the Tree of that, The Lawrence Court noted when Knowledge: Inquiry Legal An into the the Court had decided Bowers v. Hard History Marijuana American Prohibi- wick, tion, 971, 1010, 1027, 56 Va. L.Rev. (1986), “[twenty-four] ‍‌​​‌‌​​‌‌​​​‌‌‌‌‌‌‌​​‌​‌​‌​‌‌​​‌​‌​​​‌​​‌‌​​​​‌‌‍(1970) (noting twenty-two that all states and the District of sodomy Columbia had prohibited marijuana by that had the 1930s Lawrence, laws.” exceptions created for medical purposes). By S.Ct. 2472. the time a similar chal By although possession marijuana lenge sodomy laws in arose Lawrence in states, fifty was a crime in all almost all 2004, only thirteen states had maintained states had exceptions “persons created laws, sodomy their and there was a noted for whom the drug prescribed had been or “pattern 573, of nonenforcement.” Id. at given to whom it had been by an author- 123 S.Ct. 2472. The Court observed that person.” ized medical Leary v. United “times can blind us to certain truths and States, 6, 16-17, 89 S.Ct. generations later can see that laws once (1969). thought necessary proper and in fact serve history The marijuana of medical only oppress.” Id. at 123 S.Ct. country use this took an about-face with 2472. passage the of the Controlled Substances Though the Lawrence framework might Act in Congress placed marijuana on certainly apply case, to the instant the use I Schedule of the Controlled Substances marijuana of medical has not obtained the Act, taking it outside of the realm all degree recognition today private that uses, medical, including under fеderal law. sexual conduct had obtained 2004 in As the Court noted Gonzales Lauxrence. Since ten states other Raich, v. 125 S.Ct. at per no state passed than California have laws decrimi- marijuana mitted medical usage until Cali use, nalizing varying degrees pos- Compassionate fornia’s Use Act of 1996. session, manufacture, Thus, and distribution of possession from 1970 to marijuana for seriously use of ill. Alaska marijuana medically or other See — proscribed 11.71.090; § § wise—was under state and Stat. fed Colo.Rev.Stat. 18-18- eral law.14 406.3; 329-125; § Haw.Rev.Stat. Me.Rev. law, however, 14. The mere enactment noteworthy, state or It traditions. that federal, prohibits that certain twenty-five years behavior does over went before necessarily not mean protect that the behavior is not alleged state enacted a law to deeply country's history right. rooted in this excruciating marijuana to alleviate 2383-B; medical 22, § Mont.Code Aun. tit. Stat. Al- fundamental. 50-46-201; may deemed pain § Nev.Rev.Stat. be Ann. 475.319; dawned, § R.I. con- 453A.200; yet not day § Or.Rev.Stat. that has though 21-28.6-4; Ann. tit. § Vt. Stat. years Laws ten during Gen. the last sidering that 4474b; § Rev.Code Wash. the use of legalized have eleven states passed have Other states 69.51A.040. day may upon marijuana, that medical that recognizing resolutions day that expected. than Until us sooner value, yet others therapeutic have arrives, recognize does not federal law closely through limited use permitted have marijua- use medical right to fundamental pro- treatment experimental monitored physician licensed by a prescribed na grams.15 human suf- pain excruciating alleviate that medical and agree with We fering.16 recognizes the conventional wisdom purposes medical marijuana for

use of III. Tenth Amendment But in the law as well. gaining traction Third, Raich contends yet reached legal recognition has infringes upon Act Substances Controlled can be drawn conclusion point where of Cali sovereign powers of State marijuana is right that the to use fornia, powers, as notably police most concept in the “implicit “fundamental” by the Tenth Amendment. conferred liberty.” Glucksberg, of ordered that, as a valid exer district court found (citations 720-21, 117 at pow Clause Congress’s Commerce cise omitted). issue being, For the time Act could ers, the Controlled debate and public in “the arena of remains police of their curtail the states’ exercise 117 S.Ct. legislative action.” Id. Tenth violating the powers without 2258; see also Gonzales Ashcroft, 248 Raich v. Amendment. See at 2215. fur The district court at 927. F.Supp.2d above, Ken- Anthony As stated Justice held that the Controlled Substances ther us to nеdy that “times can blind told us behavior and does regulates Act individual can generations truths and later certain Id. any to take action. not force the state necessary and thought once see that laws reads, in its en- The Tenth Amendment only oppress.” to proper in fact serve delegated not to the tirety: powers “The Lawrence, 123 S.Ct. 539 U.S. Constitution, by pro- nor States the United now, to the wis- federal law is blind For States, to by it are reserved use hibited to day right when the dom of a future however, that, Supreme case a recent Court lesser endorsements of medi- 15. While these relevant, Act is carry suggests the Controlled Substances they that marijuana are cannot cal rights narrowly when fundamental legislative that drawn weight as enactments the same v. O Centro Es of medical mari- are concerned. See fully decriminalize the use Gonzales Vegetal, do 546 U.S. juana. pirita Lawrence Court considered Uniao As the Beneficente 1221-23, pro- that 163 L.Ed.2d of states that retained laws 126 S.Ct. number 21, 2006) (Feb. sodomy, (observing "mere too must we consider hibited so prohibit general of of states that continue characteristics number invocation of substances, marijuana. in the I as set forth Schedule Act, carry the cannot Controlled Substances presented government had right day,” and that the 16. Because we find no fundamental exceptions here, to the evidence that narrow law that no we do not address whether undercut the prohibitions would right narrowly Schedule I drawn to serve limits Flores, effectively government’s ability to enforce compelling See state interest. Act). note, 301-02, We Controlled 113 S.Ct. 1439. U.S. at respectively, people.” Supreme or to the The Court held in Gonzales v. Const, power Congress amend. X. Police is Raich that acted within the an area of traditional state unquestionably authority bounds of its Commerce Clause control. when it criminalized the purely intrastate manufacture, distribution, possession of

Throughout history our the several marijuana in the Controlled Substances police pow- States have exercised their Thus, Act. See 125 S.Ct. at 2215. after protect safety ers to the health and Gonzales v. it would seem that pri- their citizens. Because these are there can be no Tenth Amendment viola- marily, historically, ... matter[s] tion this case. Raich concedes that concern, traditionally local the States Supreme recent Court decisions have great po- have had latitude under their largely foreclosed her Tenth Amendment powers legislate protec- lice as to the claim, and she also concedes that this case lives, limbs, health, comfort, tion of the implicate does not the “commandeering” quiet persons. of all line of cases.17 Medtronic, Lohr, Inc. v. 518 U.S. 135 L.Ed.2d 700 The Court’s recent decision

(internal quotation citations and marks v. Oregon, Gonzales omitted). (Jan. 2006) Act, Compassionate Use L.Ed.2d aimed at for the health providing contrary. case, is not to the In that citizens, appears state’s to fall squarely Interpretive Court invalidated an Rule is- general Attorney within the rubric of the state’s sued General on the basis police construction, powers. statutory not on the basis invalidity of constitutional under the Tenth however, Generally speaking, Amendment. id. at 925. Because the power granted Congress trumps a com Attorney “incongruous General’s Rule was peting police pow claim based on a state’s statutory purposes design” with the long ago rejected ers. “The Court Act, the Controlled Substances the Rule suggestion Congress invades areas re had to be nullified. Id. at 921 (emphasis served to the States the Tenth Amend added). Although Oregon Gonzales v. un- ment simply because it exercises its au issues, doubtedly implicates federalism its thority under the Commerce in a Clause holding inapposite to Raich’s Tenth displaces manner that the States’ exercise claim. Amendment of their police powers.” Hodel v. Va. Sur Ass’n, Mining & Reclamation 452 We hold that Raich failed to demon- face 264, (1981); 291 see also a likelihood of claim United strate success on her (9th Jones, 508, v. States 231 F.3d that Act Controlled Substances vio- Cir.2000) (“We if Congress have held that lates the Tenth Amendment. Accordingly, acts powers, under one of its enumerated the district court did not abuse its discre- can denying there be no violation of the Tenth tion in for prelimi- Raich’s motion Amendment.”). injunction nary on that basis. (1992). commandeering

17. The cases involve at- 112 S.Ct. 120 L.Ed.2d 120 Act, contrast, tempts by Congress perform to direct states Controlled Substances "does functions, legislature] any require certain command state officers to not to enact the[state regulatory programs, regulations, require administer federal or to laws or and it does not compel adopt specific legislation. states to state officials to assist in the enforcement of See, States, e.g., regulating private v. United 521 U.S. federal statutes individu- Printz Condon, 141, 151, (1997); v. als.” Reno 528 U.S. States, (2000). New Yorkv. United 145 L.Ed.2d 587 not Act, why the was issue By circumstances The Controlled Substances IV. (2) court; new issue the trial Its Terms raised in because appeal pending is arises while text argues plain that the Finally, Raich law; the issue in the or change aof not Act does Controlled law and the a presented pure question is marijuana possessing from her prohibit as prejudice suffer no party will opрosing ob- a doctor’s order. She pursuant issue Act the failure to raise the a result of that the Controlled Substances serves sub- v. Carl- possession of controlled prohibits the trial court. See United Cir.1990). was ob- “unless such substance son, stance prescription pursuant ... to valid tained the waiver Raich does not address order, acting while practitioner, from a brief, nor does she opening her issue in practice.” professional of his in the course might ap exception cite relevant that 844(a). § The Controlled Sub- 21 U.S.C. that argument. ply to her We observe as “a “practitioner” stances Act defines any exceptional to be appear there not do licensed, registered, ... or oth- physician why Raich did concerning circumstances States or permitted, the United erwise below, that argument raise ... in which he jurisdiction practices rele change in the law there been no has distribute, ... dispense, administer [or] Thus, only argument. Raich’s vant this in the course substance controlled claim is against waiver of this 802(21). argument Id. practice.” professional legal question, and purely that it is a is a li- Raich contends that her doctor jurisdic- prejudice no may, in the will suffer physician censed who Government con- practices, which he administer the issue tion in a result of Raich’s failure to raise substances, including trolled below.18 Act, Compassionate pursu- under the Use one of Even if a falls within case Accordingly, prescription. ant to a valid exceptions to waiver enunciated marijua- possession that her she argues Carlson, decide we must “still whether na under the Controlled Sub- is of the case over particular circumstances Act. stances new against hearing presumption come our argument this for the raises Palace, F.3d at arguments.” Dream to our sec opening first her brief time Sub Although Raich’s Controlled long of her case. It ond review within the appears claim to fall stances Act that, rule in the Ninth Circuit standing this exception, we conclude third arguments generally, “we will not consider “particular because of the claim is waived ap on for the first time that are raised claim. surrounding the circumstances” Marsh, v. 194 F.3d peal.” Smith claim Raich failed to raise this (9th Cir.1999). subject That rule district court and before before the consider a exceptions to the we Ashcroft, appeal in Raich exceptional court in if: there are new issue parties sand-bag asking analysis, prevents from party by prejudice We to a assess arguments on position ging opponents with new party their the is in different whether Marico alleged appeal.” County Dream Palace v. the than it would have been absent (9th Cir.2004). It Seafoods, pa, deficiency. Zhang 384 F.3d v. Am. Gem Inc., (9th Cir.2003). appear the has Government does not any failure to arguments prejudice from Raich's legal suffered rule "serves to ensure that is in fully claim below: the raise this Government with the benefit of are considered record, it would have other appellate position the same developed factual offers prior wise been. court's courts the benefit district Furthermore, BEAM, Judge, 352 F.3d 1222. when we Circuit concurring and briefing appeal dissenting: for this requested renewed 6, 2005,

by September our order of we I concur in by the result reached the the parties directed the to brief “remain- case, court in particularly this more its declaratory injunctive ing claims for holding that “Raich has not demonstrated relief on the basis of the Tenth Amend- a likelihood of success on the merits of her ment, Amendments, the Fifth and Ninth injunctive action for relief’ and that the necessity, and the doctrine of medical as district injunction court’s denial of an set in their complaint.” forth Raich v. should be affirmed. I dissent from the Gonzales, Sept.6, No. 03-15481 Cir. expansive court’s consideration of doc- the 2005) (order directing briefing). renewed trine of law necessity common well as Bеcause Raich not raise did this issue from several of the factual findings and below, and because our order instructed applied conclusions to this issue and parties only the to brief the three claims other claims before the court. above, set forth we hold that Raich’s claim DISCUSSION plain language

based on the of the Con- trolled Act is waived. We ex- only We should decide the case that is press opinion no toas ‍‌​​‌‌​​‌‌​​​‌‌‌‌‌‌‌​​‌​‌​‌​‌‌​​‌​‌​​​‌​​‌‌​​​​‌‌‍the merits of that us, properly other, any before not and we claim. should leave for day any another claim or ripe

issue not for consideration. When we otherwise, do simply we create obitur dic- CONCLUSION — See, Musladin, tum. e.g., Carey v. We conclude that Raich has not demon- -, -, 649, 655, U.S. strated a likelihood of success on the mer- (2006) (Stevens, J., concur- injunctive its of her action for relief. ring) (citing Sheet Metal Workers’ First, we hold that Raich’s common law EEOC,

necessity by defense is not foreclosed Oak- (1986)). 92 L.Ed.2d 344 land Cannabis or the Controlled Sub- This case returns to us on remand from Act, necessity stances but that the defense But, party Court. provide proper injunc- does not basis supplied jurisdiction earlier to the Su- Second, although changes tive relief. court, preme Court to this Diane Mon- state law reveal a clear trend towards the son, has withdrawn. Ante at 856 n. 1. protection marijuana use, of medical wе Thus, concerning the facts Ms. Monson right hold that yet asserted has not generously by recited court are no gained the traction aon national scale to way relevant or material to the issues now Third, be deemed fundamental. we hold by Accordingly, raised Raich. the court Act, that the Controlled Substances a valid likely jurisdiction has no over claim Congress’s exercise of power, commerce asserted plaintiffs appeal but does not violate Tenth Amendment. certainly jurisdiction most no to decide Finally, we decline to argu- reach Raich’s whether Raich assert doctrine Act, ment that the Controlled Substances common law in a criminal future terms, prohibit posses- its does not prosecution. sion and use of because this argument, At oral counsel for parties argument was not raised below. pending conceded that there now Accordingly, judgment pending prose- of the district nor has there ever been court is AFFIRMED. prosecution cution or even a threatened of 1222, 1235-36 Ashcroft, 352 F.3d Raich v. personal or use of possession

Raich for Cir.2003) (9th (Beam, J., dissenting). Indeed, marijuana. of medicinal amounts acknowledged at oral for Raich discrete, counsel Here, there is no as that, knowledge, there has to his argument injury an can challenged action from which prosecution criminal been a federal County never fairly Diego traced. San Gun Reno, or use of medicinal simple possession for 98 F.3d Rights Committee v. in anyone anywhere (9th Cir.1996), marijuana against Raich to show requires government for the Counsel and she prosecution, California. a threat of specific knowledge a lack of of that the establishing likewise indicated of bears the burden that it actually being and stated en- any prosecution question such is statute that “incredibly unlikely” warning prosecution A of specific would be forced. suffice, general prose- ensue in “a threat of prosecution may would but such federal statement, So, standing.” ante to confer enough the court’s cution is not the future. not, or of Accordingly, applicability, not suf- “[ajlthough that Raich has Id. necessity law is with the the doctrine of common any past injury, is faced fered she record and justiciable a issue on this will seize her not threat that the Government standing to ask the currently has no her for prosecute to consider the matter. court drug plainly is violations of federal law” supported by the record. Assuming purposes for of discussion viability of question that the bare of Accordingly, I return to the issues us, I nonetheless is before doctrine justiciability ad- standing, ripeness and disagree por- with substantial respectfully my earlier dissent in this case. vanced analysis of the matter. tions of the court’s lengthy specific regard to the court’s With (medical) law rulings upon the doctrine The doctrine of common discussion of and necessity an affirmative defense asserta- necessity, it is clear is of common law only prosecution. E.g., in a criminal ble to know wheth impossible it is “[W]here Arellano-Rivera, v. United States to have party er a will ever be found (9th Cir.2001) (holding 1125-26 statute, how, if or such a violated evi- present that “before a defendant found, charged those with violation is defense, his offer of dence of respond, any enforcing the statute will jury that a proof must establish reasonable challenge premature.” to that statute is all could” ascertain the elements Airlines, Long City Inc. v. Alaska defense) added). After refer- (emphasis Cir.1991). (9th Beach, 951 F.2d inju- potential ence to several measures standing require satisfy To Article Ill’s ry totally harm to Raich almost unre- ments, that she plaintiff must show reasonably lated to a foreseeable criminal particular a concrete and has suffered ultimately recog- prosecution, the court actual or immi injury ized in fact is defense, limitations of the nizes (not conjectural hypothetical). nent only issuing after what amounts to but injury that the Plaintiff must also show lengthy advisory opinion. ac fairly challenged to the traceable in the review of a likely, engaged that it Here we are tion of the defendant and declaratory relief merely proceeding seeking civil opposed speculative, adjudication. criminal injunction, a favor not a injury will be redressed that, contrary to important It is to note able decision. Citizens Better For factual the inference of the court its estry Dep’t Agric., United Cir.2003). dissertation, there has been no “testimo- 341 F.3d And, directly addressing three. ny” in this case she has not established and evidentiary The elements of this defense. probably cannot establish that she has no record, is, developed as it was in the such legal violating alternative to the law. through request pre- court for a district physician court states that “Raich’s liminary injunction under Rule 65 of the Frank presented [Dr. Lucido] uncontro- Federal Rules of Civil Procedure. All verted evidence that Raich ‘cannot be court, by facts recited some of which without cannabis as medicine’ because she nature, admittedly are testimonial arise quickly would ‘precipitous suffer provided by from written “declarations” very deterioration’ and ‘could well’ die.” Raich, Monson, Rose, Dr. Lucido and Dr. added). Ante at (emphasis opin- This in- physician, support Monson’s is, course, Yet, gleaned ion evidence junction request. every from a by case cited concerning viability the court written seeking declaration declaratory doctrine and its elements involves a crimi- injunctive relief positing very while prosecution.1 proof nal The burden of speculative happenstance. The opinion is such a defense lies with the defendant and not the fruit of an hearing adversarial following involves the elements: involving the assertion of an affirmative law, As a matter of a defendant must defense a criminal defendant in a crim- establish the existence of four elements prosecution inal designed to test the ad- (1) necessity to be entitled to a defense: missibility credibility proposed that he was faced with choice of evils evidence. But if even Raich “cannot be (2) evil; and chose the lesser that he medicine,” without cannabis as Dr. Lu- as (3) harm; prevent acted to imminent (or opines, cido synthetic cannabis its reasonably anticipated that he a causal equivalent) as medicine is lawfully avail- relation between his conduct and the able to Raich through prescription- avoided; harm to be that there And, dispensed drug newly Marinol.2 no legal wеre other alternatives to vio- crafted or presently existing drugs yet lating the law. untested Raich become known or Aguilar, United States v. 883 F.2d prior prosecution. available So (9th Cir.1989). Raich may well have a alternative to action, In civil present- Raich is not drug the violation of the control laws. ly posture one, in a to address elements I fully join analy- also cannot the court’s two and three and cannot establish ele- sis of United States v. Oakland Cannabis ment four. She has not been faced awith Buyers’ Cooperative, 532 evils,” “choice of one of which could lead (2001), 149 L.Ed.2d as set prosecution. a criminal Nor has she acted forth in its footnote 4. prevent Ante at 858-59. “imminent harm.” She has presented tested, Although no I do not concede that evidence of a the Su- adver- preme sarial sufficient nature to establish the Court’s discussion in Oakland Can- dicta, causal relationship required by element I agree nabis do with the court’s See, e.g., Bailey, 1. United. ingredient synthetic States v. 2. The active in Marinol is 62 L.Ed.2d delta-9-tetrahydrocannabinol, naturally oc- doctrine); (discussing the choice of two evils L, curring component of sativa Cannabis Schoon, (9th United States v. 971 F.2d 193 says she now consumes. Cir.1991) (giving burning jail example); Reference, ed., Physicians' Desk 61st 2007 at Aguilar, United States v. Cir.1989) (explaining the stаndards and ele- defense). ments of the affirmance of injunction and in the court’s that the case does abolish

conclusion court. the district necessity jurisprudence.” “common law Thus, I not concur while do appears that “Raich

court’s statement for as-

satisfy requirements the threshold under our case necessity defense

serting

law,” acknowledge I do ante at to advance certainly may eligible

she liability in the to criminal

such a defense Petitioner, CAMINS, prosecution. context of an actual Rodolfo majori- fully if I understand the Finally, troubling aspect of

ty’s approach, the most GONZALES, Attorney R. Alberto let purports it opinion its is General, Respondent. determine, present- the evidence court on No. 05-70291. at the Rule 65 to the district court ed similarly anyone hearing, Appeals, United States Court situated, necessity is entitled to a medical Ninth Circuit. fu- criminally prosecuted if defense 12, 2007. Argued and Submitted Jan. that this turns respectfully ture. I believe on procedure federal criminal applicable 28, 2007. Aug. Filed viability applicability its head. ques- a mixed this affirmative defense is Arellano-Rivera, 244 fact.

tion of law and prosecution criminal at 1125. In a and use of possession

Raich for occurs, purposes,

for medicinal if it ever sufficiency of the evidence

the issue of the jury to a particular

to submit this defense trial

is a of law for the federal question factu-

court. Id. The establishment of the submitted, defense,

al if elements fact). (or jury other trier of Id.

for

Imposition rulings of this into a court’s prosecution improperly preter-

later would Thus, procedure.

mit established criminal

the court’s medical discussion wholly speculative ‍‌​​‌‌​​‌‌​​​‌‌‌‌‌‌‌​​‌​‌​‌​‌‌​​‌​‌​​​‌​​‌‌​​​​‌‌‍possibly unconsti- jurisprudential

tutional exercise.

CONCLUSION rea-

Accordingly, for the above-stated

sons, portions I dissent from of the court’s findings

factual conclusions but request

concur in the denial of Raich’s

Case Details

Case Name: Raich v. Gonzales

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 14, 2007

Citation: 500 F.3d 850

Docket Number: 03-15481

Court Abbreviation: 9th Cir.