Raich v. Ashcroft

Decision Date16 December 2003
Docket NumberNo. 03-15481.,03-15481.
Citation352 F.3d 1222
PartiesAngel McClary RAICH; Diane Monson; John Doe, Number One; John Doe, Number Two, Plaintiffs-Appellants, v. John ASHCROFT, Attorney General, as United States Attorney General; Asa Hutchinson, as Administrator of the Drug Enforcement Administration, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Robert A. Raich, Oakland, CA, David M. Michael, San Francisco, CA, Randy Barnett, Boston, MA, for Plaintiffs-Appellants.

Mark T. Quinlivan, U.S. Department of Justice, Washington, D.C., for Defendants-Appellees.

Alice P. Mead, San Francisco, CA, Julie M. Carpenter and David A. Handzo, Jenner & Block, Washington, DC, for Amici California Medical Association and California Nurses Association.

Bill Lockyer, Attorney General and Taylor S. Carey, Special Assistant Attorney General, Sacramento, CA, for Amicus State of California.

Richard E. Winnie, County Counsel, Oakland, CA, for Amicus County of Alameda.

John A. Russo, City Attorney and Barbara J. Parker, Chief Assistant City Attorney, Oakland, CA, for Amicus City of Oakland.

Michael L. Ramsey, District Attorney, Oroville, CA, for Amicus County of Butte.

Frederick L. Goss, Oakland, CA, for Amici Marijuana Policy Project, Rick Doblin, Ph.D. and Ethan Russo, M.D.

Appeal from the United States District Court for the Northern District of California; Martin J. Jenkins, District Judge, Presiding. D.C. No. CV-02-04872-MJJ.

Before: Harry Pregerson, C. Arlen Beam,* and Richard A. Paez, Circuit Judges.


PREGERSON, Circuit Judge:

Two of the appellants, Angel McClary Raich and Diane Monson, are seriously ill Californians who use marijuana for medical purposes on the recommendation of their doctors. Such use is legal under California's Compassionate Use Act. Monson grows her own medical marijuana. The remaining two appellants, John Doe Number One and John Doe Number Two, assist Raich in growing her marijuana. On October 9, 2002, the appellants filed suit against John Ashcroft, the Attorney General of the United States, and Asa Hutchinson, the Administrator of the Drug Enforcement Administration, seeking injunctive and declaratory relief based on the alleged unconstitutionality of the federal Controlled Substances Act. The appellants also seek a declaration that the medical necessity defense precludes enforcement of that act against them.

On March 5, 2003, the district court denied the appellants' motion for a preliminary injunction because the appellants had not established a sufficient likelihood of success on the merits. That ruling is now before us.

A. Statutory Scheme
1. The Controlled Substances Act

Congress enacted the Controlled Substances Act, 21 U.S.C. § 801 et seq., ("CSA") as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. 91-513, 84 Stat. 1236. The CSA establishes five "schedules" of certain drugs and other substances and designates these items "controlled substances." 21 U.S.C. §§ 802(6), 812(a). Marijuana is a schedule I controlled substance. Id. § 812(c). For a drug or other substance to be designated a schedule I controlled substance, it must be found (1) that the substance "has a high potential for abuse"; (2) that the substance "has no currently accepted medical use in treatment in the United States"; and (3) that there is "a lack of accepted safety for use of the drug or other substance under medical supervision." Id. at § 812(b)(1). The CSA sets forth procedures by which the schedules may be modified. Id. at § 811(a).

Among other things, the CSA makes it unlawful to knowingly or intentionally "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance," except as provided for in the statute. 21 U.S.C. § 841(a)(1). Possession of a controlled substance, except as authorized under the CSA, is also unlawful. Id. § 844(a).

Congress set forth certain findings and declarations in the CSA, the most relevant of which are as follows:

(2) The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people.

. . . .

(4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.

(5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, is it not feasible to distinguish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.

(6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic.

21 U.S.C. § 801.

2. California's Compassionate Use Act of 1996

In 1996, California voters passed Proposition 215, which is codified as the Compassionate Use Act of 1996 ("Compassionate Use Act"), Cal. Health & Safety Code § 11362.5. Among other purposes, the Compassionate Use Act is intended

[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.

Id. § 11362.5(b)(1)(A). The Compassionate Use Act is also intended "[t]o ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction." Id. § 11362.5(b)(1)(B). To these ends, the Compassionate Use Act exempts "a patient, or [] a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician" from certain other California code sections that make possession or cultivation of marijuana illegal. Id. § 11362.5(d).

B. Factual Background

Appellants Angel McClary Raich and Diane Monson (the "patient-appellants") are California citizens who currently use marijuana as a medical treatment. Appellant Raich has been diagnosed with more than ten serious medical conditions, including an inoperable brain tumor, life-threatening weight loss, a seizure disorder, nausea, and several chronic pain disorders. Appellant Monson suffers from severe chronic back pain and constant, painful muscle spasms. Her doctor states that these symptoms are caused by a degenerative disease of the spine.

Raich has been using marijuana as a medication for over five years, every two waking hours of every day. Her doctor contends that Raich has tried essentially all other legal alternatives and all are either ineffective or result in intolerable side effects; her doctor has provided a list of thirty-five medications that fall into the latter category alone. Raich's doctor states that foregoing marijuana treatment may be fatal. Monson has been using marijuana as a medication since 1999. Monson's doctor also contends that alternative medications have been tried and are either ineffective or produce intolerable side effects. As the district court put it: "Traditional medicine has utterly failed these women...."

Appellant Monson cultivates her own marijuana. Raich is unable to cultivate her own. Instead, her two caregivers, appellants John Doe Number One and John Doe Number Two, grow it for her. These caregivers provide Raich with her marijuana free of charge. They have sued anonymously in order to protect Raich's supply of medical marijuana. In growing marijuana for Raich, they allegedly use only soil, water, nutrients, growing equipment, supplies and lumber originating from or manufactured within California. Although these caregivers cultivate marijuana for Raich, she processes some of the marijuana into cannabis oils, balm, and foods.

On August 15, 2002, deputies from the Butte County Sheriff's Department and agents from the Drug Enforcement Agency ("DEA") came to Monson's home. The sheriff's deputies concluded that Monson's use of marijuana was legal under the Compassionate Use Act. However, after a three-hour standoff involving the Butte County District Attorney and the United States Attorney for the Eastern District of California, the DEA agents seized and destroyed Monson's six cannabis plants.

C. Procedural History

Fearing raids in the future and the prospect of being deprived of medicinal marijuana, the appellants sued the United States Attorney General John Ashcroft and the Administrator of the DEA Asa Hutchison on October 9, 2002. Their suit seeks declaratory relief and preliminary and permanent injunctive relief. They seek a declaration that the CSA is unconstitutional to the extent it purports to prevent them from possessing, obtaining, manufacturing, or providing cannabis for medical use. The appellants also seek a declaration that the doctrine of medical necessity precludes enforcement of the CSA to prevent Raich and Monson from possessing, obtaining, or manufacturing cannabis for their personal medical use.

On March 5, 2003, the district court denied the appellants' motion for a preliminary injunction. The district court found that, "despite the gravity of plaintiffs' need for medical cannabis, and despite the concrete interest of California to provide it for individuals like them," the appellants had not established the required "`irreducible minimum' of a likelihood of success on the merits under the law of this Circuit...." The appellants...

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