Raich v. Gonzales, 03-15481.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation500 F.3d 850
Docket NumberNo. 03-15481.,03-15481.
PartiesAngel McClary RAICH; John Doe, Number One; John Doe, Number Two, Plaintiffs-Appellants, v. Alberto R. GONZALES, Attorney General, as United States Attorney General; Karen Tandy,<SMALL><SUP>*</SUP></SMALL> as Administrator of the Drug Enforcement Administration, Defendants-Appellees.
Decision Date14 March 2007
500 F.3d 850
Angel McClary RAICH; John Doe, Number One; John Doe, Number Two, Plaintiffs-Appellants,
Alberto R. GONZALES, Attorney General, as United States Attorney General;

[500 F.3d 851]

Karen Tandy,* as Administrator of the Drug Enforcement Administration, Defendants-Appellees.
No. 03-15481.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 27, 2006.
Filed March 14, 2007.

[500 F.3d 854]

Robert A. Raich, (briefed) Oakland, CA and Randy E. Barnett, (argued) Boston University School of Law, Boston, MA, for the plaintiffs-appellants.

Mark T. Quinlivan, Assistant United States Attorney, Boston, MA, for the defendants-appellees.

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 PREGERSON, C. ARLEN BEAM,** and PAEZ, Circuit Judges.

PREGERSON, Circuit Judge.

Plaintiff-Appellant Angel McClary Raich ("Raich") is a seriously ill individual who uses marijuana for medical purposes on the recommendation of her physician. Such use is permitted under California law. The remaining plaintiffs-appellants assist Raich by growing marijuana for her treatment.

Appellants seek declaratory and injunctive relief based on the alleged unconstitutionality of the Controlled Substances Act, and a declaration that medical necessity precludes enforcement of the Controlled Substances Act against them. On March 5, 2003, the district court denied appellants' motion for a preliminary injunction. We hear this matter on remand following the Supreme Court's decision in Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). For the reasons set forth below, we affirm the district court.


I. The Controlled Substances Act

Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, 84 Stat. 1236, to create a comprehensive drug enforcement regime it called the Controlled Substances Act, 21 U.S.C. § 801-971. Congress established five "schedules" of "controlled substances." See 21 U.S.C. § 802(6). Controlled substances are placed on a particular schedule based on their potential for abuse, their accepted medical use in treatment, and the physical and psychological consequences of abuse of the substance. See 21 U.S.C. § 812(b). Marijuana is a Schedule I controlled substance. 21 U.S.C. § 812(c), Sched. I(c)(10). For a 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 "[t]here is a lack of accepted safety for use of the drug or other substance under medical supervision." 21 U.S.C. § 812(b)(1). The Controlled Substances Act sets forth

500 F.3d 855

procedures by which the schedules may be modified. See 21 U.S.C. § 811(a).

Under the Controlled Substances Act, it is unlawful to knowingly or intentionally "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance," except as otherwise provided in the statute. 21 U.S.C. § 841(a)(1). Possession of a controlled substance, except as authorized under the Controlled Substances Act, is also unlawful. See 21 U.S.C. § 844(a).

II. California's Compassionate Use Act of 1996

California voters passed Proposition 215 in 1996, which is codified as the Compassionate Use Act of 1996 ("Compassionate Use Act"). See Cal. Health & Safety Code § 11362.5. The Compassionate Use Act is intended to permit Californians to use marijuana for medical purposes by exempting patients, primary caregivers, and physicians from liability under California's drug laws. The Act explicitly states that its purpose is to

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). Another purpose of the Compassionate Use Act is "[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). The Compassionate Use Act strives "[t]o encourage 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." Id. § 11362.5(b)(1)(C).

To achieve its goal, the Compassionate Use Act exempts from liability under California's drug laws "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." Id. § 11362.5(d).


Appellant Angel McClary Raich is a Californian who uses marijuana for medical treatment. Raich has been diagnosed with more than ten serious medical conditions, including an inoperable brain tumor, a seizure disorder, life-threatening weight loss, nausea, and several chronic pain disorders. Raich's doctor, Dr. Frank Henry Lucido, testified that he had explored virtually every legal treatment alternative, and that all were either ineffective or resulted in intolerable side effects. Dr. Lucido provided a list of thirty-five medications that were unworkable because of their side effects.

Marijuana, on the other hand, has proven to be of great medical value for Raich. Raich has been using marijuana as a medication for nearly eight years, every two waking hours of every day. Dr. Lucido states that, for Raich, foregoing marijuana treatment may be fatal. As the district court put it, "[t]raditional medicine has utterly failed[Raich]." Raich v. Ashcroft, 248 F.Supp.2d 918, 921 (N.D.Cal.2003).

Raich is unable to cultivate marijuana for her own use. Instead, Raich's caregivers, John Doe Number One and John Doe Number Two, cultivate it for her. They

500 F.3d 856

provide marijuana to Raich free of charge. They have joined this action as plaintiffs anonymously in order to protect Raich's access to medical marijuana.

This action arose in response to a law enforcement raid on the home of another medical marijuana user, former plaintiff-appellant Diane Monson.1 On August 15, 2002, Butte County Sheriff's Department deputies, the Butte County District Attorney, and agents from the federal Drug Enforcement Agency ("DEA") came to Monson's home. After DEA agents took control of Monson's six marijuana plants, a three-hour standoff between state and federal authorities ensued. The Butte County deputies and district attorney concluded that Monson's use of marijuana was legal under the Compassionate Use Act. The DEA agents, after conferring with the U.S. Attorney for the Eastern District of California, concluded that Monson possessed the plants in violation of federal law. The DEA agents seized and destroyed Monson's six marijuana plants.

Fearing raids in the future and the prospect of being deprived of their medicinal marijuana, Raich, Monson, and the John Doe plaintiffs sued the United States Attorney General and the Administrator of the DEA in federal district court on October 9, 2002. The suit sought declaratory and injunctive relief. Specifically, plaintiffs-appellants argued: (1) that the Controlled Substances Act was unconstitutional as applied to them because the legislation exceeded Congress's Commerce Clause authority; (2) that through the Controlled Substances Act, Congress impermissibly exercised a police power that is reserved to the State of California under the Tenth Amendment; (3) that the Controlled Substances Act unconstitutionally infringed their fundamental rights protected by the Fifth and Ninth Amendments; and (4) that the Controlled Substances Act could not be enforced against them because their allegedly unlawful conduct was justified under the common law doctrine of necessity.

On October 30, 2002, the plaintiffs-appellants moved for a preliminary injunction. On March 4, 2003, the district court denied the motion by a published order. See Raich v. Ashcroft, 248 F.Supp.2d 918. 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." Id. at 931.

On December 16, 2003, we reversed and remanded this matter to the district court to enter a preliminary injunction. See Raich v. Ashcroft, 352 F.3d 1222, 1235 (9th Cir.2003). We held that the plaintiffs-appellants had demonstrated a strong likelihood of success on the merits of their claim that the Controlled Substances Act, as applied to them, exceeded Congress's Commerce Clause authority. See id. at 1234. We did not reach plaintiffs-appellants' remaining arguments in favor of the preliminary injunction. See id. at 1227. The Government timely petitioned the Supreme Court for a writ of certiorari. The Supreme Court granted certiorari on June 28, 2004. See Ashcroft v. Raich, 542 U.S. 936, 124 S.Ct. 2909, 159 L.Ed.2d 811 (2004).

On June 6, 2005, the Supreme Court vacated our opinion and held that Congress's Commerce Clause authority includes the power to prohibit purely intrastate cultivation and use of marijuana. See Gonzales v. Raich, 125 S.Ct. at 2215. The Court remanded the case to us to address plaintiffs-appellants's remaining

500 F.3d 857

legal theories in support of a preliminary injunction. See id. On remand, Raich renews...

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