Even though medical marijuana is legal in California and even though 36 states now allow it to be purchased with a prescription from a licensed physician, a probationer, whose leg was amputated below his knee after a motorcycle accident, was still denied permission to use the drug to “alleviate (his) excruciating pain and human suffering.”

Citing its inability to overturn a 2007 precedent which had rejected the identical due process claim made by plaintiff-appellant, a three-judge panel of the United States Court of Appeals for the Ninth Circuit issued a Per Curiam opinion on November 16 that affirmed the district court’s denial of probationer’s right to use medical marijuana for pain relief. The court reasoned it was bound by precedent “until such time as it is overturned by a higher authority.”

Defendant-appellant Richard Langley pled guilty to possession of child pornography in 2017 and was sentenced to his 56 days of time served, plus ten years of supervised release. His probation conditions mandated that he “not commit a federal, state, or local crime.” The court said he violated federal law when he used a controlled substance that he had “no constitutional right to use,” even though medical marijuana is legal in California, where he lives.

After his release from prison, Langley asked the district court to amend the conditions of his supervised release to allow him to use medical marijuana. The district court denied his motion, but he renewed his motion in 2020 with a timely appeal. This time, he added a report from his treating physician who argued that marijuana was the “best medical solution” for his pain.

The court held that it is bound by Raich v. Gonzales, a 2007 Ninth Circuit case that held that possession of marijuana is a violation of federal law. Therefore Langley had no constitutional right to use the drug. The Ninth Circuit panel hearing Langley’s appeals was unpersuaded by arguments that it should honor Langley’s Fourteenth Amendment due process rights “in light of the increasing number of states that no longer criminalize” the use of marijuana for medical purposes.

The panel disagreed. While not addressing the defendant’s arguments, it merely stated it lacked authority to “modify a statutorily required condition” that forbids the petitioner from committing a federal crime while on probation. Under the Controlled Substances Act, marijuana is a controlled substance, and using it is a federal crime. The court said it is therefore “precluded” from granting Langley’s motion.

The court next addressed Langley’s due process argument. Langley claimed he had a “fundamental constitutional right…to use medical marijuana…to make a life-shaping decision on a physician’s advice… to preserve bodily integrity, avoid intolerable pain, and preserve life, when all other prescribed medications and remedies have failed.”

Citing the Raich precedent, where the court denied a similar claim from a woman probationer with a “life-threatening, inoperable brain tumor,” the court again disagreed with Langley’s claim that he had a fundamental right to use medical marijuana.

The opinion then applied the U.S. Supreme Court’s two-part precedential test used to determine what rights are protected by the Due Process Clause. It quoted Raich, which applied the Supreme Court’s test and concluded that the right claimed by Langley is “not, objectively deeply rooted in this Nation’s history and tradition” nor is it “implicit in the concept of ordered liberty such that neither liberty nor justice would exist if (it) were sacrificed.”

Again, it stressed that federal law “does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering…Raich is controlling here,” the court said, while again dismissing Langley’s contentions that current, “widespread” legal recognition can provide evidence that a right is fundamental.

The court said this argument “misunderstands” the rule that “a published decision of this court constitutes binding authority which must be followed unless and until overruled by a body competent to do so.” Likewise, state laws that legalize medical marijuana are not allowed to provide additional evidence.

“We are bound by our holding in Raich until such time as a higher authority determines there is a fundamental right to medical marijuana use that we are ‘blind to’ today.” It remains to be seen whether a competent body or higher authority will see the light.