The opinion of the court was delivered by: Hon. Dana M. SABRAWUnited States District Judge
ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY
Plaintiffs in this civil rights action filed a motion for temporary restraining order and preliminary injunction, in which they seek to enjoin federal prosecution of cooperatives operating marijuana dispensaries under California's Compassionate Use Act, Cal. Health & Safety Code § 11362.5, and landlords leasing premises to such cooperatives. Defendants filed an opposition to both motions and Plaintiffs replied. By order dated November 18, 2011, the application for temporary restraining order was denied. The Court invited supplemental briefing regarding Plaintiffs' request for preliminary injunction, specifically on Plaintiffs' claims that (1) availability of marijuana for medical purposes as provided by the Compassionate Use Act has in recent years become a protected right under the Fifth and Ninth Amendments, and (2) Defendants are selectively prosecuting medical marijuana users and dispensaries under the Controlled Substances Act, 21 U.S.C. § 801 et seq. Upon consideration of the parties' initial and supplemental briefing, the motion for preliminary injunction is DENIED.
The factual and legal background of this action is contained in the November 18, 2011 order and is known to the parties. It is therefore not repeated. Furthermore, because the legal standard governing temporary restraining orders and preliminary injunctions is the same, see Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001), the discussion of legal standards and Plaintiffs' legal claims and issues in the November 18, 2011 order is adopted and supplemented by this order. Only the issues on which supplemental briefing was permitted are addressed in this order.
Plaintiffs contend that availability of marijuana as provided by the Compassionate Use Act has in recent years become a fundamental right under the Fifth and Ninth Amendments. The analysis of this claim has two "primary features:"
First, . . . the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. Second, we have required in substantive-due-process cases a careful description of the asserted fundamental liberty interest.
Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (internal quotation marks and citations omitted). The courts are "reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. By extending constitutional protection to an asserted right or liberty interest, [the courts], to a great extent, place the matter outside the arena of public debate and legislative action." Id. at 720 (internal quotation marks and citations omitted). The courts must therefore exercise "the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the [judiciary]." Id. (internal quotation marks and citations omitted).
The interest at stake in substantive due process cases must be precisely and narrowly formulated "before the ensuing analysis can proceed." Raich v. Gonzalez, 500 F.3d 850, 864, 863 (9th Cir. 2007) ("Raich II"). Plaintiffs adopt the formulation established in Raich II: "a right to make a life-shaping decision on a physician's advice to use medical marijuana to preserve bodily integrity, avoid intolerable pain, and preserve life, when all other prescribed medications and remedies have failed." (Pls' Mot. for Prelim. Inj. at 20, quoting Raich II, 500 F.3d at 864.)
The next step is the question whether the interest at stake is "objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it was] sacrificed." Glucksberg, 521 U.S. at 720-21. After a thorough review of the long history of medical use and relatively recent federal criminal prohibition of marijuana, together with state laws in the past few decades to decriminalize its medical use, Raich II held 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." 500 F.3d at 864-66 (footnote omitted). As noted by Plaintiffs, the decision left open the door that this could some day change:
For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected. Until that day arrives, federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.
Id. at 866 (footnote omitted).
Plaintiffs contend that the "future day" has arrived. (Pls' Mem. of P. & A. at 22.) They point out that in the four years since Raich II was decided, five more states (for a total of sixteen states) and the District of Columbia have passed medical marijuana laws. (Id. at 5 n.7.) Seven more states have similar legislation pending. (Id. at 22; Pls' Supp. Brief at 4 n.3.)
For their analysis, Plaintiffs rely on Lawrence v. Texas, 539 U.S. 558 (2003). Raich II cited Lawrence, suggesting that its framework "might certainly apply to the instant case." Raich II, 500 F.3d at 865. Lawrence overturned Bowers v. Hardwick, 478 U.S. 186 (1986), which held there was no fundamental right to engage in consensual sexual activity, including homosexual activity, in the home without government intrusion. The Lawrence Court indicated that when it decided Bowers, twenty-four states and the District of Columbia had sodomy laws, but at the time of Lawrence, only thirteen states had maintained those laws and there was a "pattern of non-enforcement" among them. Raich II, 500 F.3d at 865; Lawrence, 539 U.S. at 572-73.
The current state of enforcement in Plaintiffs' case is different from that at issue in Lawrence.
Here, only the District of Columbia and sixteen states have passed medical marijuana laws. In addition, Plaintiffs present no evidence that the thirty-four states which prohibit the possession or distribution of marijuana are not enforcing their laws. Moreover, unlike in Lawrence, where the relevant conduct was criminalized only by state law, federal law explicitly prohibits possession and distribution of marijuana, even for medical use. See United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 491 (2001). Based on these facts, it is apparent that the issue of medical marijuana has not left "the arena of public debate and ...