It is worth noting that the decision reviewed a district court denial of a motion for preliminary injunction. Review of a district court's discretionary rulings are limited and there are particular requirements for imposing injunctive relief. The court declined to order injunctive relief.
The court did not foreclose a necessity defense:
"Here, although we ultimately conclude that Raich is not entitled to injunctive relief on the basis of her common law necessity claim, we briefly note that, in light of the compelling facts before the district court, Raich appears to satisfy the threshold requirements for asserting a necessity defense under our case law." Raich Op.@3039.
"Although Raich appears to satisfy the factual predicate for a necessity defense, it is not clear whether the Supreme Court's decision in (U.S. v. Oakland Cannibis) forecloses a necessity defense...Raich's necessity claim is best resolved within the context of a specific prosecution under the Controlled Substances Act, where the issue would be fully joined, we do not attempt to answer [it] here." Id. @3041
Raich brought her case prospectively, and with tremedous courage.
She has not been arrested or charged by the federal goverment and essentially the 9th Cir. is saying a necessity defense has to be ruled on in the context of an actual prosecution as opposed to an advisory ruling.
Madcap