Metropolitan News-Enterprise


Wednesday, November 17, 2021


Page 1


Ninth Circuit:

Probation Conditions May Not Be Amended to Permit Amputee to Use Marijuana

Panel Says It Is Bound by 2007 Three-Judge Opinion


By a MetNews Staff Writer


A three-judge panel of the Ninth U.S. Circuit Court of Appeals, bowing to the circuit’s self-imposed rule of strict adherence to stare decisis, yesterday rejected a man’s contention that imposing a condition of probation on him barring the use of marijuana for a medicinal purpose violates the Due Process Clause of the Fourteenth Amendment.

Another three-judge panel rejected an identical contention in 2007 in Raich v. Gonzales, yesterday’s per curiam opinion recites. It is signed by Judges Sandra S. Ikuta, Mark J. Bennett, and Ryan D. Nelson.

 The decision comes in response to an appeal by Richard Langley of a denial by District Court Judge Michael M. Anello of the Southern District of California of his motion to amend the conditions of supervised release to allow him to use marijuana. Such use is recommended to Langley by a medical doctor to relieve pain he suffers as the result of a motorcycle accident that resulted in the amputation of his right leg below the knee.

Standard Conditions

Langley in 2017 pled guilty to possession of child pornography and was sentenced to time served—56 days—and placed on probation for 10 years. Standard conditions, imposed on him, includes desisting from use of controlled substances which, under federal law, includes marijuana, and obeying all federal laws.

The panel said:

“Langley argues that we are no longer bound by Raich’s conclusion. He points out that Raich acknowledged that widespread legal recognition of a practice can sometimes provide additional evidence that a right is fundamental…and that 36 states and the District of Columbia no longer criminalize the use of marijuana for medical purposes. But this argument misunderstands our 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.’ ”

No Deep Roots

The opinion continues:

Raich’s conclusion that medical marijuana use is not ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty,’…is binding on us until it is overturned by a higher authority.”

Rauch could be repudiated either by the U.S. Supreme Court or the Ninth Circuit, itself, sitting en banc. A three-judge panel set forth in the 2015 opinion in Kohler v. Presidio International, Inc.: “We will not overrule the decision of a prior panel of our court absent an en banc proceeding, or a demonstrable change in the underlying law.”

The case is United States v. Langley, 20-50119.


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