concurring and dissenting:
I concur in the result reached by the court in this case, more particularly its holding that “Raich has not demonstrated a likelihood of success on the merits of her action for injunctive relief’ and that the district court’s denial of an injunction should be affirmed. I dissent from the court’s expansive consideration of the doctrine of common law necessity as well as from several of the factual findings and legal conclusions applied to this issue and other claims before the court.
DISCUSSION
We should decide only the case that is properly before us, not any other, and we should leave for another day any claim or issue not ripe for consideration. When we do otherwise, we simply create obitur dictum. See, e.g., Carey v. Musladin, — U.S. -, -, 127 S.Ct. 649, 655, 166 L.Ed.2d 482 (2006) (Stevens, J., concurring) (citing Sheet Metal Workers’ v. EEOC, 478 U.S. 421, 490, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986)).
This case returns to us on remand from the Supreme Court. But, the party that earlier supplied jurisdiction to the Supreme Court and to this court, Diane Mon-son, has withdrawn. Ante at 856 n. 1. Thus, the facts concerning Ms. Monson generously recited by the court are in no way relevant or material to the issues now raised by Raich. Accordingly, the court likely has no jurisdiction over any claim asserted by the plaintiffs in this appeal but most certainly no jurisdiction to decide whether Raich may assert the doctrine of common law necessity in a future criminal prosecution.
At oral argument, counsel for the parties conceded that there is not now pending nor has there ever been pending a prosecution or even a threatened prosecution of *870Raich for possession or use of personal amounts of medicinal marijuana. Indeed, counsel for Raich acknowledged at oral argument that, to his knowledge, there has never been a federal criminal prosecution for simple possession or use of medicinal marijuana against anyone anywhere in California. Counsel for the government likewise indicated a lack of knowledge of any such prosecution and stated that it would be “incredibly unlikely” that any such federal prosecution would ensue in the future. So, the court’s statement, ante at 857, that “[ajlthough Raich has not suffered any past injury, she is faced with the threat that the Government will seize her medical marijuana and prosecute her for violations of federal drug law” is plainly not supported by the record.
Accordingly, I return to the issues of standing, ripeness and justiciability advanced in my earlier dissent in this case. With specific regard to the court’s lengthy discussion of and rulings upon the doctrine of common law necessity, it is clear that
“[W]here it is impossible to know whether a party will ever be found to have violated a statute, or how, if such a violation is found, those charged with enforcing the statute will respond, any challenge to that statute is premature.” Alaska Airlines, Inc. v. City of Long Beach, 951 F.2d 977, 986 (9th Cir.1991). To satisfy Article Ill’s standing requirements, a plaintiff must show that she has suffered a concrete and particularized injury in fact that is actual or imminent (not conjectural or hypothetical). Plaintiff must also show that the injury is fairly traceable to the challenged action of the defendant and that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Citizens for Better Forestry v. United States Dep’t of Agric., 341 F.3d 961, 969 (9th Cir.2003).
Raich v. Ashcroft, 352 F.3d 1222, 1235-36 (9th Cir.2003) (Beam, J., dissenting).
Here, as to Raich, there is no discrete, challenged action from which an injury can fairly be traced. San Diego County Gun Rights Committee v. Reno, 98 F.3d 1121, 1127 (9th Cir.1996), requires Raich to show a specific threat of prosecution, and she bears the burden of establishing that the statute in question is actually being enforced. A specific warning of prosecution may suffice, but “a general threat of prosecution is not enough to confer standing.” Id. Accordingly, the applicability, or not, of the doctrine of common law necessity is not a justiciable issue on this record and Raich currently has no standing to ask the court to consider the matter.
Assuming for purposes of discussion that the bare question of the viability of the doctrine is before us, I nonetheless respectfully disagree with substantial portions of the court’s analysis of the matter.
The doctrine of common law (medical) necessity is an affirmative defense asserta-ble only in a criminal prosecution. E.g., United States v. Arellano-Rivera, 244 F.3d 1119, 1125-26 (9th Cir.2001) (holding that “before a defendant may present evidence of a necessity defense, his offer of proof must establish that a reasonable jury could” ascertain all the elements of the defense) (emphasis added). After reference to several measures of potential injury and harm to Raich almost totally unrelated to a reasonably foreseeable criminal prosecution, the court ultimately recognizes the legal limitations of the defense, but only after issuing what amounts to a lengthy advisory opinion.
Here we are engaged in the review of a civil proceeding seeking declaratory relief and injunction, not a criminal adjudication. It is important to note that, contrary to the inference of the court in its factual dissertation, there has been no “testimo*871ny” in this case directly addressing the elements of this defense. The evidentiary record, such as it is, was developed in the district court through a request for a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure. All facts recited by the court, some of which are admittedly testimonial in nature, arise from written “declarations” provided by Raich, Monson, Dr. Lucido and Dr. Rose, Monson’s physician, in support of the injunction request. Yet, every case cited by the court concerning the viability of the doctrine and its elements involves a criminal prosecution.1 The burden of proof of such a defense lies with the defendant and involves the following elements:
As a matter of law, a defendant must establish the existence of four elements to be entitled to a necessity defense: (1) that he was faced with a choice of evils and chose the lesser evil; (2) that he acted to prevent imminent harm; (3) that he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and (4) that there were no other legal alternatives to violating the law.
United States v. Aguilar, 883 F.2d 662, 693 (9th Cir.1989).
In this civil action, Raich is not presently in a posture to address elements one, two and three and cannot establish element four. She has not been faced with a “choice of evils,” one of which could lead to a criminal prosecution. Nor has she acted to prevent “imminent harm.” She has presented no evidence of a tested, adversarial nature sufficient to establish the causal relationship required by element three. And, she has not established and probably cannot establish that she has no legal alternative to violating the law.
The court states that “Raich’s physician [Dr. Frank Lucido] presented uncontro-verted evidence that Raich ‘cannot be without cannabis as medicine’ because she would quickly suffer ‘precipitous medical deterioration’ and ‘could very well’ die.” Ante at 859 (emphasis added). This opinion evidence is, of course, gleaned from a written declaration seeking declaratory and injunctive relief while positing a very speculative happenstance. The opinion is not the fruit of an adversarial hearing involving the assertion of an affirmative defense by a criminal defendant in a criminal prosecution designed to test the admissibility and credibility of the proposed evidence. But even if Raich “cannot be without cannabis as medicine,” as Dr. Lu-cido opines, cannabis (or its synthetic equivalent) as medicine is lawfully available to Raich through the prescription-dispensed drug Marinol.2 And, newly crafted or presently existing drugs as yet untested by Raich may become known or available prior to any prosecution. So Raich may well have a legal alternative to the violation of the drug control laws.
I also cannot fully join the court’s analysis of United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001), as set forth in its footnote 4. Ante at 858-59. Although I do not concede that the Supreme Court’s discussion in Oakland Cannabis is dicta, I do agree with the court’s *872conclusion that the case does not abolish “common law necessity jurisprudence.”
Thus, while I do not concur in the court’s statement that “Raich appears to satisfy the threshold requirements for asserting a necessity defense under our case law,” ante at 859, I do acknowledge that she certainly may be eligible to advance such a defense to criminal liability in the context of an actual prosecution.
Finally, if I fully understand the majority’s approach, the most troubling aspect of its opinion is that it purports to let this court determine, on the evidence presented to the district court at the Rule 65 hearing, that Raich, and anyone similarly situated, is entitled to a medical necessity defense if criminally prosecuted in the future. I respectfully believe that this turns applicable federal criminal procedure on its head. The viability and applicability of this affirmative defense is a mixed question of law and fact. Arellano-Rivera, 244 F.3d at 1125. In a criminal prosecution of Raich for possession and use of marijuana for medicinal purposes, if it ever occurs, the issue of the sufficiency of the evidence to submit this particular defense to a jury is a question of law for the federal trial court. Id. The establishment of the factual elements of the defense, if submitted, is for the jury (or other trier of fact). Id. Imposition of this court’s rulings into a later prosecution would improperly preter-mit established criminal procedure. Thus, the court’s medical necessity discussion is a wholly speculative and possibly unconstitutional jurisprudential exercise.
CONCLUSION
Accordingly, for the above-stated reasons, I dissent from portions of the court’s factual findings and legal conclusions but concur in the denial of Raich’s request for injunction and in the court’s affirmance of the district court.
. See, e.g., United. States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) (discussing the choice of two evils doctrine); United States v. Schoon, 971 F.2d 193 (9th Cir.1991) (giving the burning jail example); United States v. Aguilar, 883 F.2d 662 (9th Cir.1989) (explaining the standards and elements of the necessity defense).
. The active ingredient in Marinol is synthetic delta-9-tetrahydrocannabinol, a naturally occurring component of Cannabis sativa L, the marijuana Raich says she now consumes. Physicians' Desk Reference, 61st ed., 2007 at 3333.