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Old March 31, 2010, 03:28 PM   #1
Bartholomew Roberts
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Firearms Possession Illegal for Users of Medical Marijuana

I know we have had several discussions in the past about how although state law may legalize medical marijuana, it does not prevent a gun owner from being prosecuted under federal law for violating 18 U.S.C. 922 (barring possession for unlawful users of a controlled substance).

However, the Volokh Conspiracy is reporting a story that puts an interesting new spin on the issue.

It seems that Steve Sarich runs a medical marijuana organization in King County, Washington. As a result of that activity, Sarich's home was robbed by five men (at least one armed with a shotgun) and Sarich shot one of the robbers. The firearms used in the shooting were seized as evidence as part of the investigation (and Sarich is also under investigation for violating the state's own medical marijuana laws); however at this time, Sarich is not under indictment.

Sarich attempted to buy new firearms to replace the ones seized by investigators and was denied by the Sheriff's Office. The Sheriff's Office reported that the NICS system "informed us that possession of a medical drug card is sufficient to establish an inference of current use" and that therefore the Sheriff's Office can't approve the purchase/transfer of a firearm to Sarich.

If true, it would appear that the same state of Washington that legalized marijuana is also sharing the information on who has medical cards with the NICS system - which strikes me as an odd contradiction.

On the plus side, while the Sheriff's office would not approve the transfer, they apparently also refused to prosecute Sarich for the previous violations of 18 U.S.C. 922 saying "they (feds) can enforce their own laws," sheriff's spokesman Sgt. John Urquhart said."

Sarich has indicated he will pursue his legal remedies in an attempt to solve this. Given the Heller and McDonald cases, it should make for an interesting discussion. Can a fundamental right expressly stated in the Bill of Rights be denied based on the inference that you are a likely drug user, even if you have not been convicted of such a crime?
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Old March 31, 2010, 04:21 PM   #2
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Bartholomew Roberts - In this case I think you can strike "convicted" from your last sentence supplement with "Charged".. It would appear she has not even been charged with a crime in any manner whatsoever, and is still denied her right to a firearm.
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Old March 31, 2010, 04:23 PM   #3
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Not being a legal expert - where does the illegality lie? Even if a state defines its use as legal, is usage definitionally illegal under the Federal laws?

Thus, the card which establishes state legality declares a Federal crime?

I don't know this - I'm sure someone does. Also, the 4473 mentions being addicted to - so is the admission of usage - an admission of addiction by some governmental standards (who decided that?).

Let's BTW, not start a debate on the evils or benefits of marijuana per se - it's more the L and CR issue as compared to whether you like the stuff.

We could have had this debate about liquour during prohibition if there were NICS then and medicinal Rx of a shot of Ol' Grandad.
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Old March 31, 2010, 04:48 PM   #4
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Quote:
Also, the 4473 mentions being addicted to - so is the admission of usage - an admission of addiction by some governmental standards (who decided that?).
Glenn, If I'm not mistaken the 4473 says "addicted to or unlawful user of" or something very similar. So by that logic if you are an unlawful user by federal standards then you're prohibited.

This does set up an interesting conflict between state and federal law on this issue though.

With this, the pending healthcare legal battles (particularly Virginia's case) and the legal questions surrounding McDonald V. Chicago (due process clause or priveledges and immunities clause?), we may see some very good or very bad things happen at the SCOTUS level re: state's rights and the principles of limited federal government. Basically we'll find out soon if we still have a republic at all.
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Old March 31, 2010, 05:11 PM   #5
Bartholomew Roberts
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Quote:
Originally Posted by Glenn E. Meyer
Even if a state defines its use as legal, is usage definitionally illegal under the Federal laws?
Yes, although some states have legalized the use of marijuana for medicinal purposes, under federal law marijuana is a Schedule I drug, meaning "it has no currently accepted medical use in treatment in the United States" as far as the feds are concerned. So any use is unlawful under federal law, even if lawful under state law.

The interesting side effects seem to be:

1. The state of Washington is for some reason reporting its medicinal marijuana users to NICS, knowing that the use of medicinal marijuana is illegal under federal law.

2. The Feds are regarding the issuance of a medical marijuana card as inferring that they are probably prohibited under 18 U.S.C. 922 and denying them firearms rights, even though there is no documented instance of unlawful use of the drug. So on the extremely unlikely chance you were issued a card; but never used the drug (or were issued a card but are no longer an unlawful user), you would still be a prohibited person.
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Old March 31, 2010, 05:16 PM   #6
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[1] Under 18 USC 922(g) --

"(g) It shall be unlawful for any person—

....

(3) who is an unlawful user of ... any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

....

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. ..."

[2] Marijuana is a Schedule I controlled substance under federal law (21 USC 812), and can not be prescribed lawfully under federal law.

[3] Since marijuana is a Schedule I controlled substance, it may not be prescribed lawfully under federal law. And therefore anyone using marijuana, even under state medical marijuana laws, is, under federal law, an unlawfully user of a controlled substance.

So --
Quote:
Originally Posted by Glenn E. Meyer
...Even if a state defines its use as legal, is usage definitionally illegal under the Federal laws?...
Yes.

Quote:
Originally Posted by Glenn E. Meyer
...Thus, the card which establishes state legality declares a Federal crime?...
Yes.

Quote:
Originally Posted by Glenn E. Meyer
...the 4473 mentions being addicted to - so is the admission of usage - an admission of addiction by some governmental standards (who decided that?)...
The question on the 4473 asks if you are an, "...unlawful user of, or addicted to, ...any ...controlled substance?" You are asked in the disjunctive if you are (1) an unlawful user; or (2) addicted.

If it's a matter of possibly being addicted to some controlled substance, I'm not sure on what basis the fact of addiction might be established. I suspect that would be a medical issue. In any case, the question of addiction is irrelevant if the drug is marijuana.

Someone using marijuana is, by definition, an unlawful user of a controlled substance. Since marijuana is a Schedule I drug under the Controlled Substances Act, it may not be lawful prescribed under federal law (even if if might be lawfully prescribed under state law).
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Old March 31, 2010, 05:28 PM   #7
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Quote:
Originally Posted by Bartholomew Roberts
...The Feds are regarding the issuance of a medical marijuana card as inferring that they are probably prohibited under 18 U.S.C. 922 and denying them firearms rights, even though there is no documented instance of unlawful use of the drug....
I guess that the argument would go something like the fact of possession of a medical marijuana card reasonably gives rise to the inference that one is using marijuana. If it were a question of prosecuting the federal offense, possession of the medical marijuana card would probably at least be probable cause to obtain a search warrant to search for evidence of current usage.

But of course the interesting question is whether probable cause would also be sufficient to deny acquisition of a gun. It would be interesting to see how a court deals with that question.
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Old March 31, 2010, 08:07 PM   #8
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There's a world of difference between possessing a card that allows a person to do "something" and actually doing that "something". As an example, I have a basic hunting license, even though I don't hunt, because I wish to support those programs that hunting license fees fund. I know a couple of people who have a driver's license even though they don't drive or even own a car. To infer that possession of a driver's license means that one drives is a pretty big leap of faith. The same applies with possession of a medical marijuana card.
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Old March 31, 2010, 08:33 PM   #9
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Quote:
Originally Posted by Don H
...To infer that possession of a driver's license means that one drives is a pretty big leap of faith. The same applies with possession of a medical marijuana card.
I wouldn't buy that for an instant. One might get a driver's license for a variety of reasons including identification or just in case it might be necessary to drive for some reason, such as to drive a rental car on vacation. But one is going to get a medical marijuana card only if he has some illness which he believes may be helped with the use of marijuana and for which a physician has prescribed marijuana.
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Old March 31, 2010, 10:30 PM   #10
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So, what are the ramifications for our CA folks should CA go ahead and legalize marijuana as a recent proposal wants?

http://articles.latimes.com/2010/mar...ve25-2010mar25

It's not just guns, isn't there something on CDL licenses that would affect truckers? Same with school bus and public transport endorsements? To tell the truth, I don't know what's on the application for those as far as disqualifying acts go.

A lot of laws have to be rewritten to avoid the types of conflicts as mentioned in the OP.
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Old March 31, 2010, 10:39 PM   #11
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I guess the question is:

What is the evidentiary standard for denying someones ability to purchase a firearm?

A medical marijuana card does establish probable cause to believe that the person is an unlawful user of marijuana. I think it also meets a preponderance standard as it is more likely than not that said person is an unlawful user of marijuana.

In order to convict someone of violating the GCA you have to prove beyond a reasonable doubt that the person is an unlawful user. A medical marijuana card itself doesn't meet that standard.

Can you deny someone the right to purchase a firearm based upon less evidence than that required to convict for a violation of the GCA?

I think the answer is yes. Denying someone the purchase of a firearm is not going to require the same amount of evidence as sending someone to prison.

But then again one could argue that denying a fundamental right based on such a low evidentiary standard is unconstitutional.
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Old March 31, 2010, 10:59 PM   #12
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Quote:
Originally Posted by vranasaurus
...What is the evidentiary standard for denying someones ability to purchase a firearm?...
That is, of course, the $64,000 question. Is it the probable cause standard, i. e., a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true? I'm not aware of this question being resolved by a court, but I also haven't done any research on the question.

Quote:
Originally Posted by vranasaurus
...In order to convict someone of violating the GCA you have to prove beyond a reasonable doubt that the person is an unlawful user. A medical marijuana card itself doesn't meet that standard....
True.

Quote:
Originally Posted by vranasaurus
...Can you deny someone the right to purchase a firearm based upon less evidence than that required to convict for a violation of the GCA?...
I agree that the answer is probably "yes." It's not a question of being convicted of a crime. It's a question of being within a class of prohibited persons. Denying the acquisition of a gun based on an acceptably strong inference that one is within such class does not, itself, involve a determination of criminal liability. It effectively shifts the burden to the denied person to demonstrate that he is not withing that class.
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Old April 1, 2010, 01:12 AM   #13
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The problem with that, fiddletown, is that you leave the person to prove a negative.

In denying a person the purchase a firearm, the onus is on the regulating authority to prove the case, not upon the buyer to prove he is not within the prohibited class, when the only "evidence" is inference.
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Old April 1, 2010, 01:29 AM   #14
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Originally Posted by Antipitas
The problem with that, fiddletown, is that you leave the person to prove a negative.

In denying a person the purchase a firearm, the onus is on the regulating authority to prove the case, not upon the buyer to prove he is not within the prohibited class, when the only "evidence" is inference.
I agree that's a potential issue. But in any case, it's not up to me, or to you. The standard to which the government agency will be held is going to be up to a court.

So we'll all have to see how this case turns out. But unless a court says they can't, I'd expect the government to act on inference.
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Old April 1, 2010, 02:09 AM   #15
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All they need to prove you are a user is a hair,or they can have you fill the little cup.I worked at a place that drug tested frequently.The card plus a gun or attempted purchase may be probable cause.

Last edited by HiBC; April 2, 2010 at 02:38 AM.
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Old April 1, 2010, 07:16 AM   #16
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Well, by the time they sort out the medical part of the equation, they might have the larger question on thier hands of marijuana being legal across the board in a state. (Cali)
If some get thier way, that is.

Point being, if marijuana becomes legal within a state, this becomes a question of gun sales being totally shut down within that state....if a medical card can actually be used as probable cause to stop a sale now.
Unless the feds change the drug's overall classification or gives a state the ultimate authority on a gun purchase.

Or is my creeping incrementalism wrong?
I give it 5 years tops til black light posters are cool again.
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Old April 1, 2010, 08:45 AM   #17
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Quote:
Point being, if marijuana becomes legal within a state, this becomes a question of gun sales being totally shut down within that state....if a medical card can actually be used as probable cause to stop a sale now.
Unless the feds change the drug's overall classification or gives a state the ultimate authority on a gun purchase.
I think they would still have to have some evidence of wrongful use. Living in a state where a drug is legal does not even come close to any evidence that those who live there are users.

Marijuana still won't be legal in California because it will still be illegal under federal law. So it would still be illegal just not under state law.


If California requires those who wish to partake of the marijuana to get some kind of card then yes that card could be used as evidence of being in a porhibited category. Now if they just make it legal under state law then how would the feds know?

Denying the purchase of a firearm because one lives in a particular state that has made a certain drug legal under state law has to be unconsitutional. What is the evidence of use?

Denying the purchase of a firearm because they possess a medical marijuana card or a government issued marijuan card is probably OK. That is evidence that said person actually uses the substance. Why else would you have the card?
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Old April 1, 2010, 08:52 AM   #18
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I think another good question here is "Why is the state of Washington reporting this information to NICS?"

Presumably, the legislators in Washington understand that medical marijuana is still illegal on a federal level and have decided to thumb their noses at the feds anyway. So why go ahead with your medical marijuana program on the one hand, and then sell the users of that program out to the feds on the other hand?

My guess is federal funds are involved somewhere in that chain of decision making. I would bet the feds are making some payment to the state of Washington that Washington will not continue to receive unless they report those who receive medical marijuana cards.
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Old April 1, 2010, 09:39 AM   #19
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My guess is that somehow they are required to report the information as you said.

The state is saying that you can apply for this card and use medical marijuana and it's OK. Then they turn around and give the information to the feds who still have a total prohibition on Marijuana.

By getting a medical marijuana card you are essentially admitting to a federal crime or signalling your intent to committ a federal crime.

Were these people told that the information would be turned over to the feds?
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Old April 1, 2010, 10:50 AM   #20
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I wonder if Washington State is turning the information over to NICS. What Bart wrote was
Quote:
Originally Posted by Bartholomew Roberts, post #1, emphasis added
....The Sheriff's Office reported that the NICS system "informed us that possession of a medical drug card is sufficient to establish an inference of current use" and that therefore the Sheriff's Office can't approve the purchase/transfer of a firearm to Sarich....
So if what the Sheriff's Office reported is accurate, perhaps it didn't inform NICS. NICS informed the Sherrif's Office of the applicable standard, and the Sheriff's office, apparently knowing of the possession of the card, refused to approve the transaction. In Washington State is the firearm transfer background check done through NICS or through the local Sheriff's Office?
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Old April 1, 2010, 11:26 AM   #21
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fiddle,

I think his point was that someone had to tell the feds about the medical marijuana cards.

Bart didn't say that the sherriff's office reported the information to the NICS he said that the state of Washington did.
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Old April 1, 2010, 12:15 PM   #22
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Quote:
Originally Posted by vranasaurus
...I think his point was that someone had to tell the feds about the medical marijuana cards...
But in this case did someone do that?

What Bart wrote in post 1 was, "...it would appear that the same state of Washington that legalized marijuana is also sharing the information on who has medical cards with the NICS system..."(emphasis added)

So --

[1] Did NICS know that Sarich had a medical marijuana card and deny the firearm transfer on that ground? Or,

[2] Did NICS not know that a particular person had a medical marijuana card, but rather simply informed the Sheriff's Office that possession of the card was sufficient to justify denying a firearm transfer? And then did the Sheriff's Office, knowing that Sarich had the card, deny the transfer?

And I guess that there's another possibility in this case. It could be that possession of a medical marijuana card is not routinely reported by the State of Washington to NICS; but in this case, because of the Sarich's exact circumstances (e. g., the attempted robbery and the shooting) a number of pieces of information about Sarich were reported to NICS, including his possession of a medical marijuana card. But I don't know what gets reported to NICS, how and when.

As is often the case, the details can be important. If possession of a medical marijuana card isn't routinely reported to NICS, someone using marijuana under a medical marijuana card who denies, on a 4473, unlawful use of a controlled substance might not get immediately tagged by NICS. But of course he is still subject to later prosecution for lying on the 4473, if found out.
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Old April 1, 2010, 01:21 PM   #23
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Quote:
Bart didn't say that the sherriff's office reported the information to the NICS he said that the state of Washington did.
Just to clarify, all I know is what is reported in the AP and Volokh articles. There are some important details missing as fiddletown noted.

However, last time I did NICS, it was a straight yes or no. There wasn't any interview or discussion of extentuating circumstances. You shot them the information on the Form 4473 and they approved it or didn't. The answer didn't come with legal advice about other possible prohibiting factors. So that is why the Sheriff's office response seems strange to me.

Also, it is worth remembering that Sarich is also under investigation for violating/abusing the state's medical marijuana laws to distribute over a wider basis than allowed. I suppose it is possible the King County Sheriff's office may have been looking for a way to deny him specifically and this sounded good to them.
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Old April 1, 2010, 02:19 PM   #24
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How bizarre would it be i the local news paper,the national news picked up on :
Weapons seized after marijuana shoot-out.Drug dealer is able to buy guns,re-arm,despite background check.

Or civil actions filed after shootout.Robber is plaintiff,citing a marijuana store is required to be a gun free zone.

I'm not talking about "should be" I'm talking about our legal system and our press.

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Old April 1, 2010, 02:32 PM   #25
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Quote:
Point being, if marijuana becomes legal within a state, this becomes a question of gun sales being totally shut down within that state....if a medical card can actually be used as probable cause to stop a sale now.
Unless the feds change the drug's overall classification or gives a state the ultimate authority on a gun purchase.
I believe Alaska (sometime pre-Palin) had allowed the possession and growing of cannabis (up to a certain amount), but not the sale of it. I never heard of firearm sales being denied there during that period.
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