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Old November 9, 2012, 04:51 AM   #1
HiBC
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Firearms and Colorado pot law

First:Please,this post is NOT for the discussion of pot.Opinions about comparing it to alchohol,what is fair/not fair,what "should be" ...lets don't do that.Thanks.

Colorado just passed law that makes recreational pot legal as far as Colorado is concerned.It does not change Federal law.

Note when you fill out the firearms purchase form...is it the 4473? you must answer "I am not an unlawful user of or addicted to marijuana or any other controlled substance"

Its a Federal form,and a Federal law,and the form says its a felony to lie.

I cannot say how it will all sort out,and I am not telling anyone how to live.

Do whatever makes you happy.Just a heads up,guns and pot still might get you a felony .
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Old November 9, 2012, 06:08 AM   #2
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Until Federal law is changed, it still supersedes state law. While it is unlikely they will waste resources in a frivolous attempt to bust every person who uses marijuana in those states (they don't now, as any amount is a violation of Federal law and they never prosecute small time offenders), IF you had the misfortune of getting caught by a Federal officer and you had bought a firearm recently, you very well could be subject to an additional charge.

My advice is that until, and if, they change the law at the Federal level, you would be wise to lay off the left handed cigarettes.
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Old November 9, 2012, 08:28 AM   #3
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HiBC, according to the letter of the law, you're correct (see Gonzales v. Raich). This may trigger a lawsuit regarding the perceived over-reaching interpretation of the Commerce Clause.

However, the various states' Firearms Freedom Acts failed to ignite that spark, so I'm not sure this will, either.
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Old November 9, 2012, 11:30 AM   #4
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Here's the deal with marijuana:
  1. With regard to buying a gun from a dealer or possessing a gun or ammunition, state law is irrelevant.

  2. Under federal law (the Controlled Substances Act, 21 USC 801, et seq.), marijuana is a Schedule I controlled substance which may not, therefore, be lawfully prescribed or used. Therefore, any user of marijuana, even if legal under state law, is, under federal law, an unlawful user of a controlled substance.

  3. Under federal law, a person who is an unlawful user of a controlled substance is prohibited from possessing a gun or ammunition (18 USC 922(g)(3)). Therefore, any one who is a user of marijuana, even if legal under state law, is a prohibit person and commits a federal felony by possessing a gun or ammunition.

  4. Under federal law, anyone who is a user of marijuana, even if legal under state law, is an unlawful user of a controlled substance and must answer "yes" on the form 4473 to the question about being addicted to or the unlawful user of a controlled substance.

  5. An "unlawful user of a controlled substance" is defined in ATF regulations, in pertinent part, as follows (27 CFR 478.11, emphasis added):
    Quote:
    ....Unlawful user of ... any controlled substance. A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year....
  6. As defined, it is not necessary that one be using marijuana at a particular instant to be an unlawful user. As set out in the federal regulation defining "unlawful user":
    Quote:
    ...use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct...
  7. Furthermore, the regulation provides:
    Quote:
    ...A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm....
  8. The regulation further provides that (emphasis added):
    Quote:
    ...An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year...
  9. Making a false statement on the 4473 or being a prohibited person in possession of a gun or ammunition is punishable by up to five years in federal prison and/or a fine. And since it's a felony, conviction will result in a lifetime loss of gun rights.
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Old November 9, 2012, 11:40 AM   #5
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"unlawful user" and "addicted" seems to be pretty open to interpretation. What if you travel to New Amsterdamn, or Vancover B.C. three times a year to smoke it(where it is legal). But not in Colorado.
WK

Just for the record I have never been to New Amsterdam or Vancover.

Last edited by WillyKern69; November 9, 2012 at 11:41 AM. Reason: add info
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Old November 9, 2012, 11:55 AM   #6
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Quote:
Originally Posted by WillyKern69
..."unlawful user" and "addicted" seems to be pretty open to interpretation. What if you travel to New Amsterdamn, or Vancover B.C. three times a year to smoke it(where it is legal)...
No one is likely to claim one is addicted to marijuana for the purposes of 18 USC 922(g)(3). Someone being a unlawful user is good enough for a conviction, so there's no need to fight about whether marijuana is addicting.

As far as the interpretation and application of the the definition in the law (which I cited and quoted above) of "user" under the circumstances you describe, if you're unlucky, that will be up to a judge. How persuasive do you think your arguments will be to a judge?

ETA: BTW, you're thinking of Amsterdam, which is a city in The Netherlands, not New Amsterdam, which is the original (now long obsolete) name of New York City.
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Old November 9, 2012, 12:20 PM   #7
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Also, lets say you use lethal force in your home when a perp breaks in. Are they going to drug test you and if you had THC in your system could that negate your rights? The more I think about it this it is going open a huge can of worms.
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Old November 9, 2012, 12:31 PM   #8
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Being under the influence of anything could present problems at that point. If it's a controlled substance, the probability is much higher.
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Old November 9, 2012, 01:07 PM   #9
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Willy said,

Quote:
Also, lets say you use lethal force in your home when a perp breaks in. Are they going to drug test you and if you had THC in your system could that negate your rights?
If they did test you (Lord knows why they would) and found THC, it might result in a charge that violated the law being discussed in this thread.

However, it would not change the self defense laws.
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Old November 9, 2012, 01:17 PM   #10
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Quote:
Also, lets say you use lethal force in your home when a perp breaks in. Are they going to drug test you and if you had THC in your system could that negate your rights? The more I think about it this it is going open a huge can of worms.
I would say most likely not, without probably cause. If the police investigate and smell pot, or see the bong you left out, or whatever, they certainly might. Then again, it's going to be investigated by state or local police who, in their jurisdiction, pot is legal. So, who knows?

Not getting into whether pot itself is good or bad, or whatever, but given that being a user of a controlled substance make you a prohibited user, according to the Feds, and pot is a controlled substance according to the Feds, it probably a good idea to pick the one you think is more important in your life, pot or guns.
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Old November 9, 2012, 01:20 PM   #11
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Quote:
Originally Posted by WillyKern69
...lets say you use lethal force in your home when a perp breaks in. Are they going to drug test you and if you had THC in your system...
It might depend. You have intentionally hurt or killed another person, which is prima facie a crime. Even though you'll assert justification, the event will still be investigated. So a lot depends on local practices.

In any case, your home is now a crime scene and will come under scrutiny in the course of investing the break-in and use of force. What will they see? Some cigaret papers on a coffee table? The remnants of a joint lying around somewhere? Or maybe there's a lingering odor of marijuana smoke on the drapes? Things might start to get interesting as the police realize that (1) this is a household with guns; and (2) there are some indications that marijuana was used in the house. At that point they can start thinking about search warrants and/or court orders for drug tests.
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Old November 9, 2012, 02:39 PM   #12
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I suppose I have always been under the impression that if you were involved in a self-defense shooting you could reasonably expect to be tested for drugs and alcohol. Is that an incorrect impression? Would they still need to have specific cause to order you to undergo testing such as in your examples?

Let's say for the sake of discussion that your home is clean- you have used with friends outside the home.

If you are tested and come out positive, could you be charged under state law in CO? Would they need to elevate it to the federal level to bring charges?
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Old November 9, 2012, 03:36 PM   #13
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There are two things going on here.

One is the form you signed when you purchased a firearm. The regulations are clear that the unlawful drug use applies to a period before and during the purchase. If the only evidence is that you tested positive two years after you signed the form, I doubt if you could be convicted of lying when you filled out the form. If it was two days after you filled out the form, the chances of being prosecuted and convicted increase. This is a federal crime and has nothing to do with the fact that you just shot someone - other than you probalby wouldn't have been tested otherwise.

Two is your plea of self defense. This is state law. That law does not cease to apply to you because you tested positive.

If there is some sort of law in your state where the local folks make you fill out a form and do a background check and you lied on it, that would be another law you may have violated. Again, it isn't going to change the law of justification.
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Old November 9, 2012, 03:52 PM   #14
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I quess, like an ealier answer, that you would be automatically blood tested in invovled in a shooting. I know I should not assume, but i guess I did.
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Old November 9, 2012, 04:06 PM   #15
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Please don't close the thread if this post breaches protocol, just nix the post.

Purchases from a FFL require the buyer to complete a federal form 4473, but private purchases between individuals do not require this form to be completed. If a occaisional pot smoker bought a shotgun from a full-time pot non-smoker, would either of them be subject to the sanctions previously discussed in this thread?
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Old November 9, 2012, 04:13 PM   #16
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Quote:
Originally Posted by orangello View Post
...Purchases from a FFL require the buyer to complete a federal form 4473, but private purchases between individuals do not require this form to be completed. If a occaisional pot smoker bought a shotgun from a full-time pot non-smoker, would either of them be subject to the sanctions previously discussed in this thread?
Yes.

The buyer commits a federal felony by being an useful user of a controlled substance in possession of a gun. And the seller might for selling it to him, but only if the seller can be shown to have had reasonable grounds for believing that the buyer was a prohibited person.
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Old November 9, 2012, 04:16 PM   #17
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the issue with a defensive shooting (in your home) with pot, (where legal) or alcohol, is not the legality of possession/use, but how it affects your judgement.

leaving aside (for now) the legal or illegal pot user/gun owner issue, getting high at home, smoking or drinking, and you shoot a bad guy who broke in...

Now, having a drink or three (or a smoke) is legal, how has being under the influence affected your judgement, when it comes to pulling the trigger? That is someting the authorities will be very interested in.

Not breaking any law being legally drunk at home, but did you break a law when your "impaired" judgement decided you had to shoot someone?

What might be a clear case of a good shoot for a sober person, could become very muddled legal ground if you are drunk/stoned. Impaired judgement could easily lead you to think it reasonable and prudent to take a step that moves you from a legally justified shooting to one that is not. And the prosecutor or the "vicitm's" lawyer will be certain to consider that, and try to make whatever you did the wrong thing in the eyes of the court/jury.

Its a very slippery slope. Suppose you (legally) smoked yesterday, and tonight you have to shoot to save your life. Pot will be detectable in your system, so it becomes a matter of interpretation if you were "impaired".

Absent a fixed legal standard of what amount of drug constitutes legal impairment, you are hanging in the wind.

And then there is also the whole argument of being actually impaired at a level above or below the legal standard. Drugs (including alcohol) affect people differently. Look at drunk driving, for instance. Some people are capable of driving perfect fine above the legal limit (although this may be a fact, it does not negate the legal "impaired" definition) and some will be impaired well below the legal limit.

example, if you are showing signs of being drunk/impaired (erratic driving, slurred speech, etc) but your blood alcohol is .04 and the legal limit is .08, you can still be convicted. Likewise, if your BA is .12 but you aren't showing any signs of impairment, you will still be convicted.

When the set a legal impairment level for pot, it will be the same thing. Maybe worse.
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Old November 9, 2012, 04:19 PM   #18
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Frank, I noticed you are from the SF area. Medical Marijuana is legal there, so have you seen any legal precedents set? Does Medical differ from recreational use in terms of gun related issues?
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Old November 9, 2012, 04:21 PM   #19
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Quote:
I suppose I have always been under the impression that if you were involved in a self-defense shooting you could reasonably expect to be tested for drugs and alcohol. Is that an incorrect impression? Would they still need to have specific cause to order you to undergo testing such as in your examples?

Let's say for the sake of discussion that your home is clean- you have used with friends outside the home.

If you are tested and come out positive, could you be charged under state law in CO? Would they need to elevate it to the federal level to bring charges?
I believe that they would have to prove that you were 'under the influence' at the time of the shooting. Just have drugs in your drug test I do not believe would count. I also think that they would need cause to do the drug test(AKA: on the night of the incident you tell the cop you were high on pot when someone broke inside). also, there is not too much protocol with that one(as in .08 alcohol is too drunk too drive, .02 is too much under alcohol influence to CCW, etc). Therefore, without the being under influence at 'time of incident' I don't think it matters. I don't believe they even test hardened criminals too often when they get a DUI for like if they are on cocaine etc as one example.

just my two cents
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Old November 9, 2012, 04:26 PM   #20
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OP

Quote:
Do whatever makes you happy.Just a heads up,guns and pot still might get you a felony
I think things have changed, but I am not sure if marijuana is a felony. Where I grew up it was a misdemeanor, but when we watched "COPS" the Officer informed the criminal that in Nevada one seed is a felony. Basically, it all depends. In one state the most the officer can do now even if you are sitting on a public park bench smoking a joint is fine you $100. You cannot be arrested or even sent to court for under an ounce. This is weird and this is some yrs ago that this law was enacted(I am talking of a New England state where medical marijuana wasn't ever legal at least until this last election).

so yeah, federal law trumps but states decide how to punish their crimes. Feds would go after businesses if they went down that road.
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Old November 9, 2012, 05:25 PM   #21
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Quote:
Originally Posted by youngunz4life View Post
I think things have changed, but I am not sure if marijuana is a felony...
You're not paying attention. Go back and carefully read post 4. The federal felony is the possession of a gun or ammunition if you're a marijuana user.
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Old November 9, 2012, 07:32 PM   #22
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oh ok thx frank. my bad. I don't smoke(anything) & I can't anyways because of my job, but it is sortof like that dental form one fills out. i am sure the college kid doesn't check 'yes' next to the question: "do you use recreational drugs?"

ps- thx for correcting me...yeah, I was in a rush earlier when I saw this on the newsfeed.
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Old November 9, 2012, 07:34 PM   #23
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Frank, that's amazing but how come we never hear about drug users having any issues with this? I mean whether it is legal or not doesn't even matter....is that just 'cover your butt' mumbo jumbo because I was surprised to see that? It is legally considered a disease; most employees are covered if they need rehabilitation as an example and can't be fired.
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Old November 9, 2012, 11:41 PM   #24
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Quote:
Originally Posted by youngunz4life
...how come we never hear about drug users having any issues with this? ...
How come we don't hear about a lot of things or don't know about a lot of things, unless we do some digging on our own?

A lot of people get hung out to dry on a lot of federal beefs, and it doesn't usually make the six o'clock news.

In any case, I did a quick search of federal appellate court decisions in a legal data base I subscribe to and quickly found more than 50 cases apparently involving convictions for being an unlawful user of a controlled substance in possession of a gun. Those were just appeals, and there were probably more; but I didn't see any point to spending any more time on it.
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Old November 10, 2012, 02:00 PM   #25
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I will continue to stay well away from pot (and anything else), as a lawful firearm owner and CCW holder, I don't need the trouble that being caught with guns and a bag of weed would bring me (a federal felony).
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