Last August, the first medical marijuana dispensary opened in the Aloha State in Honolulu. The authorities took notice. Now the police are seeking a voluntary surrender of firearms from cannabis patients due to their medicinal status. This effort to confiscate guns is based upon federal law that prevents marijuana users, even those for medicinal purposes, from legally possessing firearms.
Under federal law, marijuana is still classified as a Schedule I drug, the same as heroin, and is, therefore, one of the disqualifying factors from possessing guns and ammunition. Hawaii’s state law prohibits possession of firearms and ammunition by anyone disqualified under federal law.
The police department in Honolulu began sending notices to medical marijuana patients on November 13, 2017, to surrender their guns and ammunition within 30 days of receipt of the notice. The letter indicates that the individual is disqualified from owning firearms and ammunition, but that disability can be removed if the individual can obtain a medical doctor’s clearance letter that the patient is no longer receiving medical marijuana.
According to the Attorney General of Hawaii, medical marijuana patients can apply for a gun permit one year after the expiration of their medical marijuana license.
Gun Owners in Over Half the States Could Be at Risk
At present, twenty-nine states and the District of Columbia have legalized cannabis for medicinal or recreational use. But when it comes to federal regulations, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) have stated there are no exceptions with regard to gun ownership for those who partake in the use of a Schedule I drug, despite state law.
When a few states started approving marijuana for medicinal purposes a few years ago, the ATF responded by sending a letter to all individuals holding a Federal Firearms License (FFL).
In the letter, the agency stated:
“Any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms and ammunition.”
The ATF recently amended its Form 4473, the form that all gun purchasers from a licensed gun dealer must complete and that the FFL must submit for all firearm transfers for a background check, to include the following:
“11.e. Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”
Lying on the form is a felony that carries up to a five-year prison sentence.
Federal Prohibition Challenged in Court
In 2011, a Nevada woman, S. Rowan Wilson, was denied the purchase of a handgun because she was a medical marijuana cardholder and the gun store owner refused to sell her a firearm. Wilson unsuccessfully argued that she was not a user but merely had the card as a political statement in support of liberalizing marijuana laws. The store owner was unmoved.
Wilson then filed suit, challenging the constitutionality of the prohibition as a violation of her Second Amendment rights. Her case was dismissed in the district court and appealed to the United States Court of Appeals for the Ninth Circuit.
The appellate court affirmed the lower court’s dismissal, ruling the federal law to be constitutional, stating in its written opinion:
“[i]t is beyond dispute that illegal drug users, including marijuana users, are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior.”
The Court cited United States v. Carter, a case out of the U.S. Court of Appeals for the 4th Circuit in Virginia that referenced studies that suggested a link between marijuana use and violence. The 9th Circuit concluded that irrational behavior can be a consequence of marijuana use.
What About Privacy Rights?
Since this letter was sent, many have questioned whether it was legal for the police to have access to and search medical records database of medical marijuana patients maintained by the Hawaii State Department of Health (HSDH).
According to HSDH, a patient’s registration with Hawaii’s medical cannabis program is subject to state and federal confidentiality laws. It is legal for the police to confirm the medical cannabis status (the MMJ) of an individual in possession of marijuana by accessing HSDH’s 24-hour automated telephone confirmation system. State law allows law enforcement agencies “reasonable access” to the Hawaii Department of Health’s (DOH) medical cannabis registry to verify a person’s MMJ status and “for official law enforcement purposes.”
How can law enforcement randomly check the database in search of potential violations?
An argument put forth by the State is that it is legal for the police to check the MMJ status of a resident applying for a firearm permit as part of a standard background check, especially if the applicant indicated he or she is an MMJ patient on the permit application form. That can be seen, according to the State, as written consent to release that individual’s MMJ status.
The police have been denying firearm permits to MMJ patients for years under this approach. In fact, a few weeks ago, the firearm’s permit application was revised to specifically inquire about medical marijuana licenses.
Most people that have received medical care in the last twenty years are familiar with federal HIPPA law (Health Insurance Portability and Accountability Act of 1996) which safeguards personal medical information privacy.
There is, however, an exception for law enforcement, upon proof of a threat to safety, evidence of a crime, a court order, or some other extenuating circumstance. It is unclear at this point if medical cannabis status is considered protected health information.
What Does that Mean for Me?
At present, the decision rendered by the 9th Circuit only applies to the states of Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, and Washington.
However, courts in other circuits may look to this written opinion in deliberating any such case that may arise in their jurisdiction, though it is non-binding outside the 9th Circuit.
As it pertains to Texas, Independent Program Attorney Richard Hayes said, “While the opinion about marijuana has shifted in many places, it’s legal status in the state of Texas has not. Texans be warned if the Lone Star State legalized marijuana, gun owners and license to carry holders (LTC) could be at risk and here’s why. One eligibility requirement for a LTC is that the person is not “chemically dependent.” Additionally, a LTC can be revoked if a person becomes “chemically dependent.” Compounded with penal code violations such as unlawfully carrying a weapon while intoxicated; this topic can become even more convoluted. That is why these are critical considerations for gun owners and LTC holders alike and should not be taken lightly.”
This appears to be the first time in the country that a law enforcement agency has proactively sought out a list of state-registered marijuana patients in order to force them to surrender their weapons and ammunition.
Some states that have approved medicinal use of marijuana may have a searchable database of registered cannabis patients as does Hawaii. Other states, like Arizona, do not require a cannabis patient to register with the state.
Following the release of the notice to MMJ patients, the Honolulu Police Department is reviewing its policy.
What Should I Do?
It is essential that you know the laws in your state regarding medical or recreational use of marijuana and your rights concerning firearms possession. To learn about your state’s particular law, attend a U.S. LawShield seminar conducted by Independent Program Attorneys in your state and get the straight answer to this and many other laws regarding firearms and self-defense.
To find an event and register, call (877)448-6839 or go to www.gunlawseminar.com.
* * * UPDATE * * *
As of Tuesday, December 5, 2017 (after this article was written), the plan has been suspended. In a news release, the Chief of Police for the Honolulu PD, Susan Ballard, announced that the department wants to review court cases and confer with other government agencies to formulate a policy that will be legally sound. Chief Ballard indicated that this review process could take some time.
We will continue to follow and report on developments in this matter.