gavelWith over 20 states allowing legal use of medical marijuana (to say nothing of the few where recreational use is now legal), we are beginning to get questions about concealed carry licensees’ use of medical marijuana while carrying guns. Although we understand that personal opinions about marijuana use vary widely, it is appropriate to discuss legal aftermath issues for cannabis users who are also armed citizens. With that in mind, we asked our Network Affiliated Attorneys—

  1. Do your state laws address gun possession while under the influence of cannabis?
  2. What issues might you anticipate arising following self-defense gun use by a legal marijuana user?
  3. What enforcement action could arise from 18 U.S.C. 922(g)(3) prohibiting firearms or ammunition possession by one who is “addicted to any controlled substance”?

Shawn A. Kollie
Short Law Group, P.C.
12755 SW 69th Ave., Ste. 200, Portland, OR 97223
503-747-7198
http://www.shortlawgroup.com
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1. The State of Oregon does not prohibit the use of any intoxicant (legal or otherwise) while in possession of a firearm. Common sense would obviously say the two don’t mix, but Oregon does not criminalize such behavior.

2. Because Oregon has allowed Medical Marijuana since 1999, and recreational marijuana will be allowed in 2015, use of force can come up for individuals involving the defense of self or property in marijuana cases. Thankfully no citizen has limited rights under Oregon law based on their participation with marijuana. A skilled defense attorney should be able to bifurcate the jury’s potential biased view about marijuana from the use of force or self-defense incident.

3. In Oregon we had the sheriffs refusing to issue concealed handgun licenses to individuals registered under the medical marijuana program. The sheriffs tried to take the stance that these individual were not allowed to have firearms under 18 U.S.C. 922(g)(3) because their use of marijuana. The Oregon Supreme Court essentially took the stance that the sheriffs were correct in their interpretation of federal law banning firearms from individuals who use marijuana, but interpreted the concealed handgun law in a way that made the drug usage moot. In Willis v. Winters, the court even went as far as to say that the local sheriffs could enforce federal law in Oregon that bans individuals from having firearms.

 

Ralph D. Long, Sr.
Attorney at Law
120 County Road 230, Florence, AL 35633
256-335-1060
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Alabama does not currently allow for legal possession of marijuana under any circumstances. Depending on quantity and whether it is being sold or simply consumed, one may be charged with a misdemeanor or felony.

1. The Alabama Criminal Code sections on firearms do not directly address the possession of a gun while under the influence of cannabis. HOWEVER, Under Title/Section 13A-11-72 (criminal code), no person addicted to drugs or habitually intoxicated may own or possess a pistol. Any person in violation of Alabama 13A-11-72 may be arrested and upon conviction, subjected to a term of imprisonment of not more than five years. The pistol will be seized and may be forfeited by court order.

Under Title 13A-11-70, the manufacture or distribution of a controlled substance is considered a “crime of violence.” One convicted of such a crime is forbidden under Title 13A-11-72 to own or have in one’s possession or under his or her control a pistol. Of course, this would preclude him from obtaining a concealed carry permit. A citizen who possesses a license to carry a concealed pistol under 13A-11-75 is subject to review by the issuing county sheriff. The sheriff may revoke the concealed carry permit when he demonstrates actions by a permit holder that create “justifiable concern for public safety.” Under 13A-11-76, no one may deliver a pistol to a drug addict or habitual drunkard or one of unsound mind.

2. Assuming the cannabis user is able to defend himself legally in a public place, he could still be arrested for public intoxication by a responding peace officer who is alert enough to recognize the odor of marijuana that is being or has been recently used. Most officers responding to the scene of a self-defense confrontation or shooting would likely frisk the person who has the gun before he/she attempts to determine what actually happened. That may result in an arrest for possession of a controlled substance. A cannabis user making a mistake in judgment due to intoxication and illegally threatening or shooting a person while under the influence could be charged from a range of misdemeanors including harassment and simple assault to felonies such as criminally negligent homicide and murder if the victim succumbed to injuries from an illegal use of force.

3. While federal officers may enforce 18 U.S.C. 922(g)(3), it is not typically used by local or state officers in Alabama acting in the absence of federal agents since involvement of the US Attorney would be required. As noted above, the provisions of Alabama Code 13A-11-72 and 13A-11-76 allow state charges in cases of a handgun being possessed by “one addicted to drugs.”

 

John Chapman
Kelly & Chapman
PO Box 168, Portland, ME 04112-0168
207-780-6500
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1. Do your state laws address gun possession while under the influence of cannabis?

Not directly. However, if one loses the ability to possess a firearm, one also loses the ability to get a CHP (Concealed Handgun Permit). Also, if “under the influence” while hunting or in an establishment licensed for on-premises consumption of liquor, impairment is a crime. It might also be “reckless conduct.”

See: http://www.mainelegislature.org/legis/statutes/17-A/title17-Asec1057.html and http://www.mainelegislature.org/legis/statutes/12/title12sec10701.html

Also: http://www.mainelegislature.org/legis/statutes/17-A/title17-Asec211.html

Note, however: http://www.mainelegislature.org/legis/statutes/22/title22sec2423-E.html -- This arguably insulates mere possession from STATE legal penalty. Put hand to gun, however, and lots of bad things might happen with a prosecutor.

2. What issues might you anticipate arising following self-defense gun use by a legal marijuana user?

First, “shot persons” and prosecutors, to the extent dependent on judgment or perception, will argue the individual was not factually justified, despite his perception. A corollary of this is the claim that the belief needed for justification was not “reasonable.”

Even “recent” use can be a problem, given the persistency of both metabolites and neurocognitive effects of cannabis. Twenty eight days “might” be enough post-use recovery period. It is unclear whether it is enough to remove “user” status.

INTERESTING: If someone was impaired enough, and there was other extrinsic evidence of degree and reality of threat, a “lawful” cannabis user (if there is such a thing) might claim his ability to physically resist was impaired. Therefore, DEADLY force might be MORE justified (as where potential victim is a cancer victim being robbed for Fentanyl patches.)

Generally, I would consider cannabis possession or use to be a negative factor in successful outcome for the firearm user.

3. What enforcement action could arise from 18 U.S.C. 922(g)(3) prohibiting firearms or ammunition possession by one who is “addicted to any controlled substance?”

Here’s the list:
Prosecution for possession of firearm by a prohibited person; Prosecution of anyone who transferred the firearm; Basis for search warrant of shooter’s dwelling, etc., more difficulty in making bail following initiation of action; In rem action for civil forfeiture of all firearms–and your marijuana.

Then there’s the DEA stuff . . . Possession of a firearm during a drug trafficking offense is a serious sentencing enhancement factor.
https://www.law.cornell.edu/uscode/text/18/924

I tell people that they should make a choice. If you use MJ, no guns -- AT ALL. If you possess guns, no MJ -- AT ALL. The current administration in Washington is NOT friendly to gun owners. There is generally a non-MJ medication for almost every condition–use those.

 

Steven M. Harris
Attorney at Law
PO Box 330849, Miami, FL 33233
305-350-9150

I think the federal law applies to anyone currently using illegal substances, not just those addicted, and it is tested under federal, not state law as to what is an illegal substance. Note also the federal ban on possession includes, until the Supreme Court says otherwise, the notion of “constructive possession” asserted by the government in cases. So a gun in the house is a problem unless the drug user cannot get to it.

 

Jonathan S. Goldstein, Esq.
McNelly & Goldstein, LLC
11 Church Road, Hatfield, PA 19440
610-727-4191
http://www.mcnellygoldstein.com
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Here’s the answer to the question. Using medical marijuana makes you a federally prohibited person in the view of one half of the Justice department:

http://www.nssf.org/share/PDF/ATFOpenLetter092111.pdf
and it doesn’t matter according to the other half:

http://www.justice.gov/sites/default/files/opa/legacy/2009/10/19/medical-marijuana.pdf

 

Stephen T. Sherer
Sherer & Wynkoop, LLP
730 N Main St., PO Box 31, Meridian, ID 83680
208-887-4800
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In Idaho marijuana is illegal to possess or to smoke, so the law here does not address gun use while under the influence of cannabis. The same defenses used in alcohol-related gun defense would be expected in the instance of cannabis related gun defense, if such were legal.

The federal question is tougher to prosecute, because the prosecutor would be required to show that marijuana is addictive to the specific defendant. The following article addresses the fact that most people do not develop addiction to marijuana.
http://www.drugabuse.gov/publications/research-reports/marijuana/marijuana-addictive
In states where marijuana use is legal, the federal issues, while they can still be prosecuted, would likely not be brought, in favor of simple prosecution on use of deadly force while mentally impaired.

 

Tim Evans
29 N. D St., Hamilton, OH 45013
513-868-8229
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Ohio prohibits possession of a firearm while under the influence of drugs or alcohol. Marijuana is not legal in Ohio, but there is an effort to put medical and recreational use on the November ballot.

 

Steven M. Wells
Attorney at Law
431 W. 7th Ave., Ste. 107, Anchorage, AK 99501
907-279-3557
http://www.alaskalegaldefense.com
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My state (Alaska) has legalized medical marijuana and recreational marijuana. Our state prohibits possession of a firearm “when the person’s physical or mental condition is impaired as a result of the introduction of an intoxicating liquor or a controlled substance into the person’s body.” We have no legislation deciding what level of marijuana metabolites in the blood constitutes an “impaired condition,” unlike alcohol.

Using a self-defense firearm while a legal marijuana user could create a lot of complications, I believe. This would likely be very fact specific, but if someone is outside their own home and they use a firearm after an argument, they would likely face substantially more scrutiny than if they were in their own home and used a firearm to protect themselves from a person or persons who break in to steal marijuana or money.

The biggest issue I could see the state arguing about is someone’s perception. To use self defense, the degree of force must be objectively reasonable. If a person was impaired by marijuana use, that impairment could skew their perception of what is a reasonable amount of force to use. Generally, marijuana makes people more mellow and relaxed than alcohol, which can get some people angry. I have seen similar cases in which the use of a firearm after consuming alcohol was prosecuted because the state argued that the alcohol affected a defendant’s perception of the degree of force needed. Given the little actual scientific information we have regarding the effects of marijuana upon the person, I would anticipate that a defense would involve many costly experts and an outcome would be hard to predict.

This last question is a real danger. Most of my practice in Alaska and all of my practice in Washington is in federal court. At present, the DEA and the FDA both take the position that marijuana has no recognized medical value and that any use is illegal use. Thus, a person who purchases a firearm from a licensed dealer should disclose if they recreationally use marijuana. Otherwise, people have been prosecuted for making false statements on a firearm application. Unfortunately, this would mean that your firearm purchase would be denied. Likewise, some people have been prosecuted when they are registered firearm owners but are also on a list of medical marijuana patients. While there is proposed federal legislation that would provide some protection from prosecution, at this point, federal law makes it pretty clear that individuals have to choose between firearms and marijuana. If you want to keep your firearms and avoid federal prosecution, my legal advice is to avoid marijuana completely. And if you need marijuana for a medical condition, I would advise you to not possess or use any firearms.

It is true that if you use marijuana and possess a firearm you will likely not get caught. If you look at the number of people who smoke marijuana, medically or recreationally, and at the number of people who own firearms, there have to be several hundred thousand, if not a few million, of people who belong to both groups. It is highly unlikely that the federal government will prosecute each and every one of them. However, I would never counsel someone to violate the law. A conviction could mean that you lose a concealed carry permit, depending upon the laws of your jurisdiction.

Further, a federal prosecution is substantially different from a state prosecution. The feds have resources that make defending a federal charge formidable. Also, their charging policies are set in Washington to be more consistent across the country. I find federal prosecutors do not have as much negotiating room as state prosecutors, but that could just be based upon the districts in which I practice. Thus, even if the odds are low that you would actually be caught, the downside of a federal prosecution is a tremendous downside.
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A big “Thank you!” to each Network affiliated attorney who responded to this question. Readers, please return next month for a new topic of discussion.

Click here to return to May 2015 Journal to read more.