by N. Brian Hallaq, Esq.
In 2012, the states of Washington and Colorado began an experiment in legalizing marijuana use for recreational purposes. Alaska, Oregon, and the District of Columbia have passed similar measures. Other states have either decriminalized small amounts of marijuana or have medical marijuana available through a doctor. All together more than half of the states have some form of marijuana available to their citizens.
For years, reputable firearms instructors have always preached that “guns and grass don’t mix,” but today some people view marijuana the way that most of society views alcohol. The fact is that the federal government does not recognize any state form of legalized marijuana. Understanding this dichotomy is important for armed citizens because the casual nature of marijuana use in many parts of the country has given rise to the attitude that an otherwise responsible law abiding citizen cannot get into trouble by possessing or using marijuana.
Every armed citizen recognizes, at least on an abstract level, that the possibility exists that they may have to use a firearm to defend themselves and their family. Having said that, if you keep a firearm for personal protection, and use it while possessing marijuana, you may escape criminal liability on a state level, but you may face prosecution in federal court for “use of a firearm during the commission of a drug offense.”
This may sound implausible, but several such prosecutions have already taken place in Washington State. In one case, two masked intruders broke into a luxury home and threatened the life of the 35-year-old homeowner and his nine-year-old son. The homeowner shot and killed both intruders. The homeowner was growing marijuana as part of his “co-op” that provides medical marijuana for other members of the “co-op.” The local prosecutor found that the homeowner acted in self defense and he was not prosecuted for shooting the intruders.
Four months later, the homeowner was charged by the United States Attorney for 1) manufacturing marijuana, 2) carrying a firearm during and in relation to a drug trafficking crime, and 3) possession of a firearm during and in relation to a drug trafficking crime. The homeowner was sentenced to 84 months in federal prison (60 months were solely for the firearms related charge) with another 36 months of supervised probation upon release.
About six months later, in a very similar case in Washington State, a homeowner shot at a home invader. The home invader was a felon in possession of a firearm, who was on probation at the time of the home invasion. As far as the State of Washington was concerned, there was no question that this was an appropriate use of deadly force in defense of the home owner and his family. The homeowner was charged with “carrying and discharging a firearm during and in relation to a drug trafficking crime.” The homeowner was sentenced to 32 months.
Prosecutions like these are not anomalies. The reason that these armed citizens were charged is because under the federal statutes, the term “trafficking” has a specific meaning, one that is substantially different than the term’s common usage. A person commits the crime of drug trafficking when manufacturing, distributing, dispensing, or possessing with the intent to manufacture, distribute, or dispense any amount of a prohibited narcotic. In other words, under the federal sentencing guidelines, the term “trafficking” is one that applies to situations that many people might view as possession. (21 U.S.C. section 841). In fact, there is a common myth that only large amounts of narcotics qualify for federal prosecution, but for these prosecutions any amount would qualify. (21 U.S.C. 841(b)(1)(D)).
Everyone remembers the plague of violence that engulfed Southern Florida during the heyday of cocaine trafficking in the 1980s. These laws were designed to add significant sentences to drug traffickers that were caught with firearms. Today, these laws are being applied to people involved in the burgeoning marijuana culture. (18 U.S.C. Section 924(c)). In fact, you do not need to even shoot the firearm. Brandishing the firearm while possessing marijuana can result in a sentence of seven years (18 U.S.C. Section 924(c)(1)(A)(ii). If the firearm is discharged the sentence can be ten years. (18 U.S.C. Section 924(c)(1)(A)(iii). If the firearm qualifies as a “semi-automatic assault weapon” the sentence can be ten years. (18 U.S.C. Section 924(c)(1)(B)(i).
While state and county prosecutors may find an armed citizen’s use of a firearm in defense of his home an appropriate use of deadly force, the local U.S. Attorney has been given guidelines to prosecute any person whose possession of marijuana and firearms would fall under federal statutory prohibitions. This means that even if you were totally justified in using deadly force, you will still be charged and convicted of a federal crime.
As bad as the foregoing may sound, the problems widen when generally considering use or possession of a judgment-altering narcotic while engaging in deadly force.
First, it is recognized that use of narcotics or alcohol around firearms is fundamentally unsafe. As such, using a firearm while “under the influence” may be per se negligence. In fact, many states have zero tolerance rules as far as alcohol and drug use are concerned with the possession of a firearm.
A prosecutor may argue that your use of deadly force was “accidental” or “reckless” rather than “intentional” and your use or possession of marijuana may go a long way towards proving your actions were negligent or reckless. This would leave you open to a charge of manslaughter or another crime based on a theory of negligence or reckless behavior.
Second, marijuana is generally associated with a criminal subculture. While those attitudes may change over time, such evidence could give a jury the wrong impression about your judgment at the time of the incident.
Third, a well-known side effect of marijuana is paranoia. Here again, a prosecutor may make effective use of this idea to establish that your decision to use deadly force was less related to a reasonable fear of grave bodily injury or death, and more related to the fact that your judgment was altered by your use of marijuana.
It seems clear that many state legislatures are waiting to see what the outcome of legalizing marijuana has been in Washington, Colorado, Alaska, and Oregon. If they are tempted by the possibility of increased tax revenues from the sale of marijuana, it seems clear that the trend will be towards legalization. Until the federal government legalizes marijuana, armed citizens should be aware that they will always be subject to federal prosecution for keeping firearms and marijuana.
Even if the federal government legalizes marijuana, armed citizens should be prudent in their use of any narcotic (or even alcohol for that matter) when putting themselves in a position to protect their families with a firearm. The general rule of thumb should be that you are not under the influence of any narcotic or alcohol when you are carrying a firearm in public. I would even argue that when at home, much the same way that we have “designated drivers,” someone in the home, for whom protection of the family is entrusted, ought to skip the alcohol (or recreational narcotics in jurisdictions where it is legal) if they are responsible for the defense of the home with a firearm.
The bottom line is that regardless of the trend towards legalization the intelligent person will pick one lifestyle: legal marijuana user or armed citizen. Any other course of action is inviting trouble.
About the author: In addition to his work as an attorney, Brian Hallaq operates the Norpoint Shooting Center in Arlington, WA and is an avid I.D.P.A. competitor. He is a graduate of Massad Ayoob’s LFI I, LFI II, LFI III, as well as training with Chuck Taylor, Jim Cirillo, The Firearms Academy of Seattle, Inc., the Jacobe Group, John Farnam, Ken Hackathorn, Rob Pincus, Clyde Caceres, Insights Training Center and Magpul Dynamics.
Click here to return to September 2015 Journal to read more.