Guns and Budder: Medical Marijuana and Firearms
Over the years since the advent of medical marijuana legalization beginning in 1996 in California (and Arizona that same year, although our government refused to enact it), one of the most common questions I get as a cannabis lawyer has been whether it is legal for an MMJ patient to possess a firearm. The answer is both yes and no, depending on whether you are asking about state or federal laws and policies.
Under Arizona law, a person can commit the crime of “misconduct involving a weapon” in several ways (see A.R.S. § 13-3102). The only category of weapons misconduct that implicates marijuana use is subsection (A)(8) which makes it illegal for a person to possess a deadly weapon (including a firearm) during the commission of any felony offense included in chapter 34 of the criminal code. Chapter 34 contains all of the drug crimes including marijuana offenses. Although they may be reduced down to misdemeanors in a plea agreement, all drug offenses in Arizona, including possession and use of marijuana, are felonies. Thus, being in possession of a firearm while in possession of any illegal drug, including marijuana, constitutes the offense of misconduct involving a weapon, a class 4 felony.
If, however, the individual who possesses both marijuana and a firearm happens to be a medical marijuana patient who is otherwise in compliance with the AMMA, then no violation of chapter 34 has taken place and, thus, there is no factual basis for the derivative crime of misconduct involving a weapon. Of course, if the patient is in possession of more than her allowable amount or is in violation of the AMMA in some other way, then she would lose her immunity and be subject to being charged with both possession of marijuana and misconduct involving a weapon. Compliance is key.
Federal law is a different matter, however. The Code of Federal Regulations is clear. 27 C.F.R. § 478.11 provides as follows:
“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 reasonable covers the present time.”
In 2011, based on the above regulation, the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) specifically addressed the issue of medical marijuana and issued a policy statement to all federally licensed firearms dealers which explicitly stated that if an individual has a medical cannabis card, then that person is a prohibited person under 18 USC 922(g)(3).:
“[A]ny 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 or ammunition. Such persons should answer “yes” to question 11.e. on ATF Form 4473 (August 2008), Firearms Transaction Record, and you may not transfer firearms or ammunition to them. Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have “reasonable cause to believe” that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person, even if the person answered “no” to question 11.e. on ATF Form 4473.
The forms referred to in the policy statement are the forms that a person must fill out before purchasing a gun from a licensed dealer. The form asks, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” The person is required to check “yes” if the person is a medical marijuana patient which means that the FFL cannot then complete the sale legally. Likewise, the marijuana-using buyer is prohibited from completing the purchase of the firearm. So, lying about your patient status is also a violation of federal firearms law. It is also potentially a fraud charge for providing false information on a federal application.
The BATFE policy statement was found to be appropriate by the Ninth Circuit Court of Appeals, which is the federal jurisdiction over the western states, including Arizona. In Wilson v. Lynch, 835 F.3d 1083 (9th Cir., 2016), a Nevada woman named S. Rowan Wilson tried to buy a firearm for self-defense in 2011 after obtaining a medical marijuana card. The gun store refused, citing the federal laws and regulations discussed above banning the sale of firearms to people who use substances defined as illegal drugs under federal law, including medical marijuana. Interestingly, Wilson said she was not a marijuana user, but obtained the card in part as an expression of support for marijuana legalization. She specifically challenged the BAFTE policy letter quoted above. The result was a truly terrible decision by the 9th Circuit, a court typically viewed as being very liberal. In a 3-0 decision, the Court said it was reasonable for federal regulators to assume a medical marijuana card holder was more likely to use the drug and that Congress had reasonably concluded that marijuana and other drug use “raises the risk of irrational or unpredictable behavior with which gun use should not be associated.” In sum, the Court agreed with the BATFE that a medical marijuana patient (or anyone who used marijuana on a regular basis) is prohibited from possessing a firearm under federal law.
There are some who argue that the Wilson only pronounced that a licensed dealer cannot sell a firearm to medical marijuana patient but did not specifically decide whether a medical marijuana patient may possess a firearm. That is a very technical distinction, however. It might be worthy of a lawsuit to explore that exact issue, but in the meantime, it is prudent to assume that Wilson confirms that it is unlawful for a medical marijuana patient to possess a firearm.
In conclusion, while an MMJ patient may possess a firearm under Arizona law, it is illegal to do so under federal law. As a practical matter, it is important to note that state and local law enforcement agents cannot enforce federal law, so being stopped by a state trooper of sheriff’s deputy who discovers that you are in possession of both a medical marijuana card and a firearm would not be able to arrest or cite you with a violation of federal gun law. Only a federal law enforcement agent can do that (e.g., FBI, DEA, BATFE, etc.). It is important to remember, however, that Wilson was never charged or arrested for anything. Rather she affirmatively filed a lawsuit against the BATFE. That is not surprising as the author has never even heard of a medical marijuana patient being targeted by federal law enforcement simply because they suspected that the patient was in possession of a firearm. This is not to say that it is okay to break federal law. Its just to point out that it appears to be a very low enforcement priority item and it is very unlikely, therefore, that a patient would ever be subject to federal investigation or prosecution for being a prohibited person. That’s the good news and it is unlikely to get any better that that until cannabis becomes legalized under federal law.
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Tom Dean has been a criminal defense lawyer since 1993 and has been winning marijuana cases in Arizona for over 20 years. Tom has represented persons charged with every kind of marijuana offense, including cultivation, transportation, sales, extraction, DUI, and simple possession. For more information about Tom Dean, visit his website: http://attorneyforcannabis.com/