Federal Courts

In a memo released last week, the US Department of Justice has notified federal firearms dealers that medical marijuana patients are "addicts" or "unlawful drug users" who cannot legally own weapons or ammunition. A medical marijuana registration card is proof enough to deny a weapons sale, the memo said. That has medical marijuana advocates crying foul, but national gun rights groups -- not so much. [Update: One national group now has responded; see the statement from Gun Owners of America in the text below.]

The memo was authored by Arthur Herbert, Assistant Director for Enforcement Programs and Services for the Bureau of Alcohol, Tobacco & Firearms (ATF). Herbert said he wrote the memo after receiving "a number of inquiries about the use of marijuana for medical purposes, and its applicability to federal firearms laws."

Herbert cited the section of the federal criminal code that prohibits anyone who is "an unlawful user of or addicted to any controlled substance" from possessing firearms. He reminded firearms dealers that they cannot legally sell guns to people they have reasonable cause to believe are illegal drug users or addicts and wrote that anyone presenting a medical marijuana registration card is providing reasonable cause for the dealer to believe they are illegal drug users or addicts.

Despite the Obama administration's 2009 Justice Department memo famously vowing not to go after patients and providers in compliance with state laws, the federal government has never wavered from its stance that, despite state medical marijuana laws, marijuana remains a Schedule I controlled substance.

"Any person who uses or is addicted to marijuana, regardless of whether or not his or her state has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or is addicted to a controlled substance and is prohibited by federal law from possessing firearms or ammunition," Herbert wrote.

While the federal gun law is not new, its restatement with specific reference to medical marijuana patients is, and that has advocates concerned.

"This is more evidence of the Obama administration's malfeasance with regard to medical marijuana," said Dale Gieringer, long-time director of California NORML. "They have a real penchant for over-regulation. We've seen it with the Treasury rules and warnings to banks, we've seen it with the continued arrests by other federal agencies. What's particularly disturbing is that this memo comes from a Justice Department that three years ago said it was going to respect state laws regarding medical marijuana."

"I don't think the feds are going to go after gun dealers selling to medical marijuana patients, but the important this is that if you use this medicine your constitutional rights are forfeit," said Morgan Fox, communications director for the Marijuana Policy Project. "This is just a travesty. Trying to treat medical marijuana patients like second-class citizens and stripping them of their rights as they are dealing with illness is just despicable."

"The possession of a firearm could make a medical marijuana patient vulnerable to additional charges and sentencing if convicted of a federal marijuana crime, and patients should be aware of that," said Kris Hermes, spokesman for Americans for Safe Access. "However, it is not the federal government's place to prevent medical marijuana patients from owning firearms. Following in the footsteps of the Justice Department, Veterans Affairs, and Housing and Urban Development, the ATF memo illustrates how yet another arm of the Obama Administration has demonized medical marijuana and the patient community. The ATF memo underscores the need for a comprehensive policy from the Obama administration that treats medical marijuana as the public health issue that it is," Hermes concluded.

While medical marijuana supporters have expressed outrage, groups that can usually be counted on to stand up for Second Amendment rights have been largely silent. Although the National Shooting Sports Foundation was the first place outside ATF to post the open letter, it has not responded to repeated Chronicle requests to comment on the Second Amendment rights of medical marijuana users. Neither has the National Rifle Association.

After this article went to publication, Gun Owners of America executive director Larry Pratt belatedly replied to our requests for comment.

"ATF seems to be dazed now that their Fast & Furious accessory-to-murder scheme has come to light," Pratt said. "Their first blind punch was the demand letter regarding multiple rifle sales in the four southwest border states. Not only is it a stupid attempt to try to blame gun stores for what ATF was telling them to do (or doing it directly themselves), but it is illegal. Now they want FFLs to profile gun buyers to guess who looks like a marijuana user.  Again, they have no legal authority to ask for such an impossibility. What's not to like?"

In Montana, where both medical marijuana and gun rights are perennial hot topics, patients and firearms enthusiasts seem to have started on the same page.

"It is egregious that people may be sentenced to years in a federal prison only because they possessed a firearm while using a state- approved medicine," said Gary Marbut, president of the Montana Shooting Sports Association.

"This is making people pretty crazy here in Montana," said Kate Chowela of the Montana Cannabis Industry Association. "This is a gun owning state, hunting is a big part of our tradition, we have that whole independent frontier thing going on. The government is rescinding the Second Amendment rights of people who use marijuana for their medical conditions. We have had the feeling that this was the policy, but now that we see it in writing for the first time, that really cements it," she added.

The policy may be cemented, but that doesn't mean the law on Second Amendment rights for medical marijuana patients is set in stone.

"It's all well and good for a federal agency to tell us what they think the law is, and that's what ATF has done," said Keith Stroup, founder and current counsel for NORML. But there is no federal or state court decision that has held a medical marijuana patient is disqualified from owning a gun."

"This breaks down like Justice Department opinion in general. They say they have a legal right to deny gun ownership, but they can't force the states to comply with that; they'll just have to enforce the law themselves," Fox said. "This is just a restatement of policy; there have been no court battles over it yet."

There could be one coming. In a case decided in May, Willis v. Winters, the Oregon Supreme Court upheld circuit and appeals court rulings that the Jackson and Washington county sheriffs could not deny concealed weapons permits to medical marijuana patients. The Oregon Sheriff's Association has now petitioned the US Supreme Court, which will consider whether to take up the appeal in an October 7 conference.

"In the Oregon concealed handgun cases, we argued that medical marijuana patients are not 'illegal drug users or addict' as that term is used in federal law, based on the legislative history of the law," explained attorney Leland Berger, who argued the case."The Oregon sheriffs have petitioned the US Supreme Court for certiori," Berger said. "I wrote the court saying that the cases were not certiori worthy and that we waived a response to the petition unless they asked us to file one."

In the meantime, CANORML's Gieringer had some common sense advice for patients and dispensary operators. "If you're a medical marijuana patient, don't mention it when you go buy a gun," recommended Gieringer. But he had a word of warning for dispensary operators. "I assume the feds will be ready to use this if they are prosecuting a dispensary and there were any guns on board," he said.

Florida's new law requiring applicants for the Temporary Assistance to Needy Families (TANF) program to take and pass a drug test in order to receive benefits is being challenged by the American Civil Liberties Union of Florida (ACLUFL). The group filed a class-action lawsuit in federal district court in Orlando Tuesday arguing the new law was unconstitutional and seeking a temporary injunction to block its implementation.

Under the law, which passed Florida's House and Senate in April and May respectively, applicants can be denied public assistance for a year if they fail the drug test and denied for three years if they fail a second drug test. Persons who complete drug treatment can regain eligibility, and the children of people denied benefits can receive funds through a designated trustee.

"It's our view that not only is this program unconstitutional and illegal, but it is a public policy that rests on ugly stereotypes," said ACLUFL executive director Howard Simon at a Wednesday morning press conference.

The lawsuit, Lebron v. Wilkins, names a Central Florida man, Luis Lebron, as the lead plaintiff. Lebron, a Navy veteran, single father, and University of Central Florida student who is looking for work, was denied TANF benefits after refusing to submit to a drug test. Lebron, who also cares for his disabled mother, did accounting and payroll work in the Navy and in the private sector before returning to college. He is expected to graduate with an accounting degree in December.

"Florida's new law assumes everyone who seeks public assistance has a drug problem," said Lebron. "They don't know that I'm in school right now so I can get a good job to provide for my son and mother, and it feels like they don't care. I have to prove to them that I'm not breaking the law. It makes me sick and angry that for no reason at all and no suspicion, I have to prove I'm not using drugs. The Fourth Amendment is part of the Bill of Rights, and it says no searches without probable cause."

The pivotal question, Lebron said, is whether the searches are reasonable. "Searches must be based on individualized suspicion," he noted. "In the Navy, I swore an oath to defend the Constitution. Now, I'm asking for the Constitution to defend me."

Florida Gov. Rick Scott (R) championed the new welfare drug testing law, arguing that welfare recipients used drugs at a higher rate than the population at large and that the law would save Florida taxpayers money. A number of similar bills have been filed in other states as well, and rumblings of Congressional hearings on the proposal have been heard inside the Beltway as well.

But so far the numbers have failed to borne out Scott's claims about welfare recipients or budget savings. A 1996 study of alcohol and illicit drug use by the National Institute on Alcohol Abuse and Alcoholism found that welfare recipients' use rates to be the same as the population at large. And according to Florida's Department of Children's Services, only about 2% of TANF applicants have tested positive for drugs in the new program so far. At that rate, the state will arguably save a few tens of thousands of dollars each year in a program that is budgeted at $168 million a year. But even those savings are debatable, given that it is difficult to factor in the costs of administering the program -- or defending it against legal challenges or individual claims of false positives.

The one clear winner in the welfare drug testing program is Florida's drug testing industry. Each TANF applicant must take a drug test at a cost of $30-35 and pay for it out of his own pocket. If the test comes back negative, the state reimburses the applicant. The net result is a transfer of funds from the TANF program to drug test providers.

But the ACLUFL lawsuit does not rely on a cost-benefit analysis. Instead, it relies on the argument, vetted in both federal appeals courts and the Florida courts, that suspicionless drug testing violates the Fourth Amendment's proscription against unreasonable searches.

"Our legal claim is straightforward and should come as no surprise to the state of Florida," said Maria Kayanan, the lead attorney in the case. "The only state in the country to try this in the past failed miserably. Throughout the session, legislative staff warned the legislature that this law raised legal challenges."

Kayanan was referring to Michigan, which enacted a law requiring suspicionless drug testing of welfare recipients in the 1990s. That law was overturned as unconstitutional by a federal district court judge in a decision upheld by the US 6th Circuit Court of Appeals.

"This is bad policy, it's a mess, and we hope the court recognizes that suspicionless drug testing absent a clear showing of risk to public safety violates the Fourth Amendment," she said.

Federal courts have held that government-imposed drug testing absent particularized suspicion is unconstitutional except in very limited circumstances. The courts have carved out exceptions allowing drug testing in occupations where the public safety is at risk, for law enforcement personnel involved in drug enforcement, and for high school students engaged in extracurricular activities, but that is as far as the federal judiciary has been willing to bend the Fourth Amendment to date.

"This is a slippery slope," said Randy Berg, executive director of the Florida Justice Institute, which is co-counsel in the case. "While implemented here to go after people in need of public assistance to protect their families, who is next? People who apply to get a fishing license? Contractors who contract with the state? It is very important that people see this as a slippery slope. That is why we have stepped forward to challenge this unconstitutional bill enacted by the legislature."

"After the Michigan law was struck down, a number of states have started rekindling this idea, but Florida was the first state to enact this," said Simon. "But this public policy that the legislature adopted at the urging of the governor is based only on ugly stereotypes and talking points. He keeps saying that taxpayers have a right to know their money is not being used to subsidize drug addiction. But this method is unconstitutional, and we are confident it will be found unconstitutional again."

In response to a question echoing a commonly heard plaint, Simon explained why workers in the private sector must sometimes submit to drug testing when welfare applicants do not.

"The government is bound by the Constitution and private employers are not," he pointed out. "Things that may be appropriate in the private sector are impermissible when done by the government. The governor is also a lawyer, but he must have slept through constitutional law."

"I served my country, I'm in school finishing my education and trying to take care of my son," Lebron said. "It's insulting and degrading that people think I'm using drugs just because I need a little help to take care of my family while I finish up my education."

Now, a federal court in Florida will decide if requiring Lebron to submit to a drug test, is not only insulting and degrading to him, but unconstitutional. With efforts to impose similar laws on welfare applicants and people seeking unemployment benefits underway in a number of other states and possibly Congress, this Florida case will have ramifications reaching far and wide.