Pubdate: Sun, 14 Feb 2016
Source: Alaska Dispatch News (AK)
Column: Highly Informed
Copyright: 2016 Alaska Dispatch Publishing
Contact:  http://www.adn.com/
Details: http://www.mapinc.org/media/18
Note: Anchorage Daily News until July '14
Author: Scott Woodham

CAN ALASKANS CARRY A BAG OF WEED AND A GUN AT THE SAME TIME?

In nationwide surveys, Alaska has consistently had some of the 
highest reported rates of gun ownership and adult cannabis use. So 
the two topics were bound to intersect here. Given the controversy 
surrounding guns in our country, and cannabis for that matter, I'm 
going to take a few steady breaths and pause a little before getting 
into it. I hope everyone does the same. All around this topic, the 
air has the clean blue flavor of a fresh lightning strike.

This question from Dave should open up a new and contentious path of 
inquiry through an realm that's already full of complications, 
variations, and unforeseeable circumstances. Gratefully, his question 
is very narrow and will allow us to plink first. But this is a big 
topic and this discussion will necessarily be incomplete. Numerous 
other questions will come up here, so please feel free to send them 
in. Instructions are at the bottom of this column.

Dave prefaces the discussion with Alaska Statute 11.61.210, the 
statute describing "Misconduct Involving Weapons in the Fourth 
Degree," an offense you could be charged with if you possess a 
firearm while you're intoxicated by alcohol or a controlled 
substance. Then he gets right to it:

If having one ounce of cannabis is legal to have either "on the 
person, or in the interior of a vehicle in which that person is 
present." And I have a right to bear arms in an open carry state.... 
Can I have a bag of weed sitting next to the pistol in the glove box 
of my truck here in Alaska?

Before we go further, let's get one thing clear. Alaska state law and 
federal law are in stark contrast here. The federal government has 
taken a very firm stance when it comes to guns and pot, which it 
still lists with prejudice among the tier of the most dangerous, 
least medically useful controlled substances. And violence and 
firearms are explicitly mentioned in the so-called "Cole Memo" 
spelling out federal enforcement priorities when it comes to 
state-legal cannabis.

Bottom line is that legal cannabis at the state level and Second 
Amendment rights have not been clearly reconciled in light of federal 
policy or criminal laws against cannabis. And federal firearms 
transaction paperwork (Form 4473) still asks people if they are "an 
unlawful user of, or addicted to, marijuana" or other controlled 
substances," based on federal law, not state.

As with many of these situations where laws conflict and there's a 
lot of room for individual circumstance to mess up a general rule of 
thumb, the safest option is to just leave no question. But that's not 
always realistic. It's asking a lot, but let's set aside federal law 
and a lot of context for the moment. Let's just sit in Dave's truck 
with him and contemplate Alaska law, that pistol and that bag.

First, let's look at possession by itself.

Megan Peters, public information officer for the Alaska Department of 
Public Safety said that she couldn't answer from a federal or local 
perspective, but wrote, "From a state law perspective, if the person 
is able to legally possess the marijuana and they may legally possess 
a firearm, it should be okay."

Those two ifs are carrying a fair amount of baggage. So let's set 
aside questions about who can legally possess a pistol or how to 
safely and legally transport a firearm. This is "Highly Informed," 
after all, not "Tightly Grouped."

For a variety of reasons, not the least of which is how central 
firearms are to many people's way of life here, Alaska has some of 
the least restrictive state gun laws in the country, but it also has 
a large number of conscientious gun owners. So if Dave's got a glove 
box weapon, I'm going to give him the benefit of the doubt and assume 
that he can own one, that he trains and maintains, and that he's 
familiar with the rules involving carrying a concealed firearm -- 
including the law requiring him to notify law enforcement immediately 
upon contact that he is carrying.

When it comes to cannabis possession, however, Peters' distinction 
between state and local law is important.

Legally possessing cannabis in the passenger compartment of a vehicle 
(including the glove box) varies from locality to locality. As we 
recently discussed, Anchorage, for example, requires a sealed, 
tamper-evident container, or keeping an unsealed container far away 
from the driver or in a trunk. But state law doesn't yet specify laws 
for marijuana open containers.

So, sure, simply possessing a legally compliant bag of cannabis and a 
pistol isn't going against state law. But what if Dave's driving 
causes suspicion of impaired driving? When suspected impairment 
enters the picture, things change.

Alaska's laws against firearms possession while impaired aren't any 
different than they've always been. We've explored uncertainties 
related to cannabis impairment before in a DUI context, but everyone 
can count on law enforcement to ask the same kinds of questions when 
it comes to investigating impairment and weapons misconduct. But 
officers use common sense in these cases, and they know that you have 
to smoke or otherwise ingest weed to be impaired, not just possess 
it. Today's herb is high quality, but the world is still waiting for 
a flower or concentrate that will get someone high just by looking at it.

Law enforcement officials have told me over and over again that each 
incident they encounter is unique and they treat the evidence at hand 
before deciding whether to make an arrest or submit a charge. So, if 
someone's showing signs of driving while impaired, a pistol and a 
cannabis product in the glove box, sealed or not, might make the 
situation worse. It might not too, but that's the risk, and it's hard 
to say generally how things could go. Law enforcement has also 
repeatedly told me that when it comes to impairment, what substance 
is causing the impairment is a secondary matter when it comes to 
figuring out charges. The impairment is the key.

As Peters said above, simply possessing a gun and cannabis together 
should be OK barring other factors, but she also said, "If someone is 
planning on consuming any substance that will impair them, it is 
probably smart to not have a firearm around."
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MAP posted-by: Jay Bergstrom