Pubdate: Sun, 26 Jun 2016
Source: Albuquerque Journal (NM)
Copyright: 2016 Albuquerque Journal
Author: Thomas J. Cole


Former Sheriff Who Uses Medical Cannabis Can't Legally Own a Firearm

Former Bernalillo County Sheriff Darren White says he is no longer a 
certified law enforcement officer, doesn't have a concealed handgun 
carry license but does own a firearm.

White has also publicly disclosed that he is a medical cannabis user 
and an investor in a new medical marijuana grower and dispensary in 
Albuquerque, as well as its chief administrator and security chief.

But medical marijuana use - regardless of whether it's permitted by 
state law - remains illegal under federal law, and federal law 
prohibits unlawful users of controlled substances, such as marijuana, 
from possessing firearms, according to the long-held position of the 
U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives.

White, who headed the state Department of Public Safety before 
serving eight years as sheriff, says he shouldn't be forced to give 
up his gun because he chooses medical marijuana to treat his chronic 
back and knee pain, the result of injuries suffered as an Albuquerque 
police officer and while in the Army.

"It's no different than using a prescription narcotic," White says, 
noting that people who lawfully use pain drugs such as Oxycodone can 
legally possess firearms.

The ex-lawman cautions, however, that people who are under the 
influence of medical cannabis or Oxycodone should stay away from their weapons.

White says the federal government is behind the times with its 
position on firearms and medical cannabis.

"It's very similar to most of the ways the federal government 
approaches marijuana," he says. "They have not caught up to the 
states. They do not recognize medical cannabis at all. States tend to 
lead the way on issues like this. They already have."

New Mexico is among more than two dozen states that have legalized 
physiciansupervised use of medical cannabis. A handful of states, 
including neighboring Colorado, have also legalized marijuana for 
recreational use.

ATF's position that medical marijuana users cannot legally possess 
firearms was announced prior to the first state legalizing 
recreational use of marijuana, but the bureau's legal reasoning 
appears to extend to any marijuana use permitted by a state.

A spokesman for NORML, a group that has long worked to legalize 
marijuana use, says the group hasn't heard of any federal prosecution 
of a person for firearm possession while using marijuana in 
compliance with state laws.

Republican Sen. Lisa Murkowski of Alaska, which has legalized 
marijuana for both medical and recreational use, has asked the U.S. 
Justice Department to revisit its position that a person who uses 
marijuana pursuant to state law is prohibited from possessing a firearm.

"It is my judgment that denying Americans the personal Second 
Amendment right to possess firearms ... for mere use of marijuana 
pursuant to state law is arbitrarily overbroad and should be 
narrowed," Murkowski wrote in a letter to Attorney General Loretta 
Lynch in March.

Such a change in position by the Justice Department wouldn't be 
unprecedented. The department said in 2013 that it wouldn't challenge 
state laws legalizing marijuana for recreational use, provided the 
states impose strict regulations.

Possible penalty

ATF, which is part of the Justice Department, laid out its position 
on marijuana use and firearms possession in a letter in 2011 to 
federally licensed sellers of firearms.

Federal law prohibits any person who is an "unlawful user of or 
addicted to any controlled substance" from possessing a firearm or 
ammunition, ATF said. Marijuana is a controlled substance under 
federal law, and its use isn't permitted by federal law for medicinal 
purposes, even if such use is sanctioned by state law, the bureau said.

ATF told firearms dealers that they could not sell guns or ammunition 
to a person if they had "reasonable cause to believe" that the person 
was an unlawful user of a controlled substance - for example, if the 
person showed a medical marijuana card for identification purposes.

ATF also advised dealers that medical marijuana users seeking to 
purchase firearms should answer "yes" to the question on the 
background check form that asks: "Are you an unlawful user of, or 
addicted to, marijuana or any depressant, stimulant, narcotic drug, 
or any other controlled substance." A "yes" answer disqualifies a 
person from buying a gun.

A Journal reporter, without identifying himself as working for the 
newspaper, recently visited firearms stores in Santa Fe and 
Albuquerque and asked sales workers whether someone with a medical 
marijuana card could buy a gun. The answers ranged from "no" to it's 
a "gray area." One sales worker said, "The other option is to lie on the form."

Will Hogsett, chief operating officer of the Calibers gun shops in 
Albuquerque, which weren't among the firearms dealers visited by the 
reporter, says the Calibers stores advise medical marijuana users 
that they cannot buy guns.

"We follow federal guidelines when it comes to that," Hogsett says. 
"It is black and white."

A false statement on a background check form is punishable by up to 
10 years in prison and a $250,000 fine.

Concealed carry

Like many states that have authorized medical marijuana use, New 
Mexico issues licenses for concealed carry of handguns.

The application for a concealed carry license includes a drug-related 
question similar to the one on the federal background check form. The 
application asks, "Are you an unlawful user of, or addicted to any 
controlled substances and/or alcohol." A "yes" answer disqualifies a 
person from having a concealed carry license.

As part of the application to the state Department of Public Safety 
for a concealed carry license, a person must sign a form authorizing 
the department to obtain "any health information" concerning the 
applicant "from any provider or any source."

The authorization form also says:

"The health information will specifically be related to (a) 
adjudication of mental incompetence or any commitment to a mental 
institution; (b) any addiction to alcohol or controlled substances."

Asked whether the Department of Public Safety accesses physician 
records or records of the Health Department, which runs the medical 
cannabis program, to determine whether a concealed carry applicant is 
a medical marijuana user, Public Safety Department spokesman H.L. Lovato said:

"The Concealed Handgun Carry Act does not use medical marijuana 
information as a factor in the process of issuing a license. 
Information about behavioral or mental health services, and treatment 
for alcohol or drug/substance abuse are only read when it has been 
adjudicated by the courts. Otherwise, no medical information is 
accessed by DPS."

Lovato declined to say what the department does if it learns that an 
applicant is a medical marijuana user or how the Concealed Handgun 
Carry Unit responds when asked by a potential applicant whether 
someone with a medical cannabis card can obtain a concealed carry permit.

As of May, about 25,000 people had medical marijuana cards issued by 
the Health Department. About 41,000 New Mexicans had concealed 
handgun carry licenses in 2014, the most recent year for which 
statistics are available.

Other states' laws

The issue of marijuana use, guns and concealed carry permits has come 
up in other states.

According to United Patients Group, which provides education to 
physicians and others on the uses of medical cannabis, Nevada state 
law allows medical marijuana users to have firearms in their homes 
for protection as long as they aren't used while under the influence.

A public outcry in Illinois in 2013 caused state policymakers to kill 
a proposal that would have required medical marijuana users to give 
up their firearms, and the Oregon Supreme Court in 2011 upheld the 
right of a medical cannabis user to obtain a concealed carry permit 
under state law.

In Colorado, county sheriffs issue concealed carry permits, and some 
sheriffs specifically ask applicants whether they are marijuana 
users. Supporters of a proposal that would have prohibited sheriffs 
from denying permits because of marijuana use were unsuccessful in 
forcing a statewide vote this year on the proposal.
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MAP posted-by: Jay Bergstrom