Under federal law, it illegal for someone to possess a gun if he or she is “an unlawful user of or addicted to any controlled substance.” This law includes medical marijuana patients, even if the use of medical marijuana is legal in their state.
Letters sent out by police departments in Hawaii, ordering medical marijuana holders to surrender or transfer ownership of their firearms within 30 days, have caused confusion and recently gained the attention of cannabis advocates throughout the nation. The Honolulu Police Department mailed at least 30 letters to registered gun owners who also hold medical marijuana cards in 2017. The latest round of letters was sent on November 13 and signed by Maj. Raymond Ancheta, head of the department’s Records Division on behalf of Chief Susan Ballard.
A copy of the letter began circulating on social media, causing some to believe that all gun owners who hold a medical marijuana card would have to turn in their firearms. However, this isn’t the case.
Hawaii Police Chief Paul Ferreira, who mails out a letter similar to the one used by the Honolulu Police Department, says they aren’t going out of their way to find medical marijuana patients who are gun owners, but a name gets flagged and a letter goes out when the medical marijuana patient applies for a permit to acquire a firearm. He only recalls sending out 1-2 of those letters this year and signs each one personally. Ferreira also said his department doesn’t have unlimited access to the state Department of Health’s medical cannabis registry database but requests information when needed for search warrants or marijuana sweeps.
DOH spokeswoman Janice Okubo confirmed restricted access to the registry in an email writing, “A limited number of registered law enforcement officials can input a last name and date of birth, or medical cannabis registry card number into the database and receive a verification of ‘valid’ or ‘invalid’ or ‘no match.’ Police officers cannot receive names from the medical cannabis database. There are a limited number of designated officers with access to the verification system and law enforcement officials must register with DOH to access the verification system.”
Chris Garth, executive director of the Hawaii Dispensary Alliance, said the sending of letters continues a trend of “treating medical cannabis as a public safety issue rather than a public health issue.”
“If it’s medicine and it’s not being given to you for a medically disqualifying characteristic in your personality, it shouldn’t be illegal, they should not be able to take away your constitutional right because you’re taking legal medicine,” Harvey Gerwig of the Hawaii Rifle Association said.
In 2011, S. Rowan Wilson filed suit in the U.S. District Court for the District of Nevada challenging the Federal Gun Control Act of 1968 and an Open Letter to All Federal Firearms Licensees issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives. Wilson went to court after a firearms dealer refused to sell her a gun because he was aware that Wilson held a medical marijuana registry card. Wilson claimed she obtained the permit to show support for the medical use of marijuana and did not actually use marijuana. The lawsuit asserted, among other things, a violation of Wilson’s Second Amendment right to bear arms and a violation of the First Amendment because the Open Letter hindered her freedom to express herself by obtaining a registry card.
The court cited studies showing that “illegal drug users, including marijuana users, are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior.” With this in mind, the court affirmed that the Gun Control Act and the Open Letter are designed to mitigate gun violence and therefore do not violate the Second Amendment. The court also pointed out that Wilson could have acquired a firearm before applying for her medical marijuana permit or could surrender her registry card if she wanted to protect herself as allowed under the Second Amendment.
While the court conceded Wilson’s act of acquiring a medical marijuana permit was expressive conduct covered by the First Amendment, buying a gun was not considered expressive. The government was not trying to restrict Wilson’s expressive act of having a medical marijuana permit but accomplish its goal of preventing gun violence through enforcing the Gun Control Act and the Open Letter. Thus, any effect of the Open Letter on Wilson’s First Amendment rights was “no greater than necessary to reduce gun violence.”
Carl Bergquist, executive director of the Drug Policy Forum of Hawaii, said while the ruling focuses on Second Amendment issues, the denial of gun permit applications and the letters to medical cannabis patients are, in his opinion, a violation of the 14th Amendment, which guarantees U.S. citizens “equal protection of the laws.”
“We think this is unfairly singling (medical cannabis patients) out just because they are complying with state law,” he said. “… They’re subject to this blanket policy of denial. They’re lumped together with people who are deemed mentally incompetent or having mental health issues or having addiction issues. We see no reason to lump medical cannabis patients, en masse, with that category, at all.”
Amid scrutiny from gun advocates and medical marijuana patients, police departments in Hawaii will continue to deny firearm permits to applicants who have current medical marijuana permits but will not order all firearm owners with medical marijuana permits to surrender their guns.
“This is a new area of concern for cities across the country, and we in Honolulu want to develop a policy that’s legally sound and serves our community,” said new HPD Chief Susan Ballard. “Formulating the policy will take time, but we want to do it right.”