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Biden DOJ Says Medical Marijuana Patients Are Too ‘Dangerous To Trust’ In Motion To Dismiss Lawsuit On Gun Rights

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8 months ago

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The Department of Justice asked a federal court on Monday to dismiss a lawsuit that seeks to overturn a policy blocking medical marijuana patients from buying or owning guns. The filling is partly premised on the government’s position that it would be too “dangerous to trust regular marijuana users to exercise sound judgment” with firearms.

In making its case for dismissal, DOJ also drew eyebrow-raising historical parallels to past gun bans for groups like Native Americans, Catholics, panhandlers, those who refuse to take an oath of allegiance to the government and people who shoot firearms while drunk.

The lawsuit at hand, which was filed by Florida’s Democratic agriculture commissioner Nikki Fried and several medical cannabis consumers, asserts that the federal government is unlawfully depriving patients of their constitutional rights on multiple grounds, and the plaintiffs filed a revised complaint last month following a U.S. Supreme Court ruling on an unrelated gun rights case in New York.

As plaintiffs anticipated, DOJ submitted the motion to dismiss the case on Monday, the court-imposed deadline for a response. The government provided a justification for its dismissal request in an attached memorandum.

At a top level, the Justice Department said the gun rights are generally reserved for “law-abiding” people. Florida might have legalized medical cannabis, but the department said that doesn’t matter as long as it remains federally prohibited. It also said that, while two of the plaintiffs who were denied firearms after admitting on a federal form that they use medical marijuana might have standing for injury, it said neither the commissioner nor a separate defendant could say the same.

DOJ’s memo is also full of curious references to precedent and historic gun policies, in addition to dismissing the definition of medical marijuana altogether because the government upholds that cannabis “has no currently accepted medical use.”

“This memorandum uses the phrase ‘medical marijuana’ for convenience, but Congress has found that marijuana ‘has no currently accepted medical use.’”

While the department insists that federal law preempts state law, ignoring the numerous medical conditions that qualify for patients for cannabis in states like Florida, it also cites Florida’s law itself to justify the gun ban. It cites state policy requiring doctors to inform patients that medical marijuana use “impairs judgment, cognition, and physical coordination.”

Of course, so do many legal prescription drugs and alcohol, but DOJ zeroed in on Florida’s disclosure rule to support its argument that cannabis consumers with firearms pose a unique public safety danger.

The memo also pushes back against the implications of the recent Supreme Court ruling, which generally creates a higher standard for policies that seek to impose restrictions on gun rights. At a high level, the ruling states that any such restrictions must be consistent with the historical context of the Second Amendment’s original 1791 ratification.

The Justice Department memo lists what it believes to be adequate “analogous” examples of gun restrictions that give precedent to the current marijuana policy and its ongoing enforcement.

“Analogous statutes which purport to disarm persons considered a risk to society—whether felons or alcoholics—were known to the American legal tradition,” the memo argues.

Disarming unlawful drug users “is consistent with this Nation’s historical tradition of firearm regulation,” DOJ said. “Two related historical traditions are analogous: the tradition of excluding those who engage in criminal activity from the right to bear arms, and the tradition of disarming those whose status or behavior would make it dangerous for them to possess firearms.”

At one point, DOJ cited scholars who have said that, historically, “the right to bear arms was tied to the concept of a virtuous citizenry.” It’s not clear if the department is actually suggesting here that marijuana use makes a person unvirtuous—but it wouldn’t be the first time.

A “historical tradition exists of regulations that restrict or prohibit firearms possession by those whose possession of firearms the government deems dangerous,” the filing says, adding that “the impairing effects of illegal drugs, including marijuana, make it dangerous for regular unlawful drug users to possess firearms.”

Here are some other choice analogues DOJ offered in its memo for a motion to dismiss: 

“In England and in America from the colonial era through the 19th century, governments regularly disarmed a variety of groups deemed dangerous. England disarmed Catholics in the 17th and 18th centuries…Many American colonies forbade providing Indians with firearms….During the American Revolution, several states passed laws providing for the confiscation of weapons owned by persons refusing to swear an oath of allegiance to the state or the United States…States also have disarmed the mentally ill and panhandlers.”

“Perhaps most relevant here, a long tradition exists of viewing intoxication as a condition that renders firearms possession dangerous, and accordingly restricting the firearms rights of those who become intoxicated. In 1655, Virginia prohibited ‘shoot[ing] any gunns at drinkeing…’In 1771, New York prohibited firing guns during the New Year’s holiday, a restriction that ‘was aimed at preventing the ‘great Damages … frequently done on [those days] by persons…being often intoxicated with Liquor.’”

“The historical tradition embodied by these laws continues today, with a majority of states ‘restrict[ing] the right of habitual drug abusers or alcoholics to possess or carry firearms,” DOJ said. It continues to say that cannabis “causes significant mental and physical impairments that make it dangerous for a person to possess firearm.”

While plaintiffs aren’t saying that medical marijuana patients should have the right to use a firearm while intoxicated from cannabis, DOJ said that there’s a “flaw” in that logic because “marijuana use impairs judgment—as Florida’s Board of Medicine puts it, ‘the ability to think, judge and reason.’”

“It is therefore dangerous to trust regular marijuana users to exercise sound judgment while intoxicated, a fact tragically borne out by the frequency with which marijuana users drive while impaired and suffer fatal collisions,” it said.

“Marijuana users with firearms pose a danger comparable to, if not greater than, other groups that have historically been disarmed. For example, ‘like the mentally ill,’ drug users ‘are more likely to have difficulty exercising self-control, making it dangerous for them to possess deadly firearms.’ In addition, the impairments caused by marijuana use are analogous to those caused by ‘intoxicat[ion]’ with alcohol, which has historically justified firearms restrictions. In fact, greater justification exists for firearms restrictions on marijuana users because, unlike alcohol, marijuana is an illegal drug. Such restrictions are therefore also analogous to firearms restrictions on those engaged in criminal activity.”

Fried, who is running in a Democratic gubernatorial primary for a chance to challenge incumbent Gov. Ron DeSantis (R) in November, told Marijuana Moment on Friday that she expected the department to request a motion to dismiss, but she’s confident they will ultimately prevail if the court allows the case to gets to the merits.

“I would imagine how this is going to eventually fold out, because of the new SCOTUS opinion from a couple weeks ago, I do believe the department is going to recognize that they’re going to have to make changes to this [Bureau of Alcohol, Tobacco, Firearms and Explosives] form,” she said, referencing the ATF background check form that asks about a person’s marijuana use.

“I would imagine that, along the way, they’re going to keep fighting it until they get told by a judge to do it,” Fried said. “But right now, we’re still monitoring it.”

The plaintiffs decided to file the amended lawsuit because of the recent SCOTUS ruling. They argued that, because marijuana prohibition was enacted more than a century years after the ratification of the Second Amendment—and the fact that cannabis was previously prescribed by doctors before the plant was criminalized—the existing ban should not hold up in court with the new precedent.

DOJ clearly spent time attempting to find holes in that argument after the department requested more time to respond in the case before the U.S. District Court for the Northern District of Florida. In doing so, however, the department highlighted historical precedent that show a pattern of instituting several controversial gun policies, like restricting firearm rights for Native Americans and people who wouldn’t pledge their patriotism.

Also notably, the department explicitly acknowledges that the U.S. attorney general “has authority to ‘transfer between schedules’ any drug or ‘remove any drug or other substance from the schedules’ if, after considering scientific and medical evaluations and recommendations from the Secretary of Health and Human Services, he finds that the drug meets criteria for a different schedule or does not meet the requirements for any schedule.”

“Since enactment of the CSA, however, the Executive Branch has denied various requests to reschedule marijuana, and marijuana has been and remains a Schedule I drug,” it said, highlighting the Biden administration’s refusal thus far to follow through on campaign pledges to change federal cannabis laws.

Fried previously told Marijuana Moment in an interview that the challenge is not about expanding gun rights, per se. It’s a matter of constitutionality that she and other key allies in the gun reform movement feel would bolster public safety if the case goes in their favor.

Specifically, because state-compliant medical cannabis patients are required to fill out an ATF form that asks about marijuana use (and answering in the affirmative would render them ineligible for a gun purchase), Fried says that creates an incentive to either lie, buy a gun on the illicit market or simply forgo a constitutional right.

In 2020, ATF issued an advisory specifically targeting Michigan that requires gun sellers to conduct federal background checks on all unlicensed gun buyers because it said the state’s cannabis laws had enabled “habitual marijuana users” and other disqualified individuals to obtain firearms illegally.

Fried brought the lawsuit alongside two medical marijuana patients in the state, as well as Neill Franklin, a retired police officer and former executive director of the Law Enforcement Action Partnership (LEAP) who has declined to use medical cannabis despite its therapeutic value for pain he experiences because of the potential gun rights ramifications.

Another component of the legal challenge is based on a unique interpretation of a congressional spending bill rider known as the Rohrabacher-Farr Amendment, which prevents the Justice Department from using federal funds to interfere in the implementation of state medical cannabis programs.

By preventing people like Franklin from using medical marijuana without risking the loss of their right to buy firearms, the federal government is effectively violating that rider by blocking Florida from adding new patients to grow its program, according to the suit.

DOJ said in its new memo that Franklin doesn’t have standing in the case because he hasn’t faced any specific injury. It also said that the protections of the Rohrabacher-Farr Amendment are limited, and it pointed out that it hasn’t spent dollars to interfere in the implementation of Florida’s medical cannabis program.

There have been previous efforts in Congress to specifically protect medical cannabis patients against losing their right to purchase and possess guns, but those efforts have not been enacted.

Read the Justice Department’s motion to dismiss and justification memo below: 

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Wisconsin Governor Signals Willingness To Compromise With Republicans On Medical Marijuana

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3 months ago

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December 23, 2022

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Wisconsin’s Democratic governor said he thinks Republicans who control the state legislature may be willing to work with him to legalize medical marijuana in 2023.

In an interview with Wisconsin Public Radio on Tuesday, Gov. Tony Evers (D) said there is “no question” that he will again include recreational cannabis legalization in the biennial budget request he submits to the legislature early next year, but indicated his willingness to proceed with a more limited medical marijuana program if GOP leaders remain unwilling to end prohibition altogether.

“There’s an increasing number of people in the legislature that might be willing to go towards medicinal marijuana,” Evers said. “If the legislature can rally around medicinal marijuana, I certainly would sign that bill.”

“Even though the people of Wisconsin by huge numbers in polling support recreational marijuana in the state of Wisconsin, I just don’t know if the Republicans are there yet,” he continued. “All I know is that there is talk on the Republican side, from what I’ve heard, around medicinal.”

Earlier this month, an overview of state agency budget requests showed the Department of Revenue (DOR) asked the governor to again include recreational and medical marijuana programs in his forthcoming budget proposal, as he did in his last request. The overview also included a suggestion from the State Public Defender to decriminalize cannabis possession.

The DOR request called for the creation of a medical marijuana registry program through which patients over the age of 18 who are diagnosed as “having or undergoing a debilitating medical condition or treatment” could obtain authorization to purchase cannabis from licensed dispensaries.

The agency also wants the authority to issue retail marijuana permits and levy taxes on recreational sales, which it estimates would generate annual revenues of $165.8 million for Wisconsin beginning in 2024. Democrats have repeatedly complained that the state is bleeding tax revenues to the illicit market and legal marijuana programs in neighboring states like Illinois.

DOR did not request funding, administration, or enforcement powers for either cannabis program, but instead indicated it would “like to collaborate with the governor and other state agencies” around the resources needed to manage them.

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Marijuana Moment is tracking more than 1,500 cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.

Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.
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Evers’ offer to compromise around medical marijuana comes after several years of Republican obstruction around his efforts to deliver on his reform pledge, even though a top GOP assemblymember has admitted legalization is essentially inevitable.

Evers won re-election last month after campaigning on cannabis reform and has relentlessly pursued the issue since taking office in 2019. His first biennial budget sought marijuana decriminalization and the establishment of a medical program. The GOP-controlled legislature has, however, stymied every one of his attempts.

The governor included broader marijuana legalization in his 2021 proposal but Republicans stripped it out of the budget. Democrats tried to add it back in via amendment that summer but were rebuffed by the GOP-controlled Joint Finance Committee. The conflict led the governor and other Democratic policymakers to call on Wisconsinites to pressure their representatives to support Evers’ agenda.

Assemblyman Evan Goyke (D) argued at the time that the state was becoming “more and more of an island” among neighboring states that had embraced reform, framing medical marijuana as “an attempt at compromise” with Republicans opposed to a recreational program. He argued that the “sky has not fallen” in other states that have allowed patients to access cannabis.

Meanwhile, Republican lawmakers have proposed modest decriminalization measures for marijuana possession but none of those proposals advanced in the last session.

A GOP-introduced bill to create a medical marijuana program that received a hearing this year was restrictive, prohibiting smokable marijuana products and forbidding patients to grow cannabis for personal use. Patients could only obtain cannabis preparations in the form of oils, pills, tinctures or topicals.

The measure, sponsored by Sen. Mary Felzkowski (R) and Rep. Patrick Snyder (R), also did not contain equity provisions like expungements that are favored by progressives.

Other Republicans, like Assembly Speaker Robin Vos, have expressed support for medical cannabis reform.

“Currently 36 other states, including our neighbors Michigan, Illinois, and Minnesota, have passed laws allowing patients with certain medical conditions to access medical marijuana if their doctors recommend it,” a co-sponsorship memo that Felzkowski and Snyder sent to fellow legislators says. “Medicine is never one-size-fits-all, and it is time for Wisconsin to join the majority of the country in adding another option which may help patients find the relief they need.”

A strong majority of Wisconsinites support marijuana legalization and nine local non-binding advisory questions on the subject passed by wide margins in the 2022 election.

Upon winning reelection this year, Evers told the media that “at some point in time, the will of the people will become the law of the land.” He has even taken steps via executive order to urge the legislature to start the process of amending the state Constitution to allow citizens to place initiatives on the ballot. Advocates believe such an amendment could help voters advance marijuana reforms on their own.

Until those laws change, marijuana possession in Wisconsin is punishable by a maximum $1,000 fine and up to six months in jail for a first offense. People convicted of a subsequent offense would face a felony charge punishable by a maximum $10,000 fine and up to three and a half years in prison.

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Marijuana Banking Bill Sponsor Makes Final Symbolic Push In Last Committee Hearing Before Retiring

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3 months ago

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December 23, 2022

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The lead sponsor of marijuana banking legislation made one final symbolic push for his measure on Friday in his last committee meeting as a member of Congress before he retires.

Frustrated that the Senate has consistently failed to take up the bill even after it has passed the House several times, Rep. Ed Perlmutter (D-CO) filed the text of his Secure and Fair Enforcement (SAFE) Banking Act as an amendment to large-scale omnibus appropriations legislation.

The congressman called the exclusion of his cannabis provisions one of a handful of “glaring omissions” from the bill, but he did not end up forcing a vote on the issue, saying that “there is not a lot of latitude to be making big amendments and sending things back to the Senate” in light of a looming storm as well as what would be a government shutdown if the spending bill is not enacted in short order.

“We passed it to the Senate seven times to watch it go nowhere, under Democrats and Republicans, so the blame goes across both sides,” the congressman told fellow members of the Rules Committee, which prepared the Senate-passed omnibus legislation for a last-minute House floor vote before members head home for the Christmas holiday.

Advocates had hoped that a so-called SAFE Plus package involving banking, expungements and other cannabis provisions would be included in the omnibus bill, but that didn’t happen. Even though key legislators agreed on the framework of the marijuana reform deal, they couldn’t push past opposition from Republican leaders who refused to allow it to be attached to the legislation.

Perlmutter said senators played a “chess game” that led to that chamber being in control of what got included in the year-end government funding bill.

“I feel like they’ve played the game by delaying up to a Christmas holiday, and you jam it down the House members’ throats,” he said. “It puts a lot of power into the Senate and to our leadership.”

Other members of the Rules panel, which began considering the omnibus on Thursday evening before finishing up on Friday, cheered Perlmutter, who is retiring at the end of this Congress, for his longstanding efforts on cannabis banking.

“On the SAFE Banking Act, you have so imprinted in our brains that legislation that even in your absence we will continue to offer those amendments, because it’s the right thing to do,” committee Chairman Jim McGovern (D-MA) said.

“I’ve had people come up to me who run cannabis businesses who say that because people can’t use credit cards, because people can’t use checks, people wait in line with lots of cash,” he said. “There’s a public safety issue here, and it makes no sense. If states have already moved ahead, why is it taking the federal government so long to make the necessary adjustments so that these businesses can operate like any other business? We will get there, I hope sooner rather than later.”

McGovern also joked that the the panel should adopt a “bipartisan resolution naming your chair the SAFE Banking chair, so that whoever sits there can know that that’s their job” to push the marijuana reform in the future.

Rep. Tom Cole (R-OK), the GOP ranking member of the Rules Committee, said that Perlmutter “even finally beat me into submission on SAFE banking,” noting that he has ended up voting for the legislation several times.

“Whether I agree with legalization or not, I talk to many law enforcement professionals and people in the financial services industry and they tell me about the hardships that this creates and frankly the opportunities for criminals because they know these are cash-heavy enterprises and the difficulties that can be associated with money laundering,” he said. “All those things would be improved enormously if we passed your legislation.”

Senate Majority Leader Chuck Schumer (D-NY) had worked in recent weeks to craft the SAFE Plus compromise, but it faced opposition from Senate Minority Leader Mitch McConnell (R-KY) and other Republicans.

McConnell’s opposition has also been cited as the reason the reform wasn’t included in the National Defense Authorization Act (NDAA) earlier this month.

A Senate source had said last week that Schumer was “making a last ditch effort” to attach the cannabis banking language to the spending bill—but the majority leader wasn’t able to get the deal done. He said the issue would need to wait until the next Congress, which will see Republicans in control of the House.

It’s clear that negotiations were sensitive around adding anything new to the spending bill, and drug policy reform suffered as a final deal was forged. In addition to the lack of SAFE Banking or SAFE Plus language, the legislation also omitted several other reform proposals that were attached to spending measures approved in the House and Senate earlier this year. The final bill also maintains a rider that blocks Washington, D.C. from implementing a system of regulated cannabis commerce—another major setback for advocates.

Advocates will now look ahead to 2023 and the possibility of advancing the reform in a divided Congress.

Senate Banking Committee Chairman Sherrod Brown (D-OH) had signaled that he viewed cannabis banking as a likely 2023 issue, though a staffer said last week that he was still be open to passing it through the spending package if it contained broader provisions.

Rep. Patrick McHenry (R-NC), who will serve as chairman of the House Financial Services Committee in the next Congress, recently indicated that he similarly feels the issue will need to be decided after the lame duck. The congressman said that he remains opposed to SAFE Banking, but he left the door open to advancing it if that’s the will of his Republican colleagues.

“What I’ve pledged is having an open process. I told my members my view of it,” he said. “Members are able to come to their own conclusion about the bill. It’s so variable state by state.”

For his part, Sen. Cory Booker (D-NJ) has also pinned blame on McConnell, saying that his vocal opposition to cannabis reform has had a chilling effect of GOP members who might otherwise be amenable to passing legislation that contains SAFE Banking language.

“They’re dead set on anything in marijuana,” he said, referring to Republican leadership. “That to me is the obstacle.”

“The caucus is clearly divided but the people in power in their caucus are clearly against doing anything on marijuana,” he added.

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Maryland Lawmakers’ Marijuana Workgroup Examines Employment And Driving Concerns Following Voter-Approved Legalization

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3 months ago

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December 23, 2022

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Maryland lawmakers who are part of a marijuana legalization workgroup convened on Tuesday, hearing testimony on workplace and impaired driving policy issues related to the reform.

Members of the Cannabis Referendum and Legalization Workgroup—which was formed last year by House Speaker Adrienne Jones (D)—took testimony from representatives of the non-profit National Safety Council (NSC).

The witnesses advised the panel on a number of issues as lawmakers work to inform future regulations following Maryland voters’ approval of a legalization referendum during last month’s election, which triggered the implementation of complementary legislation covering rules for basic policies like possession and low-level home cultivation.

The focus of this latest meeting was on drug testing policy for workers and drivers.

“Throughout this entire process, all of us here have given thoughts and raised concerns about how legalizing recreational cannabis will impact employees in the workplace, how employers could enact or adjust policies when it comes to employment protections for off-duty cannabis cannabis use and how government bodies could legislate laws to appropriately respond to and address this issue and any related concerns,” Del. Luke Clippinger (D), who sponsored both the referendum bill as well as a complementary implementation measure and serves as the chair of the workgroup, said at the beginning of the meeting.

NCS takes a neutral position on marijuana legalization and decriminalization issues, and the conversation generally reflected the organization’s interest in supporting evidence-based practices for states that move ahead with the reform.

Jane Terry, vice president of government affairs at NCS, said that it’s likely a matter of time before every state in the U.S. has “some type of legalization” or cannabis is legalized at the federal level. Lawmakers should take steps to prepare for that inevitability, she said.

“What we really want to drive home is that it is impairing when you use it, and it’s going to have safety impacts,” she said. “So how can we really try to mitigate those impacts?”

One of the group’s main takeaways is that it’s difficult for employers and law enforcement to determine active impairment from THC, as current tests detect metabolites from the cannabinoid that can remain present in a person’s system for weeks after consumption.

Dave Madaras, president of the Chesapeake Region Safety Council, echoed several of Terry’s points, emphasizing to the lawmakers that a person could use cannabis off-duty in compliance with the state’s new law on Friday and “then Monday morning, I could take a drug test, and I can come up positive—but that doesn’t necessarily mean I’m impaired. Actually, I’m probably not impaired at all.”

The witnesses also went over a number of policy recommendations for legislators to consider. Notably, they argued against states setting “per se” THC limits for driving impairment because “it’s not based on science, and it’s not necessarily showing impairment.”

At the workgroup’s prior meeting last month, members talked about how to tax cannabis and distribute revenue.

Maryland House Majority Leader Eric Luedtke (D), who has also served as a member of the legislative workgroup, said in October that he would be voting in favor of legalization at the ballot, and he emphasized that the vote would be “the beginning of the conversation.” It has since been announced that Luedtke will be joining the administration of Gov.-elect Wes Moore (D).

The language of the ballot referendum itself was straightforward, but where the more complex aspects of the reform come into play is with the complementary HB 837.

Under that legislation, the purchase and possession of up to 1.5 ounces of cannabis will be legal for adults. The legislation also will remove criminal penalties for possession of up to 2.5 ounces. Adults 21 and older will be allowed to grow up to two plants for personal use and gift cannabis without remuneration.

Past convictions for conduct made legal under the proposed law will be automatically expunged, and people currently serving time for such offenses will be eligible for resentencing. The legislation makes it so people with convictions for possession with intent to distribute can petition the courts for expungement three years after serving out their time.

Even though voters have passed the referendum, the reform won’t take effect immediately. Possession of small amounts of cannabis will become a civil offense on January 1, 2023, punishable by a $100 fine for up to 1.5 ounces, or $250 for more than 1.5 ounces and up to 2.5 ounces. Legalization for up to 1.5 ounces won’t kick in for another six months.

—
Marijuana Moment is tracking more than 1,500 cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.

Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.
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Advocates have taken issue with that protracted timeline. Having possession legalization take effect sooner was among several asks they made that were not incorporated into the legislation. They also wanted lawmakers to include a provision preventing police from using the odor of marijuana alone as the basis for a search.

Adult-use legalization began to advance through Maryland’s legislature in the 2021 session, but no votes were ultimately held. The Senate Finance Committee held a hearing last year on a legalization bill, which followed a House Judiciary Committee hearing on a separate cannabis proposal.

Maryland legalized medical cannabis through an act of the legislature in 2012. Two years later, a decriminalization law took effect that replaced criminal penalties for possession of less than 10 grams of marijuana with a civil fine of $100 to $500.

Meanwhile, Gov. Larry Hogan (R) separately allowed a bill to create a state fund to provide “cost-free” access to psychedelics like psilocybin, MDMA and ketamine for military veterans suffering from post-traumatic stress disorder (PTSD) and traumatic brain injury to take effect without his signature this year.

New Washington Bill Would Allow Interstate Marijuana Commerce

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