Medical Gun Confiscation

[Frank Ettin]

There is some federal authority to suggest that a prohibited person may lawfully have legal title to guns he can't physically possess.

In U.S. v. Casterline, 103 F.3d 76 (C.A.9 (Or.), 1996), the 9th Circuit set aside a conviction for being a felon in possession of a gun, because the conviction was based solely on evidence of ownership, but under circumstances in which the defendant could not possibly have had access to or possession of the guns. Casterline was in prison at the time, and the guns were in the sheriff's department evidence locker. As the Ninth Circuit wrote in Casterline, at 79 (emphasis added):

...The felon-in-possession statute is prophylactic, intended "to keep guns out of the hands of those who have demonstrated that 'they may not be trusted to possess a firearm without becoming a threat to society.' " Scarborough v. United States, 431 U.S. 563, 572, 97 S.Ct. 1963 1968, 52 L.Ed.2d 582 (1977). Ownership without physical access to, or dominion and control over, the firearm does not constitute possession. If the felon owns a firearm, but does not actually possess or have dominion and control over it, then he does not possess the firearm for purposes of 18 U.S.C. § 922(g). ....

But there is also some federal authority to suggest that upon becoming a prohibited person one's rights to control disposition of the firearms he must dispose of might be subject to some constraints. See Henderson v. United States (Supreme Court, No. 13–1487, 2015) in which Henderson became a prohibited person and sought to direct the transfer of his guns. In finding in favor of Henderson, the Court said (Henderson, slip op at 7 -- 8, emphasis added):

...a court facing a motion like Henderson’s may approve the transfer of guns consistently with §922(g) if, but only if, that disposition prevents the felon from later exercising control over those weapons, so that he could either use them or tell someone else how to do so. One way to ensure that result, as the Government notes, is to order that the guns be turned over to a firearms dealer, himself independent of the felon’s control, for subsequent sale on the open market. See, e.g., United States v. Zaleski, 686 F. 3d 90, 92–94 (CA2 2012). Indeed, we can see no reason, absent exceptional circumstances, to disapprove a felon’s motion for such a sale, whether or not he has picked the vendor. That option, however, is not the only one available under §922(g). A court may also grant a felon’s request to transfer his guns to a person who expects to maintain custody of them, so long as the recipient will not allow the felon to exert any influence over their use. In considering such a motion, the court may properly seek certain assurances: for example, it may ask the proposed transferee to promise to keep the guns away from the felon, and to acknowledge that allowing him to use them would aid and abet a §922(g) violation. See id., at 94; United States v. Miller, 588 F. 3d 418, 420 (CA7 2009). Even such a pledge, of course, might fail to provide an adequate safeguard, and a court should then disapprove the transfer. See, e.g., State v. Fadness, 363 Mont. 322, 341–342, 268 P. 3d 17, 30 (2012) (upholding a trial court’s finding that the assurances given by a felon’s parents were not credible). But when a court is satisfied that a felon will not retain control over his guns, §922(g) does not apply, and the court has equitable power to accommodate the felon’s request….

That's federal law, and Hawaiian law might be more restrictive. If Hawaiian law is less restrictive, federal law will control.

 

[HiBC]

I'm not a lawyer,either.
Most all of these prohibited persons laws,and the workarounds,are about felonies. High stakes game.
Be careful about heading deeper into the swamp.

And who you take with you into the swamp.

I'm not a lawyer,but it might be that TRANSFERING a firearm is a crime for someone who is a user of controlled substance(prohibited person)

You might check into the fine print about "Straw Purchase". That's where the clever prohibited person gets his brother or friend to buy a firearm for him.

You see,whoever holds and returns the firearms to the prohibited,someday,may not appreciate being put in the position of being a felon...multiple counts. Are you legally absolutely certain that the "Straw Purchase" law does not apply to even a brother..if its about providing a prohibited person with a gun? I'd err on the careful side.If I was the brother,I'd say "Sorry,I have to keep it till a year after your Dr "unsubscribes" your med pot card and you show 4 passed drug tests over the subsequent year. Maybe that gets you off "User" status.I don't know.It might if you have never been arrested or convicted of anything that makes you prohibited.

The prohib person person may have to assess the value of the firearms collection.
Example? A Ruger 10-22,a Mossberg 12 ga,an SKS and a Glock 19 might amount to a liquid $1000.

What does a retainer for an attorney cost?

 

[Armorer-at-Law]

Would it be legal for this person to remove the firearms from his/her home, give them to a friend or family member to secure in a locked safe that the owner did not have access to, or is the fact that they own the registered firearm all that is required to be in violation of the law?

The same state law that required them to be registered in the first place probably requires that registration be changed when possession is transferred.

 

[dreaming]

Must use be both contemporaneous and frequent

Hawaii is in the Ninth Circuit and the Ninth has ruled that for the purposes of the firearm prohibition use of a drug must be must be contemporaneous with possession of a firearm. Other Circuits have further held that such use must also be infrequent or regular. So it is not clear to me, but may be if I did a lot more research for which I have no desire, that the Hawaii card is sufficient to make a holder a prohibited person. However, it may be enough to provide probable cause for the police to confiscate weapons during an investigation as the card tends to establish that one is a regular user.

 

[steve4102]

The same state law that required them to be registered in the first place probably requires that registration be changed when possession is transferred.

Would we then have to define "transferred"?

 

[Frank Ettin]

Would we then have to define "transferred"?

Transfer is about possession, not ownership.

Some definitions of "transfer" (emphasis added):

• http://legal-dictionary.thefreedictionary.com/transfer:

  ...Transfer encompasses the sale and every other method, direct or indirect, of (1) disposing of property or an interest therein or possession thereof;...

  
  
• http://www.thefreedictionary.com/transferred:

  2. Law To make over the possession or legal title of; convey.

• http://law.yourdictionary.com/transfer:

  Any and every method of removing something from one person or place to another; specifically, the handing over of possession or control of assets or title. ...

Unless a particular state law had a unique definition of transfer, a prohibited person giving custody of his guns to someone to hold until they could be sold or one's prohibited status changed would be a transfer.

 

[5whiskey]

The same state law that required them to be registered in the first place probably requires that registration be changed when possession is transferred.

I have researched HI gun laws as my son is stationed there. HI does clearly define when a transfer occurs. Firearms can be loaned out, but they have very specific purposes (mostly hunting) and time frames (Less than a month IIRC). Taking them to a buddies house indefinitely because you are a prohibited person prompts a "transfer" and said firearms must be registered in your buddies name. As an example of HI law, if you are a resident and bring a firearm into state (Upon moving there or receiving it as a gift from parents in another state while traveling) you have 5 days to go the appropriate police department and register it to you. The make/model/serial number is recorded.

 

[highrolls]

"So it is not clear to me, but may be if I did a lot more research for which I have no desire, that the Hawaii card is sufficient to make a holder a prohibited person. However, it may be enough to provide probable cause for the police to confiscate weapons during an investigation as the card tends to establish that one is a regular user." - dreaming

That is where I have arrived in trying to understanding this. But I believe it can be clarified based upon the legal issues covered so far. I believe the discussion so far points to the card itself as being a prohibited person indicator, or "probable cause" as you said.

I need to quote the Frank Ettin post #17 where: "This sort of thing is not uncommon, especially in civil rights litigation. Lawyers' look for, or arrange, a factually clean situation, without extraneous issues. That way they can expect a focused court decision."

As others have begun to point out, I am not a lawyer either but it seems to me that the Wilson v. Lynch case might have resolved this issue except for this: "Accordingly, we affirm on the ground of lack of standing the district court’s dismissal of Wilson’s claims concerning § 922(g)(3)..."

This takes me back to the second sentence in the above dreaming quote. Is the Hawaii gun confiscation notice being sent to their card holders entirely based upon "probable cause"? If so what is the investigation that is going on ?

Maybe I can ask that question like this: Does the card holder become a felon when they take possession of the card ? (Fighting hard to resist the humor of who might actually own the card.)

 

[JohnKSa]

Maybe I can ask that question like this: Does the card holder become a felon when they take possession of the card ?

A person need not be a felon to be a prohibited person.

A 17 year old is a prohibited person for the purposes of purchasing a firearm from an FFL, but has not committed any crime.

A person convicted of a misdemeanor domestic violence offense is a prohibited person but is not a felon.

A person with a marijuana card is a prohibited person per the Wilson ruling whether or not they actually have committed the crime of possessing/using marijuana.

I believe the discussion so far points to the card itself as being a prohibited person indicator...

That's pretty much exactly what the Wilson case established.

...or "probable cause" as you said.

There's no need to establish probable cause given how explicit Hawaii state law is on the topic.

Is the Hawaii gun confiscation notice being sent to their card holders entirely based upon "probable cause"? If so what is the investigation that is going on ?

There is no need for "probable cause" or for an "investigation" because there is an explicit violation of Hawaii state law.

The Hawaii gun confiscation is based on two things.

1.) People with cards are prohibited persons by federal law.
2.) Hawaii law explicitly states that persons who are prohibited persons under federal law may not own firearms.

1.) + 2.) = Confiscation by Hawaii LE.

Look at it this way.

Bob has a rule that people with a license to juggle geese are officially green.

Frank has a rule that people who Bob says are green can't own goats.

Norbert goes to Frank and gets a license to juggle geese.

Norbert's license to juggle geese makes him officially green according to Bob's rule and that means that Frank's no goats rule automatically kicks in.
No need for any kind of investigation to see if Norbert is green.
No need to establish probable cause that Norbert is green.
Norbert's claim that he isn't green doesn't matter.

Norbert IS officially green per Bob's rule and therefore he can't own goats per Frank's rule.

So Frank drops by Norbert's place and confiscates any goats that Norbert owns.

In effect, because of the two rules, Norbert's license to juggle geese is also a permission slip for Frank to come and take any goats he owned. Norbert just didn't understand what he was doing when he went to get his license.

 

[5whiskey]

Bob has a rule that people with a license to juggle geese are officially green.

Frank has a rule that people who Bob says are green can't own goats.

Norbert goes to Frank and gets a license to juggle geese.

Norbert's license to juggle geese makes him officially green according to Bob's rule and that means that Frank's no goats rule automatically kicks in.
No need for any kind of investigation to see if Norbert is green.
No need to establish probable cause that Norbert is green.
Norbert's claim that he isn't green doesn't matter.

Norbert IS officially green per Bob's rule and therefore he can't own goats per Frank's rule.

So Frank drops by Norbert's place and confiscates any goats that Norbert owns.

In effect, because of the two rules, Norbert's license to juggle geese is also a permission slip for Frank to come and take any goats he owned. Norbert just didn't understand what he was doing when he went to get his license.

A very colorful analogy John

And this is why, boys and girls, you get yourself an attorney and you fully study the consequences of your actions. Every action has some form of consequence. Medical Marijuana has some decent science backing it... but to be completely fair many of the benefits have been replicated with Marinol. I am convinced that in many cases, Marinol would be almost equally as effective, and you would maintain your constitutional rights. And we must be honest with ourselves. MANY (not all) medical marijuana users are additionally interested in the ability to legally smoke marijuana for recreation. I'm not saying that this is their only reason for obtaining a card (but we know that it is for some), but it is a "fringe" benefit that many are happy to have. In HI, this fringe benefit comes with a price.

With all this being said, it boils down to "think carefully and make an informed decision." Don't take a plea offer if you are charged with a crime out of fear. Get an attorney, discuss it, and make a rational decision. Consider alternatives to medical marijuana if you want to maintain your 2nd amendment rights in HI (probably some other states coming soon). Don't sign up for the military the first time you talk to a recruiter. Don't impulse buy a car. There are a lot of examples. I have little sympathy when people make ill-informed decisions because it looks/feels good at the time, yet complain later about unforeseen consequences.

 

[Metal god]

This may be beating a dead horse here .

If you have a firearm or many lawfully for many years and one day your doctor prescribes medical marijuana or one of its other derivatives and you fill that prescription , you have become a prohibited person ?

Is it just "marijuana" or anything that has THC or what ever gets you high if you smoke it or eat it . I don't do the stuff but I often here people talking about eatables and gummy bears , lollypops etc . Many of those things are not marijuana but I assume have the active ingredients of marijuana .

Then there's the truly medical stuff that I've heard has all the medical benefits but does not get you high . I'm sure there are others but CBD oil comes to mind which is supposed to be a great anti inflammatory but does not get you high . Is that considered marijuana to ?

 

[Frank Ettin]

....Is that considered marijuana to ?

One would need to look at Schedule I.

 

[carguychris]

If you have a firearm or many lawfully for many years and one day your doctor prescribes medical marijuana or one of its other derivatives and you fill that prescription , you have become a prohibited person ?

Perhaps not at that moment, but you certainly do once you use it.

The law reads that a firearm or ammunition may not be possessed by "a person who is an unlawful user of or who is addicted to a controlled substance." Once you take a puff, you are definitely a "user."

Of course, if you have possession of and a prescription for medical marijuana, a jury may certainly find that you could be considered a "user" given your obvious intent, even if you have not yet used the stuff in the most literal sense.

This will remain so until Congress either changes the law categorizing marijuana as a Schedule I controlled substance, or changes the legal definition of a prohibited person.

 

[highrolls]

"A very colorful analogy John" - 5whiskey

Yes. I enjoyed the humor but found it very helpful. At the risk of self-embarrassment, I know the iconic "ignorance of the law is no excuse", but the leap from ignorance to "understanding" can be large for me since I am completely naive when the legal convolutions show up. The real shazam moment was when I realized what a prohibited person legally is and then it all starts to fall in place. The puzzle pieces were placed in the beginning of JohnKSa's post starting with "A person need not be a felon to be a prohibited person." Wow.

"This may be beating a dead horse here." - Metal god
Not yet but I think we are getting close. Frank Ettin provides a link to the Schedule I stuff in the Drug Control Act. If my research is accurate, this Act (and updates) by congress provides the basis of law enforcement by the DEA. The Attorney General has the authority under the act to designate what goes where in the schedules, and while some may argue the medical use for Marijuana, the "Medical" part of the card being the most misleading of all, under the Drug Control Act, marijuana has NO acceptable medicinal use. If somehow a scientific medical use were proven, the Attorney General following his guidelines can move it from schedule I to one of the other areas, thus not requiring an act of congress but removing the "prohibited person" aspect of the drug. Oh, for Metal god, in Frank Ettin's schedule I reference, it is not marijuana or THC, it is:
"any quantity of cannabimimetic agents, or which contains their salts, isomers, and salts of ..... within the specific chemical designation."

(Also I stumbled across a medical discussion about whether the Drug Control Act becomes an immediate problem for a Prescribing Doctor the instant he makes a Medical Marijuana prescription. Similar prohibited person arguments but otherwise way off the original topic here, hence the parens.)

So to begin closure (last kicks to be sure the horse is dead):

Concern 1. Is this type of state enforcement an end run around the 2nd amendment ?

The wording reminds me that I wrote that before I was aware of the multiple call-outs and JohnKSa version
of : "Hawaii law explicitly states..."

The answer is NO. (Yep, does sound harsh after all)

Concern 2. Can other states which have recently passed similar laws simply jump on board this bandwagon?

Looks like the Wilson case has paved the way. My research shows 29 states are considering or can issue medical cards. Seems the Hawaii goat confiscation letter can be used by any of those states directly ?

Anyone know if any state besides Hawaii is doing this confiscation/medical card letter combination ?

 

[Frank Ettin]

I think this has gone on long enough. This subject keeps coming up, and a lot of folks act like it's complicated. It isn't.

The law is straightforward and clear -- if you use marijuana, even if legal under state law, you can't possess a gun or ammunition under federal law.

Folks don't like the law, they can get politically active to try to change it.