"Prohibited person" for drug use - how does that work?

[ScottRiqui]

Looking at the ATFs list of "prohibited persons", every category except one is very cut-and dried; you can point to a prior conviction, a current restraining order, a current indictment, etcetera as clear evidence of the person's classification as a "prohibited person":

Under indictment or information in any court for a crime punishable by imprisonment for a term exceeding one year;

convicted of a crime punishable by imprisonment for a term exceeding one year;

who is a fugitive from justice;

who is an unlawful user of or addicted to any controlled substance;

who has been adjudicated as a mental defective or has been committed to any mental institution;

who is an illegal alien;

who has been discharged from the military under dishonorable conditions;

who has renounced his or her United States citizenship;

who is subject to a court order restraining the person from harassing, stalking, or threatening an intimate partner or child of the intimate partner; or

who has been convicted of a misdemeanor crime of domestic violence (enacted by the Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, effective September 30, 1996). 18 USC 922(g) and .

But nestled in there is this one:

"who is an unlawful user of or addicted to any controlled substance;"

How do you prove that one? Note that they don't mention anything about a past conviction, or having participated in a rehab program, or anything like that. Nothing concrete that you can point to and say "this is a prohibited person".

And if someone *has* been convicted of illegal drug use, are they considered a "user" for the rest of their lives? How about someone who successfully completes rehab? Surely they're not still considered to be "addicted"? How do you legally prove addiction, anyway?

To me, the only circumstance where you could clearly call someone a prohibited person under that rule is if they're actually unlawfully consuming a controlled substance while they have a gun in their hand - the rule seems too 'fuzzy' to be useful in any other case.

 

[Tom Servo]

This is guidance from the ATF:

A person who uses a controlled substance and has lost the power of self-control with reference to the use of the controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician.

Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year, or multiple arrests for such offenses within the past five years if the most recent arrest occurred within the past year.

It is quite fuzzy and open to (mis)interpretation.

 

[joe sixgun]

I believe some laws are purposely written with some gray areas leaving the interpretation up to authorities who will use that grayness to fit which ever criteria they need. By the time anyone could ever work a case through the court system to challenge a ruling it won't matter anyway.
Remember "We have to pass it before we can know what's in it."

 

[orangello]

I suspect that joe sixgun may be correct about the intent of that portion of the law.

New substances become "controlled substances" from time to time, and methods of use change over time; the law should allow for some adaptation to new trends in the use of such "controlled substances". I doubt the writers fully considered the current trend, or its extent, toward the use of pharmaceuticals for recreational purposes.

I will resist the urge to make the accusation that it may also have been the intent of the law writer to allow for the expansion of government powers through judicial interpretation of a vague law, though it surely will cross the minds of those who read the OP.

 

[dajowi]

There are 19 states, (including the District of Columbia) which allow physicians to prescribe cannabis for their patients.

Current ATF rules state: "...any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician..."

Although the U.S. Supreme Court has established Congress’s constitutional authority to enact the existing federal prohibition on marijuana, principles of federalism prevent the federal government from mandating that the states actively support or participate in enforcing the federal law. While state resources may be helpful in combating the illegal use of marijuana, Congress’s ability to compel the states to enact similar criminal prohibitions, to repeal medical marijuana exemptions, or to direct state police officers to enforce the federal law remains limited by the Tenth Amendment.

"United States v. Darby, 312 U.S. 100, 124 (1941): The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers."

Even if the federal government is prohibited from mandating that the states adopt laws supportive of federal policy, the constitutional doctrine of preemption generally prevents states from enacting laws that are inconsistent with federal law. Under the Supremacy Clause, state laws that
conflictwith federal law are generally preempted and therefore void. Courts, however, have not viewed the relationship between state and federal marijuana laws in such a manner, nor did Congress intend that the CSA displace all state laws associated with controlled substances. Instead, the relationship between the federal ban on marijuana and state medical marijuana exemptions must be considered in the context of two distinct sovereigns, each enacting separate and independent criminal regimes with separate and independent enforcement mechanisms, in which certain conduct may be prohibited under one sovereign and not the other. Although state and federal marijuana laws may be “logically inconsistent,” a decision not to criminalize—or even to expressly decriminalize—conduct for purposes of the law within one sphere does nothing to alter the legality of that same conduct in the other sphere.

The state of Oregon is issuing concealed carry licenses to patients under the Oregon Medical Marijuana program. The ATFE or federal government apparently hasn't responded with criminal indictments against anyone.

Presently there are two states (Colorado and Washington) which have legalized the possession and use of a "controlled substance," (marijuana), how many more states to follow?

So which is going flinch first...federal law...or state law?

 

[Frank Ettin]

There are 19 states, (including the District of Columbia) which allow physicians to prescribe cannabis for their patients.

Current ATF rules state: "...any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician..."
.....

Presently there are two states (Colorado and Washington) which have legalized the possession and use of a "controlled substance," (marijuana), how many more states to follow?

So which is going flinch first...federal law...or state law?

The marijuana issue has been discussed fairly extensively on this board -- including here, here, here, here, here, here, here and here.

Here's the bottom line:

1. With regard to buying a gun from a dealer or possessing a gun or ammunition, state law is irrelevant.
   
   
2. Under federal law (the Controlled Substances Act, 21 USC 801, et seq.), marijuana is a Schedule I controlled substance which may not, therefore, be lawfully prescribed or used. Therefore, any user of marijuana, even if legal under state law, is, under federal law, an unlawful user of a controlled substance.
   
   
3. Under federal law, a person who is an unlawful user of a controlled substance is prohibited from possessing a gun or ammunition (18 USC 922(g)(3)). Therefore, any one who is a user of marijuana, even if legal under state law, is a prohibit person and commits a federal felony by possessing a gun or ammunition.
   
   
4. Under federal law, anyone who is a user of marijuana, even if legal under state law, is an unlawful user of a controlled substance and must answer "yes" on the form 4473 to the question about being addicted to or the unlawful user of a controlled substance.
   
   
5. An "unlawful user of a controlled substance" is defined in ATF regulations, in pertinent part, as follows (27 CFR 478.11, emphasis added):

   ....Unlawful user of ... any controlled substance. A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year....

   
   
6. As defined, it is not necessary that one be using marijuana at a particular instant to be an unlawful user. As set out in the federal regulation defining "unlawful user":

   ...use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct...

   
   
7. Furthermore, the regulation provides:

   ...A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm....

   
   
8. The regulation further provides that (emphasis added):

   ...An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year...

   
   
9. Making a false statement on the 4473 or being a prohibited person in possession of a gun or ammunition is punishable by up to five years in federal prison and/or a fine. And since it's a felony, conviction will result in a lifetime loss of gun rights.

...Congress’s ability to compel the states to enact similar criminal prohibitions, to repeal medical marijuana exemptions, or to direct state police officers to enforce the federal law remains limited by the Tenth Amendment...

But one may still be arrested by federal agents, tried in federal court and sent to federal prison.

...The ATFE or federal government apparently hasn't responded with criminal indictments against anyone...

1. It's all about the doctrine of prosecutorial discretion. Prosecutors generally can decide how to use limited resources.
   
   In some cases a policy decision to back off of certain types of crimes might be driven by a conclusion that enough people, particularly among the current administration's constituency, find the conduct relatively benign. That might not be the case with other matters.
   
   To put some flesh on those bones, I can see the appeal to the current administration of soft peddling recreation marijuana prosecutions in State which have decriminalized it. And I can accept that the current administration could reasonably conclude that it has adequate political cover to support that policy decision. But if the subject were a matter about which the current administration's constituency was likely to feel differently, e. g., guns, I don't think we could count on the same level of prosecutorial forbearance.
   
   
2. And looking at the marijuana issue, the Obama administration might have a policy not to vigorously enforce federal controlled substance law with respect to recreational marijuana use. That doesn't mean that the Obama administration isn't going to vigorously enforce federal gun laws with regard to persons who are unlawful users of a controlled substance and who are unlawfully, under federal law, in possession of a gun.
   
   
3. A a month or so ago I did a quick search of federal appellate court decisions in a legal data base I subscribe to and quickly found more than 50 cases apparently involving convictions for being an unlawful user of a controlled substance in possession of a gun. Those were just appeals, and there were probably more; but I didn't see any point to spending any more time on it.
   
   
4. Gun control is also on pretty much everyone's radar. There is considerable public pressure for increased gun control and enforcement of existing laws -- especially among Obama's core constituency.
   
   
5. And the fact that there's a current policy to "soft peddle" federal prosecution of recreational marijuana use doesn't necessarily mean that will be the policy tomorrow.
   
   
6. And in any case there has been considerable recent federal activity in connection with the dispensing and cultivation of marijuana under state medical marijuana laws. See --
   
   
   • "Obama Explains Increasing Medical Marijuana Crackdowns, Raids..."
     
     
   • "U.S. raids L.A. marijuana shops..."
     
     
   • "Southern Oregon medical marijuana farm raided by federal drug agents..."
     
     
   • "2 Anaheim pot shops raided,..."
     
     
   • "Sacramento marijuana dispensary latest target of federal crackdown"
     

 

[ScottRiqui]

As to who's going to "flinch" first, would it be the end of the world if the Feds just took marijuana off of the controlled-substance list? It doesn't even fit the definition for a "Schedule I" controlled substance in the first place (no medical use and high abuse potential).

That way, the Feds can continue to enforce the Controlled Substance Act in its entirety, while avoiding a "spitting match" with the states over the issue. And the states would be free to decriminalize or legalize it if they wanted to (which they're beginning to do anyway, regardless of the Federal government's position.)

 

[Frank Ettin]

As to who's going to "flinch" first, would it be the end of the world if the Feds just took marijuana off of the controlled-substance list? It doesn't even fit the definition for a "Schedule I" controlled substance in the first place (no medical use and high abuse potential)....

There are in theory a variety of things the federal government could do, including taking marijuana out of the Controlled Substances Act or reclassifying it to recognize legitimate therapeutic use.

But that is a broad, complex and controversial subject tied in with federal drug use and abuse policy. It also goes far beyond what we discuss here. So let's not go there.

 

[Crankgrinder]

Federal laws aside in my state chemically dependent persons are prohibited from obtaining firearms/chl licenses and are defined as one who has been convicted of use/posession 2 times within ten years prior.

 

[Jayster]

What I want to see more clarification on is if the prohibited person, prohibited for drugs or whatever reasons, just abides in a gun owner's home and how that affects the homeowner/gun owner's rights.

What are the gun owner alternatives?
If the guns are secured from the prohibited person's access can they remain on the premises?
If that is not acceptable can they be stored securely off the premises?

OR will LE and the courts give NO alternatives to plain confiscation?

I don't have a horse in that race but I think we will be seeing more of this type scenario and more active prosecution/persecution of lawful gun owners in that type case for lawful reasons yes but likely too for "gun control" reasons.

I would not be surprised if any new gun control laws, state or federal, have a lot more to say concerning this type thing and it should be on our radar.

 

[Frank Ettin]

What I want to see more clarification on is if the prohibited person, prohibited for drugs or whatever reasons, just abides in a gun owner's home and how that affects the homeowner/gun owner's rights....

We're kind of getting off topic, but the short answer is that, based on the cases, if a gun owner lives with a prohibited person the gun owner is probably okay if the guns are stored in a way that prevents the prohibited person from having physical access to them.

So a gun not under the full and direct physical control of the gun owner (i. e., on his person or in his hands) would need to be kept in a locked safe, cabinet, case, closet or something similar to which the prohibited person does not have, and can not get, the combination or key.

Now let's stay on topic please.

 

[Jayster]

Sorry. And thanks for the clarification.