Second Amendment

9th Circuit Court of Appeals Doesn't Seem Inclined to Let Medical Marijuana Card Holders Buy Guns, Suspects Lawyer in Wilson v. Lynch

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In 2011, Rowan Wilson sued the U.S. government over part of its gun laws policies. She insisted the Bureau of Alcohol, Tobacco, and Firearms (BATFE) interpreted Sect. 922(g) of the federal criminal code (from the 1968 federal Gun Control Act) in a way that prevented her from legally buying a gun, just because she held a state of Nevada medical marijuana permit. And she thought that was wrong, for a lot of reasons.

Dope&Guns Party

A gun dealer who knew Wilson socially and was aware she has a medical marijuana card refused to sell her a gun, aware of a BATFE policy which had been reiterated in a September 2011 memo that read in part: "there are no exceptions in federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law…."

Even such card holders still fell afoul of 922(g), which says that anyone "who is an unlawful user of or addicted to any controlled substance" is basically barred from legally possessing or receiving guns or ammo.

Wilson thought this policy violated her Second Amendment rights, as well as her First Amendment rights, since she maintains there's an expressive element to her signing up for the card (especially since at the time, her lawyer Chaz Rainey says, no functioning legal system existed by which one could use the card to buy pot legally in Nevada).

The suit also contained a Fifth Amendment challenge, since Wilson claimed her due process rights were violated by the presumption she was an "unlawful user" of drugs on no actual evidence. (Having a state-issued medical pot card does not equal illegal use of a drug.)

In March 2014, U.S. District Court Judge Gloria Navarro ruled against Wilson. She appealed to the 9th Circuit Court of Appeals.

Navarro relied heavily on a 2011 9th Circuit case, U.S. v. Dugan, which declared that "[h]abitual drug users, like career criminals and the mentally ill, more likely will have difficulty exercising self-control, particularly when they are under the influence of controlled substances." This declaration in Dugan allegedly backs up the idea that a compelling state interest is pursued by keeping Wilson from legally buying a gun.

As Rainey told me at the time, "Dugan is like two paragraphs long, no analysis…Our core argument all along is, Dugan is just wrong and needs to be overturned at least in part. Dugan takes an outlier situation in which we have clear obvious criminal conduct and says, well, because he was dealing in massive amounts of controlled substances, the applicability of this federal law prohibiting him from having firearms is constitutionally justifiable."

Dugan had just two paragraphs of analysis, and concluded:

we see the same amount of danger in allowing habitual drug users to traffic in firearms as we see in allowing felons and mentally ill people to do so. Habitual drug users, like career criminals and the mentally ill, more likely will have difficulty exercising self-control, particularly when they are under the influence of controlled substances.

Moreover, unlike people who have been convicted of a felony or committed to a mental institution and so face a lifetime ban, an unlawful drug user may regain his right to possess a firearm simply by ending his drug abuse….Because Congress may constitutionally deprive felons and mentally ill people of the right to possess and carry weapons, we conclude that Congress may also prohibit illegal drug users from possessing firearms.

Unlike Dugan, Rainey points out his client Rowan Wilson "was never prosecuted for anything, never found pot on her, never found her dealing, merely found her to have a registry card issued by a state." Dugan had been running both pot and weapon sales operations out of his home, a somewhat different circumstance than being granted by a state the legal right to possess marijuana for medical use.

In late July, a three-judge panel of the 9th Circuit held hearings on the Wilson appeal.

"It was a very hot bench," Rainey says, meaning they had a lot of question. "I think you can tell from the questioning that we have a really uphill battle on our hands." Rainey's guess about the tone and tenor of the judge's questioning of him is that "the judges will probably rule against us."

He admits his guess is "not conclusive" and he fully intends, if they lose this appeal, to appeal further to the U.S. Supreme Court.

Rainey is happy that the 9th Circuit even had the hearings, rather than just dismissing the case or ruling on the written pleadings. "The fact they held oral arguments means they are taking the [issues involved] at least moderately seriously." Guessing what might happen is complicated by the fact the Supreme Court in its Second Amendment jurisprudence has not yet settled what level of scrutiny a court is supposed to apply to laws implicating the Second Amendment.

Rainey believes, though, that an implication of Justice Antonin Scalia calling the right for self-defense in the home implicated in the 2008 Heller case "fundamental" means that the scrutiny standard should be "strict" (which would require a law narrowly tailored to further a compelling government interest).

He fears, though, that the 9th Circuit (like many courts post-Heller) will be using "intermediate" scrutiny instead, usually meaning that the court can conclude the law furthers an important government interest by means substantially related to that interest.

The lower scrutiny level means a given law is more apt to pass constitutional muster in a court's eyes. When it comes to guns, various courts have assumed that intermediate scrutiny is the best a Second Amendment claim can get if it isn't from a law abiding citizen to begin with. That idea can create a circular problem with cases like Wilson's.

For example, Judge Navarro more or less said in her 2014 decision that Wilson's Fifth Amendment due process argument—that the government was declaring her an illegal drug user without due process—didn't apply, because they'd already decided an illegal drug user did not have the applicable Second Amendment right. In other words, if druggies don't have rights, it doesn't matter how we decided you are a druggie, which doesn't quite make sense to me though it apparently did to Judge Navarro.

A 2012 4th Circuit Court of Appeals case called U.S. v. Carter applied "intermediate scrutiny" to a different case involving a known drug user's gun rights. The court stated in that case that the government nonetheless needed to prove, not just assert, that keeping drug users from owning guns furthered an important government interest.

Encouraging, but what the court went on to write is less so for Second Amendment rights when they rub up against the war on drugs:

This burden should not be difficult to satisfy in this case, as the government has already asserted in argument several risks of danger from mixing drugs and guns. For example, it claimed that due to the illegal nature of their activities, drug users and addicts would be more likely than other citizens to have hostile run-ins with law enforcement officers, which would threaten the safety of the law enforcement officers when guns are involved. It claimed that because drug users and addicts would "necessarily interact with a criminal element when obtaining their drugs," their transactions in the black market would present far greater risks of violence(including gun violence) than lawful commerce.

Again, those considerations that the 4th Circuit brought to bear in Carter are a very different set of circumstances than being, as Wilson was at the time, a home health care specialist with the legal right in Nevada to use marijuana medicinally.

As far as Wilson in the 9th Circuit Court of Appeals goes, lawyer Rainey felt he detected some possible bad attitude on the part of the judges, a sense that mixing marijuana with the Second Amendment meant that they were imagining the issue was about "crazy backwoods redneck potheads who want their guns, marginalizing my client and people like her."

Win or lose, Rainey at least hopes for a written opinion that is "well thought out and lengthy." These issues "deserve that level of attention." But he does fear that the apparent reliance on Dugan, a very short and ill-argued opinion, might mean he'll be disappointed.

Rainey suspects from the oral arguments that his First and Fifth Amendment arguments are barely being considered by the judges, though he insists given the general uselessness of actually possessing the marijuana card in Nevada in 2011 that "I firmly believe everyone who obtained the card were essentially saying I want to be counted [among citizens in support of medical pot] and it seems to me that is a form of speech or at least association that should be afforded protection."

Rainey also thinks the judges might be trying to see an out in the fact that the statute relies on the federal firearms licensee selling the gun having a reasonable cause to believe the potential buyer is an unlawful user, and suggested perhaps a card holder should just keep that info to themselves. However, the form the buyer has to sign requires them to disclose if they are an unlawful user. A card holder like Wilson might not think they are. She left that part of her form blank during the aborted gun sale that launched this case. But a card holder might also know that apparently the government disagrees, and believes being a card holder does make you ineligible for a legal gun purchase.

Rainey is darkly amused at the whole "no fly list" and gun controversy that arose long after his appeal in Wilson was filed. He roughly reads that controversy as saying that it is current government policy that having the FBI suspect you of being a terror threat is not sufficient reason to keep you from buying a gun, but having a state-issued medical marijuana card is such a reason.

"That shows the real intent" of the BATFE's application of 922(g) to card holders, says Rainey, "has nothing to do with public safety. It's to do with stopping a political movement [for medical pot] by using whatever arrows are in its quiver."

Rainey is arguing, first, that the BATFE should not apply 922(g) to people like Wilson and in the alternative, that if a court decides that the BATFE's policy is totally in line with the statute as written, then the statute itself should be considered an illegitimate Second Amendment violation.

Rainey says he's been fighting this case almost entirely pro bono and without institutional support.

As an addendum for those who enjoy playing in the legal weeds, what follows are quotes touching on the core arguments contained in Rainey's appeals filing with the 9th Circuit:

[The BATFE's] Open Letter is a substantive change to existing law, issued without the requisite notice and comment period required under the APA [Administrative Procedures Act]. Moreover, Plaintiff asserts that the Open Letter is part of a coordinated effort to curtail the Constitutional rights of all medical marijuana registry card holders (hereinafter referred to as "Registry Cardholders") in a deliberate attempt to quell a political movement. As such, the Open Letter: (1) violates Plaintiff's procedural due process rights as embodied in the Fifth Amendment by defining her as a criminal and depriving her of certain rights without any notice, hearing or other adjudicative process; (2) violates Plaintiff's substantive due process rights by impinging upon her fundamental rights to free speech, association, and to bear arms; (3) violates Plaintiff's First Amendment rights by punishing her for the mere exercise of those rights; (4) violates Plaintiff's Second Amendment rights by depriving her of the ability to purchase a handgun for self-protection based solely on her possession of a Registry Card; and (5) violates the Equal Protection Clause by treating Plaintiff differently from similarly situated individuals…..

Plaintiff states a procedural due process claim because she has identified the plausible existence of both a deprivation of a constitutionally protected liberty or property interest and a denial of adequate procedural protections. The protected liberty or property interest is the right to obtain and possess a handgun, which the United States Supreme Court has identified as a fundamental individual right under the Second Amendment. Here, there were absolutely no procedural protections in place to prevent the unjustified deprivation of Plaintiff's fundamental right to obtain and possess a handgun. Instead, the ATF unilaterally concluded that possession of a Registry Card is the same thing as illegally using controlled substances in violation of federal law and without any opportunity for affected persons to respond issued its Open Letter depriving Plaintiff and a large swath of the population from exercising their right to obtain and possess firearms and ammunition.
Plaintiff has stated a substantive due process claim because she has identified a liberty right in the ability to choose a course of medical treatment which is not subsumed by the First and Second Amendments….

Plaintiff has stated an equal protection clause claim because the Plaintiff has shown that she is being treated differently from similarly situated individuals. Specifically, Plaintiff is being treated differently from those who have a right to use medical marijuana under the laws of states that do not issue registry identification cards. The ATF's open letter aims solely at persons who live in states where registry identification cards are mandated for the ability to access medical marijuana….

The ATF has not presented any evidence that a Registry Cardholder is more likely than not to actually be using marijuana at all times, nor has the ATF presented any evidence demonstrating that a Registry Cardholder is more likely to engage in violent crime than any non-cardholder….

The District Court erred in dismissing Plaintiff's Second Amendment claims. The District Court's reliance on United States v. Dugan to uphold §922(g)(3) is misplaced given the extreme disparity between the facts of Dugan and the facts of this case….

The District Court erred in dismissing each of Plaintiff's claims with prejudice because any defect in the Plaintiff's claims could be fixed by amendment. Thus, at the very least, the Court should have provided the Plaintiff with an opportunity to amend her claims after the decision on the Motion to Dismiss was rendered….