5th Circuit Reaffirms That Prosecuting a Marijuana User for Illegal Gun Possession Was Unconstitutional
Patrick Darnell Daniels Jr. was sentenced to nearly four years in prison for violating a federal law that bars drug users from owning firearms.
The U.S. Court of Appeals for the 5th Circuit this week reaffirmed its conclusion that the federal government violated the Second Amendment when it prosecuted a Mississippi cannabis consumer for illegal gun possession. In a decision published on Monday, a three-judge panel unanimously ruled that Patrick Darnell Daniels Jr.'s conviction for violating 18 USC 922(g)(3), which makes it a felony for an "unlawful user" of a "controlled substance" to possess a firearm, "is inconsistent with our 'history and tradition' of gun regulation." It therefore fails the test that the Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen.
Daniels was arrested in April 2022 after he was caught with guns and the remains of a few joints during a routine traffic stop in Hancock County, Mississippi. He was convicted of illegal gun possession and sentenced to nearly four years in prison plus three years of supervised release. The conviction also meant that Daniels permanently lost his Second Amendment rights.
The 5th Circuit overturned Daniels' conviction in August 2023, deeming it inconsistent with the Bruen test. Last year, the Supreme Court vacated that decision and instructed the 5th Circuit to reconsider the case in light of United States v. Rahimi, a June 2024 decision that upheld a prosecution under 18 USC 922(g)(8), which bans gun possession by anyone subject to a domestic violence restraining order.
Two months after Rahimi, the 5th Circuit rejected a Section 922(g)(3) charge against Paola Connelly, a cannabis consumer who was arrested when El Paso police discovered that she owned firearms. The court said it was unconstitutional to prosecute Connelly "based solely on her 'habitual or occasional drug use.'" That decision in United States v. Connelly, the 5th Circuit said on Monday, dictates the outcome in United States v. Daniels.
"Because the jury did not necessarily find that Daniels was presently or even recently engaged in unlawful drug use," Judge Jerry E. Smith wrote in the majority opinion, "we reverse his conviction again and remand." In a concurring opinion, Judge Stephen A. Higginson agreed with that result but emphasized that neither decision means prosecutions under Section 922(g)(3) are always unconstitutional.
In Connelly, the government "argued that Founding-era restrictions on the Second Amendment rights of mentally ill persons were 'relevantly similar'" to Section 922(g)(3) "as applied to unlawful users of controlled substances," Smith notes. "We rejected the government's position because 'institutionalizing those so mentally ill that they present a danger to themselves or others does not give clear guidance about which lesser impairments are serious enough to warrant constitutional deprivations.' Further, 'laws designed to disarm the severely mentally ill do not justify depriving those of sound mind of their Second Amendment rights. The analogy stands only if someone is so intoxicated as to be in a state comparable to 'lunacy.'"
Under Bruen, the 5th Circuit said in Connelly, the question was whether the defendant was more like "someone whose mental illness is so severe that she presents a danger to herself and others" or more like "a repeat alcohol user," who is not necessarily impaired when she handles a gun. "We thought the defendant in Connelly fell into the latter camp because, at least 'while sober, she is like a repeat alcohol user between periods of intoxication, whom the Founders would not disarm.'" But the court added that the government "might succeed if it were able to demonstrate that [Connelly's] drug use was so regular and heavy that it rendered her continually impaired."
The government "next argued that persons whom Congress deems 'dangerous' can have their Second Amendment rights stripped," Smith notes. As historical precedents, it cited "laws barring political dissidents from owning guns in periods of conflict" and the English Militia Act of 1662, "which gave officials sweeping power to designate someone as 'dangerous' and so disarm him." But the rationale for those restrictions, the 5th Circuit concluded, was not "relevantly similar" to the rationale for prosecuting Connelly. The court noted that the government could identify "no class of persons at the Founding who were 'dangerous' for reasons comparable to marijuana users."
Finally, the government cited early laws that prohibited public possession of firearms by intoxicated individuals. But while "some laws banned carrying weapons while under the influence," the 5th Circuit noted, "none barred gun possession by regular drinkers." Furthermore, "the government offer[ed] no Founding-era law or practice of disarming ordinary citizens for drunkenness, even if their intoxication was routine." Although "our nation's history provides some support for banning individuals from carrying firearms while actively intoxicated," Smith notes, this statute "goes much further by banning all possession for an undefined set of 'user[s],' even while they are not intoxicated."
In short, the 5th Circuit held in Connelly, Section 922(g)(3) "imposes a far greater burden on her Second Amendment rights than our history and tradition of firearms regulation can support." Likewise with Daniels, Smith says, although he concedes this is "a closer case."
Daniels "admitted to using marihuana roughly half the days of each month," Smith notes. "Officers twice saw him with guns and marihuana in his truck. The marihuana in his truck was burnt, that is, used. When he was pulled over, he had a loaded handgun within arm's length and a loaded rifle in the back seat." That evidence, Smith says, suggested that Daniels was "routinely driving around town while intoxicated with loaded guns in his car."
Crucially, however, "the jury was instructed that, to find that Daniels was an 'unlawful user,' it need not find 'that he used the controlled substance at the precise time he possessed the firearm' because '[s]uch use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before,'" Smith writes. "Instead, the jury was instructed that it need only find 'that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct.'" That language "dooms Daniels's conviction," Smith says, because the government "was not required to convince a jury that Daniels was presently or even regularly intoxicated at the time of arrest."
Smith, like Higginson, emphasizes that the ruling does not preclude all uses of Section 922(g)(3). "We do not invalidate the statute in all its applications," he writes, "nor do we decide that [the law] could never cover the conduct of which Daniels stands accused." But applications of Section 922(g)(3)must "accord with our nation's history of firearm regulations," he adds, "and disarming individuals solely for their prior, occasional, or habitual marihuana use does not."
Notwithstanding the caveats, the 5th Circuit's position is plainly inconsistent with the Biden administration's defense of this statute. According to the government's lawyers, even state-approved patients who use cannabis for medical purposes are ipso facto so dangerous and untrustworthy that they have no Second Amendment rights.
