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Ex-lawman: Shouldn’t have to give up gun for medical marijuana

ALBUQUERQUE, N.M. — Former Bernalillo County Sheriff Darren White says he is no longer a certified law enforcement officer, doesn’t have a concealed handgun carry license but does own a firearm.

White has also publicly disclosed that he is a medical cannabis user and an investor in a new medical marijuana grower and dispensary in Albuquerque, as well as its chief administrator and security chief.

But medical marijuana use – regardless of whether it’s permitted by state law – remains illegal under federal law, and federal law prohibits unlawful users of controlled substances, such as marijuana, from possessing firearms, according to the long-held position of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives.

White, who headed the state Department of Public Safety before serving eight years as sheriff, says he shouldn’t be forced to give up his gun because he chooses medical marijuana to treat his chronic back and knee pain, the result of injuries suffered as an Albuquerque police officer and while in the Army.

“It’s no different than using a prescription narcotic,” White says, noting that people who lawfully use pain drugs such as Oxycodone can legally possess firearms.

The ex-lawman cautions, however, that people who are under the influence of medical cannabis or Oxycodone should stay away from their weapons.

White says the federal government is behind the times with its position on firearms and medical cannabis.

“It’s very similar to most of the ways the federal government approaches marijuana,” he says. “They have not caught up to the states. They do not recognize medical cannabis at all. States tend to lead the way on issues like this. They already have.”

New Mexico is among more than two dozen states that have legalized physician-supervised use of medical cannabis. A handful of states, including neighboring Colorado, have also legalized marijuana for recreational use.

ATF’s position that medical marijuana users cannot legally possess firearms was announced prior to the first state legalizing recreational use of marijuana, but the bureau’s legal reasoning appears to extend to any marijuana use permitted by a state.

A spokesman for NORML, a group that has long worked to legalize marijuana use, says the group hasn’t heard of any federal prosecution of a person for firearm possession while using marijuana in compliance with state laws.

Republican Sen. Lisa Murkowski of Alaska, which has legalized marijuana for both medical and recreational use, has asked the U.S. Justice Department to revisit its position that a person who uses marijuana pursuant to state law is prohibited from possessing a firearm.

“It is my judgment that denying Americans the personal Second Amendment right to possess firearms … for mere use of marijuana pursuant to state law is arbitrarily overbroad and should be narrowed,” Murkowski wrote in a letter to Attorney General Loretta Lynch in March.

Such a change in position by the Justice Department wouldn’t be unprecedented. The department said in 2013 that it wouldn’t challenge state laws legalizing marijuana for recreational use, provided the states impose strict regulations.

Possible penalty

ATF, which is part of the Justice Department, laid out its position on marijuana use and firearms possession in a letter in 2011 to federally licensed sellers of firearms.

Federal law prohibits any person who is an “unlawful user of or addicted to any controlled substance” from possessing a firearm or ammunition, ATF said. Marijuana is a controlled substance under federal law, and its use isn’t permitted by federal law for medicinal purposes, even if such use is sanctioned by state law, the bureau said.

ATF told firearms dealers that they could not sell guns or ammunition to a person if they had “reasonable cause to believe” that the person was an unlawful user of a controlled substance – for example, if the person showed a medical marijuana card for identification purposes.

ATF also advised dealers that medical marijuana users seeking to purchase firearms should answer “yes” to the question on the background check form that asks: “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance.” A “yes” answer disqualifies a person from buying a gun.

A Journal reporter, without identifying himself as working for the newspaper, recently visited firearms stores in Santa Fe and Albuquerque and asked sales workers whether someone with a medical marijuana card could buy a gun. The answers ranged from “no” to it’s a “gray area.” One sales worker said, “The other option is to lie on the form.”

Will Hogsett, chief operating officer of the Calibers gun shops in Albuquerque, which weren’t among the firearms dealers visited by the reporter, says the Calibers stores advise medical marijuana users that they cannot buy guns.

“We follow federal guidelines when it comes to that,” Hogsett says. “It is black and white.”

A false statement on a background check form is punishable by up to 10 years in prison and a $250,000 fine.

Concealed carry

Like many states that have authorized medical marijuana use, New Mexico issues licenses for concealed carry of handguns.

The application for a concealed carry license includes a drug-related question similar to the one on the federal background check form. The application asks, “Are you an unlawful user of, or addicted to any controlled substances and/or alcohol.” A “yes” answer disqualifies a person from having a concealed carry license.

As part of the application to the state Department of Public Safety for a concealed carry license, a person must sign a form authorizing the department to obtain “any health information” concerning the applicant “from any provider or any source.”

The authorization form also says:

“The health information will specifically be related to (a) adjudication of mental incompetence or any commitment to a mental institution; (b) any addiction to alcohol or controlled substances.”

Asked whether the Department of Public Safety accesses physician records or records of the Health Department, which runs the medical cannabis program, to determine whether a concealed carry applicant is a medical marijuana user, Public Safety Department spokesman H.L. Lovato said:

“The Concealed Handgun Carry Act does not use medical marijuana information as a factor in the process of issuing a license. Information about behavioral or mental health services, and treatment for alcohol or drug/substance abuse are only read when it has been adjudicated by the courts. Otherwise, no medical information is accessed by DPS.”

Lovato declined to say what the department does if it learns that an applicant is a medical marijuana user or how the Concealed Handgun Carry Unit responds when asked by a potential applicant whether someone with a medical cannabis card can obtain a concealed carry permit.

As of May, about 25,000 people had medical marijuana cards issued by the Health Department. About 41,000 New Mexicans had concealed handgun carry licenses in 2014, the most recent year for which statistics are available.

Other states’ laws

The issue of marijuana use, guns and concealed carry permits has come up in other states.

According to United Patients Group, which provides education to physicians and others on the uses of medical cannabis, Nevada state law allows medical marijuana users to have firearms in their homes for protection as long as they aren’t used while under the influence.

A public outcry in Illinois in 2013 caused state policymakers to kill a proposal that would have required medical marijuana users to give up their firearms, and the Oregon Supreme Court in 2011 upheld the right of a medical cannabis user to obtain a concealed carry permit under state law.

In Colorado, county sheriffs issue concealed carry permits, and some sheriffs specifically ask applicants whether they are marijuana users. Supporters of a proposal that would have prohibited sheriffs from denying permits because of marijuana use were unsuccessful in forcing a statewide vote this year on the proposal.

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