Hawaii Grapples With Firearm Restriction for Medical Cannabis Patients

During the past year, 30 medical cannabis patients in Hawaii have received a letter that informs them that they are disqualified from possessing firearms and ammunition. The letters further instruct the patients to either surrender any currently owned firearms, permits, and ammunition to the Honolulu Police Department or to transfer ownership of the firearms and ammunition. Ultimately, this may penalize medical cannabis patients that attempt to adhere to the law. The law may have the unintended consequence of encouraging gun owners to use illegal instead of medical cannabis. Similarly, medical cannabis patients may buy illegal firearms that are not registered or sold from a licensed vendor. Meanwhile, medical cannabis patients that attempt to adhere to the law bear the inconvenience of having their rights restricted.

The state of affairs of firearms and cannabis

In 2011, the Associated Press reported that the Bureau of Alcohol, Tobacco, Firearms and Explosives clarified that all cannabis users, including state-sanctioned medical cannabis patients, are prohibited from possessing firearms. Possession does not necessarily imply ownership, therefore, any firearm use is encompassed in the law, making it federally illegal for any cannabis user to use a firearm in any circumstance. Federal firearm licensees are responsible for inquiring if a purchaser is a controlled substance user. Licensed dealers are prohibited from selling firearms and ammunition to anyone who presents a reasonable suspicion of controlled substance use, including, but not limited to, buyers who present medical cannabis recommendations as identification, buyers who talk about controlled substance use, and buyers who have a recent controlled substance conviction. According to the Associated Press, already by September of 2011:

“ The clash between state and federal drug laws has led to lawsuits and criminal cases in some of the 16 states that have legalized medical marijuana use. ”

In Oregon, the Associated Press detailed an Oregon Supreme Court ruling stating that sheriffs could not deny concealed handgun licenses to medical cannabis patients, because the state firearm laws, separate from federal firearm laws, do not address medical cannabis use. The ruling allows for an avenue for cannabis users to acquire firearms, but does not change the federal legality for a cannabis user to possess a firearm.

The state attorney general of Montana, Steve Bullock, responded to Attorney General Holder in a letter that acknowledged the supremacy of the federal government, but referenced several conflicts with Montana's state constitution and respectfully requested the Department of Justice to "not pursue any criminal prosecutions" against citizens that are abiding by Montana state law.

On August 31st, 2016, the 9th U.S. Circuit Court of Appeals in San Francisco ruled that barring medical cannabis patients from possessing firearms does not violate the Second Amendment. The unanimous decision concluded that cannabis "raises the risk of irrational or unpredictable behavior with which gun use should not be associated."

Motivation for the Hawaiian restriction

The Hawaiian restriction put in place in the past year disqualifying medical cannabis patients from possessing firearms and ammunition may have been instigated by a broadening of law enforcement authority rather than based on evidence-driven policy. Leafly News confirmed that letters addressed to medical cannabis patients, and signed by the Honolulu Police Chief Susan Ballard, informed patients:

“ [Y]ou are disqualified from firearms ownership, possession or controlling firearms. Your medical marijuana use disqualifies you from ownership of firearms and ammunition. ”

The letter further stated:

“ If you currently own or have any firearms, you have 30 days upon receipt of this letter to voluntarily surrender your firearms, permit, and ammunition to the Honolulu Police Department (HPD) or otherwise transfer ownership. ”

The letter sent by the Honolulu Police Department provided that "[a] medical doctor's clearance letter is required for any future firearms applications or return of firearms from HPD evidence." A report by Hawaii's state attorney general further stipulates that medical cannabis patients can only successfully apply for a firearm permit after their medical cannabis card have been expired for one year.

Furthermore, it appears that an electronic database of medical cannabis patients and a firearms registry allowed the Honolulu Police Department to compile a list of people who may be in violation of state law and who are in violation of federal law. Seemingly without knowing, the police department created a list and requested evidence from people who could be charged with the federal offense of possession of a firearm or ammunition by a prohibited person. Anyone who tests positive for cannabis, possesses cannabis, or possesses cannabis paraphernalia, such as a medical cannabis card or recommendation, is a prohibited person. The charge, under 18 USC § 922(g) & (n), is punishable by up to 10 years in federal prison. It may be worrying to medical cannabis patients that seized firearms and ammunition are inventoried by the Honolulu Police Department as evidence. If a medical cannabis patient that currently owns a firearm submits their firearms to the police, then their firearm could be used as evidence for charging the patient with a federal offense.

The federalism dilemma

Federalism, the allocation of rights between the federal and state governments, protects the federal and state governments from encroaching on each others' sovereignty. Presently, there is a major federalism dilemma with having cannabis both federally prohibited and state-legalized.

The Controlled Substance Act (CSA) designates cannabis as a Schedule Ⅰ drug, on the basis that there is no recognized medical use for cannabis, therefore, possession, distribution, and cultivation of cannabis is illegal. The Supreme Court confirmed in the 2001 case United States v. Oakland Cannabis Buyers' Cooperative that state exceptions for medical cannabis do not supersede the Controlled Substance Act's prohibition of cannabis. Justice Thomas remarked in his opinion that "Congress has made a determination that marijuana has no medical benefits worthy of an exception." Therefore, legal use of cannabis for medicinal purposes will ultimately need to be decided and acted upon by Congress. It should also be noted that in Justice Thomas's opinion he stated that "the statute consistently treats all schedule Ⅰ drugs alike." An interpretation of his opinion may suggest that there is no apparent difference between operating or frequenting a cannabis dispensary and operating or frequenting a heroin or methamphetamine dispensary. Consequently, medical cannabis patients will be held in the same light as hard drug users and dealers by the courts until Congress passes an act to the contrary.

The 2005 decision of Gonzales v. Raich by the Supreme Court ruled that "Congress' Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law." Relying on principles of federalism, Justice Stevens wrote:

“ The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. ”

In his scholarly research, Brannon P. Denning, Associate Dean and Professor of Law at Samford University, remarked that "[S]tates that have legalized marijuana have inadvertently exposed some of their citizens to prosecution for federal firearms offenses that can carry hefty prison terms." The professor notes that state legalization efforts are not prohibited by the Controlled Substance Act, but state residents cannot legally engage in cannabis-related activities permitted by their state. Due to state sovereignty, the federal government cannot force state law enforcement to enforce federal laws. However, the federal government can still enforce the Controlled Substance Act in states that have legalized cannabis with its own law enforcement agencies and Justice Department prosecutors.

Another important case was a recent lawsuit by the states of Nebraska and Oklahoma against Colorado, which borders both states. Lawyers for Nebraska and Oklahoma argued that Colorado's permission of cannabis "increased trafficking and transportation of Colorado-sourced marijuana" into their states, causing a strain on the states' law enforcement departments, judicial systems, and penal system resources. The Supreme Court denied to hear Nebraska and Oklahoma's complaint, without explanation. However, dissenting Justice Thomas wrote that "[t]he plaintiff States have alleged significant harms to their sovereign interests caused by another State. Whatever the merit of the plaintiff States' claims, we should let this complaint proceed further rather than denying leave without so much as a word of explanation." Although the Supreme Court dismissed this case, likely because the Court cannot commandeer Colorado's state legislature to recriminalize cannabis, Justice Thomas's comments foreshadow a future interstate suit regarding cannabis distribution and cross-border externalities.

Arguments for and against firearm restrictions

In addition to desiring to own a firearm for personal preference or for a hobby, medical cannabis patients and employees may wish to own a firearm because the prevalence of cash transactions in the cannabis industry increases the likelihood of being a victim of an armed robbery. Washington State has made it clear that their state laws do not prohibit firearm possession by licensed cannabis businesses with Attorney General Bob Ferguson's statement that "licensees handle a high-value product on a largely cash basis (due to federal banking restrictions) and, therefore, may be armed for self-protection. Nothing in state law prohibits firearms possession by marijuana licensees." However, due to the federal illegality of cannabis, cannabis business employees that carry firearms are in violation of federal law that bars the use of firearms in the cultivation and distribution of cannabis.

The federal government is particularly concerned about cannabis businesses being used as vehicles for money laundering, because of the predominance of cash transactions. In addition, armed personnel at cannabis business heighten the government's suspicion of organized crime operations. However, armed security guards are often necessary and mandated to protect cannabis dispensaries. This presents a dilemma where the safety provided by armed security at cannabis businesses is either impeded by the incongruous federal classification of cannabis or illegal.

Also, it may be inadvisable for medical cannabis patients to own, possess, or control firearms if there is evidence that medical cannabis patients face a higher risk of suicide or are significantly and substantially more likely to cause harm to others with firearms. Current scientific evidence does not support a relationship between medical cannabis use and suicide. Major factors that are significantly correlated with suicide are anxiety, depression, stress, and unemployment. Medical cannabis may help to alleviate anxiety, depression, and stress, and cannabis legalization provides job opportunities for unemployed workers. Therefore, it may actually be the case that cannabis helps to treat conditions that lead to suicide. However, it is still an open debate as to whether cannabis users are irrational and excessively prone to firearm accidents.

Resonse to the restriction

Hawaii permitted medical cannabis as early as 2000, but the first cannabis dispensary in Hawaii did not open until August 8th, 2017. The actions taken by law enforcement are likely in response to the recent introduction of medical cannabis on the islands. However, many citizens are clearly incensed by law enforcement obstructions and there could be adverse and unintended effects from Hawaii's latest effort to regulate firearms for medical cannabis patients.

In Colorado, the Department of Health speculated that there may have been in a decline in medical cannabis registrants in late 2011 partially due to "concerns that the confidentiality of the registry was compromised and might affect employment or the ability to purchase firearms or ammunition." If Hawaii loses the confidence of its citizens to not abuse the medical cannabis patient database and continues to allow law enforcement to use the database at their discretion, then more Hawaiian citizens will choose to use illegal cannabis instead of state-licensed medical cannabis. A rise in illegal cannabis use may offset the intended benefits of Hawaii's firearm restriction for medical cannabis patients.

Hawaii is effectively ignoring federal drug scheduling to permit medical cannabis use and distribution while relying on the same federal drug scheduling to deny patients permits for firearms. A Honolulu physician, Dr. Clifton Otto, who is certified to prescribe cannabis to patients, told Leafly News:

“ It's causing a bit of an uproar with our patients. We have a lot of patients, especially those on the Big Island, who are hunters, and a fair number of them own firearms. ”

The doctor suggested that the problem may have begun when the Department of Health appended a regulation regarding confidential health information in October of 2016. Originally, the regulation allowed federal, state, and local law enforcement to access medical records solely for verifying registration. The appendage to a clause in the regulation allows law enforcement to access medical records, including medical cannabis patient registries, for any official law enforcement purpose. The Honolulu Police Department appears to have interpreted the change in the Department of Health regulation to justify crosschecking firearm permit applicants with Hawaii's medical cannabis patient database to deny medical cannabis patients firearm permits.

According to the Honolulu Civil Beat, "[f]rom 2013 to 2016, 67 patients were denied gun permits, and the [Honolulu Police Department] HPD has sent letters to 30 patients in the last year." The Honolulu Star confirmed that "police have been sending the letters since at least January" of 2017. Although it has been common practice for the Honolulu Police Department to deny cannabis patients firearm permits, the police department is now taking active steps to urge firearm-owning medical cannabis patients to surrender their firearms. The escalation by law enforcement may give rise to concerns that the Honolulu Police Department may launch efforts to confiscate and seize firearms, or target new avenues to crack down on state-permitted medical cannabis patients and businesses.

As a cause of legitimate concern, "the notices sparked backlash from residents, prompting the police review." Having sparked local and national outcry, the Honolulu Police Department may have started to reconsider its deceleration as ill-advised. On December 5th, Hawaii News Now reported that "The Honolulu Police Department said they're consulting with other government agencies on a policy that requires some medical marijuana card holders to turn in their firearms and ammunition within 30 days after being instructed to do so by the agency."

Ultimately, the Honolulu Police Department Chief, Susan Bullard, stated that the police department will not require medical cannabis patients to surrender their firearms while the policy is being reviewed. The outrage from medical cannabis patients and advocates may have forced Hawaii to backpedal its escalation of firearm enforcement, demonstrating the ability of cannabis advocates to mobilize and actualize change.

The incongruities are here for now

The inconsistencies with federally prohibited and state-legalized medical cannabis will continue to plague U.S. residents for the foreseeable future, and Hawaii is no exception. Grappling with the dilemma of ensuring both the rights of medical cannabis patients and public safety, Hawaii's attempt to regulate firearms is the latest example of how Congress's inaction to reclassify cannabis as a drug with recognized medicinal purposes is causing harm and uncertainty to thousands of state-law abiding citizens. Moving forward, it will be of great interest to participants in and advocates of the cannabis industry as to whether or not Congress will act so that state laws regulating cannabis will gain teeth. Until then, Hawaii, and every other state that has legalized cannabis, will continue to face legal hurdles in legislating a safe industry.