In yet another federal court ruling questioning the U.S. government\u2019s blanket ban on firearm possession by marijuana users, an appeals court on Tuesday vacated a defendant\u2019s conviction under the statute known as Section 922(g)(3) and remanded the case back to a district court, noting that a retrial before a jury may be necessary to determine whether cannabis in fact caused the defendant to be dangerous or pose a credible threat to others.<\/p>\n
In a 14-page opinion, a three-judge panel for the U.S. Court of Appeals for the Eighth Circuit noted that after an Iowa district court initially decided the case, the appeals court issued new guidance in a February ruling that said the prohibition on gun ownership by drug users is justified only in certain circumstances\u2014not always<\/a>.<\/p>\n In returning the current case\u2014U.S. v. Cordova Perez<\/em>\u2014to the Southern District of Iowa, judges said the lower court failed to make a determination as is now required in the Eighth Circuit as to whether defendant Aldo Ali Cordova Perez Jr.\u2019s marijuana use made him a credible threat to public safety.<\/p>\n \u201cThe proper question is whether Cordova Perez\u2019s marijuana use caused him to act in an outwardly erratic or aggressive manner that would, in context, be reasonably perceived as disturbing or dangerous to others,\u201d says the opinion, written by Circuit Judge Jane L. Kelly, an Obama appointeee.<\/p>\n While the ruling says the district court \u201cdid not make any such causal finding in this case,\u201d it suggests that establishing such a relationship might not necessarily require evidence that Cordova Perez\u2019s cannabis made him violent or commit conduct with a gun specifically.<\/p>\n \u201cIf marijuana caused Cordova Perez to act or drive in an erratic way, for example, he might be disarmed constitutionally under \u00a7 922(g)(3) even if his outward behavior was not violent in the same way as, perhaps, the \u2018combative hostility\u2019 sometimes associated with \u2018a drug like PCP,’\u201d the opinion says.<\/p>\n \u201cEven if Cordova Perez normally used marijuana without issue,\u201d it adds, \u201cmarijuana could have triggered a single erratic or dangerous episode.\u201d<\/p>\n Judges also said in the new opinion that the lower court\u2019s decision in the case didn\u2019t make any factual findings that the defendant\u2019s \u201cmarijuana use\u2014either that day or more broadly\u2014caused him to \u2018induce terror, or pose a credible threat to the physical safety of others with a firearm.’\u201d<\/p>\n \u201cNor did the district court ask if Cordova Perez\u2019s marijuana use placed him in a category of people \u2018present[ing] a special danger of misuse\u2019 sufficient to justify disarmament irrespective of any individualized showing of dangerousness,\u201d the decision adds.<\/p>\n Such a finding would be necessary under current precedent requiring that to be constitutional, a statute restricting gun rights from a broad class of Americans must be sufficiently similar to historical restrictions, such as preventing firearm possession by people with mental illness.<\/p>\n \u201cWe have already held that without more, neither drug use generally nor marijuana use specifically automatically extinguishes an individual\u2019s Second Amendment right,\u201d the panel wrote, referencing Cooper<\/em>, the Eight Circuit\u2019s own ruling from February,<\/p>\n \u201cDefining a class of drug users simply by the suggestion that they might sometimes be dangerous, without more, is insufficient for categorical disarmament,\u201d judges added.<\/p>\n The new ruling says the district court, where matters of fact rather than law are decided, \u201cis best positioned to reassess Cordova Perez\u2019s as-applied challenge in light of Cooper<\/em>\u201c:<\/p>\n \u201cAccordingly, we vacate the judgment and remand for the district court to determine\u2014either individually or categorically, and either on the trial record or, to the extent necessary, via an evidentiary hearing\u2014whether Cordova Perez\u2019s marijuana use: 1) caused him to \u2018act like someone who is both mentally ill and dangerous\u2019; or 2) would or did make him \u2018induce terror, or pose a credible threat to the physical safety of others with a firearm.’\u201d<\/p>\n Further fact-finding to establish evidence of Cordova Perez\u2019s relationship to marijuana might require a trial before a jury rather than a judge, it adds.<\/p>\n \u201cAs to any factual findings on remand, Cordova Perez raises a legitimate concern that the jury, not the judge, must resolve factual disputes necessary to sustain his conviction,\u201d judges wrote, adding that \u201ca retrial may be necessary.\u201d<\/p>\n Notably, the new Eighth Circuit opinion<\/a> appears to differ from a recent Third Circuit ruling in that the new decision says that not every application of 922(g)(3) \u201crequire[s] an individualized factual determination,\u201d explaining that such determinations wouldn\u2019t be necessary if the government could demonstrate that a particular drug made an entire class of users dangerous.<\/p>\n By contrast, the Third Circuit earlier this month said in a published opinion that district courts must make \u201cindividualized judgments\u201d to determine whether 922(g)(3) is constitutional<\/a> as applied to particular defendants.<\/p>\n The appeals panel ruled that while a person \u201cneed not have harmed someone, threatened harm, or otherwise acted dangerously to justify his disarmament,\u201d the history of gun laws in the country requires that \u201cdistrict courts must make individualized judgments and conclude that disarming a drug user is needed to address a risk that he would pose a physical danger to others.\u201d<\/p>\n Judges in that case noted that historical restrictions on gun ownership under \u201cdrunkenness and lunacy laws\u201d in the U.S. \u201cwere still always based on an \u2018individualized assessment\u2019 rather than a categorical judgment.\u201d<\/p>\n \u201cFuture courts considering \u00a7922(g)(3) challenges,\u201d the Third Circuit added, \u201cshould also consider these factors in determining whether someone\u2019s drug use suggests that he \u201clikely poses an increased risk of physical danger to others if armed.\u201d<\/p>\n A number of federal courts in recent months have cast doubt on the legality of \u00a7 922(g)(3), finding generally that while the ban on gun ownership among drug users may not be entirely unconstitutional, there\u2019s scant historical precedent for such a broad restriction of Second Amendment rights on an entire a category of people.<\/p>\n As a recent report from the Congressional Research Service explained the current legal landscape<\/a>, a growing number of federal courts are now \u201cfinding constitutional problems in the application of at least some parts\u201d of the firearms prohibition.<\/p>\n The matter could soon be taken up by the U.S. Supreme Court. In a recent petition for review by justices, U.S. Solicitor General D. John Sauer argued that despite recent appeals court decisions calling the constitutionality of the firearms ban into question, the restriction is nevertheless lawful<\/a>.<\/p>\n \u201cSection 922(g)(3) complies with the Second Amendment,\u201d the government\u2019s filing in that case,\u00a0U.S. v. Hemani<\/em>, maintains. \u201cThat provision targets a category of persons who pose a clear danger of misusing firearms: habitual users of unlawful drugs.\u201d<\/p>\n The federal statute \u201cbars their possession of firearms only temporarily,\u201d the government petition says, \u201cand leaves it within their power to lift the restriction at any time; anyone who stops habitually using illegal drugs can resume possessing firearms.\u201d<\/p>\n Notably, while the government mentioned \u201chabitual\u201d users of illegal drugs 40 times in its Supreme Court filing, the word does not itself appear in 922(g)(3). The language of the statute prohibits anyone \u201cwho is an unlawful user of or addicted to any controlled substance\u201d from purchasing or possessing firearms or ammunition.<\/p>\n While DOJ is asking the high court to take up the\u00a0Hemani<\/em>\u00a0case, at least two other, similar cases are waiting in the wings:\u00a0U.S. v. Cooper<\/em>\u00a0and\u00a0U.S. v. Baxter<\/em>\u00a0both of which also hinge on the constitutionality of 922(g)(3).<\/p>\n In\u00a0Cooper<\/em>, an Eighth Circuit U.S. Court of Appeals panel\u00a0dismissed a three-year prison sentence against a person convicted for possession of a firearm while being an active user of marijuana<\/a>. Judges in that case ruled that government\u2019s prohibition on gun ownership by drug users is justified only in certain circumstances\u2014not always.<\/p>\n \u201cNothing in our tradition allows disarmament simply because [the defendant] belongs to a category of people, drug users, that Congress has categorically deemed dangerous,\u201d their ruling said.<\/p>\n In\u00a0Baxter<\/em>, the Eighth Circuit ruled 922(g)(3) unconstitutional as applied to the facts in the case.<\/p>\n Judges in that case wrote that there were insufficient factual findings in the record \u201cfor this Court to review Baxter\u2019s as-applied Second Amendment challenge.\u201d Nevertheless, the they wrote, \u201cWe reverse the district court\u2019s ruling on Baxter\u2019s as-applied Second Amendment challenge and remand to the district court for further proceedings consistent with this opinion.\u201d<\/p>\n In recent weeks, the government has sought further time from the court to decide whether to seek an appeal in the other cases. And when DOJ filed its appeal in\u00a0Cooper<\/em>, it further asked the court to slow walk the case, requesting justices \u201chold the petition for a writ of certiorari pending the disposition of the petition in\u00a0United States v. Hemani\u2026<\/em>and should then dispose of this petition as appropriate.\u201d<\/p>\n One reason DOJ could be focused on the high court taking up\u00a0Hemani<\/em>\u00a0in particular is that the defendant is not only a cannabis user but also a user of cocaine who\u2019s sold drugs in the past, perhaps reasoning that he is a less sympathetic face of drug consumers\u2019 gun rights. Defendants in the other cases were merely found in possession of both a firearm and marijuana.<\/p>\n If the Supreme Court takes up\u00a0Hemani<\/em>\u00a0and declares 922(g)(3) constitutional, such a ruling could could mean government wins in the remaining cases.<\/p>\n One risk to the government appealing the lower court rulings are that if the Supreme Court does take the case, justices may in fact rule unfavorably to the government, possibly cementing that \u00a7 922(g)(3) is\u2014in at least some cases\u2014unconstitutional.<\/p>\n Earlier this year, a federal judge in Rhode Island ruled that the ban was unconstitutional as applied to two defendants<\/a>, writing that the government failed to establish that the \u201csweeping\u201d prohibition against gun ownership by marijuana users was grounded in historical precedent.<\/p>\n The Fifth Circuit\u2019s\u00a0Daniels<\/em>\u00a0ruling\u2014in a three-judge panel\u00a0ruled that the firearms ban was unconstitutional as applied<\/a>\u2014came on the heels of a string of\u00a0other judicial decisions casting doubt on the legality of the ban<\/a>.<\/p>\n A federal judge in El Paso, for instance, ruled late last year that the government\u2019s ongoing\u00a0ban on gun ownership by habitual marijuana users is unconstitutional<\/a>\u00a0in the case of a defendant who earlier pleaded guilty to the criminal charge. The court allowed the man to withdraw the plea and ordered that the indictment against him be dismissed.<\/p>\n Another panel of judges, on the U.S. Court of Appeals for the Tenth Circuit,\u00a0heard oral arguments in November<\/a>\u00a0in the government\u2019s appeal of\u00a0a district court ruling that deemed the gun ban unconstitutional<\/a>.<\/p>\n In a number of the ongoing cases, DOJ has argued\u00a0that the prohibition on gun ownership by marijuana users\u00a0is also supported by a recent U.S. Supreme Court decision,\u00a0U.S. v. Rahimi<\/em><\/a>, that upheld the government\u2019s ability to limit the Second Amendment rights of people with domestic violence restraining orders.<\/p>\n DOJ has made such arguments, for example, in favor of the firearms ban in a case in a\u00a0case in the U.S. Court of Appeals for the Eleventh Circuit<\/a>. In that matter, a group of Florida medical cannabis patients contends that their Second Amendment rights are being violated because they cannot lawfully buy firearms so long as they are using cannabis as medicine, despite acting in compliance with state law.<\/p>\n DOJ under President Joe Biden consistently argued that medical marijuana patients who possess firearms \u201cendanger public safety,\u201d \u201cpose a greater risk of suicide\u201d and are more likely to commit crimes \u201cto fund their drug habit.\u201d<\/p>\n It remains unclear how the Trump administration will approach the cases. At a NRA conference in 2023, Trump suggested there\u00a0might be a link between the use of \u201cgenetically engineered\u201d marijuana and mass shootings<\/a>. He listed a number of controversial and unproven factors that he said at the time he would direct the Food and Drug Administration (FDA) to investigate as possibly causing the ongoing scourge of mass shooting afflicting the country.<\/p>\n \u201cWe have to look at whether common psychiatric drugs, as well as genetically engineered cannabis and other narcotics, are causing psychotic breaks\u201d that lead to gun violence, he said.<\/p>\n DOJ has claimed in multiple federal cases over the past several years that\u00a0the statute banning cannabis consumers from owning or possessing guns<\/a>\u00a0is constitutional because it\u2019s consistent with the nation\u2019s history of disarming \u201cdangerous\u201d individuals.<\/p>\n In 2023, for example, the Justice Department told the U.S. Court of Appeals for the Third Circuit that historical precedent \u201ccomfortably\u201d supports the restriction. Cannabis consumers with guns pose a unique danger to society, the Biden administration claimed, in part because they\u2019re\u00a0\u201cunlikely\u201d to store their weapon properly<\/a>.<\/p>\n Last year, Biden\u2019s son Hunter was convicted by a federal jury of violating statute by buying and possessing a gun while an active user of crack cocaine. Two Republican congressmen challenged the basis of that conviction, with one pointing out that\u00a0there are \u201cmillions of marijuana users\u201d who own guns<\/a>\u00a0but should not be prosecuted.<\/p>\n The situation has caused confusion among medical marijuana patients, state lawmakers and advocacy groups, among others. The\u00a0National Rifle Association\u2019s (NRA) lobbying arm said recently that the court rulings on the cannabis and guns issue<\/a>\u00a0have \u201cled to a confusing regulatory landscape\u201d that have impacted Americans\u2019 Second Amendment rights.<\/p>\n \u201cMarijuana use is no longer limited to the domain of indigenous religious customs or youth-oriented counterculture and now includes a wide variety of people who use it for medicinal or recreational reasons,\u201d said the advocacy group, which does not have an official stance on cannabis policy generally. \u201cMany of these individuals are otherwise law-abiding and productive members of their communities and want to exercise their right to keep and bear arms.\u201d<\/p>\n Meanwhile, some states have passed their own laws either further restricting or attempting to preserve gun rights as they relate to marijuana. Recently a Pennsylvania lawmaker introduced a bill meant to\u00a0remove state barriers to medical marijuana patients carrying firearms<\/a>.<\/p>\n Colorado activists also attempted to qualify an initiative for November\u2019s ballot that would have protected the Second Amendment rights of marijuana consumers in that state, but\u00a0the campaign\u2019s signature-gathering drive ultimately fell short<\/a>.<\/p>\n As 2024 drew to a close, the\u00a0ATF issued a warning to Kentucky residents<\/a>\u00a0that, if they choose to participate in\u00a0the state\u2019s medical marijuana program that\u2019s set to launch imminently<\/a>, they will be prohibited from buying or possessing firearms under federal law.<\/p>\n The official said that while people who already own firearms aren\u2019t \u201cexpected to\u201d turn them over if they become state-legal cannabis patients, those who \u201cwish to follow federal law and not be in violation of it\u201d must \u201cmake the decision to divest themselves of those firearms.\u201d<\/p>\n Since then, bipartisan state lawmakers have introduced\u00a0legislation that would urge Kentucky\u2019s representatives in Congress to amend federal law<\/a>\u00a0to clarify that users of medical marijuana may legally possess firearms, though no action has since been taken on that bill.<\/p>\n Kentucky Gov. Andy Beshear (D) said in January that he supported the legislature\u2019s effort to urge the state\u2019s congressional delegation to\u00a0call for federal reforms to protect the Second Amendment rights of medical marijuana patients<\/a>, but the governor added that he\u2019d like to see even more sweeping change on the federal level.<\/p>\n \u201cI think the right way to deal with that is not just to focus on that issue, but to change the schedule of marijuana,\u201d Beshear said at a press conference. \u201cWhat we need to change is the overall marijuana policy by the federal government.\u201d<\/p>\n Read the full Eighth Circuit opinion in U.S. v. Cordova Perez <\/em>below:<\/strong><\/p>\n\n The post Appeals Court Vacates Conviction Over Marijuana User\u2019s Gun Ownership, Noting Lower Court Didn\u2019t Find His Use Caused A Threat<\/a> appeared first on Marijuana Moment<\/a>.<\/p>\n
In yet another federal court ruling questioning the U.S. government\u2019s blanket ban on firearm possession by marijuana users, an appeals court on Tuesday vacated a defendant\u2019s conviction under the statute known as Section 922(g)(3) and remanded the case back to a district court, noting that a retrial before a juryContinue Reading<\/a><\/span><\/p>\n","protected":false},"author":24,"featured_media":0,"comment_status":"false","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[81],"tags":[],"_links":{"self":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts\/82380"}],"collection":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/users\/24"}],"replies":[{"embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/comments?post=82380"}],"version-history":[{"count":1,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts\/82380\/revisions"}],"predecessor-version":[{"id":82381,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/posts\/82380\/revisions\/82381"}],"wp:attachment":[{"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/media?parent=82380"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/categories?post=82380"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cannabiscultivatornews.com\/home\/index.php\/wp-json\/wp\/v2\/tags?post=82380"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\nRead More: Appeals Court Vacates Conviction Over Marijuana User\u2019s Gun Ownership, Noting Lower Court Didn\u2019t Find His Use Caused A Threat<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"