On August 31, 2016, the United States Court of Appeals for the Ninth Circuit (Washington, Oregon, California, Montana, Idaho, Nevada, Arizona, Alaska and Hawaii) sided with the ATF in its view that if a firearms dealer is aware that the potential purchaser is in possession of a card authorizing the possession and use of use of marijuana under state law, then the dealer has “reasonable cause to believe” that such person is an unlawful user of a controlled substance and the dealer may not transfer firearms or ammunition to the person.
The case, S. Rowan Wilson v. Loretta E. Lynch et al. (D.C. No. 2:11 CV 01970 GMN PAL), resulted from Wilson’s attempt to purchase a firearm from a Nevada firearms dealer, who refused to sell the firearm to Wilson as a result of his knowledge that Wilson possessed a Nevada medical marijuana registry card.
Consistent with a letter issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), the dealer refused to sell Wilson a firearm because of her registry card. Wilson sued, challenging the federal statutes, regulations, and guidance that prevented her from buying a firearm. The United States district court dismissed Wilson’s complain, and Wilson appealed to the federal Circuit Court.
Marijuana is classified as a Schedule I controlled substance under the Controlled Substances Act, 21 U.S.C. § 812. As a Schedule I controlled substance, marijuana, under federal law, is deemed to have “no currently accepted medical use in treatment[, and] [t]here is a lack of accepted safety for use of the . . . substance under medical supervision.” (§ 812(b)(1)(B) & (C)). This, however, is not the view of the State of Nevada. Although Nevada law criminalizes the possession of marijuana, Nevada’s Constitution was amended in 2000 to provide for medical marijuana use, and thereby a holder of a valid marijuana registration ID card (a “registry card”) is exempt from state prosecution for marijuana-related crimes in Nevada (marijuana use is legal in the Ninth Circuit States of Alaska, Oregon and Washington, and medical marijuana use is legal in the Ninth Circuit States of California, Nevada, Montana, Arizona and Hawaii).
Under the Federal Gun Control Act of 1968 (18 U.S.C. § 922(g)(3)), no person “who is an unlawful user of or addicted to any controlled substance” may “possess . . . or . . . receive any firearm or ammunition.” In addition, it is unlawful for “any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person . . . is an unlawful user of or addicted to any controlled substance.” (18 U.S.C. § 922(d)(3)).
In addition, the ATF has promulgated regulations implementing Section 922 and defining a person “who is an unlawful user of or addicted to any controlled substance.” (27 C.F.R. § 478.11). The ATF has also developed Form 4473, which confirms eligibility for gun ownership under § 922. Prospective purchasers of firearms fill out Form 4473 when they seek to buy a firearm. Form 4473 includes Question 11.e., which asks “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” If the answer is “yes,” the putative transaction is prohibited.
The ATF provided further guidance on the issue of medical marijuana. On September 21, 2011, the ATF issued an “Open Letter to All Federal Firearms Licensees” (the “Open Letter”), which stated the following:
[A]ny person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition. Such persons should answer “yes” to question 11.e. on ATF Form 4473 . . . and you may not transfer firearms or ammunition to them. Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have “reasonable cause to believe” that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person, even if the person answered “no” to question 11.e. on ATF Form 4473.
On May 12, 2011, Wilson was issued a marijuana registry card by the State of Nevada. A few months later, on October 4, 2011, Wilson sought to purchase a firearm from Custom Firearms & Gunsmithing in the small community of Moundhouse, Nevada. As Wilson began to fill out Form 4473, the owner of the store, Frederick Hauser, stopped her from completing Question 11.e, which asked whether Wilson was an unlawful user of a controlled substance. Hauser explained that, because (as Hauser already knew) Wilson held a marijuana registry card, Wilson was deemed an unlawful user of a controlled substance and therefore someone to whom he could not sell a firearm without jeopardizing his federal firearms license. Wilson handed Hauser Form 4473 with Question 11.e. left blank. Hauser, who had received the ATF Open Letter three days earlier, nonetheless refused to sell her a firearm. Wilson alleges that Hauser’s refusal to sell her a firearm was a direct consequence of Hauser’s receipt of the Open Letter and filed suit in federal District Court.
In her lawsuit, Wilson asserted five causes of action: (1) violation of the Second Amendment, (2) violation of the Equal Protection Clause of the Fifth Amendment, (3) violation of the procedural Due Process Clause of the Fifth Amendment, (4) violation of the substantive Due Process Clause of the Fifth Amendment, and (5) violation of the First Amendment. Wilson sought declarations that 18 U.S.C. § 922(g)(3) and (d)(3), as well as all derivative regulations, such as 27 C.F.R. § 478.11, and the Open Letter, were unconstitutional. Wilson also sought a permanent injunction barring enforcement of § 922(g)(3) and (d)(3), all derivative regulations, and the Open Letter. Finally, Wilson sought compensatory and punitive damages, costs, fees and expenses. The District Court dismissed her lawsuit and Wilson appealed to the Circuit Court of Appeals.
Interestingly, Wilson alleges that she was not a user of marijuana but, in light of the active political movements to decriminalize the use of marijuana in some states, her stance as a non-using registry cardholder allows her to express her support for marijuana legalization in a particularly meaningful way.
The federal Circuit Court ruled that the degree of fit between 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter and the aim of preventing gun violence is still reasonable, which is sufficient to survive intermediate scrutiny. The court also ruled that “with respect to marijuana registry cards, there may be some small population of individuals who—although obtaining a marijuana registry card for medicinal purposes—instead hold marijuana registry cards only for expressive purposes. But it is eminently reasonable for federal regulators to assume that a registry cardholder is much more likely to be a marijuana user than an individual who does not hold a registry card.” The court stated that “Because the degree of fit between 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter and their purpose of preventing gun violence is reasonable but not airtight, these laws will sometimes burden—albeit minimally and only incidentally—the Second Amendment rights of individuals who are reasonably, but erroneously, suspected of being unlawful drug users. However, the Constitution tolerates these modest collateral burdens in various contexts, and does so here as well.”
Wilson argued that 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter deprived her of her liberty interest in simultaneously carrying a registry card and purchasing a firearm. She contended that this deprivation occurred without any process—only a determination that she holds a registry card. The court ruled, however, that “Wilson does not have a constitutionally protected liberty interest in simultaneously holding a registry card and purchasing a firearm.”
Wilson also argued that the Open Letter effectively amended 27 C.F.R. § 478.11. Specifically, she argued that the Open Letter impermissibly expands 27 C.F.R. § 478.11’s definition of an “unlawful user” of illegal drugs to include registry cardholders who use marijuana. Section 478.11 defines an unlawful user as “any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician.” Wilson contended that, because a medical recommendation must be obtained to receive a marijuana registry card, a holder of a registry card who uses marijuana has not used a controlled substance in a manner other than as prescribed by a licensed physician. The court ruled that this is incorrect as a matter of federal law. The court stated that “[u]nder 21 U.S.C. § 812, marijuana is a Schedule I controlled substance,” meaning that—as far as Congress is concerned—marijuana “has no currently accepted medical use in treatment[, and] there is a lack of accepted safety for use of the . . . substance under medical supervision.” 21 U.S.C. § 812(b)(1)(B) & (C). No physician may legally prescribe marijuana as a matter of federal law, and no user of medical marijuana is using it “as prescribed by a licensed physician” within the meaning of 27 C.F.R. § 478.11.”
Finally, the court stated that “the Open Letter does not make a blanket assertion that all registry card users are marijuana users, it simply clarifies that a firearms dealer has ‘reasonable cause to believe’” an individual is an unlawful user if she holds a registry card. This inference falls well within the scope of 27 C.F.R. § 478.11, which states that “[a]n inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time.”
The Wilson ruling needs to be read narrowly in that, in this case, the firearms dealer knew that Wilson possessed a medical marijuana registry card. Form 4473 issues are one of the most frequently cited infractions in ATF Firearms Licensee inspections, and sales to prohibited persons are actions that the ATF does not take lightly. These types of violations can lead to revocation of the dealer’s license. However, as in most circumstances, the dealer must rely on his or her gut reaction and his or her “reasonable cause to believe.” Firearms dealers have a tremendous and important burden placed on them under federal law to be the gatekeepers to ensure that firearms and ammunition are not sold to persons who may not lawfully possess them, and all but a very small percentage of these dealers do a very good job at this. However, with the ever changing landscape concerning the use of marijuana under the laws of various states, the burden on firearms dealers becomes even more difficult. Thankfully, the ATF in this case provided dealers with guidance under the Open Letter, and the Circuit Court has upheld this guidance.
Additional Information
This client alert was prepared by members of Kutak Rock’s National Firearms Group. For additional information, please contact a member of the group listed in the right-hand column.