October 2011 Archives

October 27, 2011

How Will Federal Gun Policy Impact New Mexico's Medical Marijuana Policy

In September, the federal government sent letters to gun dealers nationwide informing them that medical marijuana card holders in states that have legalized the use of medical marijuana fell within the category of "unlawful drug users"/"addicts", to whom it was illegal to sell a gun. Outrage ensued, and what appears to be the first lawsuit challenging the federal policy was filed law week by a woman whose local gun dealer refused to sell to her because he knew her to be a medical marijuana user. The medical marijuana community has taken solace in the fact that, unless a gun dealer has personal knowledge that an individual is a medical marijuana cardholder, the only apparent way to be identified as such is through self-disclosure. At present, there do not appear to be any mechanisms or requirements for a gun dealer to determine whether the name of a would-be purchaser appears on a list of state medical marijuana card-holders. Thus, if a gun license applicant does not check the "unlawful drug user/addict" box on the gun license application, he or she may be able to purchase the gun notwithstanding his or her use of medical marijuana.

One big question that remains unanswered, however, is how, if at all, the federal government will choose to prosecute the possession of a gun by a medical marijuana cardholder or producer. The unlawful possession of a firearm is one of the more aggressively prosecuted federal offenses, particularly when that possession arises in connection with controlled substances. And while the federal disruption of medical marijuana programs has thus far been sporadic, the federal government seems less likely to exercise similar restraint in prosecuting unlawful possession of a firearm. New Mexico's medical marijuana program, which attempts to disperse licensed marijuana cultivation among non-profit producers and users alike, appears to be especially exposed to the chilling effect of the federal medical marijuana/gun policy since federal penalties for possessing a gun while distributing controlled substances are exponentially higher than those for the simple illegal possession of a gun. It seems likely that we will soon see a high profile federal prosecution of a medical marijuana user and/or producer who was found in possession of a firearm.