Marijuana and Guns, under federal law

By Dana M. Grimes, Esq.

UPDATE January 2018 – California Law, as enacted by Proposition 64, legalized the recreational use of marijuana in this state, as well as cultivation and sales done in compliance with strict state and local laws. A few days later, Attorney General Jeffrey Sessions made a statement reiterating that marijuana remains illegal under federal law. He stated that United States Attorneys across the country may prosecute felony marijuana cases even when the defendants are in compliance with state law. It appears that the individual U.S. Attorneys in each district are going to have considerable discretion in this regard. The DEA and other law enforcement agencies have their hands full trying to deal with opiates and international drug cartels. Still, Mr. Session’s remarks must be taken seriously. Anyone producing or selling marijuana without complying with strict state laws is risking prosecution under both federal and state law.

On November 8, 2016, California voters approved Proposition 64, legalizing recreational marijuana. Adults 21 and over are allowed to possess up to one ounce of marijuana, and cultivate up six plants (growing marijuana was already legal in some instances under Prop. 215, the Compassionate Use Act). Growing or selling marijuana or even possessing marijuana is still illegal under federal law,  Title 21 U.S.C. § 841. Growing or selling marijuana under many circumstances can also result in prosecution under California law, for cultivation (HS 11358) and possession of marijuana for sale  (HS 11359).

Simple marijuana possession was already decriminalized, even prior to Prop 64. Under Health & Safety Code §11357(b), the possession of less than one ounce of marijuana is a misdemeanor punishable by a fine, while selling marijuana is a felony and may result in a prison sentence under Health & Safety Code § 11360.

In November 1996, voters passed Proposition 215, the Compassionate Use Initiative, which legalized the cultivation and possession of marijuana in California for medical purposes.

It is illegal to drive under the influence of marijuana or any controlled substance, even a validly prescribed one, if it impairs a person’s ability to operate a motor vehicle.

There has been much litigation about how many ounces a person with a  need for medical marijuana can legally possess. Even with the doctor recommendation for marijuana, it is safer to keep the amount to less than one ounce. Also keep in mind that driving under the influence of marijuana will be prosecuted just like DUI, under VC 23152a.

Anyone cultivating or selling marijuana without the necessary permits risks felony prosecution by state and/or federal authorities. The San Diego City Attorney also will prosecute misdemeanor violations by dispensaries not fully in compliance.

The US Attorney and the DA both continue to prosecute marijuana cultivation and sales cases. Where a few plants are involved and the grower has a medical marijuana card, there probably will not be a prosecution. In big commercial cultivation cases, the penalties can still be quite severe. We still see seizures of indoor marijuana grows, and arrests of the growers, by the DEA. In some cases they will book the suspects into federal custody at MCC and take the case to the office of the United States Attorney, in other cultivation cases they will take the case to the Major Narcotics division of the District Attorney’s office. There has been a shift towards zoning code enforcement instead of criminal prosecution in many cases. Given recent patterns of enforcement and prosecution, it looks like most of them will be fighting administrative actions instead of felony criminal cases, but in some cases there will be search warrants served by armed officers, handcuffs, jail, and criminal prosecution.

Initiatives in Washington and Colorado legalize marijuana for recreational use and legalize its cultivation and sale, under the laws of those states. The idea is to regulate and tax the marijuana industry. It is still a violation of federal law, but at this point the US Department of Justice does not appear to be prosecuting cultivation or sales of marijuana cases in those two states.

MONEY LAUNDERING AND INCOME TAX EVASION- Some marijuana growers and operators of dispensaries make large amounts of money, but expose themselves to prosecution for money laundering and tax evasion. One of the purposes of legalizing medicinal marijuana (and in some states, even recreational marijuana) is to encourage growers and sellers to report income, and pay tax on it.

On August 16, 2016, 9th Circuit Court of Appeals decided United States v. McIntosh, 833 F.3d 1163. The court ruled that an individual indicted in federal court who claims that their conduct was permitted by state law is entitled to a hearing on this issue. However, to prevail at the hearing they need to prove that they fully complied with the state law. In California, that is hard to do. The court states that a state can not legalize possession, distribution, or growing of marijuana. Under the Supremacy Clause of the Constitution, state laws can not legalize what federal law prohibits. A new president will be elected soon, and the Department of Justice will soon have new people in high positions, including the Attorney General. The DOJ policies on medical marijuana under the present Attorney General has been to give a certain amount of deference to the medical marijuana laws of states which have enacted such laws. This could change, and anyone in the medical marijuana business is taking that risk.

In late August 2016, The Ninth Circuit Court of Appeals decided Wilson v Lynch, 835 F.3d 1083. People who have California Medical Marijuana Cards will not be allowed to purchase firearms, if the firearms dealer is aware of the medical marijuana card. Firearms dealers are not running background checks to see who has medical marijuana cards, and the firearms application does not ask if the person has the card. The form does ask if the purchaser is an illegal user of, or addicted to, illegal drugs, and that includes medical marijuana. The holding of the Ninth Circuit is that users of medical marijuana that is allowed under the laws of their states are still illegal drug users under federal law. The court stated that the Second Amendment does not protect the right of drug users to bear arms in the same way that it does not protect the rights of “felons and the mentally ill” to bear arms.