OR - Appeals Court: Can't Deny CCW For Medical Pot Users

[Kevlar]

Oregon's 32,929 medical marijuana users can't be denied concealed handgun licenses, despite the efforts of at least two sheriffs who want to keep concealed weapons out of those hands.

The Oregon Court of Appeals ruled this week that Washington County Sheriff Rob Gordon and Jackson County Sheriff Mike Winters were mistaken in their interpretation of the federal Gun Control Act. The act states that "an unlawful user ... of any controlled substance" can't own a gun, and the sheriffs contended the federal act trumps Oregon's medical marijuana law. Though federal law prohibits marijuana, Oregon's 12-year-old law legalizes pot possession for patients with qualifying ailments and a doctor's approval.

Leland Berger, who represented four medical marijuana users who were denied concealed handgun licenses, was relieved by the Court of Appeals decision. He sees the sheriffs' denial of licenses as discrimination against patients who use cannabis to treat debilitating health problems -- including cancer, glaucoma, seizures, nausea and severe pain.

"They are opposed to the law generally, and this is how they express their opposition to the law," Berger said, adding that fighting the cases was expensive for the counties. "The downside is it's a huge waste of taxpayer resources."

Elmer Dickens, who argued the case for the Washington County sheriff, took offense at Berger's characterization.

"We absolutely don't think this has anything to do with discrimination," Dickens said. "And frankly, he's impugning the integrity of every sheriff in the state."

Dickens said Washington County was the first in the state to ask applicants seeking concealed gun licenses whether they use medical marijuana and to deny those who said yes. He said sheriffs in many other counties -- including Coos and Douglas -- followed, seeing Washington County's logic: that sheriffs are sworn to enforce the law and federal law forbids pot smokers from possessing guns.

Multnomah County asks applicants the same question, but a sheriff's employee who handles applications said medical marijuana users aren't denied licenses. Clackamas County doesn't ask. State law doesn't direct counties to do so.

Washington County hasn't decided whether to appeal to the Oregon Supreme Court. Sheriff Gordon is on vacation and couldn't be reached for comment. Douglas County Sheriff Winters also couldn't be reached for comment.

At the center of the case is Steve Schwerdt.....

http://www.oregonlive.com/news/index.ssf/2010/06/oregon_gun_ruling_a_victory_fo.html.

 

[Reptile]

Will this, in any way affect Massachusetts laws?

I think that in Mass, even if you have been recently convicted of that small possession charge- you can not lose your LTC.

Is that true?

 

[Kevlar]

I think that in Mass, even if you have been recently convicted of that small possession charge- you can not lose your LTC. Is that true?

No. While a civil violation for possession of an ounce or less of marijuana is not a statutory dis-qualifier, "suitability" can still be used to revoke/deny a license.

 

[GSG]

Interesting. This seems like another move towards "states rights" regarding guns. I wonder what the Feds will think, now that these four people have gone on record admitting that they're federally prohibited persons.

Will this, in any way affect Massachusetts laws?

Possibly, but only in a general sense. The Mass. SJC has referenced case law from other states when forming opinions before.

I think that in Mass, even if you have been recently convicted of that small possession charge- you can not lose your LTC.

Is that true?

I think you're referring to marijuana recently being de-criminalized in MA when possessed in small amounts without the intent to sell. If that's what you're referring to then you're correct, it's not a statutory disqualifier (which is different from a "suitability" disqualifier, which can be just about anything). If you have a criminal conviction from any US state or federal jurisdiction for any drug related offenses then you are statutorily DQ'd from a MA LTC for life; this would be from any state where it's a criminal offense, or a conviction in MA before the law changed.

However, MGL 140-131(e) says in part:

(e) Within seven days of the receipt of a completed application for a license to carry or possess firearms, or renewal of same, the licensing authority shall forward one copy of the application and one copy of the applicant's fingerprints to the colonel of state police, who shall within 30 days advise the licensing authority, in writing, of any disqualifying criminal record of the applicant arising from within or without the commonwealth and whether there is reason to believe that the applicant is disqualified for any of the foregoing reasons from possessing a license to carry or possess firearms. In searching for any disqualifying history of the applicant, the colonel shall utilize, or cause to be utilized, files maintained by the department of probation and statewide and nationwide criminal justice, warrant and protection order information systems and files including, but not limited to, the National Instant Criminal Background Check System. The colonel shall inquire of the commissioner of the department of mental health relative to whether the applicant is disqualified from being so licensed. If the information available to the colonel does not indicate that the possession of a firearm or large capacity firearm by the applicant would be in violation of state or federal law, he shall certify such fact, in writing, to the licensing authority within said 30 day period.

The federal law on the subject is USC 18-922(g), which says:

(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
(6) who has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

A Massachusetts civil fine for drug possession won't prohibit you federally from possessing guns or ammo, but anyone who is a user of drugs or addicted to drugs is federally prohibited.

 

[Rob Boudrie]

No. While a civil violation for possession of an ounce or less of marijuana is not a statutory dis-qualifier, "suitability" can still be used to revoke/deny a license.

The MA law making small amounts of the heathen devil weed a $100 fine states that the issuance of such a citation may not be used as the basis for denial of any state benefit or license.

What this means is that a chief revoking or refusing an LTC must engage in a bit of linguistic gymnastics, and write a revocation/denial letter that states the adverse action is being taken because the person is a drug user and not state that it is because of the citation. So, the suitability catch-all is available, but it requires care in wording so it does not meet the definition of a prohibited denial.

 

[Zappa]

Washington County's logic: that sheriffs are sworn to enforce the law and federal law forbids pot smokers from possessing guns.

If the sheriffs are empowered to enforce Federal laws, why not the immigration laws too?

 

[GSG]

So, the suitability catch-all is available, but it requires care in wording so it does not meet the definition of a prohibited denial.

Thanks for the clarification.

If the sheriffs are empowered to enforce Federal laws, why not the immigration laws too?

A bunch of states (MA included) require the issuing authority to make sure that you aren't a federally prohibited person before issuing you an LTC, it's codified into state law. This is not the case in Oregon.

Oregon Revised Statutes 166.291

166.291 Issuance of concealed handgun license; application; fees; liability. (1) The sheriff of a county, upon a person’s application for an Oregon concealed handgun license, upon receipt of the appropriate fees and after compliance with the procedures set out in this section, shall issue the person a concealed handgun license if the person:

(a)(A) Is a citizen of the United States; or

(B) Is a legal resident alien who can document continuous residency in the county for at least six months and has declared in writing to the United States Citizenship and Immigration Services the intent to acquire citizenship status and can present proof of the written declaration to the sheriff at the time of application for the license;

(b) Is at least 21 years of age;

(c) Is a resident of the county;

(d) Has no outstanding warrants for arrest;

(e) Is not free on any form of pretrial release;

(f) Demonstrates competence with a handgun by any one of the following:

(A) Completion of any hunter education or hunter safety course approved by the State Department of Fish and Wildlife or a similar agency of another state if handgun safety was a component of the course;

(B) Completion of any National Rifle Association firearms safety or training course if handgun safety was a component of the course;

(C) Completion of any firearms safety or training course or class available to the general public offered by law enforcement, community college, or private or public institution or organization or firearms training school utilizing instructors certified by the National Rifle Association or a law enforcement agency if handgun safety was a component of the course;

(D) Completion of any law enforcement firearms safety or training course or class offered for security guards, investigators, reserve law enforcement officers or any other law enforcement officers if handgun safety was a component of the course;

(E) Presents evidence of equivalent experience with a handgun through participation in organized shooting competition or military service;

(F) Is licensed or has been licensed to carry a firearm in this state, unless the license has been revoked; or

(G) Completion of any firearms training or safety course or class conducted by a firearms instructor certified by a law enforcement agency or the National Rifle Association if handgun safety was a component of the course;

(g) Has never been convicted of a felony or found guilty, except for insanity under ORS 161.295, of a felony;

(h) Has not been convicted of a misdemeanor or found guilty, except for insanity under ORS 161.295, of a misdemeanor within the four years prior to the application;

(i) Has not been committed to the Oregon Health Authority under ORS 426.130;

(j) Has not been found to be mentally ill and is not subject to an order under ORS 426.130 that the person be prohibited from purchasing or possessing a firearm as a result of that mental illness;

(k) Has been discharged from the jurisdiction of the juvenile court for more than four years if, while a minor, the person was found to be within the jurisdiction of the juvenile court for having committed an act that, if committed by an adult, would constitute a felony or a misdemeanor involving violence, as defined in ORS 166.470;

(L) Has not been convicted of an offense involving controlled substances or participated in a court-supervised drug diversion program, except this disability does not operate to exclude a person if:

(A) The person has been convicted only once of violating ORS 475.864 (3) and has not completed a court-supervised drug diversion program under ORS 135.907; or

(B) The person has completed a court-supervised drug diversion program under ORS 135.907 and has not been convicted of violating ORS 475.864 (3);

(m) Is not subject to a citation issued under ORS 163.735 or an order issued under ORS 30.866, 107.700 to 107.735 or 163.738;

(n) Has not received a dishonorable discharge from the Armed Forces of the United States; and

(o) Is not required to register as a sex offender in any state.

(2) A person who has been granted relief under ORS 166.274 or 166.293 or 18 U.S.C. 925(c) or has had the person’s record expunged under the laws of this state or equivalent laws of other jurisdictions is not subject to the disabilities in subsection (1)(g) to (L) of this section.

(3) Before the sheriff may issue a license:

(a) The application must state the applicant’s legal name, current address and telephone number, date and place of birth, hair and eye color and height and weight. The application must also list the applicant’s residence address or addresses for the previous three years. The application must contain a statement by the applicant that the applicant meets the requirements of subsection (1) of this section. The application may include the Social Security number of the applicant if the applicant voluntarily provides this number. The application must be signed by the applicant.

(b) The applicant must submit to fingerprinting and photographing by the sheriff. The sheriff shall fingerprint and photograph the applicant and shall conduct any investigation necessary to corroborate the requirements listed under subsection (1) of this section. If a nationwide criminal records check is necessary, the sheriff shall request the Department of State Police to conduct the check, including fingerprint identification, through the Federal Bureau of Investigation. The Federal Bureau of Investigation shall return the fingerprint cards used to conduct the criminal records check and may not keep any record of the fingerprints. The Department of State Police shall report the results of the fingerprint-based criminal records check to the sheriff. The Department of State Police shall also furnish the sheriff with any information about the applicant that the Department of State Police may have in its possession from its central bureau of criminal identification including, but not limited to, manual or computerized criminal offender information.

(4) Application forms for concealed handgun licenses shall be supplied by the sheriff upon request. The forms shall be uniform throughout the state in substantially the following form:

I took a quick look at this chapter, and their state gun laws are strangely out of tune with federal gun laws; for instance, people with domestic violence convictions aren't barred from possessing guns under Oregon state law, but they definitely are under federal law.

So it looks to me like the sheriff's were violating state law when refusing to issue the permits, but upholding federal law, which they're not bound to do under state law (although I didn't read all the Oregon Revised Statutes regarding the duties of LE in that state, it doesn't look like upholding federal law would be involved in the description). I'll definitely be paying attention to this one, I predict some ATF activity in Oregon if they're not there already.

 

[Kevlar]

So, the suitability catch-all is available, but it requires care in wording so it does not meet the definition of a prohibited denial.

Thanks for the clarification.

+1 Thanks Rob!