The Wright Law Group, P.C. Medical Marijuana Legal Counsel
With few exceptions everybody understands and agrees that the Second Amendment to the United States Constitution guarantees the rights of citizens to own firearms. Likewise, the Constitution of the State of Nevada guarantees the right of persons with certain medical conditions to use marijuana for the treatment of their condition. However, despite the constitutional right to bear arms and Nevada’s right to use marijuana for medical purposes, there continues to be enforcement of federal and state laws that conflict with these constitutional rights.
Nevada MM Patients Being Charged With Unlawful Possession of Firearms:
Nevada medical marijuana patients are discovering that, even though they are legally allowed to use marijuana, they are being prosecuted for possessing firearms. This office is aware of at least one case, and undoubtedly more, where a neighbor purportedly complained of the smell of marijuana coming from the residence of a medical marijuana patient. A detective from the Las Vegas Metropolitan Police Department looked over the wall of the property and observed several mature marijuana plants growing (Nevada medical marijuana statutes allow a patient to cultivate up to twelve (12) mature plants for personal use). Subsequently, the detective inquired into the registry database and became aware that the resident of the home is the holder of a valid registry identification card that provides that the patient is exempt from prosecution for the use or possession of marijuana. Not withstanding that the detective was aware that the individual was a valid medical marijuana patient the detective knocked on the door of the residence. When the detective received no answer he peered through a side window and observed multiple firearms.
A couple weeks later the detective returned to the residence. When the occupant/marijuana patient opened the door the detective asked to be allowed access to the residence. The patient lawfully declined to permit the detective access to the residence. The detective then swore out an affidavit in support of a search warrant. The detective stated in the affidavit that he observed multiple firearms inside the residence and that as an admitted chronic user of the controlled substance marijuana, because he is a medical marijuana patient, the homeowner was prohibited from possessing firearms. Based upon the information provided, the detective was able to convince a judge to sign a search warrant for the patient’s home. The patient was arrested and charged with multiple counts of the unlawful possession of a firearm.
The Nevada statute that is being used by law enforcement and the prosecutor’s office (NRS202.360) states that a person shall not own or have in his or her possession or under his or her custody or control any firearm if that person is an unlawful user of, or addicted to, any controlled substance. The operative part of the statute is that the person must be an unlawful user of the controlled substance, and that is where there is a problem with what law enforcement is doing. The Nevada State Constitution provides for the lawful use of marijuana by persons who have a valid recommendation from a licensed physician. The whole point of the Department of Health and Human Services issuing the registry identification card is to inform law enforcement that the use of marijuana by the cardholder is lawful.
NRS 453A.140 defines the registry identification card as a document issued by the Division or its designee that identifies a person who is exempt from state prosecution for engaging in the medical use of marijuana. By definition, the holder of a registry identification card is a lawful user of marijuana for medicinal purposes, period.
To support this interpretation of the law one need only look to the statute that places limits on the exemption from prosecution. NRS 453A.200 places limits on the amount of marijuana a cardholder may possess, deliver or cultivate, but it does not place limits on a cardholders “use” of marijuana. In Nevada, the courts often apply the maxim of “expressio unius est exclusio alterius,” which means, the expression of one thing is the exclusion of another. When applied to the legislators who drafted the Nevada Medical Marijuana Statutes the fact that the term “use” is not included in NRS 453A.200 with possession, delivery or cultivation is evidence that the legislature did not intend to, nor does the constitution permit, the removal of the exemption for the lawful use of medical marijuana.
So why are medical marijuana patients being prosecuted for possessing firearms by the State of Nevada? We don’t believe they should be. Because, if a person possesses a valid registry identification card, his or her use of marijuana is lawful. Therefore, the person cannot be an unlawful user in possession of a firearm. The state cannot create a crime where none exists.
ATF Prohibits Firearm and Ammunition Sales to MM Patients:
Federal law on the subject is much clearer. The Federal government does not recognize the lawful use of medical marijuana so prosecution under a nearly identical federal statute is not surprising.
This scenario is playing out in virtually every state that has legalized the use of marijuana for either recreational use or for medicinal purposes. And it is not limited to persons who own firearms. The federal government is making it very difficult for persons who use marijuana for medical purposes to obtain permits to buy a firearm or even to purchase ammunition.
In September 2011 the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) sent an Open Letter to all Federal Firearms Licensees stating that 18 U.S.C. § 922(g)(3) prohibits any person who is an unlawful user of or addicted to any controlled substance” from shipping, transporting, receiving or possessing firearms or ammunition. The letter further stated that under Federal law marijuana is listed in the Controlled Substances Act as a Schedule I controlled substance and there are no exceptions in Federal law for marijuana use for medicinal purposes, even if such use is sanctioned by State law. The ATF reminded gun dealers that under 18 U.S.C. § 922(d)(3) 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 a controlled substance. The ATF letter closed by advising gun dealers that if a potential purchaser of a firearm or ammunition discloses that they are in possession of a registry identification card authorizing them to use marijuana the dealer is not allowed to sell them a firearm or ammunition.
This situation has the potential of creating as serious conflict between the constitutional rights of medical marijuana patients to lawfully use marijuana and their constitutional right to bear arms. If you have been charged with the unlawful possession of a firearm because you are a medical marijuana patient, you should seek knowledgeable legal assistance. The Wright Law Group is a Martindale Hubble AV rated law firm and is well equipped to assist you. Please call us at 702-405-0001 to schedule a consultation.