Friday | December 15, 2017
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An illegal combo: Firearm permits being denied to medical marijuana patients

The Hawaii Police Department has a letter it sends to medical marijuana patients seeking a gun permit that’s similar to a letter sent by the Honolulu Police Department which has cannabis advocates up in arms, so to speak.

The Honolulu Police Department letter, reportedly sent by the chief to 30 medical marijuana patients this year, gave them 30 days to “voluntarily surrender your firearms, permit and ammunition to the Honolulu Police Department (HPD) or otherwise transfer ownership.”

On Thursday, Honolulu media outlets reported Honolulu Police Department is reviewing its policy of requiring some medical cannabis cardholders to turn in their firearms. The latest letter was sent Nov. 13 and signed by Maj. Raymond Ancheta, head of the department’s Records Division on behalf of Chief Susan Ballard. The letters were initiated under the administration of former Honolulu Police Chief Louis Kealoha.

The state’s largest law-enforcement organization said it will continue to deny future gun permit applications for medical marijuana patients.

Hawaii Police Chief Paul Ferreira said his department’s form letter is sent only in response to admitted medical marijuana patients who apply for a permit to acquire a firearm. Ferreira said he signs them himself.

“When someone applies for a permit to acquire a firearm and they indicate they’re a medical marijuana patient, pursuant to a 2011 opinion from the (U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives), they’re no longer qualified to possess a firearm. At that point, we send out the letter telling them their permit to acquire has been denied. … If you’re in possession of any firearms or ammunition, you need to turn them in,” Ferreira said Wednesday. “Over the course of this past year, I don’t recall signing more than one or two of those letters.

“We do not go out and look for medical marijuana patients. We don’t go out and ask anybody for information on medical marijuana patients, or send them letters arbitrarily. It’s only in conjunction with when they apply for a permit to acquire.”

Although 29 states and the District of Columbia have legalized marijuana for medicinal use, and a small number has done so for recreational use, under federal law, marijuana is still a controlled substance. And an “unlawful user” of any controlled substance is prohibited by federal law from possessing firearms.

The September 2011 ATF opinion referred to by Ferreira said, “Any 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 prohibited by federal law from possessing firearms or ammunition.

The 9th U.S. Circuit Court of Appeals ruled in August 2016 that barring gun sales to medical marijuana users doesn’t violate their Second Amendment right to bear arms.

“It is beyond dispute that illegal drug users, including marijuana users, are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and can lead to irrational or unpredictable behavior,” said the court.

Ferreira provided a sample version of Hawaii Police Department’s letter to the Tribune-Herald. It states that based on federal law, “possession of a medical marijuana card within the past year gives reasonable cause to believe that you are a current unlawful user of a controlled substance and are therefore prohibited from the possession of firearms.”

The letter also referred to Hawaii Revised Statutes 134-7 which states, “Any person disqualified from ownership, possession or control of firearms and ammunition … must dispose of all firearms and ammunition” within 30 days.

In addition to surrendering guns and ammunition to police, the law allows for the items to be sold to a licensed gun dealer or transferred to any person who meets the requirements for gun ownership or possession.

“Failure to do so may result in seizure of the firearms and ammunition and criminal prosecution under Chapter 134 of Hawaii Revised Statutes,” the letter said.

Medical marijuana patients aren’t eligible to apply for a gun permit until a year after their cards have expired.

Ferreira said his department doesn’t have unrestricted access to the state Department of Health’s medical cannabis registry database. He said the department requests information as needed when the department serves search warrants or does marijuana sweeps.

“Access to the Department of Health’s database is (when) we want to verify that so-and-so … has a permit, and the permit to grow (medical marijuana) is for the location that we’re at,” he said.

The DOH confirmed that law enforcement officials do not have unrestricted access to the database.

“A limited number of registered law enforcement officials can input a last name and date of birth, or medical cannabis registry card number into the database and receive a verification of ‘valid’ or ‘invalid’ or ‘no match,’” DOH spokeswoman Janice Okubo said in an email. “Police officers cannot receive names from the medical cannabis database. There are a limited number of designated officers with access to the verification system and law enforcement officials must register with DOH to access the verification system.”

The Honolulu Star-Advertiser reported Wednesday that Honolulu Police Department spokeswoman Michelle Yu said checks of the DOH database are “now part of the department’s standard background verification for all gun applicants.”

Chris Garth, executive director of the Hawaii Dispensary Alliance, said the sending of the letters continues a trend of “treating medical cannabis as a public safety issue rather than a public health issue.”

He said the decision by Honolulu police to rethink the policy of sending letters demanding cardholders turn in their guns “is an appropriate measure for the new police administration to take.

“Hopefully, our communities can coincide more peacefully under this new police administration. Hopefully, we can work more collaboratively … as we move forward,” he said.

Carl Bergquist, executive director of the Drug Policy Forum of Hawaii, said while the 9th Circuit ruling focuses on Second Amendment issues, the denial of gun permit applications and the letters to medical cannabis patients are, in his opinion, a violation of the 14th Amendment, which guarantees U.S. citizens “equal protection of the laws.”

“We think this is unfairly singling (medical cannabis patients) out just because they are complying with state law,” he said. “… They’re subject to this blanket policy of denial. They’re lumped together with people who are deemed mentally incompetent or having mental health issues or having addiction issues. We see no reason to lump medical cannabis patients, en masse, with that category, at all.”

Email John Burnett at jburnett@hawaiitribune-herald.com.

 

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