Arkansas Medical Marijuana Change 8/1/2023

[Craig_AR]

Effective August 1st, 2023, Act 757 of the 2023 Regular Session, HB 1784, changes Arkansas Code § 5-73-309(6) and (7) to state

(6)(B) The director [of the Arkansas State Police] shall not consider a person’s status as a qualifying patient or designated caregiver under the Arkansas Medical Marijuana Amendment of 2016, Arkansas Constitution, Amendment 98, § 2, in determining whether an applicant is eligible to be issued a license to carry a concealed handgun under this chapter.

Up until this change, the application for a Concealed Handgun Carry License (CHCL) specifically stated that possession of a currently valid medical marijuana card, or possession of one within the past 12 months, disqualified an individual from obtaining a CHCL.

Of course, the change in state law has no effect on FFLs or question 21.g. on the ATF From 4473 (December 2022 version):

g. Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.

 

[Carl N. Brown]

I think the ATF Open Letter to all Federal Firearms License holders (gun dealers), 26 Sep 2011, is still in effect:

"During a firearms transaction, a potential transferee may advise you that he or she is a user of medical marijuana, or present a medical marijuana card as identification or proof of residency. As you know, Federal Law, 18 U.S.C. § 922(g)(3), prohibits any person 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))" from shipping, transporting, receiving or possessing firearms or ammunition. Marijuana is listed in the Controlled Substances Act as a Schedule I controlled substance, and there are no exceptions in Federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law. ....any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition. ... Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have "reasonable cause to believe" that the person is an unlawful user of a controlled substance. ...."

Signed by Arthur Herbert, Assitant Director, Enforcement Programs and Services.

Knowing the past history of ATF, a person who advises an FFL that they are a user of medical marijuana, or who presents a medical marijuana card as identification, in a state where medical or recreational marihuana is legal, may be part of an ATF sting against the FFL. Just say no.

 

[12Bravo20]

I would advise against being in possession of a firearm AND a medical marijuana card until FEDERAL laws are changed. Granted I am NOT a lawyer but it is still smart not to tempt fate or federal law and the ATF.

All of the states with medical and/or recreational marijuana laws need petition the federal government to change the federal laws first

 

[F-111 John]

Effective August 1st, 2023, Act 757 of the 2023 Regular Session, HB 1784, changes Arkansas Code § 5-73-309(6) and (7) to state

Up until this change, the application for a Concealed Handgun Carry License (CHCL) specifically stated that possession of a currently valid medical marijuana card, or possession of one within the past 12 months, disqualified an individual from obtaining a CHCL.

Of course, the change in state law has no effect on FFLs or question 21.g. on the ATF From 4473 (December 2022 version):

Michigan passed a similar law and in 2020 the ATF rescinded their approval for Michigan FFLs to accept a CPL as a substitute for a NICS check.

If Arkansas had a similar CPL exception to NICS, expect the ATF to withdraw it.

 

[drobs]

Missouri legalized recreational MJ in December of 2022. Even though I don't / wont use MJ, I voted for it's legalization as I'm pro freedom.

I have learned from my MJ using friends that the Dispensaries that sell legal weed scan the barcode on your DL into their systems. Meaning their customer databases could be subponaed by the state or federal government or just reviewed by the state...

Until Federal Law is change, I wont partake in MJ.

Another little known fact about legal recreational weed in MO - it is still punishable under Federal Law on Federal Land (National Forests, National Wildlife Areas, Army Corps of Engineers controlled Lakes).

 

[CapnMac]

This creates an interesting situation.

A 'user' can have a legitimate State issued CHL, and still be in violation of Federal Law. Which will need a District Court to even begin to sort out, like as not. But, given the number of States involve, will probably mean it's a Circuit Court issue.

 

[12Bravo20]

Missouri legalized recreational MJ in December of 2022. Even though I don't / wont use MJ, I voted for it's legalization as I'm pro freedom.

I have learned from my MJ using friends that the Dispensaries that sell legal weed scan the barcode on your DL into their systems. Meaning their customer databases could be subponaed by the state or federal government or just reviewed by the state...

Until Federal Law is change, I wont partake in MJ.

Another little known fact about legal recreational weed in MO - it is still punishable under Federal Law on Federal Land (National Forests, National Wildlife Areas, Army Corps of Engineers controlled Lakes).

I've seen plenty of people get busted on one of the many Corp of Engineer lakes and along the many rivers that are popular float trip destinations in the state. Most people don't realize that the Current and Jacks Fork Rivers are actually part of the federal Ozark Scenic Riverways and are federally controlled. The same goes for all the big lakes here in the state.

 

[Frank Ettin]

And here's what the Oregon Supreme Court said about a similar situation under Oregon law.

The Oregon Supreme Court, in Willis v. Winters, 253 P.3d 1058 (Or., 2011), ruled that Michael Winters, as Sheriff of Jackson County, was required under Oregon law to issue a concealed handgun license to Cynthia Willis even though she was a medical marijuana user. The Court concluded that Ms. Willis had satisfied the statutory requirements under Oregon's "shall issue" conceal handgun license (CHL) law, notwithstanding that the use of marijuana violated federal law. So the Oregon sheriff was obliged under the applicable Oregon statute to issue a CHL to Ms. Willis.

The case did not substantively address the federal law issue. In fact, the Oregon Supreme Court specifically noted (at pp. 1065 - 1066, emphasis added):

...Neither is the statute [the Oregon CHL law] an obstacle to Congress's purposes in the sense that it interferes with the ability of the federal government to enforce the policy that the Gun Control Act expresses. A marijuana user's possession of a CHL may exempt him or her from prosecution or arrest under ORS 166.250(1)(a) and (b), but it does not in any way preclude full enforcement of the federal law by federal law enforcement officials...

And thus the Oregon Supreme Court specifically acknowledged that while Ms. Willis would not be arrested by Oregon LEOs or prosecuted under Oregon law for carrying a concealed handgun, she could still be arrested by federal LEOs, prosecuted under federal law and sent to federal prison for being a prohibited person in possession of a gun in violation of 18 USC 922(g)(3).

 

[drobs]

I've seen plenty of people get busted on one of the many Corp of Engineer lakes and along the many rivers that are popular float trip destinations in the state. Most people don't realize that the Current and Jacks Fork Rivers are actually part of the federal Ozark Scenic Riverways and are federally controlled. The same goes for all the big lakes here in the state.

The Missouri Highway Patrol used to hide in the woods and watch every kayaker, tuber, and canoer go by on the rivers with binoculars hoping to bust someone with a joint.

It will be interesting to see if that changes now that weed is legal. I don't see MHP enforcing federal laws when the state law is different. But we shall see...

 

[12Bravo20]

The Missouri Highway Patrol used to hide in the woods and watch every kayaker, tuber, and canoer go by on the rivers with binoculars hoping to bust someone with a joint.

It will be interesting to see if that changes now that weed is legal. I don't see MHP enforcing federal laws when the state law is different. But we shall see...

I don't see MHP enforcing federal laws either. But I do see national park rangers enforcing federal laws along the Ozark Scenic Riverways.

The information posted by F-111 John and Frank Ettin spell out federal laws pretty well along with cases where judges have stated that even though it is legal by state law, the federal government can still charge you. I know a few local FFL's that keep that ATF open letter posted in plain sight so there is no confusion.

 

[CapnMac]

about a similar situation under Oregon law.

And, I can well see how a Court can hold that.
Just because a person has been issued a CHL does not mean they have purchased or have a firearm. So, if they comply with their State's requirements, then the issuance ought follow the State's legislation.

Now, the issues of compliance with 18USC922 are separate. Maybe. Whether a State is compelled to enforce Federal Law is probably outside THR scope.

For an issue that now occurs to me, though, if an FFL is providing CHL services, to obtain that permit, and they have reason to believe the applicant would not be able to comply with 18USC922, do they have a burden to deny the applicant--or to merely inform them of the issue? I'm not sure about that. I, personally, would be inclined to an abundance of caution, but, that's my nature.

 

[old lady new shooter]

And here's what the Oregon Supreme Court said about a similar situation under Oregon law.

The Oregon Supreme Court, in Willis v. Winters, 253 P.3d 1058 (Or., 2011), ruled that Michael Winters, as Sheriff of Jackson County, was required under Oregon law to issue a concealed handgun license to Cynthia Willis even though she was a medical marijuana user. The Court concluded that Ms. Willis had satisfied the statutory requirements under Oregon's "shall issue" conceal handgun license (CHL) law, notwithstanding that the use of marijuana violated federal law. So the Oregon sheriff was obliged under the applicable Oregon statute to issue a CHL to Ms. Willis.

The case did not substantively address the federal law issue. In fact, the Oregon Supreme Court specifically noted (at pp. 1065 - 1066, emphasis added):

​

And thus the Oregon Supreme Court specifically acknowledged that while Ms. Willis would not be arrested by Oregon LEOs or prosecuted under Oregon law for carrying a concealed handgun, she could still be arrested by federal LEOs, prosecuted under federal law and sent to federal prison for being a prohibited person in possession of a gun in violation of 18 USC 922(g)(3).

So what happened to Sheriff Winters? Is he considered to have committed a crime under fedearl law by granting the permit?

 

[Balrog]

Statute aside, I wonder what the effects of marijuana use by a concealed carrier will be on civil trial outcomes.

I would think a smart lawyer would use your marijuana use (whether medical or recreational) against you to convince a jury that your perception of threat level and judgment regarding the use of lethal force were impaired by the marijuana. Just as they would if you were drunk on alcohol. Probably more likely to lose a civil trial, and probably have a larger payout to the person you shot, or his family.

 

[Craig_AR]

Learning what happened in Michigan in 2020 (above) leaves us to wait for the other shoe to drop.

I will ask my LGS in Little Rock about this on my next visit.

 

[bdickens]

Statute aside, I wonder what the effects of marijuana use by a concealed carrier will be on civil trial outcomes.

I would think a smart lawyer would use your marijuana use (whether medical or recreational) against you to convince a jury that your perception of threat level and judgment regarding the use of lethal force were impaired by the marijuana. Just as they would if you were drunk on alcohol. Probably more likely to lose a civil trial, and probably have a larger payout to the person you shot, or his family.

They would have to prove that you were under the influence at the time. Just like alcohol.

 

[Craig_AR]

An aded wrinkle pointed out to me yesterday by a LGS employee / Arkansas CHCL Instructor:

1. Holding an Arkansas Medical Marijuana Card makes one a Prohibited Possessor under Federal law.
2. To complete the required Basic CHCL class one must fire at least one live round, so the instructor can evaluate basic safe handling of a gun. There is no prescribed course of fire, simply a requirement to fire a gun.
3. Therefore, if a CHCL Instructor signs a completed official training form (which must be submitted to the State Police by the CHCL applicant), that instructor has provided strong documented evidence of violation of Federal law by allowing (or possibly furnishing) gun handling by a known prohibited possessor.

Once more, we can see that legislators and their staffs do a terrible job of looking for unintended consequences in pending legislation.

 

[Balrog]

They would have to prove that you were under the influence at the time. Just like alcohol.

A preponderance of the evidence is all that is needed in a civil trial, ie, a 51% chance that its true.

 

[bdickens]

A preponderance of the evidence is all that is needed in a civil trial, ie, a 51% chance that its true.

OK. Since you want to be pedantic, a preponderance of the evidence would have to show you were under the influence at the time.

Simply having the card no more proves you were high than having a Specs discount card proves you were driving drunk.

Of course, if Congress would quit getting their information about Marijuana from watching Reefer Madness and read some scientific and medical literature instead they might bring the law into the 21st century....

Hell, it took them until 2018 to discover that CBD is not the same thing as THC.

 

[armoredman]

An aded wrinkle pointed out to me yesterday by a LGS employee / Arkansas CHCL Instructor:

1. Holding an Arkansas Medical Marijuana Card makes one a Prohibited Possessor under Federal law.
2. To complete the required Basic CHCL class one must fire at least one live round, so the instructor can evaluate basic safe handling of a gun. There is no prescribed course of fire, simply a requirement to fire a gun.
3. Therefore, if a CHCL Instructor signs a completed official training form (which must be submitted to the State Police by the CHCL applicant), that instructor has provided strong documented evidence of violation of Federal law by allowing (or possibly furnishing) gun handling by a known prohibited possessor.

Once more, we can see that legislators and their staffs do a terrible job of looking for unintended consequences in pending legislation.

How about using a starter pistol?

 

[Craig_AR]

How about using a starter pistol?

Nope..a bullet must exit the barrel of a firearm

 

[drobs]

Things are changing:

Federal appeals court strikes down law prohibiting users of illegal drugs from possessing firearms

(CNN) — A federal appeals court on Wednesday struck down a decades-old law barring users of illegal drugs from possessing firearms – the latest blow to US gun regulations after

www.albanyherald.com

 

[Spats McGee]

For anyone interested, the Arkansas CHCL training requirements can be found in Section 13.0 et seq. of this document: https://www.dps.arkansas.gov/wp-con...n_carry_license_rules_effective_6-25-2018.pdf

 

[Balrog]

OK. Since you want to be pedantic, a preponderance of the evidence would have to show you were under the influence at the time.

Simply having the card no more proves you were high than having a Specs discount card proves you were driving drunk.

Of course, if Congress would quit getting their information about Marijuana from watching Reefer Madness and read some scientific and medical literature instead they might bring the law into the 21st century....

Hell, it took them until 2018 to discover that CBD is not the same thing as THC.

Yes. Preponderance of the evidence. Not sure if that bar would be met by people (including the person who got shot) testifying that your judgment appeared clouded. Probably would, if people on jury were convinced you did not act reasonably.

Definitely don’t see it helping your case to be a marijuana user.

 

[Craig_AR]

As of early October, 2023, ATF is considering whether to remove an Arkansas CHCL as an approved alternative (substitute) for a NICS background check on firearms purchases from FFLs. In the Oct 4 article
Federal authorities questioning Arkansas’ allowing medical marijuana users to obtain concealed-carry permits
the Arkansas Democrat-Gazette reported that ATF and Arkansas State Police have been exchanging messages and e-mails on the subject. ATF is waiting for more information from the State Police. As of the time of the article, nothing has changed. However, based on the experience in Michigan, I expect ATF to act fairly soon.

 

[Spats McGee]

As of early October, 2023, ATF is considering whether to remove an Arkansas CHCL as an approved alternative (substitute) for a NICS background check on firearms purchases from FFLs. In the Oct 4 article
Federal authorities questioning Arkansas’ allowing medical marijuana users to obtain concealed-carry permits
the Arkansas Democrat-Gazette reported that ATF and Arkansas State Police have been exchanging messages and e-mails on the subject. ATF is waiting for more information from the State Police. As of the time of the article, nothing has changed. However, based on the experience in Michigan, I expect ATF to act fairly soon.

I wonder if I could get those through the FOIA.