NFA only applies to legal gun owners

[Ru4real]

Thank you Spats, Frank and others in your good evaluation of my challenge. I'll quit stoking the fire in this thread.

In summary so far, anyone that smokes pot after acquiring or "close" in time before acquiring a firearm breaks the law.

Question - Does anyone know of someone or have data on the number of firearm convictions for this exact method of law breaking?

My data is that I know a few people busted for pot who also own guns and not a single one of those people were then busted for a firearm possession violation. But this is extremely limited data that involves at most 3 prosecutors.

I'm intersted in hearing any data you may have.

 

[Frank Ettin]

...Does anyone know of someone or have data on the number of firearm convictions for this exact method of law breaking?

My data is that I know a few people busted for pot who also own guns and not a single one of those people were then busted for a firearm possession violation. But this is extremely limited data that involves at most 3 prosecutors.....

First, comprehensive data is very hard to find. Published records of decisions of courts of appeal are available in searchable databases, but those are only cases in which something done at the trial court level was appealed to a court of appeals which then published an opinion supporting its decision in the matter. That would generally exclude prosecutions resolved by a plea bargains or trial convictions which were not appealed -- in other words the vast majority of criminal prosecutions.

However, I just logged onto a legal database to which I subscribe (Fastcase, Westlaw and Lexis are too expensive for me to justify the cost now that I'm retired and pay it out of my own pocket. And Fastcase isn't all that cheap). Doing a boolean search (on "unlawful w/1 user w/2 controlled w/1 substance & firearm) of all federal courts of appeal I got 175 hits, i. e., 175 federal court of appeal cases in which both "unlawful user of a controlled substance" and "firearm" appeared. Refining the search by adding "marijuana" resulted in 95 hits. And remember that excludes prosecutions resolved by plea bargain or trial convictions that weren't appealed.

Let's look briefly at a few of those cases:

• U.S. v. Edmonds, 348 F.3d 950 (11th Cir., 2003), at 951:
  

  ...Edmonds argues the district court improperly assigned him an enhanced base offense level of 14 under U.S.S.G. § 2K2.1(a)(6) because the Government failed to present sufficient evidence showing he was an unlawful user of a controlled substance. The Government presented reliable and specific testimony showing Edmonds' unlawful use of marijuana was regular, ongoing, and contemporaneous with the commission of the offense of possession of a firearm with an obliterated serial number. We therefore affirm....

  
  
• U.S. v. Edwards, 182 F.3d 333 (5th Cir., 1999), at 351:
  

  A jury convicted Jason Jerome Edwards ("Edwards") of possessing a firearm while an unlawful user of a controlled substance in violation of 18 U.S.C.A. 922(g)(3) (West Supp. 1999). On appeal, Edwards challenges the constitutionality of the statute on the ground that the phrase "unlawful user of a controlled substance" is void for vagueness. We affirm his conviction holding that the statute is constitutional....

  
  
• In United States v. May (5th. Cir., No. 12-50550, 2013) slip op. at 1-2:
  

  ...Billy May has appealed his jury conviction of possession of a firearm by an unlawful user of a controlled substance. See 18 U.S.C. § 922(g)(3). May contends that the district court erred in denying his motion for a mistrial. Although the record reflects that the Government inadvertently exposed some members of the jury to prejudicial extrinsic evidence, the district court dismissed the only juror who indicated that he had been prejudiced, gave detailed curative instructions, and ensured that the remaining jurors were unimpeded in their ability to judge the facts impartially. And the Government introduced overwhelming evidence of May's guilt: May admitted, in an interview with investigators, that he used marijuana; moreover, May's son testified that May smoked marijuana after gun shows and during the time prior to his arrest. On this record, we will not disturb the district court's determination that the extrinsic evidence did not interfere with the jury's deliberations. See United States v. Ruggiero, 56 F.3d 647, 652-53 (5th Cir. 1995).
  
  In an attack on the statute of conviction, May asserts that § 922(g)(3) is unconstitutionally vague as applied to him because it does not provide a definition of what it means to be an "unlawful user" of a controlled substance and because the statute gives law enforcement officers too much discretion, allowing the law to be applied in an arbitrary and discriminatory fashion. Because an ordinary person would understand that May's use of marijuana while in possession of firearms established him as an "unlawful user" in violation of § 922(g)(3), the statute is not unconstitutionally vague as applied to May. See United States v. Patterson, 431 F.3d 832, 835-36 (5th Cir. 2005)....

  
  The Fifth Circuit affirmed the conviction.
  
  
• United States v. Moore, 860 F.3d 1076 (8th Cir., 2017), at 1077:
  

  ...On September 22, 2013, Moore executed a Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives Form 4473 to purchase a firearm. On the form, Moore represented that he was not an unlawful user of a controlled substance.
  
  On May 27, 2015, law enforcement officers executed a search warrant at Moore's residence. During the search, officers recovered four handguns, a rifle, and evidence of marijuana use. Moore later admitted that he was a marijuana user both at the time of the search and when he filled out Form 4473.
  
  Moore was charged with making a false statement during the purchase of a firearm, in violation of 18 U.S.C. § 924(a)(1)(A), and being an unlawful user of a controlled substance in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). Pursuant to a plea agreement, Moore pled guilty to the false statement charge, and the government agreed to dismiss the unlawful-user count at sentencing...

  
  
• U.S. v. Jackson, 280 F.3d 403 (4th Cir., 2002), at 404:
  

  Omar Jackson appeals his conviction and sentence for possession of a firearm by an unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(g)(3). He contends that the district court erred by denying his motion to suppress statements he made to the arresting officer regarding the presence of a firearm in his vehicle and his prior drug use and also by improperly defining the term "unlawful user" in the statute.* We conclude that the district court did not err, and, accordingly affirm....

  
  
• U.S. v. Cruse, No. 08-16683 (11th Cir. 8/26/2009), slip op. at 1-2:
  

  Ronald Kewon Cruse appeals the denial of a motion to suppress evidence from a search of his residence, during which law enforcement recovered drugs and a firearm.
  
  On May 16, 2007, Deputy John F. Weatherly of the Jefferson County Sheriff's Department presented an affidavit in support of a search warrant to a Jefferson County judge. The affidavit averred that a reliable confidential informant had informed Deputy Weatherly that he had been in an apartment within the past 48 hours and had seen a "quantity of marijuana" there. The affidavit, through the confidential informant, described the resident and provided directions to the apartment. The confidential informant advised that the apartment was used to distribute marijuana. The state judge issued the warrant. It authorized a search for, inter alia, firearms and drugs as well as "[a]ny and all other material evidence of violations of Criminal Code of Alabama, together with fruits, instrumentalities and evidence of crimes at this time unknown," the so-called "catch-all" provision. On May 22, 2007, law enforcement executed the warrant, during which they recovered a loaded Hi-Point .40 caliber pistol and 31 grams of marijuana.
  
  In April 2008, a federal grand jury indicted Cruse for possession of a firearm by an unlawful user of a controlled substance pursuant to 18 U.S.C. § 922(g)(3)....

  The 11th Circuit affirmed the denial of the motion to suppress.

So yes, the federal government does prosecute people for being an unlawful user of a controlled substance (including marijuana) unlawfully in possession of a gun or ammunition and/or lying about it on a 4473.

 

[AlexanderA]

It seems to me that there are two distinct kinds of disqualifying conditions for owning a gun. Some are permanent, and some can be rectified by modifying one's behavior or status.

Let's look at the Form 4473:
Question 11.b. Being under indictment or information for a felony. This is a temporary condition, until the matter is resolved.
11.c. Felony conviction. Permanent.
11.d. Fugitive from justice. Temporary, until the person is captured or turns himself in.
11.e. Unlawful drug user or addict. Temporary, until the person stops using and an adequate time passes.
11.f. Adjudicated mental defective or committed to a mental institution. Permanent.
11.g. Dishonorable discharge from the armed forces. Permanent.
11.h. Subject to a domestic relations court order. Temporary, until the order is lifted.
11.i. Misdemeanor conviction for domestic violence. Permanent.
12.b. Renunciation of U.S. citizenship. Permanent.
12.c. Alien illegally in the U.S. Temporary, until the status is made legal (for example, by leaving the country and entering it legally).
12.d. Alien under a nonimmigrant visa, unless an exception (such as hunting) applies. Temporary.

So it seems that the really permanent disabilities -- that follow the person forever -- are felonies, Lautenberg convictions (domestic violence), dishonorable discharges, renunciations of U.S. citizenship, and mental-health adjudications. (Even those can be set aside in certain cases.)

In general, it's difficult to become permanently disqualified from owning a gun. You really have to work at it. Probably the easiest way to become disqualified (a trap for the unwary) is through a Lautenberg domestic violence conviction. Some people, involved in a bitter divorce, plead guilty just to get the matter behind them. Big mistake.

 

[Ru4real]

First, comprehensive data is very hard to find. Published records of decisions of courts of appeal are available in searchable databases, but those are only cases in which something done at the trial court level was appealed to a court of appeals which then published an opinion supporting its decision in the matter. That would generally exclude prosecutions resolved by a plea bargains or trial convictions which were not appealed -- in other words the vast majority of criminal prosecutions.

However, I just logged onto a legal database to which I subscribe (Fastcase, Westlaw and Lexis are too expensive for me to justify the cost now that I'm retired and pay it out of my own pocket. And Fastcase isn't all that cheap). Doing a boolean search (on "unlawful w/1 user w/2 controlled w/1 substance & firearm) of all federal courts of appeal I got 175 hits, i. e., 175 federal court of appeal cases in which both "unlawful user of a controlled substance" and "firearm" appeared. Refining the search by adding "marijuana" resulted in 95 hits. And remember that excludes prosecutions resolved by plea bargain or trial convictions that weren't appealed.

Let's look briefly at a few of those cases:

• U.S. v. Edmonds, 348 F.3d 950 (11th Cir., 2003), at 951:
  
  ​
  
  
• U.S. v. Edwards, 182 F.3d 333 (5th Cir., 1999), at 351:
  
  ​
  
  
• In United States v. May (5th. Cir., No. 12-50550, 2013) slip op. at 1-2:
  
  ​
  
  The Fifth Circuit affirmed the conviction.
  
  
• United States v. Moore, 860 F.3d 1076 (8th Cir., 2017), at 1077:
  
  ​
  
  
• U.S. v. Jackson, 280 F.3d 403 (4th Cir., 2002), at 404:
  
  ​
  
  
• U.S. v. Cruse, No. 08-16683 (11th Cir. 8/26/2009), slip op. at 1-2:
  
  ​
  The 11th Circuit affirmed the denial of the motion to suppress.

So yes, the federal government does prosecute people for being an unlawful user of a controlled substance (including marijuana) unlawfully in possession of a gun or ammunition and/or lying about it on a 4473.

That's good info. Not only do they seem to prosecute, they convict against what could be considered a "vague" statue to a lay person.

 

[Ru4real]

11.e. Unlawful drug user or addict. Temporary, until the person stops using and an adequate time passs.

With increasing drug use (heroin, opioids, etc.) in states like Connecticut, West Virginia, Ohio (400% increase, yikes!) this fact regarding illegal firearm possession will likely become another vehicle to disarm.

 

[AlexanderA]

With increasing drug use (heroin, opioids, etc.) in states like Connecticut, West Virginia, Ohio (400% increase, yikes!) this fact regarding illegal firearm possession will likely become another vehicle to disarm.

The disqualifying factor is current use, not past use. I don't see how you can establish current use unless you make the prospective buyer submit to a urine test. There is no legal authority for that.

The drug disqualification has no rational basis. There's no proof that potheads are more dangerous with guns than anyone else. (Maybe less dangerous when they're stoned.) It's just that potheads, like wife beaters, are an unpopular segment of society and thus "low hanging fruit" for the gun-banners.

 

[Frank Ettin]

The disqualifying factor is current use, ...

Not exactly. Remember the definition I cited and quoted in post 17:

...the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct....

And the ruling in Burchard:

...the regular use of a controlled substance either close in time to or contemporaneous with the period of time he possessed the firearm...

I strongly suspect that being actively engaged in unlawful drug use could be established to the satisfaction of a jury could be established with circumstantial evidence. So --

• I haven't actually used any marijuana for the last six weeks.
  
  
• One could infer that my forbearance is only temporary by the fact that I've been looking for a new job and am about to start one which requires that I pass a preemployment drug test.
  
  
• In addition a search of my home has found a stash of marijuana, and there's evidence that I recently visited a local "head" shop and bought a new bong and supply of cigaret papers.

...I don't see how you can establish current use unless you make the prospective buyer submit to a urine test.....

Evidence constituting probable cause to believe that the subject recently, unlawfully used drugs could support the issuance of a warrant for a drug test.

 

[Frank Ettin]

....The drug disqualification has no rational basis. ....

Glad you think so, but no one cares about your opinion.

The constitutionality of 18 USC 922(g)(3) hasn't yet been considered by the Supreme Court. But in a number of the Circuit Court cases I cited the constitutional question was raised by the defendants, and the appellate courts found 18 USC 922(g)(3) to be constitutional.

 

[Spats McGee]

. . . . Question - Does anyone know of someone or have data on the number of firearm convictions for this exact method of law breaking?

My data is that I know a few people busted for pot who also own guns and not a single one of those people were then busted for a firearm possession violation. But this is extremely limited data that involves at most 3 prosecutors. . . . .

I don't have any such data. Even if I did, such data should not be taken in a vacuum, as data can be a bit, well, "squishy" (for lack of a better word). Let me see if I can explain that in today's pre-coffee fog. The US Attorney's office has something like a 93% conviction ratio. In trial work, 93% success is ludicrously high. IOW, someone with that kind of courtroom win ratio is cherry picking (which is great if you've got enough business coming in the door to do that). At least around here, when someone is arrested, the US Attorney's office only takes on the cases it's sure it can win. It leaves the rest to be prosecuted by the State of Arkansas.

For example, if Wally Weedsmoker goes and buys a gun with a pound of pot in the car, the feds might pick it up and prosecute it. If there's some question of probable cause, though, they might not. In that case, ol' Wally gets charged by the State of Arkansas with Simultaneous Possession of Drugs and Guns, a Class Y felony. Same event, different prosecuting authorities. I guess my point is that even if there are violations of the particular statutory point we're looking at, there are other factors that might shift any collected data.

And now I'm off to get my coffee.