So, changes being implemented starting today with firearms transfers?

[F-111 John]

So if you contend that the only way in which an FFL might have reasonable cause to believe that the buyer is an unlawful user of a controlled substance would be if the buyer were to tell the FFL he had a medical marijuana card, whether responding to an FFL's query or otherwise, let's see you prove it.

For the purpose of this discussion we are stipulating that we are dealing with a Medical Marijuana (MM) card holder who has never exercised the use of that card, and can honestly answer "no" to question 21e of ATF Form 4473 such as plaintiff Wilson in your previously cited case Wilson v. Lynch. References below to an MM cardholder refer generally to this stipulated person, not necessarily to all MM cardholders in general.

I do not contend that the presence or knowledge of an MM card is the only way an FFL could have "reasonable cause to believe" a person is an illicit drug user. The FFL might smell pot on the customer's clothing. Maybe the customer comes in wearing a gold marijuana leaf medallion on a necklace. Perhaps the FFL notices that the potential buyer has rolling papers in their wallet when the buyer retrieves his ID. Etc., etc.

I never said that an MM card was the only way an FFL could have "reasonable cause to believe," I was asserting that if the FFL had no knowledge of the buyer possessing an MM card (under the conditions stipulated above,) the sale could legally be completed (given that all other conditions of the sale are satisfactorily met.)

Of course it would vary from state to state, but in Michigan the Medical Marijuana list is not queried when a CPL is issued, which is in part why the ATF rescinded use of a Michigan CPL as a substitute for a NICS check. (ATF Letter.)

Under Michigan law, the MM database is confidential, so an FFL cannot "run a name" to see if a specific person possesses an MM card.

Michigan Compiled Law 333.26426 Administration and enforcement of rules by marijuana regulatory agency; transfer of funds.​

(h) The following confidentiality rules apply:
(1) Subject to subdivisions (3) and (4), applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential.
(2) The marijuana regulatory agency shall maintain a confidential list of the persons to whom the marijuana regulatory agency has issued registry identification cards. Except as provided in subdivisions (3) and (4), individual names and other identifying information on the list are confidential and are exempt from disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.
(3) The marijuana regulatory agency shall verify to law enforcement personnel and to the necessary database created in the marihuana tracking act as established by the medical marihuana facilities licensing act whether a registry identification card is valid, without disclosing more information than is reasonably necessary to verify the authenticity of the registry identification card.
(4) A person, including an employee, contractor, or official of the marijuana regulatory agency or another state agency or local unit of government, who discloses confidential information in violation of this act is guilty of a misdemeanor punishable by imprisonment for not more than 6 months or a fine of not more than $1,000.00, or both. Notwithstanding this provision, marijuana regulatory agency employees may notify law enforcement about falsified or fraudulent information submitted to the marijuana regulatory agency.​

If the FFL cannot query the Michigan MM database, and if the card holder doesn't voluntarily or inadvertently reveal that they have an MM card (perhaps by presenting their MM card to the FFL as ID,) and if the FFL doesn't sneak a peek at the MM card when the potential buyer opens their wallet, and if the FFL does not ask the buyer if they have an MM card, and if the 4473 form doesn't ask the buyer if they have an MM card (it doesn't,) and if there is no other scenario in which the FFL learns that the buyer has an MM card, then the FFL has no "reasonable cause to believe" that the buyer is an illegal drug user (based on MM card possession) and is not compelled to deny the sale. Further, Wilson v. Lynch established that (given the above stipulation regarding question 21e) the buyer is not a prohibited person. Because the buyer is not a prohibited person, the sale could legally be completed (given that all other requirements are met.)

I do not know if the NICS system queries the Michigan MM cardholder database. However, even if it did, since Wilson v. Lynch established that the possession of an MM card in and of itself does not make the cardholder a prohibited person, by what statutory authority could NICS issue a DENY based solely on MM card possession? Wilson v. Lynch only established that knowledge of an MM card by the FFL constituted a "reasonable cause to believe" on the part of the FFL and they were thus properly compelled by 18 U.S.C. § 922(d)(3) to deny the sale.

18 U.S.C. § 922
(d) It shall be 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, including as a juvenile-
(3) 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 ));​

Further, 18 U.S.C. § 922 (d)(3) extends this duty to deny a transfer to anyone who has a "reasonable cause to believe," not just FFLs. This means even a face-to-face private transfer with no FFL involved must be denied by the transferor if they learn of the transferee's possession of an MM card, but can proceed if the transferor does not know about the transferee's MM card (and the transferee is otherwise not a prohibited person as stipulated above and all other legal requirements are met by the transferee.)

27 C.F.R. § 478.11 provides us with the definition of an unlawful user of a controlled substance:

Unlawful user of or addicted to any controlled substance. A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year. For a current or former member of the Armed Forces, an inference of current use may be drawn from recent disciplinary or other administrative action based on confirmed drug use, e.g., court-martial conviction, nonjudicial punishment, or an administrative discharge based on drug use or drug rehabilitation failure.​

Absent from the above definition is possession of an MM card, which is why Wilson v. Lynch was decided in the way it was that MM cardholders are not prohibited persons unless and until they use that MM card to obtain marijuana.

 

[Frank Ettin]

For the purpose of this discussion we are stipulating that we are dealing with a Medical Marijuana (MM) card holder who has never exercised the use of that card, and can honestly answer "no" to question 21e of ATF Form 4473 such as plaintiff Wilson in your previously cited case Wilson v. Lynch. References below to an MM cardholder refer generally to this stipulated person, not necessarily to all MM cardholders in general....

No, we're not. It's about when someone might transfer a gun to someone completed lawfully.

The issue is whether and how an FFL (or some other transferor) might have reasonable cause to believe that someone is a user of cannabis. And the reality is that there can be all sorts of ways.

So nothing you have posted is really very helpful.

 

[F-111 John]

Frank,

We were discussing specifically the case of a Medical Marijuana cardholder who never used marijuana, and how that Medical Marijuana card affected the person's ability to possess or purchase firearms.

You cited a case that covered that exact scenario, and I responded specifically to that case and its circumstances.

Now you're changing the parameters of the discussion away from your original cited case to a general discussion of all forms of reasonable cause. I agree with your generalities, so there is apparently nothing further to discuss.

 

[Frank Ettin]

…We were discussing specifically the case of a Medical Marijuana cardholder who never used marijuana, and how that Medical Marijuana card affected the person's ability to possess or purchase firearms...

No. I’m not sure what you think you’re discussing and with whom; but I’m explaining why your statement:

…if the FFL doesn't ask if the person is a card holder, and the person doesn't reveal to the FFL that they are a card holder, and the person has never used the card to obtain marijuana (as in Wilson's case), the sale can be completed lawfully...

is wrong.

You’re essentially claiming that the only way an FFL/transferor would have reasonable cause to believe that someone is a user of cannabis is if the FFL/transferor knew that the transferee had a medical marijuana card. That is, of course, preposterous.

Wilson said that an FFL/transferor having knowledge that the transferee has a medical marijuana card has reasonable cause to believe that the transferee is a user of cannabis. But that would not mean that an FFL/transferor without knowledge that the transferee has a medical marijuana card, but with other information which would give one a reasonable cause to believe that the transferee is a user of cannabis, could lawfully complete the sale. But that is effectively what you claimed.

 

[Rule3]

Florida Commissioner of Agriculture and Consumer Services, Nicole “Nikki” Fried, oversees the state department tasked with issuing concealed weapons permits. In an exclusive interview, Fried spoke with CannaMD to clear up common misconceptions and outline everything Florida patients need to know about carrying concealed weapons and purchasing firearms as a medical marijuana cardholder.

Shortly before taking office in 2019, Fried stated:

I have both [a concealed weapons permit and medical marijuana card]. So I want to make that very clear, that I will not be taking anybody’s concealed weapons permit or not renewing them. I see no conflict between the two.

When asked if that sentiment still holds true, Fried replied:

My position is still the same. I still have both. They actually sit next to each other in my wallet.

You can read the whole article here, I believe there is also audio of the discussion out there,

https://www.cannamd.com/florida-firearms-medical-marijuana-nikki-fried-exclusive/

 

[Frank Ettin]

Florida Commissioner of Agriculture and Consumer Services, Nicole “Nikki” Fried, oversees the state department tasked with issuing concealed weapons permits. In an exclusive interview,...

But nothing said in that interview is binding on a state or federal court. See Willis v. Winters, 253 P.3d 1058 (Or., 2011) in which the Oregon Supreme Court ruled that a Sheriff was required under Oregon law to issue a concealed handgun license to Cynthia Willis even though she was a medical marijuana user. But 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...

So a marijuana user with a CCW and carrying a gun might not get arrested by a local cop, but he can still be arrested by a federal agent, tried in a federal court, and sent to federal prison.