I conduct a seminar for lawyers that focuses on gun law violations which are not readily thought of in their daily practices. For a long time, the federal government has prosecuted tens of thousands of federal gun violations under 18 U.S.C. §922(g) and its subparts. In this post, I want to provide a bit of a window on how a person can run afoul of a federal law much more easily than you might think. One of the most commonly charged violations is what laypeople and some ill-informed or lazy lawyers call “felon in possession”. The federal statute does not actually state felon it merely proscribes, i.e., prohibits, anyone convicted of an offense punishable by imprisonment in excess of one year from possessing a firearm. Last term the U.S. Supreme Court radically changed the foundations of filing or at least proving that charge.
In Rehaif the Supreme Court found that such prohibited persons had to know their status as a prohibited person or they were not guilty of the statutory offense. With the rapidly changing landscape vis-a-vis state marijuana laws, it is important to understand what is and is not federally legal. First, one needs to understand the “Abstention Doctrine” related to these state changes. Simply stated it means the federal government has elected not to prosecute marijuana users for their possession and use of personal quantities of marijuana. Marijuana is still illegal under federal law and is punishable by incarceration in the Bureau of Prisons operated by the federal government.
That said, a second issue arises which is not as clear. Again a reminder that “abstention” is a discretionary decision by the federal government. Just because they have not prosecuted does not mean they cannot prosecute. Let’s take Joe, or Jane for that matter, Citizen who lives in a state which has some form of legalized marijuana use. Joe and Jane also are gun enthusiasts. They enjoy going to the local gun range and popping off a couple of boxes of ammunition at paper targets. They are upstanding members of their community. They volunteer to coach youth sports, they are active in parent/teacher associations and they are involved in local civic activities.
Neither has ever has so much as a parking ticket and neither would ever take advantage or harm another person. They would not lie or cheat another person and they have always paid their taxes on time. They are the epitome of reputable citizens. Most everyone admires Joe and Jane for their high moral character and untarnished reputations. One day, an enterprising investigator or prosecutor employed by the federal government decides to make a name for him/herself by “getting guns out of the hands of illegal drug users”.
They subpoena the records from the state medical marijuana oversight agency. They also go to all of the local gun stores and require the owner or manager to produce the ATF Form 4473 which identifies everyone who bought a firearm from that store. They go to gun ranges and obtain logs of those who registered to use the facilities to fire their guns. Joe and Jane our erstwhile couple see the headline: Local Federal Prosecutor to Clean up Illegal Drug Usergun Possession.
They look at each other and are pleased that law enforcement will be taking care of “those people”. Jane has a medical marijuana card that is registered with the proper state authority. Her name, address, and other personal information is now in the hands of the federal investigation. Jane recently purchased a small-caliber pistol for self-protection because she works in a part of town has had an increase in street crime like muggings and purse snatchings in recent weeks.
One female victim was seriously injured being badly beaten during such a crime. However, to get the gun, she had to fill out a Form 4473 and await the National Instant Check approval – which she got. One early morning, not quite sunrise, Joe and Jane hear a loud banging on their front door. Quickly throwing on their robes they rush to see what all the commotion is about. Just as they get to their front door, it flies open and in charge six large men dressed in black body armor with the words Federal Police printed on both the front and back.
They have guns drawn and are yelling at Joe and Jane to “get on the floor” (but much more crudely than stated here). They are also yelling something about warrants which doesn’t make sense to our couple – surely this is all a big mistake. Both are rolled onto their stomachs and told to put their hands behind their backs. Not complying fast enough their arms are grabbed and twisted into submission. Their shoulders wrenched and hurting they are stood up and taken out to awaiting law enforcement vehicles.
The lead agent throws a copy of the search warrant on the coffee table in the living room and picks up the marijuana container which was sitting there. The container goes into a bag with big red letters EVIDENCE imprinted on the outside. Guns, laptops, computers, smartphones, pipes, and other items are similarly seized and placed in other bags.
Meanwhile, our befuddled couple is sitting handcuffed in separate cars, so they cannot speak to each other. They are each informed that they are being arrested for violation of federal firearms laws. Joe is bewildered, the whole episode is so nightmarish that he cannot comprehend what is happening. Jane is in no better shape, sitting handcuffed in a car on a public street frightened and confused.
Soon they will both be being processed – a procedure called “booking” which will take their mug shots and fingerprints. They will be taken before a United States Magistrate Judge for an initial appearance wearing their orange jail-issued clothing. The Magistrate Judge will say a bunch of things which while legal and necessary they don’t’ really understand. Each of them has a lawyer appointed to represent them, who has advised them of the procedure for that day and how this is just the beginning of the prosecution and makes sure they understand the charge against them.
The foregoing is hypothetical but it is real, not fanciful. As a matter of law, Joe and Jane have violated federal law by using marijuana an illegal controlled dangerous substance as defined by title 21 of the United States Code and possessing firearms which is prohibited by 18 U.S.C. §922(g). The punishment for this offense is not more than 10 years imprisonment and/or a fine of not more than $250,000.00 or both such fine and imprisonment.
I have seen an increase over the last several months in §922 prosecutions – many involving allegations of offenses not normally charged. All the more reason to remember my admonition these are your rights use them or lose them always request a lawyer before answering any questions and always assert your right to remain silent.