The Justice Department’s request to dismiss a lawsuit over the federal ban on medical marijuana patients’ firearms rights is rife with contradictions and represents an “insulting, illogical, and ahistorical” legal perspective, a new motion from attorneys representing Florida’s agriculture commissioner and medical cannabis patients says.
DOJ filed its motion to dismiss the case last month, and advocates were taken aback by the content of the legal arguments, which at points drew indirect and stigmatizing parallels between state-licensed medical marijuana patients and violent felons, people with mental illnesses and panhandlers.
The department presented those controversial analogues in response to an amended complaint that the plaintiffs filed that cited a recent U.S. Supreme Court case concerning gun restrictions in New York. In that case, the court effectively said that gun laws must be generally consistent with the intent of the framers of the Constitution and the historical context of the original 1791 ratification of the Second Amendment.
DOJ’s motion read as “insulting” Florida Agriculture Commissioner Nikki Fried told Marijuana Moment last month. “I think that they missed the ball here—and it’s very disconcerting that this is the direction that they took.”
In the weeks since the Justice Department filed its request to dismiss the case, attorneys for the plaintiffs put together the new 37-page response that sharply criticizes the manner in which the federal government depicted state-legal cannabis patients and asserts that DOJ ignored or otherwise “failed” to justify a dismissal in the U.S. District Court for the Northern District of Florida.
“Vera Cooper and Nicole Hansell are not ‘tramps,’ ‘mentally ill,’ ‘criminals,’ ‘lunatics,’ ‘panhandlers,’ or ‘unvirtuous.’ The Defendants’ assertions and analogies to the contrary are insulting, illogical, and ahistorical,” the response brief filed on Wednesday says, referring to two plaintiffs who were denied firearms due to their status as Florida medical cannabis patients.
“Those are not even the most dubious comparisons or assertions the Defendants advance, as they also appear to equate depriving state-compliant medical marijuana patients of their Second Amendment rights to the historical disarming of Catholics and Native Americans,” it continues. “The Plaintiffs do not believe that such clearly unconstitutional restrictions have any application to this matter.”
Biden’s DOJ relied on arguments “as ‘contradictory and unstable’ as their overall marijuana policy,” the new filing says, citing 2021 remarks about the state-federal cannabis conflict from conservative Supreme Court Justice Clarence Thomas.
“They deem state-compliant medical marijuana patients too violent to be trusted with a core Constitutional right, but simply gloss over the fact that federal law protects those patients’ actions. In fact, in sworn testimony to Congress, Attorney General Merrick Garland has stated that marijuana use is nonviolent and does not cause societal harm. The Defendants analogize medical marijuana patients to felons even though they have actual knowledge that federal law makes marijuana use a misdemeanor absent a prior offense.
In all, the Defendants rely on inapplicable case law and dubious logical leaps in seeking to dismiss the Amended Complaint. All such attempts fail. Further, in seeking summary judgment in this matter, the Defendants make clear their contradictory policies in this matter and that, at a minimum, disputes of fact exist as to whether the laws and regulations at issue should survive this as-applied challenge. Therefore, the Defendants’ motions should be denied, and they should be required to answer the Amended Complaint.”
The response brief contests the Justice Department’s position on which of the plaintiffs have standing, charges the defendants with misconstruing federal spending bill rider that prohibits the use of DOJ funds to enforce prohibition against patients acting in compliance with state medical marijuana programs and rejects the notion that cannabis patients are inherently not law-abiding and dangerous.
With respect to the questionable historical analogues that DOJ referenced in light of the Supreme Court case, the attorneys said the department’s parallels “stray too far from the laws at issue” and “seek to rely upon the historical concept that, generally, the government has sought to disarm those it viewed as dangerous.”
“The Defendants offer nothing to show that any laws during the pertinent time period sought to prevent the general use of medical marijuana or any other substance as a means of curbing violence. In fact, they do not attempt to show that such use was considered at all related to dangerous behavior. As the Amended Complaint makes clear, medicinal use of marijuana was widely accepted prior to at least the Marihuana Tax of 1937. The Defendants do not dispute this.”
The new filing also cites several quotes from U.S. Attorney General Merrick Garland, who said during his confirmation proceedings that DOJ shouldn’t waste resources going after people acting in compliance with state marijuana laws and that marijuana is a “non-violent crime with respect to usage that does not require us to incarcerate people.”
Taken altogether, the attorneys for the plaintiffs said that it would be reasonable for the court to schedule a one-hour hearing for oral arguments to sort out these issues. It requests that the department’s motion for dismissal and summary judgment be denied, or at least partly denied if the court rejects one part of their argument that they concede was inappropriately included in the prior brief.
For the time being, the current federal policy persists, making it so people are denied gun purchases if they’re honest about their cannabis use while filling out a Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) background check form—regardless of state law.
As Fried previously told Marijuana Moment, the lawsuit at hand is not about expanding gun rights, per se. It’s a matter of constitutionality that she and other key allies in the gun reform movement feel would bolster public safety if the case ultimately goes in their favor.
Supporters of the lawsuit argue that the ATF requirement effectively creates an incentive for cannabis consumers to either lie on the form, buy a gun on the illicit market or simply forgo a constitutional right.
In 2020, ATF issued an advisory specifically targeting Michigan that requires gun sellers to conduct federal background checks on all unlicensed gun buyers because it said the state’s cannabis laws had enabled “habitual marijuana users” and other disqualified individuals to obtain firearms illegally.
There have been previous efforts in Congress to specifically protect medical cannabis patients against losing their right to purchase and possess guns, but those efforts have not been enacted.
Read the response brief to DOJ’s motion to dismiss the medical cannabis and gun rights lawsuit below: