Litigation Highlight: Guns and Marijuana at the Eleventh Circuit

On August 20, the Eleventh Circuit Court of Appeals issued a decision in Florida Commissioner of Agriculture v. Attorney General reversing a district court ruling that had thrown out a challenge to the federal unlawful-drug-user gun ban by a group of Florida medical marijuana patients.  After the circuit ruling, the case will proceed at the trial court level with further historical argument and evidence.  The decision demonstrates, however, that the Trump administration’s efforts to neatly exclude active drug users from gun-rights restoration efforts may run into complications involving individuals whose marijuana use is sanctioned at the state level for medical reasons. 

The Florida challenge, initially captioned Fried v. Garland, was filed by the Florida commissioner of agriculture (who oversees the state’s medical marijuana program) and three Florida citizens who wish to use medical marijuana and possess guns, after the state decriminalized the use of marijuana for medical reasons in 2016.  The citizen plaintiffs attempted to purchase firearms but were screened out by a background-check question that asked whether they use marijuana or other controlled substances.[1] 

The plaintiffs allege that the provision of federal criminal law that bars unlawful drug users from possessing firearms, 18 U.S.C. § 922(g)(3), is unconstitutional as applied to them and seek a declaratory judgment allowing them to purchase guns notwithstanding their marijuana use.  In November 2022, a federal district judge granted DOJ’s motion to dismiss the Second Amendment claims.  The judge found that the unlawful-user prohibition was consistent with two groups of historical regulations: (a) laws that barred those who had “acted unlawfully” from having firearms, and (b) “the historical tradition of keeping guns from those the government fairly views as dangerous—like alcoholics and the mentally ill.”  We covered the case background in this earlier post.

The plaintiffs also argued that the Rohrabacher-Farr Amendment, which prevents DOJ from using federal funds to interfere with state implementation of medical marijuana programs, should be read to bar the use of federal funds to conduct background checks or otherwise obstruct medical marijuana users from obtaining firearms.  The court rejected this construction of Rohrabacher-Farr, finding that at most federal enforcement of 922(g)(3) has an “ancillary deterrent effect” but “does not keep Florida from implementing its medical marijuana laws.”  In other words, the federal government cannot—pursuant to Rohrabacher-Farr—prosecute medical marijuana users for their marijuana use under the Controlled Substances Act; but it remains free to prosecute them for other conduct that involves, but does not solely consist of, marijuana use.  Therefore, the district judge ordered the case dismissed in its entirety.

After staying proceedings pending the Supreme Court’s decision in Rahimi, the Eleventh Circuit issued a unanimous ruling reversing the district court as to the plaintiffs’ Second Amendment claims.  In recounting the facts, the panel emphasized that the evidence in the record showed only that the citizen plaintiffs participate in the state’s medical marijuana program.  There was no evidence, however, as to how frequently each plaintiff uses marijuana or any side effects of marijuana use.  The panel first found, as a threshold matter at Bruen step one, that the plaintiffs’ conduct is presumptively protected by the Second Amendment.  DOJ had argued that drug users are not part of the “people” with Second Amendment protection because they are not law-abiding; but the panel rejected that reasoning.  The panel observed that the citizen plaintiffs had never been convicted of any crime and had, at most, committed a misdemeanor by possessing personal-use amounts of marijuana.  Second, the panel raised Rahimi’s admonition that citizens cannot be disarmed based solely on allegedly irresponsible behavior.

Moving on to the second step of Bruen, the panel took the federal government’s two purported analogue categories in turn.  First, DOJ argued that there is a supportive tradition of disarming convicted criminals.  However, the panel said, the citizen plaintiffs had not been convicted of a crime, at most committed only a misdemeanor offense, and thus were relevantly dissimilar from felons who were historically prevented from having firearms.  Second, DOJ asserted that the tradition of disarming dangerous individuals supports disarming modern-day drug users.  For this proposition, DOJ relied in supplemental briefing on Rahimi’s analysis and argued that “medical marijuana users fit firmly within this category of dangerous individuals because they may mishandle firearms, commit crimes to obtain drugs, or even engage in violent crime as part of the illegal drug trade.”  

But the pleadings in the case, the panel said, contained no allegations that the citizen plaintiffs had acted (or were likely to act) in a dangerous manner due to their marijuana use.  Medical marijuana users, the panel held, simply cannot be labeled “dangerous” without such support.  The panel cited other circuit decisions limiting the application of 922(g)(3) as to marijuana users specifically—some of which have pending cert petitions.  The panel vacated the district court’s decision and remanded for further proceedings.

In press releases and cert-stage filings at the Supreme Court, DOJ has made much of its efforts to restart the federal gun-rights restoration program in 18 U.S.C. § 925(c).  As discussed in this prior post, the government hopes to channel restoration applications through the executive branch and avoid as-applied Second Amendment litigation.  DOJ has now published a detailed proposed rule and is arguing, in the course of asking the Supreme Court to reverse federal appellate courts that have held 922(g)(3) cannot be constitutionally applied to certain marijuana users, that “any constitutional concerns [] in marginal cases can and should be addressed by filing a petition to the Attorney General under 18 U.S.C. 925(c), which permits judicial review—not by covertly violating the statute.”

However, the actual text of the proposed DOJ rule restarting the 925(c) process tells a slightly different story.  The rule states that all active unlawful drug users—presumably including those who use marijuana for any reason, so long as it remains a federal controlled substance—“would presumptively be denied relief because [of] an adjudicated status that indicates a lack of respect for the law and potential dangerousness.”  And the rule emphasizes that this presumption would apply, in most or all cases, until or unless the individual “take[s] themselves out of the prohibited category by discontinuing their unlawful conduct.”  Thus, the proposed 925(c) process seems to take no account of the reason for the unlawful drug use or the status of such use under state law.  The citizen plaintiffs in the Florida case were not, according to the panel, predisposed to act dangerously due to their drug use, and they also did not “covertly violate” federal law but rather sought prospective, declaratory relief.  Still, however, it seems that the 925(c) process will be of little help so long as they continue to have a medical need to use marijuana.

Thus, Florida Department of Agriculture presents a difficult situation for the federal government and the decision of whether to seek review of the Eleventh Circuit’s ruling is one to watch closely.  The Trump administration has also suggested that it may reschedule marijuana (from Schedule I, where it currently resides, to Schedule III).  DEA has issued a notice of proposed rulemaking regarding this change and is currently holding hearings.  It’s not immediately clear how rescheduling marijuana would impact the drug’s status under 922(g)(3).  On one hand, the substance would remain “controlled” at the federal level.  However, moving marijuana to Schedule III may also open the possibility for the drug to be prescribed by a medical professional, thus rendering the use itself “lawful” under federal law with a valid prescription.  Schedule I drugs, by contrast, cannot be prescribed for medical use.