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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

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  #641  
Old 01-21-2018, 2:21 PM
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Having worked in a gun store, albeit many years ago, I know the value of the 4473 is that it memorializes the transaction and makes permanent the buyer's assertions at the point of transfer. I cannot count the number of times ATF showed up after someone had misbehaved and took the store copy of the 4473. Yes, one may lie with impunity at the point of sale expecting to never be caught. But one never knows what may happen with that gun, while it's in your possession of after, nor what law enforcement agency (or civil attorney) may circle back and uncover the lie.
This is true. However, uncovering a lie made on the form requires uncovering evidence dating back to when the form was submitted.

As applied to the discussion in this thread, it would require evidence that the person was an unlawful user of or was addicted to a controlled substance at or near the time of the transaction. Since someone can unlawfully use a controlled substance at any later point in time, such use later does not of itself constitute evidence of such use at or near the time of the transaction. Note that in at least some areas, there's a vague range of time around the transaction that would qualify. For instance, in US v Edmonds:

Quote:
Originally Posted by US v. Edmonds, 348 F. 3d 950 at 953
To support an offense enhancement under § 2K2.1(a)(6), the government does not have to prove the defendant was under the influence of a controlled substance at the time of his arrest. Instead, the government must show the defendant was an "unlawful user" of a controlled substance during the same time period as the firearm possession.
(emphasis mine, and note that the context of the above is with respect to sentence enhancement -- the rules might well be different for a primary offense).

I've no idea how exact the definition of "during the same time period" is. I suspect it's vague. Someone else here might be able to provide a more concrete definition.

In any case, the point here is that if one gets caught, it is likely to be for violating the law at the time one is caught, rather than at the time of form submission. It seems to me the form's primary role is to inform the purchaser of the requirements imposed by law and to make it clear that if the purchaser was in violation of the law at that point, they were knowingly in violation of it.
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  #642  
Old 01-21-2018, 3:40 PM
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Excuse this brief digression, but a while ago (post 630) I mentioned that people make mistakes.

Yesterday was the monthly Basic Handgun class our group of instructors puts on. During the lunch break, as is our custom, the instructors and any students who want to hang around in the classroom chat about various and sundry. The conversation turned to state legalization of marijuana and federal gun laws.

One of the instructors (actually the president of our little 501(c)(3) corporation) is retired from his "day" job but works in a local gun shop because he likes doing so. He reported that last week a customer came in to pick up the gun he DROS'd. And for his second ID he handed my friend his medical marijuana card. So of course the sale was immediately cancelled, and the customer left empty handed (but perhaps a little more knowledgeable).
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  #643  
Old 01-21-2018, 5:20 PM
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  #644  
Old 01-21-2018, 5:55 PM
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Originally Posted by kcbrown View Post
This is true. However, uncovering a lie made on the form requires uncovering evidence dating back to when the form was submitted.

As applied to the discussion in this thread, it would require evidence that the person was an unlawful user of or was addicted to a controlled substance at or near the time of the transaction. Since someone can unlawfully use a controlled substance at any later point in time, such use later does not of itself constitute evidence of such use at or near the time of the transaction. Note that in at least some areas, there's a vague range of time around the transaction that would qualify. For instance, in US v Edmonds:

(emphasis mine, and note that the context of the above is with respect to sentence enhancement -- the rules might well be different for a primary offense).

I've no idea how exact the definition of "during the same time period" is. I suspect it's vague. Someone else here might be able to provide a more concrete definition.

In any case, the point here is that if one gets caught, it is likely to be for violating the law at the time one is caught, rather than at the time of form submission. It seems to me the form's primary role is to inform the purchaser of the requirements imposed by law and to make it clear that if the purchaser was in violation of the law at that point, they were knowingly in violation of it.
Absolutely, the cause for investigation is that the fellow did something else wrong prompting LE interest. But whether one wants to call it "the law of unintended consequences" or God's Great Banana Skin (nice song by Chris Rea BTW) that's the risk one takes when doing such things.

Regarding investigation, I recall a fellow who bought a gun in MA (using his LTC and MA DL) but had previously moved to NH. He was pinched for something else (took potshots at a NH neighbor IIRC) and through mouthing off, NH plates and of course setting up home in NH - that he was a NH resident at the time he bought the gun in MA didn't require Sherlock Holmes to establish. I would expect LE types can be likewise rather thorough and creative doing likewise with drug use, if they are so inclined.
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  #645  
Old 01-21-2018, 6:05 PM
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Originally Posted by fiddletown View Post
Excuse this brief digression, but a while ago (post 630) I mentioned that people make mistakes.

Yesterday was the monthly Basic Handgun class our group of instructors puts on. During the lunch break, as is our custom, the instructors and any students who want to hang around in the classroom chat about various and sundry. The conversation turned to state legalization of marijuana and federal gun laws.

One of the instructors (actually the president of our little 501(c)(3) corporation) is retired from his "day" job but works in a local gun shop because he likes doing so. He reported that last week a customer came in to pick up the gun he DROS'd. And for his second ID he handed my friend his medical marijuana card. So of course the sale was immediately cancelled, and the customer left empty handed (but perhaps a little more knowledgeable).
Virtually every gun store I've visited from SF to San Jose and Sacramento has a similar story, though it tends to happen near the start of the transaction. I've noticed the occasional "If you smell like MJ do not enter" and ".... will not sell you a gun" signage popping up at a few gun stores, especially those with indoor ranges.
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  #646  
Old 01-21-2018, 6:37 PM
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Absolutely, the cause for investigation is that the fellow did something else wrong prompting LE interest. But whether one wants to call it "the law of unintended consequences" or God's Great Banana Skin (nice song by Chris Rea BTW) that's the risk one takes when doing such things.

Regarding investigation, I recall a fellow who bought a gun in MA (using his LTC and MA DL) but had previously moved to NH. He was pinched for something else (took potshots at a NH neighbor IIRC) and through mouthing off, NH plates and of course setting up home in NH - that he was a NH resident at the time he bought the gun in MA didn't require Sherlock Holmes to establish. I would expect LE types can be likewise rather thorough and creative doing likewise with drug use, if they are so inclined.
Certainly, if people incriminate themselves in some way, then past offenses can be brought to light. Any decent investigator is going to go through the person's record, and will of course be able to logically deduce anything that can be so deduced.

The main problem with identifying that someone was addicted to or illegally used controlled substances at some point in the past is that there tends not to be much of a record for that. But there will always be exceptions. For instance, someone who went into drug rehabilitation very soon after purchasing a firearm is almost certainly going to be considered as being in that category. It then just becomes a question of whether or not a later event causes that record to be retrieved and scrutinized.

In any case, as things go, lying on the form is likely way down on the list of things that someone who uses controlled substances illegally will find themselves facing any consequences for. Their actual continued illegal (if only at the federal level) use of controlled substances is, it seems to me, much more likely to land them in trouble.


In any case, I would expect an even greater degree of enforcement of the firearm prohibition against marijuana users than we've seen in the past, so whatever the probability of being caught and convicted of that in the past, I expect it to go up substantially at this point. With the laws in place at this point, someone who legally purchases a firearm in California will have a record of that purchase that law enforcement can look up if the person is stopped and evidence of use of marijuana is found.
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  #647  
Old 01-21-2018, 8:09 PM
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In any case, I would expect an even greater degree of enforcement of the firearm prohibition against marijuana users than we've seen in the past, so whatever the probability of being caught and convicted of that in the past, I expect it to go up substantially at this point. With the laws in place at this point, someone who legally purchases a firearm in California will have a record of that purchase that law enforcement can look up if the person is stopped and evidence of use of marijuana is found.
I wonder how much effort the state is going to put in to the issue. On the one hand we have private gun ownership, which CA dislikes, and MJ use (and its new tax revenue) which CA supports. Might HPD-like letters go out to gunowners, what happens when incidental contact shows current MJ use and documented gun ownership? Certainly the "offense" CA focuses on will be the gun and not MJ use.

CA bans truly private sales and sales to an unlicensed person outside the state generally violate federal law, so an "I sold the gun" escape to some unnamed person is pretty well diminished. As a practical matter having disposed of the gun would either be documented if complying with the law, or if not documented be a separate violation.

I note that the new MJ law prohibits "ingesting" MJ in public. I suspect that someone is going to get pinched, pay a fine or a cite and think nothing of it.
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  #648  
Old 01-22-2018, 8:45 AM
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Yes. But only a Mini 14. Because blind people shoot it just as accurately as sighted people ......
Personal foul ! Ball is return to the 10 yard line....1st down !
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  #649  
Old 01-22-2018, 2:41 PM
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I wonder how much effort the state is going to put in to the issue. On the one hand we have private gun ownership, which CA dislikes, and MJ use (and its new tax revenue) which CA supports. Might HPD-like letters go out to gunowners, what happens when incidental contact shows current MJ use and documented gun ownership? Certainly the "offense" CA focuses on will be the gun and not MJ use.
Yes, exactly. The focus will be on the gun. I expect we'll see gun owners who buy the state's claim (that MJ use is now legal in California) incarcerated as a result. Remember that the state's approval of MJ is a relatively recent thing, but its hatred of guns is deep-seated and long-lasting. Where the state has the choice of exonerating someone for MJ use or throwing them into a hole for gun ownership, it will surely choose the latter. While it might not result in incarceration, the state will at least ensure that the person is convicted of a felony in order to prevent that person from ever being able to legally own firearms again.


Quote:
I note that the new MJ law prohibits "ingesting" MJ in public. I suspect that someone is going to get pinched, pay a fine or a cite and think nothing of it.
They will ... unless they own a gun legally. Under those circumstances, the state will do whatever it takes to ensure that they can never again own a gun legally.
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  #650  
Old 01-22-2018, 4:18 PM
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Yes, exactly. The focus will be on the gun. I expect we'll see gun owners who buy the state's claim (that MJ use is now legal in California) incarcerated as a result. Remember that the state's approval of MJ is a relatively recent thing, but its hatred of guns is deep-seated and long-lasting. Where the state has the choice of exonerating someone for MJ use or throwing them into a hole for gun ownership, it will surely choose the latter. While it might not result in incarceration, the state will at least ensure that the person is convicted of a felony in order to prevent that person from ever being able to legally own firearms again.

They will ... unless they own a gun legally. Under those circumstances, the state will do whatever it takes to ensure that they can never again own a gun legally.
The conflict here isn't the gun or ownership of the gun; it's the collision of Ca and federal law on the legal status of MJ.

I don't see the gun owner being incarcerated or otherwise prosecuted by the state for owning the gun. He/she will be incarcerated for state-legalized MJ use while possessing the gun. To incarcerate a gun owner for possessing a gun while using marijuana seems to require the state to agree that marijuana use is not legal. The libs in this state, as much as they may hate gun owners, are not going to take the side of the federal government that MJ use is illegal, simply to preclude a few people from owning firearms.

There are much more effective ways to ban guns and protect the MJ crowd.
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  #651  
Old 01-22-2018, 5:59 PM
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The conflict here isn't the gun or ownership of the gun; it's the collision of Ca and federal law on the legal status of MJ.

I don't see the gun owner being incarcerated or otherwise prosecuted by the state for owning the gun. He/she will be incarcerated for state-legalized MJ use while possessing the gun. To incarcerate a gun owner for possessing a gun while using marijuana seems to require the state to agree that marijuana use is not legal. The libs in this state, as much as they may hate gun owners, are not going to take the side of the federal government that MJ use is illegal, simply to preclude a few people from owning firearms.

There are much more effective ways to ban guns and protect the MJ crowd.
True enough on your closing line, but the (federal) violation is unlawful firearms possession while a user of MJ. I don't see CA enforcing federal law regarding MJ use after it has legalized on the state level. The question, it seems to me, is whether the state would prosecute a gun possession case based on a violation of federal law. And, does CA state law prohibit firearms possession if one is an MJ user in violation of federal law? In effect, federally prohibited = state prohibited. That's how HPD justified their initial letter.

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  #652  
Old 01-23-2018, 7:34 AM
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Bacerra has the answer: You will be prosecuted if you attempt to enforce federal laws here.
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  #653  
Old 01-23-2018, 9:38 AM
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Again, I would suggest that the issue at hand is not the gun, but the "unlawful use of, or addiction to, a controlled substance, i.e.: MJ.

Generally, possession of firearms is illegal at neither the federal nor the state levels. However, California allows the lawful use of MJ at the state level while it remains unlawful at the federal level. It is, then, the use of, or addiction to, MJ which causes the possession of the firearm to be illegal under federal statute.

This seems well illustrated by the cases cited by fiddletown earlier and contained in the open links at: http://www.calguns.net/calgunforum/s...&postcount=633

Burchard:
Quote:
"...three counts of knowingly possessing a firearm in and affecting commerce while being an unlawful user or addicted to a controlled substance, in violation of 18 U.S.C. § 922(g)(3) and § 924(a)(2)..."
Edmonds:
Quote:
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.
Sobolewski:
Quote:
Sobolewski was convicted of 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).
Jackson:
Quote:
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)
Antonoff:
Quote:
Antonoff was assessed a base offense level of 20, pursuant to U.S.S.G. § 2K2.1(a)(4)(B), for being a “prohibited person,” namely, an “unlawful user” of marijuana.

A “prohibited person” is “any person described in 18 U.S.C. 922(g),” id. cmt. (n.3)., which prohibits individuals who are “unlawful user[s] of or addicted to any controlled substance” from carrying firearms, 18 U.S.C. § 922(g)(3). Federal regulations, in turn, define “unlawful user” as “any person who is a current user of a controlled substance” as defined therein. 27 C.F.R. § 478.11.2
Bramer:
Quote:
Todd Bramer pled guilty to one count of possession of firearms by a prohibited person—specifically, an unlawful user of a controlled substance—in violation of 18 U.S.C. § 922(g)(3). In his written guilty plea, Bramer admitted to “knowingly possess[ing] firearms,” including two handguns and at least one other firearm, while “being an unlawful user of marijuana.”
Generally, then, if you are not an unlawful user of MJ, you won't be charged under the federal statute. However, as evidenced by government writings, including the ATF Form 7, the federal government deems state-level approval of the use of MJ to be unlawful under the Controlled Substances Act (CSA). See: https://www.atf.gov/firearms/docs/op...poses/download

That puts the California view of MJ use in direct conflict with the view of the federal government. Lawful v. Unlawful. And, it applies to more than possession of firearms. The cultivation and sale of MJ is a federal crime. In fact, according to FINDLAW (http://criminal.findlaw.com/criminal...na-laws.html):
Quote:
You can run into problems with the CSA even if you are not directly involved with the marijuana industry. If you provide services to a business that operates under state marijuana laws, you may also be violating federal law, and subject to prosecution. So if you run a janitorial services and have a client that operates a dispensary, you may be profiting from illegal drug trafficking.

The CSA also makes it unlawful to “knowingly open, lease, rent, maintain, or use property for the manufacturing, storing, or distribution of controlled substances.” So landlords that have tenants involved in state-permitted marijuana industry may risk federal asset forfeiture or other criminal fines.
If CA doesn't defend all CA citizens against the federal enforcement of federal MJ prohibitions, then the entire case for legal use, possession growth, etc., of MJ in Ca is lost.

The progressives won't let that happen just to affect a few gun owners.
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  #654  
Old 01-23-2018, 10:32 AM
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^
Interesting. I understand that the trigger, for lack of a better term, is unlawful MJ use. And that CA has an interest in protecting its new found state status as legal. I suppose it comes down to which ox the state prefers to gore, or at least which one it believes it may be able to get away with goring. Were the particular item not guns, but for sake of discussion, in state tuition eligibility for persons under DACA or making a person eligible for deportation under federal law. I think clearly the state would demurr.

On the theory, you may be right. And it may be that CA would have to work a bit to find a way, by being hypocritical and disingenuous, of deliberately screwing gunowners. I think in the end they'd find a way.

I don't know the answer, perhaps others here do - does CA law prohibit firearms possession by a) a person using MJ not in violation of state law or b) if a person is federally prohibited from firearms possession? If MJ use is allowed by state law and CA doesn't have a law which states "federal prohibition = state prohibition" does CA even have a case to press? Yes the feds could press, but doing so would sidestep the CA, guns & now (state) legal MJ issue.

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  #655  
Old 01-23-2018, 1:24 PM
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What will happen is that if the person is a firearm owner, then they'll be prosecuted for possession of firearms while engaging in illegal use of a controlled substance, where "illegal" is defined at the federal level. If the user is not a firearm owner then they'll be left alone because the use is legal at the state level.

State actors can choose to enforce federal law or to not enforce it. The above is clearly selective enforcement of federal law but that's something that law enforcement agencies can clearly do because they do that all the time at both the state and federal level, without consequence.




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  #656  
Old 01-23-2018, 1:47 PM
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What will happen is that if the person is a firearm owner, then they'll be prosecuted for possession of firearms while engaging in illegal use of a controlled substance, where "illegal" is defined at the federal level. If the user is not a firearm owner then they'll be left alone because the use is legal at the state level.

State actors can choose to enforce federal law or to not enforce it. The above is clearly selective enforcement of federal law but that's something that law enforcement agencies can clearly do because they do that all the time at both the state and federal level, without consequence.

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But that is precisely the point. If the state allows prosecution using a federal statute declaring MJ unlawful, and the charge is held, then the feds have judicial leverage in every other instance where MJ is (federally) unlawfully used in the state. That door opens wide, and if the state opens it, becomes virtually impossible to close.
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  #657  
Old 01-23-2018, 6:03 PM
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But that is precisely the point. If the state allows prosecution using a federal statute declaring MJ unlawful, and the charge is held, then the feds have judicial leverage in every other instance where MJ is (federally) unlawfully used in the state. That door opens wide, and if the state opens it, becomes virtually impossible to close.

The Feds ALREADY have that kind of judicial leverage. They've always had that. They can prosecute federal drug violations themselves, and they go directly to federal courts for that. No, I'm talking about state level organizations ONLY.

State organizations are not forced to enforce federal law, but can if they wish, and can do so in a completely selective manner if they wish. All I'm doing here is taking these concepts to their logical conclusion with respect to the intersection of something the state likes and something else the state hates.


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  #658  
Old 01-23-2018, 7:40 PM
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True enough on your closing line, but the (federal) violation is unlawful firearms possession while a user of MJ. I don't see CA enforcing federal law regarding MJ use after it has legalized on the state level. The question, it seems to me, is whether the state would prosecute a gun possession case based on a violation of federal law. And, does CA state law prohibit firearms possession if one is an MJ user in violation of federal law? In effect, federally prohibited = state prohibited. That's how HPD justified their initial letter.


The “resistance” by CA politicians will pick and choose which federal laws they decide to enforce depending on what is politically popular.


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Old 01-23-2018, 7:59 PM
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The Feds ALREADY have that kind of judicial leverage. They've always had that. They can prosecute federal drug violations themselves, and they go directly to federal courts for that. No, I'm talking about state level organizations ONLY.

State organizations are not forced to enforce federal law, but can if they wish, and can do so in a completely selective manner if they wish. All I'm doing here is taking these concepts to their logical conclusion with respect to the intersection of something the state likes and something else the state hates.

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The progressives made the cultivation, sales, possession and use of marijuana lawful. They created an industry based on the lawfulness of marijuana.

But, because the progressives hate guns, they will prosecute gun owners for unlawfully using marijuana.

Which requires the state to assert that the use of marijuana is unlawful.

I don't think that will happen.

Best.
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Old 01-23-2018, 9:19 PM
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Originally Posted by Dvrjon View Post
The progressives made the cultivation, sales, possession and use of marijuana lawful. They created an industry based on the lawfulness of marijuana.



But, because the progressives hate guns, they will prosecute gun owners for unlawfully using marijuana.
No. They will prosecute gun owners for possession of guns while using marijuana. The "unlawful" attribute of the latter is at the federal level and is what makes this kind of prosecution possible, but make no mistake: it's the possession of the gun, and not the use of marijuana, that they will be targeting.





Quote:
Which requires the state to assert that the use of marijuana is unlawful.
But only in the context of possession of firearms.





Quote:
I don't think that will happen.
You expect consistency from the state government? Seriously????

The only thing they will be consistent about is pursuit of their goals, which simultaneously is legalization of marijuana and removal of guns from the citizenry. But if forced to choose between those, the state government will ALWAYS choose the latter because it hates guns in the hands of the citizenry far more than it likes marijuana.










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Old 01-23-2018, 9:59 PM
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Originally Posted by Dvrjon View Post
...But, because the progressives hate guns, they will prosecute gun owners for unlawfully using marijuana.....
The use of marijuana is now a federal crime and not a state crime. And possession of a gun by a user of marijuana violates federal law (18 USC 922(g)(3)).

But a State lacks jurisdiction to prosecute a violation of federal law. Therefore, California would have no jurisdiction to prosecute the use or possession of marijuana except to the extent that such use of possession violated the limited state law proscriptions (e. g., unlicensed sale, sale to minors, use in a prohibited place).

Similarly, California could not rely on federal law as a basis on which to prosecute a marijuana user's possession of a gun. California may only prosecute possession of a gun by a marijuana user to the extent such possession might violate California law (e. g., PC 29800, et seq, and PC 29900, et seq).

However, under some circumstances state LEOs can arrest someone for violation of federal law and turn the person over to th federal authorities for prosecution.
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Old 01-23-2018, 10:00 PM
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So we're bringing this thread back?
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Old 01-23-2018, 10:38 PM
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Originally Posted by fiddletown View Post
The use of marijuana is now a federal crime and not a state crime. And possession of a gun by a user of marijuana violates federal law (18 USC 922(g)(3)).

But a State lacks jurisdiction to prosecute a violation of federal law. Therefore, California would have no jurisdiction to prosecute the use or possession of marijuana except to the extent that such use of possession violated the limited state law proscriptions (e. g., unlicensed sale, sale to minors, use in a prohibited place).
Ah. That is something I was not aware of. I thought that the state could prosecute for violation of federal law if it chose to, but that was based on, well, nothing much really (sigh). Thanks for clearing that up.

It seems to me this bit of information should have substantial impact on any discussions about the whole "sanctuary city/state" thing.


Quote:
Similarly, California could not rely on federal law as a basis on which to prosecute a marijuana user's possession of a gun. California may only prosecute possession of a gun by a marijuana user to the extent such possession might violate California law (e. g., PC 29800, et seq, and PC 29900, et seq).

However, under some circumstances state LEOs can arrest someone for violation of federal law and turn the person over to th federal authorities for prosecution.
Could you describe in greater detail the circumstances under which state LEOs can arrest for violation of federal law?
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Old 01-23-2018, 10:42 PM
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Originally Posted by Dvrjon View Post
The progressives made the cultivation, sales, possession and use of marijuana lawful. They created an industry based on the lawfulness of marijuana.

But, because the progressives hate guns, they will prosecute gun owners for unlawfully using marijuana.

Which requires the state to assert that the use of marijuana is unlawful.

I don't think that will happen.

Best.
In light of Fiddletown's recent clarification of the limits of state jurisdiction, I am now forced to agree with you here. The only thing the state can do, and I won't be surprised if it does, is to explicitly make firearm possession by marijuana users illegal. But in the absence of such a law, it seems there would be nothing for them to prosecute.
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Old 01-24-2018, 12:04 AM
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Originally Posted by kcbrown View Post
In light of Fiddletown's recent clarification of the limits of state jurisdiction, I am now forced to agree with you here. The only thing the state can do, and I won't be surprised if it does, is to explicitly make firearm possession by marijuana users illegal. But in the absence of such a law, it seems there would be nothing for them to prosecute.
That doesn't make sense to me because sheriffs will deny CCW to MM card holders... Clearly the state does carry out federal law to a certain extent.

I may be wrong but wouldn't the state have the option but not the obligation to enforce federal law? I think the state might hesitate to prosecute someone regarding this because they don't want the inherent conflict between state and federal law to make its way via appeal to the supreme court... They might win the battle but lose the war.

In the meantime safest bet would be for gun owners to not use pot and pot users to not own guns until pot's legalized on the federal level.
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Old 01-24-2018, 7:38 AM
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However, under some circumstances state LEOs can arrest someone for violation of federal law and turn the person over to the federal authorities for prosecution.
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Old 01-24-2018, 11:44 AM
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That doesn't make sense to me because sheriffs will deny CCW to MM card holders... Clearly the state does carry out federal law to a certain extent.
That's different. CCWs are discretionary-issue. Sheriffs can issue them to whomever they please, or refuse to issue them to whomever they please. So if they deny a permit to an MM card holder, it's because they don't want to issue one to that MM card holder (if the MM card holder were a major campaign contributor, personal friend, or someone of notable stature, then you can bet good money they'd issue the permit).

So no, sheriffs are not enforcing federal law that way, they're enforcing their own personal preferences.


Quote:
I may be wrong but wouldn't the state have the option but not the obligation to enforce federal law?
Per Fiddletown's message, apparently not in the general case. There may be some cases where they can arrest someone and then turn them over to the feds for federal prosecution, but I don't know what those cases are.


Quote:
I think the state might hesitate to prosecute someone regarding this because they don't want the inherent conflict between state and federal law to make its way via appeal to the supreme court... They might win the battle but lose the war.
You say this after the Supreme Court has shown that it won't back the 2nd Amendment at all unless the plaintiff is a poor homeless woman with a stun gun? Seriously??

The states are not concerned about the Supreme Court anymore, except maybe when the appellate courts side against the state (e.g., in Wrenn). That clearly won't be the case with respect to the 9th Circuit -- it will always side with the state on 2nd Amendment issues.


Quote:
In the meantime safest bet would be for gun owners to not use pot and pot users to not own guns until pot's legalized on the federal level.
Exactly.
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Old 01-24-2018, 12:28 PM
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Originally Posted by kcbrown View Post
Ah. That is something I was not aware of. I thought that the state could prosecute for violation of federal law if it chose to, but that was based on, well, nothing much really (sigh). Thanks for clearing that up.

It seems to me this bit of information should have substantial impact on any discussions about the whole "sanctuary city/state" thing.




Could you describe in greater detail the circumstances under which state LEOs can arrest for violation of federal law?
There is no mechanism for state officials to prosecute criminal violations of federal law in state court. Any such arrests would have to be prosecuted in federal court.

California state LEOs have the authority to arrest for federal law violations under Penal Code section 836. Here is the pertinent part (and particularly note the absence of any language limiting the authority to state law violations):

"(a) A peace officer may arrest a person in obedience to a warrant, or, pursuant to the authority granted to him or her by Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, without a warrant, may arrest a person whenever any of the following circumstances occur:

(1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence.

(2) The person arrested has committed a felony, although not in the officer’s presence.

(3) The officer has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed."

Quite interestingly, a private person has very nearly the same arrest authority under Penal Code section 837.

But it's not as simple as it seems. Once a person (be it a peace officer or private person) arrests someone, there are a number of legal obligations they have toward the person arrested and there are civil and criminal penalties if those obligations are not fulfilled. These include the duty to safeguard the arrestee and deliver them into the justice system. They also include the duty to conduct a Gerstein Hearing within 48 hours of the arrest and to meet deadlines for an arraignment.

The problem here for a state peace officer is that there is no requirement for federal authorities to take custody of their prisoner, nor is there an obligation on the part of a U.S. Attorney to respond to a request for charges from a state officer. They can do it if they want to, but they don't have to. For these reasons, my agency adopted a policy, more than 10 years ago, not to accept bookings of prisoners exclusively on federal charges.

The problem for a state LEO making a federal charge arrest is that they could wind up with a prisoner in their custody, that they can't get out of their custody. A peace officer could employ PC 849 to release their prisoner, but then what would have been the point of the arrest in the first place?
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Old 01-24-2018, 2:58 PM
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Quote:
Originally Posted by fiddletown View Post
The use of marijuana is now a federal crime and not a state crime. And possession of a gun by a user of marijuana violates federal law (18 USC 922(g)(3)).

But a State lacks jurisdiction to prosecute a violation of federal law. Therefore, California would have no jurisdiction to prosecute the use or possession of marijuana except to the extent that such use of possession violated the limited state law proscriptions (e. g., unlicensed sale, sale to minors, use in a prohibited place).

Similarly, California could not rely on federal law as a basis on which to prosecute a marijuana user's possession of a gun. California may only prosecute possession of a gun by a marijuana user to the extent such possession might violate California law (e. g., PC 29800, et seq, and PC 29900, et seq).

However, under some circumstances state LEOs can arrest someone for violation of federal law and turn the person over to th federal authorities for prosecution.
Is it accurate to say CA does not prohibit firearm possession by an individual simply because they are federally prohibited?

With respect PC 29800, which section of it might be violated?

http://law.onecle.com/california/penal/29800.html

Presuming a person is otherwise not in violation of PC 29800, is the "might violate" caused if one "is addicted to the use of any narcotic drug"? Is MJ legally classified as a narcotic, and would it have to be by the state to be applied?

As a practical matter, has CA on a state level made lawful the recreational use of MJ and possession of a firearm? And if not use of MJ, but rather mere possession of MJ and possession of a firearm?
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Old 01-24-2018, 3:11 PM
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That doesn't make sense to me because sheriffs will deny CCW to MM card holders... Clearly the state does carry out federal law to a certain extent.
The federal government has no authority regarding state issued CCWs. This is one of the reasons "national reciprocity" has caused gunowner concerns. But to the point, if state law governing CCW issuance doesn't prohibit due to medical MJ card possession or actual MJ use it seems to me they can't for now be used as a disqualifier. Atached is the SD application, there's no direct reference to MJ use:

http://www.sdsheriff.net/licensing/ccw_app.pdf

The Oregon Supreme Court recently decided in favor of an applicant who possessed a state issued MJ card based on possession of the card not being exclusionary under state law.
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Old 01-24-2018, 3:49 PM
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Is it accurate to say CA does not prohibit firearm possession by an individual simply because they are federally prohibited?....
Yes. California has its own set of disqualifying conditions, which list is, in some ways, much broader than the federal list. For example, California law provides for a number of ten year prohibitions which would not necessarily disqualify under federal law.

Quote:
Originally Posted by dfletcher View Post
...Presuming a person is otherwise not in violation of PC 29800, is the "might violate" caused if one "is addicted to the use of any narcotic drug"? Is MJ legally classified as a narcotic, and would it have to be by the state to be applied?....
But marijuana is not, AFAIK, considered a narcotic, nor are users of marijuana necessarily considered addicted, at least medically.

Quote:
Originally Posted by dfletcher View Post
...As a practical matter, has CA on a state level made lawful the recreational use of MJ and possession of a firearm? And if not use of MJ, but rather mere possession of MJ and possession of a firearm?
Perhaps, but largely irrelevant. That would only mean that California couldn't prosecute. But since it remains a violation of federal law, the federal government could.

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Originally Posted by dfletcher View Post
....The Oregon Supreme Court recently decided in favor of an applicant who possessed a state issued MJ card based on possession of the card not being exclusionary under state law.
Also irrelevant. Oregon is, for residents, shall issue. California is not.
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Last edited by fiddletown; 01-24-2018 at 4:30 PM.. Reason: correct typo
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Old 01-24-2018, 8:00 PM
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^
Understood and thank you.
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Old 01-24-2018, 8:07 PM
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Why would California have to prosecute under Federal Law?

California law makes it a felony for any prohibited person (State or federal) to be in possession of a firearm or even ammo.

California just funded a firearm confiscation division of the DOJ with 25 Million with the sole task of confiscating firearms from prohibited persons.

California has already prosecuted people for being a prohibited person in possession of a firearm solely because they were in possession of a firearm and MJ at the same time. In a Riverside case the person had a Medical MJ card. Someone broke into his apartment while he was home and he scared them off with his registered firearm. When LEO responded they noticed a partial joint in an ashtray. Charged and convicted.

If you think California will not use MJ to confiscate firearms you may be in for a harsh surprise.
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Old 01-24-2018, 8:28 PM
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....California law makes it a felony for any prohibited person (State or federal) to be in possession of a firearm or even ammo.....
Exactly what California law is that?

You might be correct, but in my skimming of the most obviously applicable California statutes, I didn't see anything that broad. Many California disqualifying conditions independently parallel federal law, but aren necessarily congruent.

Quote:
Originally Posted by 71MUSTY View Post
...California has already prosecuted people for being a prohibited person in possession of a firearm solely because they were in possession of a firearm and MJ at the same time. In a Riverside case the person had a Medical MJ card. Someone broke into his apartment while he was home and he scared them off with his registered firearm. When LEO responded they noticed a partial joint in an ashtray. Charged and convicted....
While that incident has been reported anecdotally here several times, I've never seen any documentation, nor do we have any real details.

Was the person arrested by California or federal LEOs? Was he prosecuted by in California or federal court? Exactly what were the charges?
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Old 01-24-2018, 8:36 PM
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Originally Posted by 71MUSTY View Post
Why would California have to prosecute under Federal Law?

California law makes it a felony for any prohibited person (State or federal) to be in possession of a firearm or even ammo.

California just funded a firearm confiscation division of the DOJ with 25 Million with the sole task of confiscating firearms from prohibited persons.

California has already prosecuted people for being a prohibited person in possession of a firearm solely because they were in possession of a firearm and MJ at the same time. In a Riverside case the person had a Medical MJ card. Someone broke into his apartment while he was home and he scared them off with his registered firearm. When LEO responded they noticed a partial joint in an ashtray. Charged and convicted.

If you think California will not use MJ to confiscate firearms you may be in for a harsh surprise.
Please check out California's law on prohibited person access (Penal Code sections 29800-29830). They do not necessarily align with the federal statutes. If you believe that a person has California criminal liability by reason of being a marijuana user in possession of a firearm, then please cite the section.
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Old 01-25-2018, 10:35 AM
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Originally Posted by fiddletown View Post
Yes. California has its own set of disqualifying conditions, which list is, in some ways, much broader than the federal list. For example, California law provides for a number of ten year prohibitions which would not necessarily disqualify under federal law.

But marijuana is not, AFAIK, considered a narcotic, nor are users of marijuana necessarily considered addicted, at least medically.

Perhaps, but largely irrelevant. That would only mean that California couldn't prosecute. But since it remains a violation of federal law, the federal government could.

Also irrelevant. Oregon is, for residents, shall issue. California is not.
One of the questions asks, and I'm paraphrasing, if the applicant ever used a controlled substance. THC is defined in California code as a controlled substance, the fact that its recreational use is now "legal" notwithstanding.

It may not disqualify someone from gun ownership according to state law, but state law does require its past use to be disclosed during a CCW app.

Last edited by MTAire; 01-25-2018 at 10:39 AM..
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Old 01-25-2018, 4:37 PM
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Originally Posted by 71MUSTY View Post
Why would California have to prosecute under Federal Law?

California law makes it a felony for any prohibited person (State or federal) to be in possession of a firearm or even ammo.

California just funded a firearm confiscation division of the DOJ with 25 Million with the sole task of confiscating firearms from prohibited persons.

California has already prosecuted people for being a prohibited person in possession of a firearm solely because they were in possession of a firearm and MJ at the same time. In a Riverside case the person had a Medical MJ card. Someone broke into his apartment while he was home and he scared them off with his registered firearm. When LEO responded they noticed a partial joint in an ashtray. Charged and convicted.

If you think California will not use MJ to confiscate firearms you may be in for a harsh surprise.
If the Riverside fellow had a joint in his ashtray that, I presume, and not the MJ card, would have been the reason LE arrested. There may be more to the event, but it would have happened prior to 1 Jan 18 and circumstances have changed.

If it can be said that CA state law does not prohibit firearm possession due to MJ use or possession then as a practical matter who is left to enforce the prohibition? The federal government.

I've no doubt CA will attempt to contrive a way to arrest gunowners. Perhaps we'll one day have the SF Sheriff's office calling ATF to take custody of a CA gunowner on federal MJ charges, while telling no one and turning loose an illegal alien. I'll give 3 will get you 2 odds on that for now.

The discussion is fun, but the reality now is no different than it was 10 or so years ago when I 1st starting poking around here - guns or pot, pick one. And from an entirely selfish point of view, I'd like our efforts to be directed at the roster, AW laws, 10 day waits, CCW rather than folks who endeavor to go swimming with an anchor around their waist. As though we don't have enough problems to deal with in CA.
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Old 01-26-2018, 7:35 AM
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I can't see how California or the feds can do a thing about people buying pot at legal stores that don't keep any records.

The arguements are beginning to sound like those right before the 21st amendment was passed.
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Old 01-26-2018, 8:48 AM
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I can't see how California or the feds can do a thing about people buying pot at legal stores that don't keep any records.

The arguements are beginning to sound like those right before the 21st amendment was passed.
FWIW I've read in SF papers that some stores will keep names, do some form or record keeping. Which makes sense to cover themselves I suppose, although I don't know how diligent they'll be or cooperative their customers. It's a stretch to consider what may happen to such records, but would one want to bet our friends in Sacramento might not "discover" a problem regarding MJ and guns and require record keeping and informing the state? Again, a stretch but who knows for sure.

What most folks don't consider is that the new law restricts where MJ can be injested. So in theory a person can be cited in similar fashion as drinking in public. Anyone who has walked SF, taken BART or MUNI knows SFPD isn't enforcing but I'd presume a cite and guilty/pay the fine could be matched to gunownership records if the state were inclined to consider such legislation.

Much of this is new territory, we'll probably have to wait and see what comes forth as a result. If there's any way for CA to screw gunowners and speak in glowing terms of the MJ law I suspect that'll be the outcome.
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