Need clarification on Prohibited Person

[Wasn'tMe]

I know someone who became addicted to meth while he was serving in the military. In reading PC29800, it sounds like he would be considered a prohibited person. Am I reading this correctly?

Related to that, if he's prohibited, does that mean I can't take him to the range?

He's a very nice, non-violent, family guy and has been clean for a few years. He comes from an anti-gun family but has expressed interest in shooting some of my guns.

[Oceanbob]

Does he have any Felony Convictions or a dishonorable discharge?

Also certain misdemeanors involving domestic violence?

If he just got treatment and didn't plea to any charges he's good.

There is a a Form online from the CDOJ he could send in to see if he's eligible to own firearms.



EDIT: here's the form he can print and send in.

http://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/forms/pfecapp.pdf

[Jimmybacon43]

I thought prohibited meant they can't own or possess firearms. Possess meaning he can't hold a gun.

He also can't have access to guns so if you have him over to your house and there are guns lying around, he technically "has access" to them. That is, if he is a prohibited person.

Someone else get in here and clarify because I don't know that much about this and I have some questions too.

Like, can a prohibited person enter a sporting goods store that sells guns? Or would that be considered having access?

[Wasn'tMe]

According to the wiki, one of the items that makes a person prohibited is:
"Any person who is addicted to the use of narcotics (state and federal)"

PC29800 says:
"Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 23515, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony."

My strict reading of PC29800 seems to suggest that if someone is addicted to narcotics, they cannot possess a firearm.

I'm hoping I'm wrong here, but I prefer to err on the side of caution.

The person I'm referring to has never been arrested for anything that I'm aware of. I just happen to know that he is addicted to meth. Like I said, he's been clean for a few years and doesn't even drink anymore (was never an alcoholic). He does smoke but is trying to quit.

It just seem ludicrous that he would be considered prohibited, but an actual alcoholic is not. It's a heck of a lot easier to get your hands on alcohol than meth.

As far as my question of if I'm allowed to take him shooting, I thought temporary possession of firearms, such as at a range, was allowed, as long as the owner is present. Is this not correct?

Edit:
Forgot to mention he was honorably discharged and even had a security clearance while serving.

[echoThreeOneSix]

You said he was clean, right? If he's not addicted currently and doesn't have any convictions I would assume he's good... right?

[Wasn'tMe]

You said he was clean, right? If he's not addicted currently and doesn't have any convictions I would assume he's good... right?

Just like with alcohol, once you're addicted, you're always addicted.

But no, he's not using and is trying very hard to keep it that way. Been clean for a couple of years now.

[echoThreeOneSix]

lmao... i know the spiel. if he's clean, he's clean... but i guess only he would know that.

[Wasn'tMe]

lmao... i know the spiel. if he's clean, he's clean... but i guess only he would know that.

The problem is PC29800. It doesn't say "clean" or "using", it says "addicted".

There may be other laws that also cover this that I'm not aware of.

Unless I'm interpreting it incorrectly, which is what I'm hoping.

[echoThreeOneSix]

my thought is how do you prove that some one is addicted if he isn't using... unless he voluntarily gives up the spiel about, "once addicted, always addicted"

[bonusweb]

my thought is how do you prove that some one is addicted if he isn't using... unless he voluntarily gives up the spiel about, "once addicted, always addicted"

He's not loaning the gun overnight. If he's got his eyes on what do you think will happen? He will grab the gun and run from the range? Short of that I can't imagine why it would be a problem. Do you think a cop is going to see you hand a gun to him at the range an the cop will think he's an addict?

He could walk in and by a gun. Addict I would think means currently.
Like if you had something to drink last week, then drove a car today it does not make you a drunk driver.

"Once an addict always an addict" is not legal term. Its something AA people say.
You only have to act as reasonable person would. A reasonable person would decide he is not an addict, from your description.

What percentage of LEO have been an addict to some mind altering substance in the past? Alcohol or pain killers? Its very common. Doctors and nurses have higher rates also. Do you think they will never own again ever?

http://www.plsonline.eku.edu/insidelook/can-you-become-police-officer-history-drug-use

Most departments today have specified what drug-related behaviors are acceptable and which ones are not. When developing policy, departments often consider the following areas:

Recency of usage
Patterns or frequency of usage
Types of drugs used
Involvement in sale and distribution of drugs
There is substantial variability in police drug standards for police applicants. One study found that 35% of the departments surveyed rejected outright candidates who had previously smoked marijuana. About 60% of the departments reported that it was difficult to recruit enough applicants when marijuana was strictly forbidden. Many departments consider applicants who have experimented with soft drugs such as marijuana but have strict prohibitions against long-term usage or the use of hard drugs such as cocaine, LSD, or opiates. Moreover, a department's drug standards likely change over time. Many departments have loosened their requirements as a result of shortages in officers and applicants

[michiganboy]

addicted, means currently addicted. That's why drug charges when not felonies are not prohibated charges for gun ownership. Lots of cops have smoked weed at one point in their lives nowadays. If you had a drug charge that was a misdemeanor it does have a length of time attached to it till you can own guns again I think I read 5 years. Like others have said only 12 steppers think people are always addicts and can only stay clean with them. Reality proves otherwise for strong people who made bad choices in their youth.

[bonusweb]

addicted, means currently addicted. That's why drug charges when not felonies are not prohibated charges for gun ownership. Lots of cops have smoked weed at one point in their lives nowadays. If you had a drug charge that was a misdemeanor it does have a length of time attached to it till you can own guns again I think I read 5 years. Like others have said only 12 steppers think people are always addicts and can only stay clean with them. Reality proves otherwise for strong people who made bad choices in their youth.

http://legal-dictionary.thefreedictionary.com/_/dict.aspx?rd=1&word=addict

"Addict
Any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so drawn to the use of such narcotic drugs as to have lost the power of self-control with reference to his or her drug use."



Agreed

From OP description he is not currently legally considered an addict.

[echoThreeOneSix]

nice. i didn't think so.

[fiddletown]

I know someone who became addicted to meth while he was serving in the military. In reading PC29800, it sounds like he would be considered a prohibited person. Am I reading this correctly?...

We really don't have enough information to reach a conclusion as to whether he is or is not a prohibited person. See the discussion of federal law, below.

...Related to that, if he's prohibited, does that mean I can't take him to the range?...

If he is a prohibited person he could not lawfully handle a gun or ammunition. If you allowed him to handle your gun and/or ammunition, you would be committing the federal crime of aiding and abetting his violation of federal law.

Let's look at federal law.

1. See 18 USC 922(g)(3) says:

   ...[(1) -- (2)]...
   
   (3) who 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));
   
   ...[(4) -- (9)]...

   
   to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

   
   
2. Federal law defines "unlawful user" as follows (27 CFR 478.11):

   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.

   
   
3. And in U.S. v. Burchard, 580 F.3d 341 (6th Cir., 2009) the Sixth Circuit found that (at 355):

   ...the regular use of a controlled substance either close in time to or contemporaneous with the period of time he possessed the firearm...

   would support conviction under 18 USC 922(g)(3).
   
   
4. Being a prohibited person in possession of a gun or ammunition is punishable by up to five years in federal prison and/or a fine. And since it's a felony, conviction will result in a lifetime loss of gun rights.
   
   
5. Possession means:

   1 a : the act of having or taking into control...

   
   
   1. "Possession" for the purposes of 18 USC 922(g) will be understood in its normal, everyday, dictionary sense. See Perrin v. United States, 444 U.S. 37 (United States Supreme Court, 1979), at 42:

      ...A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning...

      
      
   2. So having a gun or ammunition in one's hands is "possession." If one is prohibited under 18 USC 922(g), having a gun or ammunition in one's hands is unlawful.
   
   
   
6. Let's also look at the interstate commerce issue. It's really a red herring. There have certainly been plenty of prosecutions for being a felon, an unlawful drug user, or other prohibited person in possession of a firearm. And to understand what constitutes possession with a sufficient nexus to interstate commerce for the purposes of a violation of 18 USC 922(g) it doesn't matter what the disqualifying condition is.
   
   So let's look at some cases:
   
   
   1. In U.S. v. Barron-Rivera, 922 F.2d 549 (C.A.9 (Wash.), 1991) affirmed Barron-Rivera's conviction for being an alien in possession of a firearm. Barron-Rivera's claimed reversible error in that the government failed to prove the necessary intent.
      
      The court of appeal noted, at 551:

      ...Barron-Rivera argued that the gun was in his wife's residence at the time he re-entered the United States and moved back into that residence. Accepting that contention, the district court, nonetheless, found that Barron-Rivera's possession of the firearm was voluntary because he permitted the firearm to remain in the house after he acquired knowledge of its presence....

      
      In affirming the conviction, the court of appeal found, at 551 -- 552:

      ...In other words, by continuing to reside in the apartment in which the gun was located, he voluntarily and knowingly possessed the gun...

      
      
   2. In U.S. v. Chesney, 86 F.3d 564 (C.A.6 (Tenn.), 1996), the Sixth Circuit affirmed, against a Commerce Clause challenge Chesney's conviction for being a felon in possession of a firearm.
      
      In rejecting Chesney's assertion that the 18 USC 922(g) is unconstitutional, the court of appeal noted, at 568 -- 569:

      United States v. TurnerTurner

      
      In rejecting Chesney's assertion that the statute can not be applied in his case, the court of appeal noted, at 570 -- 571:

      United States v. LeeScarborough v. United States, 431 U.S. 563, 566-67, 97 S.Ct. 1963, 1964-65, 52 L.Ed.2d 582 (1977). Although ScarboroughLopezScarborough, is constitutional. See, e.g., McAllister, 77 F.3d at 390; Sorrentino, 72 F.3d at 296; Shelton, 66 F.3d at 992; Hanna, 55 F.3d at 1462 n. 2.,...

      
      
   3. In U.S. v. Singletary, 268 F.3d 196 (3rd Cir., 2001), the Third Circuit affirmed a conviction for being a felon in possession against an attack on the constitutionality of 922(g), at 197:

      ...Singletary contends that the felon-in-possession statute is unconstitutional because the conduct it proscribes -- the intrastate possession of a firearm -- does not have a substantial effect upon interstate commerce, and thus does not constitute a valid exercise of Congress' authority under the Commerce Clause. Specifically,...

      
      In rejected Singletary's assertion, the court of appeal noted, at 200:

      ...the Court in Scarborough v. United States had the opportunity to address squarely "whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce." 431 U.S. 563, 564 (1977). The Court accepted the Government's contention that it only need prove that "the firearm possessed by the convicted felon traveled at some time in interstate commerce." Id. at 568. Thus, the Scarborough Court established the proposition that the transport of a weapon in interstate commerce, however remote in the distant past, gives its present intrastate possession a sufficient nexus to interstate commerce to fall within the ambit of the statute. Because S 1202(a) is the predecessor to the current felon-in-possession statute, this statutory construction applies equally to S 922(g)(1)....

      
      
   4. In United States v. Hoyle, 697 F.3d 1158 (10th Cir., 2012), the Tenth Circuit affirmed Hoyle's conviction for being a felon in possession. In doing so the court of appeal noted, at 1165:

      United States v. WilliamsScarborough v. United States, 431 U.S. 563, 566, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977)...

   
   

He's not loaning the gun overnight. If he's got his eyes on what do you think will happen? He will grab the gun and run from the range? Short of that I can't imagine why it would be a problem....

All nonsense. See the discussion of federal law, above.

[jeremiah12]

The once an addict, always an addict is not a legal phrase. It describes the physiological response of the body to addiction. No matter what the substance is, it causes permanent changes in brain chemistry as well as rewiring the brain. So even if one has been free of the substance for years, just one exposure to it will cause that person to physiologically be at the same point as they were when before they originally kicked their habit. In fact, the cravings and desires can be even worse.

Once an addict, always an addict is a reminder to stay far away from whatever the addictive substance was. You may not be able to beat it a second time.

From a legal point, once you are clean and no longer using, you are not addicted. I do not know what that time period has to be. Clean for a few years I am sure counts as not being currently addicted.

If you are worried, have him do the personal firearms eligibility check. Ultimately, if you are at a range, I doubt very much a LEO will check you or your friend out. I have never seen a LEO at the range I go to, and I visit it at least 4 times a month. Nobody has ever checked for bullet buttons or large capacity mags, and I have seen plenty of full feature rifles without BB using 30 round mags and plenty of others using large cap mags. The RSO only care about shooting safely.

BTW, as a child, I had a step-father who was an orthopedic nurse, who got me addicted to valium. CPS got involved and I was confined to a county hospital for a month to detox. That was paid by taxpayers and I am sure the state has access to those records and yet I have never been denied a gun purchase. I have held a top secret clearance in the past and I disclosed this. I have a CA teaching credential. In this state, even a minor drug offense can cause you to not get your initial credential. A pot card will get your credential suspended. A DUI will do the same.

So if your friend's record is as clean as you say, I am sure he is GTG to not only shoot your guns at the range, but also to buy his own.