Legal speculation: State agencies in conflict; how might it play out?
December 30, 2017 5:22 PM   Subscribe

Legal types: What happens when two state agencies come into conflict with respect to interpreting state and federal law? Precedent? How might this play out? Under discussion: Commonwealth of Pennsylvania's Dept. of Health vs. Pennsylvania State Police, and medical marijuana vs. Second Amendment. [Please note: not a joke or a hypothetical. Looking for legal perspectives, please.]

Pennsylvania is rolling out its new medical marijuana program, which permits Commonwealth citizens to apply for an identification card to receive state-approved services. The Dept. of Health has put in place a state-approved framework for this to happen.

The Pennsylvania State Police Firearms Division maintains that it recognizes the legality of the program, but will choose to enforce federal law on the question of firearms ownership for cardholders.

"If you are holder of a Medical Marijuana Card, it is important that you know:

• It is unlawful for you to attempt to purchase a firearm under Federal law and you will be denied during your Pennsylvania State Police background check, due to prohibitions under 18 U.S.C. § 922(g)(3).
• It is unlawful for you to keep possession of any firearms which you owned or had in your possession prior to obtaining a Medical Marijuana Card, and you should consult an attorney about the best way to dispose of your firearms. Again, this is due to prohibitions under 18 U.S.C. § 922(g)(3).
• It is also unlawful for you to apply for, possess or renew a Pennsylvania License to Carry Firearm (LTC), because you are “[a]n individual who is prohibited from possessing or acquiring a firearm under the statutes of the United States.” (see above). The sheriff should not process your application if you truthfully indicate to the sheriff that you are the holder of a Medical Marijuana Card. Additionally, you will be denied during the Pennsylvania State Police background check, which occurs as part of the LTC application or renewal process."

How is this conflict between state agencies likely to play out? Is there legal precedent for state agencies at loggerheads over state law vs. federal statute? It seems like the Sessions DoJ is anti-marijuana; will it weigh in at some point? Have other states been able to resolve this tension? Legally speaking, what's next?
posted by MonkeyToes to Law & Government (8 answers total)
In other states, generally law enforcement wins this argument, and the same argument has played out in pretty much every state. ASA specifically recommends that patients not own guns. Federal law remains the law. Yes, Sessions is taking us right back to reefer madness. He's been very explicit about his opinions on this, and while the Cole memo stands for now, it may not for much longer.

I would strongly recommend consulting a knowledgeable lawyer if you want to both have a card and own firearms. Your local ASA chapter may also be helpful.
posted by gingerbeer at 6:00 PM on December 30, 2017 [3 favorites]

Adding that the courts have upheld this.
posted by gingerbeer at 6:01 PM on December 30, 2017 [2 favorites]

Interesting question. As others note, it's pretty well-settled that federal law prohibits gun possession by a pot user. This, though, refers to state sheriffs denying a state license.

Normally, the feds can't force states to enforce federal law, so I figured state law incorporates federal law somehow. And it sorta does, but instead of expressly incorporating the federal law (such that federal definitions would control), it uses mirror/similar language, stating that an illegal user of marijuana can't get a license. It's not illegal under PA law, though, so there's a plausible case to be made that PA is incorrectly interpreting their law.

That said, it's pretty academic: anyone that successfully challenged the law and got a license and gun would immediately be a felon under federal law.
posted by jpe at 6:19 PM on December 30, 2017

Ah, so Wilson v. Lynch is the precedent, thanks.

I don't have an interest in obtaining either a card or a firearm--I'm interested in the fallout from the Commonwealth being at legal odds with itself, and what happens when the governor and the state police clash, and whether this is going to lead to litigation. (And are prescribing physicians/state-approved dispensary employees involved from a legal perspective? If you're a prescribing doc, are you going to be denied a firearms permit? Does a dispensary employee have to surrender firearms purchased previous to the new program? I can't quite get my head around the Commonwealth's program, and suspect that there are going to be a lot of unintended consequences settled in courts of law.)
posted by MonkeyToes at 6:29 PM on December 30, 2017

I mean, every state with a medical program has dealt with this in one form or another. And I don't really see the conflict you are seeing. The health department is setting up a program. The state police is upholding settled law and precedent. I'm not aware of any states where patients are given an explicit legal right to own a firearm. Being a legal patient under state law doesn't change things like federal housing regulations. It doesn't even give you an out from workplace drug testing.

There's been a lot of writing and reporting on these topics. If you want to do some research on it, "pre-emption" is one of the terms you want to include.
posted by gingerbeer at 6:55 PM on December 30, 2017 [3 favorites]

IANAL, but it looks like there's not actually a regulatory conflict here. A regulatory conflict would be if, say, the Health Department said "Holders of this card can legally buy marijuana," and then the State Police said, "No, they can't." Or, if after issuing the cards, the State Police said, "This card rescinds your right to own a firearm," and then (or previously) the Health Department said, "No, it doesn't." but here, the Health Department has issued the cards with the blessing (or grudging acquiescence) of law enforcement, while law enforcement has placed their own restrictions on it which don't seem to impact the scope of the Health Department's order.

You might well think that the State Police's rule is overbroad and violates Second Amendment protections, but that appears to be an argument the Health Department hasn't made (and might not have the standing to make, legally, as an uninjured party). A private citizen probably has the standing to make such an argument, but just because they can make it doesn't mean it'll succeed on its merits (and as the Wilson v. Lynch precedent mentioned above shows, it probably wouldn't).
posted by jackbishop at 8:39 PM on December 30, 2017 [1 favorite]

In terms of your specific questions:
And are prescribing physicians/state-approved dispensary employees involved from a legal perspective? If you're a prescribing doc, are you going to be denied a firearms permit? Clinicians don't prescribe medical cannabis anywhere, and the PA model is just that they certify that a patient has one of the qualifying conditions. I don't see how that would include any legal involvement, or why they would be denied a permit (unless they are also a patient.)

Does a dispensary employee have to surrender firearms purchased previous to the new program?
Based on your links above, a patient would have to, but not any employees who are not also certified patients.
posted by gingerbeer at 9:22 PM on December 30, 2017

In answer to the question of how it plays out, someone takes it to court. Probably it will be a citizen, maybe a citizen who has been arrested, maybe one who wants to do something barred by one of the parties. A governor is going to try to mediate a disagreement, so I don't think you will find the Director of Health suing the State Police, but I suppose it could happen.
posted by SemiSalt at 6:33 AM on December 31, 2017

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