“California attorney Bruce Margolin, who is among the country’s pre-eminent litigators for marijuana law, said he has never seen a case before in which the government packaged pot use with gun possession to criminally charge someone.” Margolin is talking about the case of Steven Boehle, an Austin man who’s just plead guilty to use of a controlled substance while owning firearms. And as part of the plea agreement, he has to give up his guns.
“Have not had that come to my attention in my 50 years of practice,” said Margolin, who is the executive director of the Los Angeles chapter of the National Organization for the Reform of Marijuana Laws. “Seems very arbitrary, unjust, unfair to say people who use marijuana shouldn’t have the same rights as other people in our society to protect themselves and their families.”
That may very well be. But it’s federal law. The Brady Bill prohibits gun ownership by anyone who is a user of or addicted to any controlled substance. Under the 1993 law, smoking weed makes you a prohibited person. That’s becoming a bigger issue as more states — 29 of them now — decriminalize marijuana possession and/or use to one degree or another.
Boehle’s probably not the most sympathetic figure in the ongoing clash of state and federal laws where marijuana usage and gun rights collide.
Federal and local authorities arrested Boehle on April 12, a day before they say, according to an informant, he planned to celebrate his 50th birthday by shooting police because he was upset about a drunken driving arrest in which his blood test came back negative for alcohol.
A search of the St. Johns Avenue home where Boehle was living netted three firearms and 1,110 bullets. A subsequent search of a South Austin storage unit rented to Boehle discovered 10 more guns, all rifles. In the home, authorities say they found 6.3 grams of marijuana along with a note that read, “The great miracle will take place at 8:30 a.m. on Holy Thursday.”
U.S. Judge Mark Lane reviewed the letter and called the threat “marijuana-induced gibberish.”
So no charges were ever brought against him for the alleged threat. Regarding the weed, however…
Boehle was slapped with unlawful possession of a firearm by a prohibited person and with making a false statement in connection with the attempted acquisition of a firearm. The latter charge is related to a 1993 misdemeanor conviction in Connecticut for domestic violence in which Boehle slapped, choked and bit his girlfriend. The conviction was entered into a national database, triggering purchase denials by three Austin gun shops Boehle had visited.
However, during pretrial litigation the charge was determined to be insufficient to prohibit gun possession.
So the main beef against Boehle is the weed possession.
With their case weakening, prosecutors held tight to the gun-and-weed charge, using it to successfully to argue that Boehle should be denied bond and kept in jail pending the resolution of the case.
And keep him in jail they did…for eight months.
Boehle contended that the law provides no clear definition of what constitutes a “drug user.” Is that one bong hit? Once a month useage? If you used regularly in the past and have stopped, how much time has to pass before you’re no longer considered a user any more? That’s apparently been adjudicated.
The 5th U.S. Circuit Court of Appeals established the definition of an unlawful drug user who is unable to own guns in 1999, when it affirmed the conviction of a Midland man who had been arrested several times with marijuana. He argued on appeal that the law fails to establish a time frame for when a person must use a controlled substance in connection with the possession of a firearm. The court ruled that an ordinary person could determine the man was a drug user. He was sentenced to two years in prison.
Although Boehle had never been arrested for drugs, he likely met the standard because investigators said his girlfriend told them he smoked pot regularly.
Being caught with over six grams of wacky tabacky would seem to indicate regular use. Hence, Boehle’s attorney advised him to take the deal that was being offered.
After pleading guilty to the charge in September, Boehle, 50, was sentenced to five years of probation this month. … The probation conditions require that he forfeit the 13 guns that investigators seized from two Austin locations and that he submit to drug testing. The latter condition could be complicated by a new Texas law that allows a form of marijuana to treat epilepsy, which Boehle has had since he was a boy, according to his sister.
What happens if his doctor prescribes CBD oil to treat his epilepsy? That’s anyone’s guess at this point.
What this convoluted case illustrates, though, is that federal law hasn’t begun to catch up to the new reality of the every-increasing number of states that have decriminalized or outright legalized marijuana use. The Trump administration is reportedly re-examining policy in effect during the Obama years that let states set their own laws, while the feds continued to fully enforce the statutory prohibitions.
Will any change to the Brady Bill’s ban on gun ownership by weed smokers result? Don’t count on it. Not if you value your gun rights.