I love the Bill of Rights. I love the fact that this country was formed as an idea by people far smarter than me, who were wise beyond their lifetimes.
I’m also a big fan of photography. At a young age, I had a Nikon camera and I loved to take a photograph. That’s why when I read about people taking pictures and being arrested, I started tracking the blog Photography is Not a Crime. That blog was started by a gentleman named Carlos Miller after he was arrested for taking photographs of Miami police officers doing their jobs in public.
He’s since expanded his writing beyond photography. And while I admire his activism, based on a recent article he wrote in the Miami New Times, I’m not much of a fan of the quality of his research.
His article looked at the intersection of firearms and medicinal marijuana use and the legalities involved in both. The issue at hand is something that’s been covered here and other venues, but since it keeps coming up and is the subject of continual confusion, let’s take another look.
Miller’s article quotes the operator of a medical marijuana clinic in southwest Florida:
“The most common objection heard in our clinic is ‘If I become a patient, I will have to give up my guns,'” said Patrick DeLuca, who runs the Medicann marijuana clinic in Southwest Florida. “And it’s just not true.”
There’s only one problem with this. DeLuca is absolutely wrong. No matter what state law may be, under federal law, marijuana is still a controlled substance and a person is an unlawful user and prohibited by federal law from possessing firearms or ammunition.
Miller’s article continues to spread more fake news incorrect information.
Indeed, the veracity of the claim is complicated. Medical marijuana users can’t buy guns from licensed dealers such as Walmart, but they can purchase them from private dealers through a private sales exemption commonly known as the ‘gun show loophole”: Although buying from a private dealer does not make it legal under federal law for a marijuana user to own a gun, the transaction can be made without filling out the federal ATF form.
Is it necessary to point out the legal bear trap in that paragraph?
The article closes with some more specious legal advice.
[Martha] Bueno, who began buying her medical marijuana on the black market after allowing her card to expire, said she will renew it now that she has obtained her concealed weapons permit and purchased a Glock 19.
But if she wanted to purchase another gun, she might have to allow her card to expire again and not admit to using black-market marijuana when applying for the gun. She prefers to support local business by shopping locally.
Miller’s article is so full of misinformation I have a hard time knowing where to begin taking it apart.
For starters, in section 18 USC 922 the use of marijuana — club card or no club card — or the possession thereof makes the person prohibited under federal law. TTAG recently featured an article by Florida criminal defense attorney Chris Rabby where he discusses this in great detail. But this section is useful here:
In Wilson V. Lynch, Rowan Wilson was a “legal” marijuana prescription card holder in Nevada. She sued because a federal firearms licensees dealer (FFL) would not sell her a firearm, pursuant to directions from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
In September, 2011, the ATF directed all FFLs “that regardless of whether his or her State has passed legislation authorizing marijuana for medical purposes, a person is an unlawful user and is prohibited by Federal law from possessing firearms or ammunition.” Any potential purchaser is required to answer that they are such a person on ATF Form 4473, question 11.e.
Then there’s the problem of Mr. Miller’s source. He quotes a marijuana dispensary employee who is not authorized to dispense legal advice. TTAG checked with the Florida bar…there is no Patrick DeLuca on their membership rolls. The only thing DeLuca should be dispensing is Island Sweet Skunk or Purple Urkle.
DeLuca claims that a gun owner can possess a federally unlawful controlled substance. A quick reading of ATF form 4473 or five minutes of Googling make it quite clear that isn’t true.
Miller also tries to claim that the hoary “gun show loophole” — which has nothing to do with gun shows — somehow allows you to sidestep federal gun laws.
Just because you didn’t document a transaction doesn’t mean it didn’t happen. Owning a firearm while in possession of a controlled substance is a felony. Mr. Miller’s argument is the equivalent of “The teacher never sent my detention slip to the office, so I didn’t really get detention and wasn’t guilty of cutting class.” And if the seller knows the person to whom he sold a gun was prohibited, he commits a crime, too.
Last, but not least, Miller’s article clearly defines the period of time that the subject of his article (Ms. Bueno) began using a federally controlled substance. He also lays out when she owned a gun and even what model it is. In short, he provides enough detail so that the ATF could begin an investigation of Bueno based solely on his piece.
Let’s also not forget that Miller hints that Bueno could (should?) lie on a form 4473 if she wants to purchase another gun (“she might have to…not admit to using black-market marijuana”). That’s a really bad idea because doing so is a felony punishable by up to five years in prison.
We contacted the Miami New Times after the article was published, asking them for comment on these obvious problems. We provided a short synopsis of where the article went wrong. In short, we told them the truth about gun laws.
As of this writing we haven’t gotten a response from them and they haven’t edited or retracted the piece.
I’m no lawyer, I’m a gun dealer. But I know enough law to know that this kind of bad advice could very well get someone thrown in jail if they follow it.
I admire Mr. Miller’s resolve in fighting for the First Amendment right to photograph public officials performing their jobs. But his article is full of dangerously incorrect information on the law.
Caveat lector.