Why The Debate Over Medical Marijuana and Firearm Possession Matters

Earlier today we wrote another post about the issues arising from possessing both a Medical Marijuana Card (MMC) and a Concealed Weapon or Firearm License (CWFL) in Florida. For background, it will help if you read this post first.  Why have we spent so much time and energy trying to clear the air and settle the debate over whether it is lawful or not to possess a CWFL and an MMC?  The answer is simple. BECAUSE IT MATTERS.  Assume that the people who constantly post that nothing will happen to you if you have both are correct.  Assume that the federal government continues to spend their resources elsewhere and continues to choose not to pursue those who are violating federal law.  What difference does it then make to those who possess both a firearm and use medical marijuana?  A great deal of difference!  Below, you will find just two quick examples of why it matters.

Why have a firearm?

Although personal reasons vary, most people have a firearm for one of two reasons:  Hunting, or personal protection.  Let’s address the latter.  Under Florida law, it is legal to use deadly force under certain conditions both inside your home and when out and about.  Inside a dwelling, residence or occupied vehicle there are additional protections under the law, based on a theory known as the “Castle Doctrine.”  First, let’s look at the self-defense justification statute for deadly force.

Justifiable use Of force

Florida Statute §776.012(2) states: “A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.”

When the unimaginable happens (scenario 1)

One day, you are out with your children in the parking lot of the supermarket.  You have just strapped your children into the shopping cart when you hear the sound of footsteps running toward you.  A man is behind you at some distance, but closing fast.  He is yelling that he is going to kill you.  No one else is in the parking lot.  You could flee forward into the store, where there are numerous other people.  Instead, you stand, pull your firearm, and wait for him to be in range.  As he nears you, you end the threat with one shot.  During the investigation, it appears that you are going to be cleared.   Based on Florida Statute §776.012 the police and the State Attorney make a preliminary decision that you had a right to stand your ground and defend yourself and your children.  However, as they are wrapping up the investigation, the State Attorney’s Office learns that you have a medical marijuana card and finds out that you have regularly filled your prescription.  Therefore, they file charges.

The Castle Doctrine

Florida Statute §776.013 gives a person extra protection in their own home among a few other places.   In relevant part, the statute gives two very powerful presumptions to a home defender.  These presumptions are: 1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another, and 2) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.  These presumptions do not apply in every case, but would likely apply in the scenario presented below.

When the unimaginable happens (scenario 2)

You live alone.  You are at home, sound asleep in your bed.  The glass breaks, your house alarm goes off.  You grab your pistol as a shadow crosses your bedroom doorway.  You fire, killing the 21-year-old drunk, unarmed son of your next-door neighbor.  It turns out his parents were out of town, so he was home alone.  He went out with his friends, who in his drunken state dropped him off at the wrong house.  Unable to get his key to work and unable to get in, he broke the window next to the door and entered your home.  It was a big mistake.  You had known him since he was born and he was no threat to you.

The legal problem begins for you when the police come to investigate and find your prescribed medical marijuana on your night table next to the bed.  You are arrested.

You cannot be involved in illegal activity

Both Florida Statute §§ 776.012 and 776.013 have one thing in common.  For the protections of these statutes to fully apply to you, you cannot be involved in illegal activity.  Like it or not, even if the possession and use of medical marijuana is not a crime in Florida, it is a crime under federal law.  Further, you do not need to currently possess any marijuana under federal law for it to be illegal for you to possess a firearm. 18 U.S. Code § 922 makes the receiving and possession of a firearm by the user of a controlled substance illegal.  Even if the federal government is not currently choosing to enforce this provision, it is still illegal.

Not everyone supports your right to own or possess a firearm

Whether or not your case is in a county where the Sheriff and the State Attorney’s office are 2nd Amendment supporters may not matter.  Violating federal law is “being involved in criminal activity.”  A law enforcement officer could charge you with a homicide in either of the two above scenarios and the State Attorney could choose to pursue the charges.  A judge could easily determine that your use of medical marijuana and possession of a firearm violated federal law, therefore you were involved in “criminal activity” and therefore not entitled to stand your ground nor entitled to the presumptions under the Castle Doctrine.

The fact that the possession of a firearm is illegal if you are a user of a controlled substance under Federal law matters.  It matters even if you do not want it too.  It matters even if the marijuana industry is correct that the federal government is not and will not pursue individuals with a Medical Marijuana Card and a Concealed Weapon or Firearm License.  It matters because even if they are right, you are still committing a crime.  It matters because it effects your other rights, like self-defense in Florida.  Don’t let those with a financial interest in your use of their product steer you in the wrong direction.  No matter how many times they say it, whether it is legal to have both a Medical Marijuana Card and a Concealed Weapon License, it is absolutely illegal to use Medical Marijuana and possess a firearm (even if you have a CWFL).  (To learn more, read our article on possessing both,  click here)

David S. Katz

About Expert Firearm Attorney David Katz. David Katz is an Expert Firearm Attorney and has been practicing law for over 14 years. He began his career as a prosecutor in Seminole County, Florida.   There, he gained invaluable experience analyzing how...
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