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Pot Ruled Not Disqualification For Firearms

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9 hours ago, Lawnmower2021 said:

It doesn't apply to me but in general it makes sense so long as any law dealing with intoxication still holds.

Just like people can own alcohol and cars, but not use them at the same time.

The ruling made sense to me. The judge looked pretty hard at the effects of MJ on the user and determined that it wouldn't contribute to what would constitute a prohibited person. 

I do agree, that the intoxication component would make sense as a disqualifier for something like carry.

If the same methodology were used for other drugs, I could see different outcomes, which is a good thing and means people are applying some actual critical thinking of the issue. 

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While I don’t, and never have smoked pot, I don’t see this as an issue any more than I see alcohol as an issue other than the intoxication side of it. 
 

Now let’s see our lawmakers apply some critical thinking and repeal the NFA. 

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I'm only on page 23 of the 54 page decision, but this footnote jumped out at me and I wanted to share it here:

58 Bear in mind that the United States’ theory would likewise allow Congress to add any substances it wishes to Schedule I of the Controlled Substances Act’s schedule of drugs, and then disarm citizens of their right to possess a firearm based on their use of that substance. Imagine Congress deeming aspirin a Schedule I controlled substance. Having placed aspirin on Schedule I, any user of that substance would be automatically stripped of their Second Amendment right by operation of § 922(g)(3).

More as I get further into the decision, which so far seems to be very well reasoned.

 

Page 37:

It bears repeating that all the United States would have to prove at trial to justify depriving Harrison of his right to possess a firearm is that he is a user of marijuana. But the mere use of marijuana carries none of the characteristics that the Nation’s history and tradition of firearms regulation supports. The use of marijuana—which can be bought legally (under state law) at more than 2,000 ordinary store fronts in Oklahoma — is not in and of itself a violent, forceful, or threatening act. It is not a “crime of violence.” Nor does it involve “the actual use or threatened use of force.”

 

That Congress may have passed § 922(g)(3), as the United States suggests, with some vague relation to public safety or “the public interest” does not change this conclusion.  It is not appropriate for a court to “reflexively defer to [a legislative] label when a fundamental right is at stake.” And the use of marijuana does not become a violent, forceful, or threatening act merely because a legislature says that it is.

 

Conclusion

None of this is to say that the government cannot play a role in protecting the public from dangerous persons possessing firearms. It can, and it should. For example, if the State of Texas thought that Harrison’s alleged involvement in a shooting demonstrated that Harrison was a danger to the public, it could have demonstrated to a Texas judge—in an individualized proceeding of which Harrison would have been given notice and the opportunity to be heard—that Harrison ought to be jailed while awaiting trial for that shooting. The Constitution, after all, permits pre-trial detention, and such detention would be a highly effective means of furthering the government’s interest in protecting the public from a gun-toting Harrison. But that didn’t happen; Harrison was released pending trial in Texas. And so here we are, with the federal government now arguing that Harrison’s mere status as a user of marijuana justifies stripping him of his fundamental right to possess a firearm. For all the reasons given above, this is not a constitutionally permissible means of disarming Harrison. Because the Court concludes that 18 U.S.C. § 922(g)(3) violates Harrison’s Second Amendment right to possess a firearm, the Court declines to reach Harrison’s vagueness claim.

The Motion to Dismiss the Indictment is GRANTED. Accordingly, the Indictment is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED this 3rd day of February 2023.

Patrick R. Wyrick

United States District Judge

Edited by njJoniGuy
finally complete!
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13 hours ago, Lawnmower2021 said:

It doesn't apply to me but in general it makes sense so long as any law dealing with intoxication still holds.

Just like people can own alcohol and cars, but not use them at the same time.

Hmmm? Am I the only one in this thread with real concerns about this? 

Isn't the part I bolded above an ongoing problem with pot right now, even with driving? My understanding is that unlike alcohol (where there's a pathway for proving guilt by way of a blood alcohol content level that can be measured), it's not so with pot. Someone could have smoked 24 hrs earlier - or - smoked 30 min before they grabbed and used their firearm... but they'd still have THC in their bloodstream without a definitive, measurable way to show whether or not that level of THC made them impaired. (If I'm wrong, I trust someone will come on and correct me). Perhaps roadside sobriety tests (you know those "close your eyes, now touch your nose" tests) carry more weight in a court of law than I'm aware of? Because I would think a good lawyer could make mincemeat out of those roadside tests - "my client was tired after working long hours... he also had a recent inner ear infection... of course, he couldn't walk straight, your honor..." etc. (Isn't that likely why cops follow-up with a breathalyzer or blood test in the first place? To have evidence that is harder to refute in court?).

It's bad enough if someone drives (or carries, etc.) when they're drunk... at least you can definitively, measurably prove that... and if nothing else, justice will be served after-the-fact. I just don't see how you can ensure the same result if someone is high. And I hate like hell the thought that some dumbasses will have some "bad shoots" while high, thereby giving our anti-2A opposition MORE ammo to use against us. I just don't see how this is a positive development... besides, I feel like our society is self-medicating at a rate that's growing alarmingly fast. I don't see any of this as a social good. 

 

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42 minutes ago, Mrs. Peel said:

Someone could have smoked 24 hrs earlier - or - smoked 30 min before they grabbed and used their firearm... but they'd still have THC in their bloodstream without a definitive, measurable way to show whether or not that level of THC made them impaired.

That's a good point. I don't know anything about pot so my thoughts come from naïve wishful thinking. I do have a problem with laws that can't be objectively enforced.

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1 hour ago, Vdep217 said:

Colorodo has long had the 3 nanograms of metabolized thc for a standard of intoxication with Marijuana. If it's metabolized in your blood it's recent. A urine test it wwill stay longer.   So it does exist.

Sorry, but that's not what I'm seeing... I'm seeing that, yes, Col. has a "bodily limit" above which you can be "charged" with DUI (though I'm seeing 5 nanograms btw?), but it remains controversial because THC is metabolized much, much differently than alcohol, and there doesn't seem to be much direct relationship at all between THC levels in the blood and actual impairment. To complicate things more, for frequent users, much higher levels of THC than that bodily limit can last (yes, even in the blood) for DAYS even if they haven't done the drug in that time. So, although the blood test is one more piece of info a prosecutor can use, it's not the same kind of slam-dunk that an alcohol blood test is. So, apparently, they are still relying MORE on field sobriety tests in court... and researchers continue to search for a better test that would be as accurate as the alcohol blood tests.

The entire situation makes these cases VERY difficult to prosecute apparently. If I were a defense attorney and my client was charged with DUI, I'd have a FIELD DAY with this situation! 

If you have better info, pls send links... I have ZERO medical/legal expertise, so I'm merely relaying what I'm reading. I am always happy to learn something new!

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I have a very strong feeling that this ruling by a District Judge of the Fifth Circuit will have far-reaching effects on the laws that define "prohibited person"

In the light of the Bruen decision, I see this as the opening of a giant can of worms for those wishing to limit the 2A, much to their dismay.

Can't wait to follow the appeals process on this one!!!

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15 hours ago, Mrs. Peel said:

Sorry, but that's not what I'm seeing... I'm seeing that, yes, Col. has a "bodily limit" above which you can be "charged" with DUI (though I'm seeing 5 nanograms btw?), but it remains controversial because THC is metabolized much, much differently than alcohol, and there doesn't seem to be much direct relationship at all between THC levels in the blood and actual impairment. To complicate things more, for frequent users, much higher levels of THC than that bodily limit can last (yes, even in the blood) for DAYS even if they haven't done the drug in that time. So, although the blood test is one more piece of info a prosecutor can use, it's not the same kind of slam-dunk that an alcohol blood test is. So, apparently, they are still relying MORE on field sobriety tests in court... and researchers continue to search for a better test that would be as accurate as the alcohol blood tests.

The entire situation makes these cases VERY difficult to prosecute apparently. If I were a defense attorney and my client was charged with DUI, I'd have a FIELD DAY with this situation! 

If you have better info, pls send links... I have ZERO medical/legal expertise, so I'm merely relaying what I'm reading. I am always happy to learn something new!

You focus too much on the breathalyzer because it is well known. Alcohol isn't thee only drug, and DUIs have been handed out for those other drugs. The roadside tests DO hold more clout than you think they do in court. Mainly because their primary measure is impairment. The mechanisms used to measure impairment tend to be impacted across many types of drugs. 

https://nida.nih.gov/international/abstracts/validity-standardized-field-sobriety-test-in-detecting-drug-impairment

Typically when not dealing with alcohol, step two after the roadside test is to call in a trained officer to do an assessment for what substance they are impaired with. 

The issue with weed and driving in NJ is mostly a problem created by the state in that they forbid officers from investigating further based on the most likely cues that the driver or passengers may be impaired from marijuana. 

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On 2/6/2023 at 1:30 PM, Mrs. Peel said:

Hmmm? Am I the only one in this thread with real concerns about this? 

Isn't the part I bolded above an ongoing problem with pot right now, even with driving? My understanding is that unlike alcohol (where there's a pathway for proving guilt by way of a blood alcohol content level that can be measured), it's not so with pot. Someone could have smoked 24 hrs earlier - or - smoked 30 min before they grabbed and used their firearm... but they'd still have THC in their bloodstream without a definitive, measurable way to show whether or not that level of THC made them impaired. (If I'm wrong, I trust someone will come on and correct me). Perhaps roadside sobriety tests (you know those "close your eyes, now touch your nose" tests) carry more weight in a court of law than I'm aware of? Because I would think a good lawyer could make mincemeat out of those roadside tests - "my client was tired after working long hours... he also had a recent inner ear infection... of course, he couldn't walk straight, your honor..." etc. (Isn't that likely why cops follow-up with a breathalyzer or blood test in the first place? To have evidence that is harder to refute in court?).

It's bad enough if someone drives (or carries, etc.) when they're drunk... at least you can definitively, measurably prove that... and if nothing else, justice will be served after-the-fact. I just don't see how you can ensure the same result if someone is high. And I hate like hell the thought that some dumbasses will have some "bad shoots" while high, thereby giving our anti-2A opposition MORE ammo to use against us. I just don't see how this is a positive development... besides, I feel like our society is self-medicating at a rate that's growing alarmingly fast. I don't see any of this as a social good. 

 

Let me play devils advocate. 

What does the presence of a substance have to do with the outcome of the "situation"? 

Does it really matter if alcohol or MJ was involved if the actions of the individual show intent to commit a crime? 

Take two people who caused the death of an individual... does it really matter if one was under the influence and the other was not if they were to conduct the crime in the same way? 

I see the law as written as a preventive measure.. IMO, a bad shoot is a bad shoot, sober or intoxicated you are responsible for your actions. 

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55 minutes ago, JackDaWack said:

Let me play devils advocate. 

What does the presence of a substance have to do with the outcome of the "situation"? 

Does it really matter if alcohol or MJ was involved if the actions of the individual show intent to commit a crime? 

Take two people who caused the death of an individual... does it really matter if one was under the influence and the other was not if they were to conduct the crime in the same way? 

I see the law as written as a preventive measure.. IMO, a bad shoot is a bad shoot, sober or intoxicated you are responsible for your actions. 

Devil's advocate... I'm so down with that! :D How 'bout this... let's suppose (perish the thought!) some high-as-a-kite driver smashes into the car that your wife is driving and your kids are in the back seat (or grandkids, sorry, don't know your age) . All occupants are grievously injured... and your family is now facing the prospect of their ongoing, sustained medical care (and the resulting huge bills) perhaps for decades to come. Same situation for a bad shoot... someone's depth perception is off... your family is now badly injured. I would think that proof of guilt in those situations (or lack thereof, since it's pot and not alcohol), might well affect any resulting lawsuits that you file, and certainly might impact the jury as they determine what amount of $ you should be awarded.  

In legal situations, I think evidence of guilt is pretty potent! 

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7 hours ago, Mrs. Peel said:

Devil's advocate... I'm so down with that! :D How 'bout this... let's suppose (perish the thought!) some high-as-a-kite driver smashes into the car that your wife is driving and your kids are in the back seat (or grandkids, sorry, don't know your age) . All occupants are grievously injured... and your family is now facing the prospect of their ongoing, sustained medical care (and the resulting huge bills) perhaps for decades to come. Same situation for a bad shoot... someone's depth perception is off... your family is now badly injured. I would think that proof of guilt in those situations (or lack thereof, since it's pot and not alcohol), might well affect any resulting lawsuits that you file, and certainly might impact the jury as they determine what amount of $ you should be awarded.  

In legal situations, I think evidence of guilt is pretty potent! 

My question is: if someone managed to cause such an accident, does the factor of intoxication really matter if the resulting outcome were the same? Let say both were the result of speeding, one simple recklessness and one drunk... do the actions of one outweigh the other?

Alternatively, if you shoot someone and you've been consuming alcohol or MJ, does that automatically make it a bad shoot?

Now, I do acknowledge that altering one's mind and carrying a firearm is a recipe for poor judgment. However I will not conceded that the benefits of such regulations or ability to identify people intoxicated outweighs someone's right to own and carry firearms.

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1 hour ago, JackDaWack said:

Now, I do acknowledge that altering one's mind and carrying a firearm is a recipe for poor judgment. However I will not conceded that the benefits of such regulations or ability to identify people intoxicated outweighs someone's right to own and carry firearms.

This reminds me of a friend I had years back who used to say, "I wasn't drunk... I was just feeling good." :facepalm: We agree on one point... mixing any kind of intoxicating substance with carry is incredibly dumb. Where we differ is that I still think the murky nature of testing for pot impairment (where you can test positive for THC, yet not actually be impaired) ALSO makes it MORE of a legal guagmire on all sides. Can you imagine, god forbid, you get involved in a shooting.. .they test you and THC shows up? Even if you were straight as a church mouse, how much money will you need to shell out for expert witnesses to debunk the test? More to the point, will the jury even believe them? No matter how you pitch it, pot + guns is a potential legal quagmire for anyone who ventures there. Just my opinion! 

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10 hours ago, Mrs. Peel said:

This reminds me of a friend I had years back who used to say, "I wasn't drunk... I was just feeling good." :facepalm: We agree on one point... mixing any kind of intoxicating substance with carry is incredibly dumb. Where we differ is that I still think the murky nature of testing for pot impairment (where you can test positive for THC, yet not actually be impaired) ALSO makes it MORE of a legal guagmire on all sides. Can you imagine, god forbid, you get involved in a shooting.. .they test you and THC shows up? Even if you were straight as a church mouse, how much money will you need to shell out for expert witnesses to debunk the test? More to the point, will the jury even believe them? No matter how you pitch it, pot + guns is a potential legal quagmire for anyone who ventures there. Just my opinion! 

Well, isn't that inherently the problem? 

If someone tests for THC, or alcohol for that matter... Should a jury reach a different conclusion on a good vs bad shoot simple because the presence of a substance?

Or would it be more objective to focus on whether the individual acted appropriately and reasonable, or not, regardless? 

This old school though that  automatically places someone in the wrong is IMO a cop out and I believe that was the judges argument. That simply placing a banned substance on a list doesn't inherently speak to the nature of someone's actions with respect to firearm ownership.

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4 hours ago, JackDaWack said:

If someone tests for THC, or alcohol for that matter... Should a jury reach a different conclusion on a good vs bad shoot simple because the presence of a substance?

Or would it be more objective to focus on whether the individual acted appropriately and reasonable, or not, regardless? 

That's a fair question... but you're talking about how you think things should be... whereas I'm talking about how they are. Juries are swayed by what's put in front of them. People will mix pot and guns at great peril IMO (again, even if they're not impaired).

I don't know - but I don't think we're going to sway each other at this point. Agree to disagree? ;)

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I think a lot of you are looking at this very black and white and not the million shades of gray that are present when intoxication is brought into it.

I also think many of you I’ve never been sued or involved in a trial.

ANY crack in the armor of legality you may have will be exploited against you both in criminal AND CIVIL court (where the burden of proof is much lower than criminal). If have been paying attention lately you may have noticed - the punishment for protecting yourself has often been the process itself.

Being intoxicated - even the hint of possible intoxication, in any shape or form - will never ever be a benefit to your case. EVER.

Remember - the legal use of deadly force is entirely based on your perception of events at the time the event occurs. The fact that you observed actions that put you or another in danger of death or serious bodily injury is the key, coupled with your ability, or inability, to retreat.

That decision is then weighed against what a similar person, with similar training and experience, would perceive and what their reaction would be.

Alcohol and THC are proven to distort judgement, reaction time, mood, memory, demeanor, and the perception of time.

How do you maintain that your perception of events was accurate if the accuser can maintain you may have had a level of intoxication present - no matter how small?

Your mindset before and during a deadly force interaction also play a significant factor. Poor judgement exercised prior to being involved in a use of force can turn a self defense finding into a manslaughter charge or even murder - if your actions are deemed reckless, malicious, or done with prior planning and forethought. Carrying a weapon while high or drunk, or if you are planning to get high or drunk later, is easily proven to be purposeful behavior that can change what was a careless act into a reckless one (reckless requires a purposeful or knowing component) providing aggravating factors for the courts to charge (and sentence) far more harshly.

Keep in mind - I’m not saying someone should be excluded of their 2A rights because they drink or use THC. I’m saying you are not doing anyone - not yourself, your family, fellow 2A advocates and gun owners, or society as a whole - any favors if you carry while drinking or with THC in your system - whether intoxicated/under the influence or not.

These of course are my personal opinions and how I make decisions for me. You all do you - and that’s what makes America great. 

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8 hours ago, High Exposure said:

Remember, if have been paying attention lately the punishment for protecting yourself has often been the process itself.

In a multitude of instances this has absolutely been the case.

Imagine if Kyle Rittenhouse or George Zimmerman had had a few beers or a joint before going 'on duty'.

Fortunately they didn't. But their 'punishment' is not even over yet.

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1 hour ago, High Exposure said:

How do you maintain that your perception of events was accurate if the accuser can maintain you may have had a level of intoxication present - no matter how small?

This is a big deal. Once a case actually makes it to trial, it's a war of words and objective evidence. On its own, it might not be enough to cast guilt beyond a reasonable doubt. But taken in context, especially in an absence of eyewitness testimony, camera footage, etc. it definitely only helps the prosecutor. The proverbial "reasonable person" has no drugs or alcohol in their bloodstream. Of course, the defense should provide objective medical evidence that their judgment was not impaired.

It's a little bit like wearing shirts with the Punisher skull logo,  plastering your car with Pro-2A stickers or putting a sign near your home, "we don't call 911", etc. Imagine if all of that applied to someone plus being a habitual user of a pot. The case could be made that the person's fabricating the situation for them to act out their gun fantasies.

From my perspective, the best defense is to be a model citizen. It might avoid needing to use a gun at all.

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