Gun owner denied CPL for legally using marijuana

SEATTLE -- With recreational marijuana sales about to begin in Washington State, legal gun owners are facing a "don't ask, don't tell" dilemma. The gun owners are grappling with the idea of admitting they use marijuana, which goes up against federal firearm laws.

I-502 made possession of marijuana for adults legal in the state of Washington. The Second Amendment gives every law abiding American the right to bear firearms, but the two don't coexist very well when it comes to marijuana. The conflict between federal and state law is putting police and gun-owning marijuana users in the middle.

It's a conflict Bobbi Jo Floyd of Richland knows all too well.

"People know who I am, a lot of people do," said Floyd, who is an officiant and has presided over 2,000 weddings in the tri-cities area.

Floyd is also an outspoken proponent of medical marijuana and an authorized patient.

"I'm also a Republican and I believe in my guns," she said.

In January she went to apply for a concealed pistol license at the Richland Police Station. Skinner says in Washington, a CPL is not a right, but considered a privilege granted at the discretion of the issuing agency, which tends to be the applicant's home town police agency. Most people are granted a CPL after passing a criminal background check.

Floyd had no problems with any question on the application, except when it came to question number five, which asks, "Are you an unlawful user of, or addicted to, marijuana?"

"I answered it 'no' because how I read it is, are you an 'illegal user' or addicted to marijuana, and I don't feel I'm either," Floyd said.

That's when something unusual happened. Floyd was asked to provide her medical marijuana authorization card.

"An employee recognized me and she asked me to attach my medical license on my application," she said.

With nothing to hide, Floyd says she obliged. A couple of weeks later, she got her application back in the mail. It was denied.

With the denial came a letter for Richland Police Chief Chris Skinner who wrote Floyd was not eligible to receive a CPL because she had an authorization to possess cannabis. Skinner also cited Federal law, 18 U.S.C. 922(g)(3) which prohibits any son who is an "unlawful user of, or addicted to any controlled substance" from shipping, transporting, receiving or possessing firearms or ammunition.

Skinner goes on to write that marijuana is listed in the Controlled Substances Act as a Schedule I controlled substance and "there are no exceptions in Federal law for marijuana purportedly used for medicinal purposes, even if such use is sanctioned by State law." Floyd couldn't believe it.

"I was incredibly angry because I was being honest," she said. "I had done nothing wrong".

Skinner says he is bound by both state and federal law.

"That really put us in a kind of a bind for the first time trying to make a determination as to whether or not we in good conscience could issue a CPL to somebody knowing that potentially was going to be in violation of federal law," Skinner said.

Skinner said he was following the latest directive from the US Department of Justice. In September 21, 2011 an open letter to all federal firearms licensees, Arthur Herbert, Assistant Director for Enforcement Programs and Services wrote, "any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance."

The letter says marijuana users need to answer "yes" to marijuana use questions on federal firearms applications rather than "no" like Floyd did. The directive is aimed at firearm possession. But Skinner says he said it applies to a CPL as well.

"There is a blurring of the lines between the constitutional right of gun ownership and what I believe to be a privilege of carrying a weapon concealed," Skinner said. "In my decision, I erred on the side of the federal government, which does not recognized the medicinal use of marijuana as being a legitimate use."

Floyd has been contacted by attorneys who believe Skinner's decision was wrong. She said they see a Supreme Court ruling in her future.

A precedent may already have been set. In 2012, the US Supreme Court declined to hear an appeal from an Oregon sheriff who denied a conceal weapons licensee to a medical marijuana user. Cynthia Willis of Central Point Oregon was denied a CWL the the Jackson County Sheriff because she uses medical marijuana.

She sued and won at ever court level including the Court of Appeals and the Oregon Supreme Court. The sheriff argued federal law prevents a person from possessing a firearm, even if medical marijuana is legal under state law, which it is in Oregon.

"I was not a criminal and I met all the conditions to have a concealed weapon license," Willis said. " A cannabis patient is the same as any other patient and we are to be treated equally and fairly."

Despite a court issued CWL, Willis is reluctant to answer a simple question, does she own a gun.

"It's a hard question to answer because there is a threat that the federal government can come in at any time an arrest me if I answer yes," she said.

Skinner and Floyd hope their story will spark a debate within the federal government to come up with some answers. Otherwise, they expect more police agencies and soon, the recreational pot user will be facing the same dilemma.