September 30, 2022
Cannabis Legal Report – July 2022 | Perkins Coie – JDSupra – JD Supra

Cannabis Legal Report – July 2022 | Perkins Coie – JDSupra – JD Supra

[co-author: Hanna Barker Mullin, Paralegal]

Cannabis: In Focus

  • Florida Lawsuit Challenges Federal Regulations Regarding Firearm Purchases for Medical Cannabis Patients
  • Texas Upholds Ban on Smokable Hemp
  • Maryland Court Rules Aroma of Cannabis is Sufficient Evidence to Lead to a Brief Investigatory Stop

Florida Lawsuit Challenges Federal Regulations Regarding Firearm Purchases for Medical Cannabis Patients

Following a recent Supreme Court ruling, the Department of Justice (DOJ) has asked for more time to respond to a lawsuit filed in the Northern District of Florida, Fried v. Garland, that challenges the federal ban on medical cannabis patients’ ability to purchase and possess firearms.

The case, brought by Florida’s state agriculture commissioner in her official capacity and other plaintiffs, alleges that accessing state-legal cannabis should not infringe on individuals’ Second Amendment rights. Specifically, plaintiffs challenge the application of certain federal regulations regarding firearms to state-legal medical cannabis patients. The federal government prohibits, among other things, the sale of firearms to an “unlawful user” of controlled substances, which includes cannabis. See 27 C.F.R. § 478.11. To that end, the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) has promulgated Form 4473, which asks those seeking to legally purchase a firearm whether they have used federally-illegal controlled substances. According to the plaintiffs, the inconsistent federal and state positions on the legality of cannabis prompts medical cannabis patients seeking to purchase firearms legally to either lie on the forms (and risk a criminal sanction for that lie) or seek out ways to purchase the firearms via unregulated channels.

DOJ was expected to file their response in late June, but after the Supreme Court’s recent decision in New York State Rifle & Pistol Association, Inc. v. Bruen, the department requested a 31-day extension to evaluate the possible effects on the Florida case. In Bruen, the Court held “that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” and the government has the burden to demonstrate that its regulation is “consistent with this Nation’s historical tradition of firearm regulation.”  

DOJ is expected to address the question as to whether the claims in the Florida matter allegedly prohibiting medical cannabis patients from purchasing or possessing firearms is similarly restrictive upon Second Amendment rights as the regulations challenged in Bruen. Dozens of states have legalized cannabis for medical purposes and may be closely watching how this case unfolds.

Texas Supreme Court Upholds Smokable Hemp Ban

In its unanimous opinion released June 24, 2022, the Texas Supreme Court ruled to uphold a 2019 smokable hemp ban that prohibited the manufacture and processing of smokeable hemp products in the state.  

Smokable hemp companies brought suit alleging that they had protected liberty interests in the ability to manufacture and sell hemp for smoking use, noting that it often takes large investments of time and money to open such facilities.

In its opinion, the state supreme court instead held that the companies have no vested right to manufacture or process smokable hemp products. Instead, these activities were simply a privilege that the state could withdraw. The state supreme court also relied upon the brief historical roots of hemp regulation in Texas, noting that hemp was a controlled substance until 2019, writing that the companies “complain that Texas law does not permit them to manufacture or process products that Texas law prohibited for nearly a century.”

Maryland High Court Permits Investigatory Stops for Cannabis Aroma

In a divided 4-3 ruling, the Maryland Court of Appeals, the state’s highest court, said that the aroma of cannabis on a person provides “reasonable suspicion” that they may be in possession of an illicit quantity of cannabis, and therefore, officers may perform a brief “investigatory stop.” The court also provided an important distinction: “Although that odor, without more, does not provide probable cause to arrest a person for a criminal possession of marijuana, it does meet the less stringent standard of reasonable suspicion necessary to justify an investigatory stop.”

The case, In re D.D., stems from a search where the aroma of cannabis was used to justify the search of a 15-year old who had a gun in his waistband. In Maryland, a person may possess up to 10 grams of cannabis. The court was sharply split. The majority reasoned that the aroma of cannabis could provide evidence of this criminal possession. The dissent disagreed, arguing that cannabis odor could stem from less than 10 grams, within the legal limits of possession, and therefore should not be considered sufficient for a search.    

State rules vary widely across the nation as to whether the odor of cannabis is cause enough for a search, even in states with state-legal markets.

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Source: https://www.jdsupra.com/legalnews/cannabis-legal-report-july-2022-5468907/

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