Regarding Hawai'i & HPD Policy on Medical Cannabis Patients and Guns

Aloha Medical Cannabis Coalition of Hawai'i Supporters:    Nov 30, 2017

There have been numerous media reports and social media posts regarding letters that some registered medical cannabis patients have been receiving from the Honolulu Police Department (HPD) regarding their recent applications to register a gun. As understandable concerns have been raised, the Q & A below is intended to highlight what we know and what we do not know about this situation.

Mahalo for your interest and support!

Carl Bergquist, Executive Director, Drug Policy Forum of Hawai'i, a founding member of the Medical Cannabis Coalition of Hawai'i 

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What are these letters about?

Per its own statistics, since January 2017 HPD has sent about 30 letters (see photo below) to current medical cannabis patients who have applied for a new gun permit. The letters have stated that the person is disqualified from owning or possessing a firearm. Further, the letter states that if the person owns or has any (other) firearms, she/he has thirty days to "voluntarily surrender" these. (NOTE: This morning we learned that HPD is reviewing this part of the policy.)

These letters were first sent in September 2016.

Is this a new HPD or state policy?

Partially.

For years, as documented in annual reports by the Department of the Attorney General, medical cannabis patients have been denied gun permits. This year, however, the report not only detailed a sharp increase in denials for current patients (from 17 to 42, up nearly 150%), but it also provided more information on how these patients are viewed. The increase in denials is not attributable to the raw number of patients, which increased during this time period, but not by this much.

The AG report lists now medical cannabis patients under the category of "mental incompetence /impairment." And unlike others in this subcategory, medical cannabis patients remain automatically ineligible for a long time since they cannot reapply until their medical cannabis (a.k.a. "329") cards have been expired for a year or longer.

The demand that the patients "voluntarily surrender" other weapons may be a new policy - it is not required by state law (see below.) At this time, we do not know if the other Hawai'i police departments (Kauai, Maui, Big Island) also include this demand in their letters pursuant to notification of a permit denial. And as noted above, HPD is now reviewing this policy.

How did the HPD know that the individual was a medical cannabis patient?

Patient confidentiality is a core component of the medical cannabis program. Accordingly, law enforcement cannot just check the medical cannabis database whenever it feels like it. Aside from broader provisions that are rarely, if ever, invoked, specifically designated local law enforcement officers only access the database to verify if a person claiming to be a patient is indeed one. 

As of October 2017, the state gun permit form now has a question asking whether the applicant is a medical cannabis patient. Presumably, if the applicant answers "yes," then a designated HPD officer conducts a verification check. If that comes back as "valid," then the permit is denied. 

Is the HPD trawling the patient database or is the Department of Health granting unauthorized access?

No.

These checks are for a very specific purpose, albeit one with which many, including the Drug Policy Forum of Hawai'i, do not see as warranted (please see the question on policy below.)

What is the legal authority for doing this?

In the letter, the HPD refers to two sections of the Hawai'i Revised Statutes (HRS) as providing legal authority.

First, HRS §134-7(a), which mainly refers to federal law. Since federal law, per the section cited on the gun permit form -18 U.S.C. §922(g)(3), prohibits ownership of firearms for "unlawful users" of any controlled substance, the state has interpreted this to mean that medical cannabis users are such "unlawful users."

This interpretation of federal law is also informed by a recent controversial 9th Circuit Court of Appeals decision. The 9th Circuit is the federal appeals district that includes Hawai'i, making its rulings binding on federal districts courts here, but not on our state courts (though they may see them as "persuasive.") The decision found that being a medical cannabis card holder, even if the person is not currently using the medicine, poses a demonstrated connection to "illegal drugs" that cause impairment and violence. The evidence presented to back up this claim was negligible.

An excerpt from that opinion reads: 

“It is beyond dispute that illegal drug users, including marijuana users, are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior.”

As a result of the decision, the federal Bureau of Alcohol, Tobacco and Firearms' (ATF) policy to deny state medical cannabis patients a gun permit was given a green light. It also prompted a change on the federal permit form, adding a note about state cannabis laws, one which we now see mirrored in the recently changed Hawai'i form. 

Second, regarding the "surrender" demand, HPD cites HRS §134-7.3. This section also outlines how to notify an applicant of a denied permit. What is noteworthy here is that while the requirement for law enforcement to notify the applicant by certified mail is mandatory, the provision to then demand the "surrender" of other weapons is optional: 

"If any applicant is denied a permit, the chiefs of police of the respective counties shall send, by certified mail, a notice setting forth the reasons for the denial and may require that the applicant voluntarily surrender all firearms and ammunition to the chief of police where the applicant resides or dispose of all firearms and ammunition." 

Finally, there is also a solid argument to be made that, regardless of the above, federal scheduling of cannabis as a Schedule 1 controlled substance is inapplicable in Hawai'i since the state recognizes cannabis as a medicine. For more on that and how state law can be updated to reflect this, please see this legislation (SB120 and HB170) currently pending at the state legislature. 

What remains unclear?

As noted above, the state gun permit form has only included a medical cannabis question as of October 2017. However, as also noted, the letters have going out since September 2016. The question then is: on what basis did HPD and other departments conduct verification checks before this was question was on the form? Did they run every applicant through the database? Are they still doing this despite the addition of the medical cannabis question? That would not seem to comport with the spirit of the law authorizing verification checks.

Another issue is the basis for adding the optional "surrender" language to the letter. What informed this policy decision when state law does not require it? Do the Neighbor Islands also include a demand in their letters? 

Finally, the letter states that a "medical doctor's clearance letter" is needed for any future applications. This does not rhyme with the requirement set forth in the AG report cited above. There it says that such a letter is required for mental health patients and others, while conversely "(f)ormer medical marijuana patients can successfully apply one year after the expiration of their medical marijuana approval cards." 

Is this good policy?

No.

This unfairly singles out registered medical cannabis patients and it does so in a sweeping "one size fits all" policy. Are they the only people who could be seen as violating federal law with regards to Hawaii's medical cannabis programs? No, but they are low-hanging fruit since they are complying with state law and thus listed in the patient registry database. In other words, they took the state at its word that it now views medical cannabis as a form of medicine. Yet the same state sends a different signal with this stance on guns. There has been no contention that the patients being denied a permit are somehow not following state law when it comes to medical cannabis.

This kind of thinking buys into the stigmatization of cannabis that the state should have left behind with the passage of the original medical cannabis law in 2000, or at the latest with the dispensary law of 2015.

Also, denying medical cannabis patients a permit for a whole year even after their cards have expired is wholly arbitrary. Prior to expiration, the patient may not even have used medical cannabis for a longer time period. So even though there has demonstrably been no medical cannabis caused impairment for very long period of time, they remain ineligible. This also makes no sense since even traces of cannabis found in the system up to 30 days after consumption bear no relation to impairment at any particular point in time. And many patients use medical cannabis strains with lower levels of tetrahydrocannabinol (THC) - the component of cannabis that can cause impairment. Yet, all medical cannabis patients are lumped together and deemed ineligible for a gun permit. The AG report's listing of medical cannabis patients under a category entitled "mental incompetence/impairment" is quite frankly shocking.

This is not a policy based on evidence, but one based on myth and convenience.

What can be done about this?

Please join us in advocating for changes to state law and associated administrative rules. Also, we can demand that the HPD stop requesting that medical cannabis patients "surrender" their other weapons when state law does require them to make such a demand.