Appeals Court Vacates Conviction Over Marijuana User’s Gun Ownership, Noting Lower Court Didn’t Find His Use Caused A Threat

In yet another federal court ruling questioning the U.S. government’s
blanket ban on firearm possession by marijuana users, an appeals court on
Tuesday vacated a defendant’s conviction under the statute known as Section
922(g)(3) and remanded the case back to a district court, noting that a
retrial before a jury may be necessary to determine whether cannabis in
fact caused the defendant to be dangerous or pose a credible threat to
others.

In a 14-page opinion, a three-judge panel for the U.S. Court of Appeals for
the Eighth Circuit noted that after an Iowa district court initially
decided the case, the appeals court issued new guidance in a February
ruling that said the prohibition on gun ownership by drug users is
justified only in certain circumstances—not always.

In returning the current case—*U.S. v. Cordova Perez*—to the Southern
District of Iowa, judges said the lower court failed to make a
determination as is now required in the Eighth Circuit as to whether
defendant Aldo Ali Cordova Perez Jr.’s marijuana use made him a credible
threat to public safety.

“The proper question is whether Cordova Perez’s marijuana use caused him to
act in an outwardly erratic or aggressive manner that would, in context, be
reasonably perceived as disturbing or dangerous to others,” says the
opinion, written by Circuit Judge Jane L. Kelly, an Obama appointeee.

While the ruling says the district court “did not make any such causal
finding in this case,” it suggests that establishing such a relationship
might not necessarily require evidence that Cordova Perez’s cannabis made
him violent or commit conduct with a gun specifically.

“If marijuana caused Cordova Perez to act or drive in an erratic way, for
example, he might be disarmed constitutionally under § 922(g)(3) even if
his outward behavior was not violent in the same way as, perhaps, the
‘combative hostility’ sometimes associated with ‘a drug like PCP,'” the
opinion says.

“Even if Cordova Perez normally used marijuana without issue,” it adds,
“marijuana could have triggered a single erratic or dangerous episode.”

Judges also said in the new opinion that the lower court’s decision in the
case didn’t make any factual findings that the defendant’s “marijuana
use—either that day or more broadly—caused him to ‘induce terror, or pose a
credible threat to the physical safety of others with a firearm.'”

“Nor did the district court ask if Cordova Perez’s marijuana use placed him
in a category of people ‘present[ing] a special danger of misuse’
sufficient to justify disarmament irrespective of any individualized
showing of dangerousness,” the decision adds.

Such a finding would be necessary under current precedent requiring that to
be constitutional, a statute restricting gun rights from a broad class of
Americans must be sufficiently similar to historical restrictions, such as
preventing firearm possession by people with mental illness.

“We have already held that without more, neither drug use generally nor
marijuana use specifically automatically extinguishes an individual’s
Second Amendment right,” the panel wrote, referencing *Cooper*, the Eight
Circuit’s own ruling from February,

“Defining a class of drug users simply by the suggestion that they might
sometimes be dangerous, without more, is insufficient for categorical
disarmament,” judges added.

The new ruling says the district court, where matters of fact rather than
law are decided, “is best positioned to reassess Cordova Perez’s as-applied
challenge in light of *Cooper*“:

“Accordingly, we vacate the judgment and remand for the district court to
determine—either individually or categorically, and either on the trial
record or, to the extent necessary, via an evidentiary hearing—whether
Cordova Perez’s marijuana use: 1) caused him to ‘act like someone who is
both mentally ill and dangerous’; or 2) would or did make him ‘induce
terror, or pose a credible threat to the physical safety of others with a
firearm.'”

Further fact-finding to establish evidence of Cordova Perez’s relationship
to marijuana might require a trial before a jury rather than a judge, it
adds.

“As to any factual findings on remand, Cordova Perez raises a legitimate
concern that the jury, not the judge, must resolve factual disputes
necessary to sustain his conviction,” judges wrote, adding that “a retrial
may be necessary.”

Notably, the new Eighth Circuit opinion appears to differ from a recent
Third Circuit ruling in that the new decision says that not every
application of 922(g)(3) “require[s] an individualized factual
determination,” explaining that such determinations wouldn’t be necessary
if the government could demonstrate that a particular drug made an entire
class of users dangerous.

By contrast, the Third Circuit earlier this month said in a published
opinion that district courts must make “individualized judgments” to
determine whether 922(g)(3) is constitutional as applied to particular
defendants.

The appeals panel ruled that while a person “need not have harmed someone,
threatened harm, or otherwise acted dangerously to justify his
disarmament,” the history of gun laws in the country requires that
“district courts must make individualized judgments and conclude that
disarming a drug user is needed to address a risk that he would pose a
physical danger to others.”

Judges in that case noted that historical restrictions on gun ownership
under “drunkenness and lunacy laws” in the U.S. “were still always based on
an ‘individualized assessment’ rather than a categorical judgment.”

“Future courts considering §922(g)(3) challenges,” the Third Circuit added,
“should also consider these factors in determining whether someone’s drug
use suggests that he “likely poses an increased risk of physical danger to
others if armed.”

A number of federal courts in recent months have cast doubt on the legality
of § 922(g)(3), finding generally that while the ban on gun ownership among
drug users may not be entirely unconstitutional, there’s scant historical
precedent for such a broad restriction of Second Amendment rights on an
entire a category of people.

As a recent report from the Congressional Research Service explained the
current legal landscape, a growing number of federal courts are now
“finding constitutional problems in the application of at least some parts”
of the firearms prohibition.

The matter could soon be taken up by the U.S. Supreme Court. In a recent
petition for review by justices, U.S. Solicitor General D. John Sauer
argued that despite recent appeals court decisions calling the
constitutionality of the firearms ban into question, the restriction is
nevertheless lawful.

“Section 922(g)(3) complies with the Second Amendment,” the government’s
filing in that case, *U.S. v. Hemani*, maintains. “That provision targets a
category of persons who pose a clear danger of misusing firearms: habitual
users of unlawful drugs.”

The federal statute “bars their possession of firearms only temporarily,”
the government petition says, “and leaves it within their power to lift the
restriction at any time; anyone who stops habitually using illegal drugs
can resume possessing firearms.”

Notably, while the government mentioned “habitual” users of illegal drugs
40 times in its Supreme Court filing, the word does not itself appear in
922(g)(3). The language of the statute prohibits anyone “who is an unlawful
user of or addicted to any controlled substance” from purchasing or
possessing firearms or ammunition.

While DOJ is asking the high court to take up the *Hemani* case, at least
two other, similar cases are waiting in the wings: *U.S. v. Cooper* and *U.S.
v. Baxter* both of which also hinge on the constitutionality of 922(g)(3).

In *Cooper*, an Eighth Circuit U.S. Court of Appeals panel dismissed a
three-year prison sentence against a person convicted for possession of a
firearm while being an active user of marijuana. Judges in that case ruled
that government’s prohibition on gun ownership by drug users is justified
only in certain circumstances—not always.

“Nothing in our tradition allows disarmament simply because [the defendant]
belongs to a category of people, drug users, that Congress has
categorically deemed dangerous,” their ruling said.

In *Baxter*, the Eighth Circuit ruled 922(g)(3) unconstitutional as applied
to the facts in the case.

Judges in that case wrote that there were insufficient factual findings in
the record “for this Court to review Baxter’s as-applied Second Amendment
challenge.” Nevertheless, the they wrote, “We reverse the district court’s
ruling on Baxter’s as-applied Second Amendment challenge and remand to the
district court for further proceedings consistent with this opinion.”

In recent weeks, the government has sought further time from the court to
decide whether to seek an appeal in the other cases. And when DOJ filed its
appeal in *Cooper*, it further asked the court to slow walk the case,
requesting justices “hold the petition for a writ of certiorari pending the
disposition of the petition in *United States v. Hemani…*and should then
dispose of this petition as appropriate.”

One reason DOJ could be focused on the high court taking up *Hemani* in
particular is that the defendant is not only a cannabis user but also a
user of cocaine who’s sold drugs in the past, perhaps reasoning that he is
a less sympathetic face of drug consumers’ gun rights. Defendants in the
other cases were merely found in possession of both a firearm and marijuana.

If the Supreme Court takes up *Hemani* and declares 922(g)(3)
constitutional, such a ruling could could mean government wins in the
remaining cases.

One risk to the government appealing the lower court rulings are that if
the Supreme Court does take the case, justices may in fact rule unfavorably
to the government, possibly cementing that § 922(g)(3) is—in at least some
cases—unconstitutional.

Earlier this year, a federal judge in Rhode Island ruled that the ban was
unconstitutional as applied to two defendants, writing that the government
failed to establish that the “sweeping” prohibition against gun ownership
by marijuana users was grounded in historical precedent.

The Fifth Circuit’s *Daniels* ruling—in a three-judge panel ruled that the
firearms ban was unconstitutional as applied—came on the heels of a string
of other judicial decisions casting doubt on the legality of the ban.

A federal judge in El Paso, for instance, ruled late last year that the
government’s ongoing ban on gun ownership by habitual marijuana users is
unconstitutional in the case of a defendant who earlier pleaded guilty to
the criminal charge. The court allowed the man to withdraw the plea and
ordered that the indictment against him be dismissed.

Another panel of judges, on the U.S. Court of Appeals for the Tenth
Circuit, heard oral arguments in November in the government’s appeal of a
district court ruling that deemed the gun ban unconstitutional.

In a number of the ongoing cases, DOJ has argued that the prohibition on
gun ownership by marijuana users is also supported by a recent U.S. Supreme
Court decision, *U.S. v. Rahimi*, that upheld the government’s ability to
limit the Second Amendment rights of people with domestic violence
restraining orders.

DOJ has made such arguments, for example, in favor of the firearms ban in a
case in a case in the U.S. Court of Appeals for the Eleventh Circuit. In
that matter, a group of Florida medical cannabis patients contends that
their Second Amendment rights are being violated because they cannot
lawfully buy firearms so long as they are using cannabis as medicine,
despite acting in compliance with state law.

DOJ under President Joe Biden consistently argued that medical marijuana
patients who possess firearms “endanger public safety,” “pose a greater
risk of suicide” and are more likely to commit crimes “to fund their drug
habit.”

It remains unclear how the Trump administration will approach the cases. At
a NRA conference in 2023, Trump suggested there might be a link between the
use of “genetically engineered” marijuana and mass shootings. He listed a
number of controversial and unproven factors that he said at the time he
would direct the Food and Drug Administration (FDA) to investigate as
possibly causing the ongoing scourge of mass shooting afflicting the
country.

“We have to look at whether common psychiatric drugs, as well as
genetically engineered cannabis and other narcotics, are causing psychotic
breaks” that lead to gun violence, he said.

DOJ has claimed in multiple federal cases over the past several years that the
statute banning cannabis consumers from owning or possessing guns is
constitutional because it’s consistent with the nation’s history of
disarming “dangerous” individuals.

In 2023, for example, the Justice Department told the U.S. Court of Appeals
for the Third Circuit that historical precedent “comfortably” supports the
restriction. Cannabis consumers with guns pose a unique danger to society,
the Biden administration claimed, in part because they’re “unlikely” to
store their weapon properly.

Last year, Biden’s son Hunter was convicted by a federal jury of violating
statute by buying and possessing a gun while an active user of crack
cocaine. Two Republican congressmen challenged the basis of that
conviction, with one pointing out that there are “millions of marijuana
users” who own guns but should not be prosecuted.

The situation has caused confusion among medical marijuana patients, state
lawmakers and advocacy groups, among others. The National Rifle
Association’s (NRA) lobbying arm said recently that the court rulings on
the cannabis and guns issue have “led to a confusing regulatory landscape”
that have impacted Americans’ Second Amendment rights.

“Marijuana use is no longer limited to the domain of indigenous religious
customs or youth-oriented counterculture and now includes a wide variety of
people who use it for medicinal or recreational reasons,” said the advocacy
group, which does not have an official stance on cannabis policy generally.
“Many of these individuals are otherwise law-abiding and productive members
of their communities and want to exercise their right to keep and bear
arms.”

Meanwhile, some states have passed their own laws either further
restricting or attempting to preserve gun rights as they relate to
marijuana. Recently a Pennsylvania lawmaker introduced a bill meant to remove
state barriers to medical marijuana patients carrying firearms.

Colorado activists also attempted to qualify an initiative for November’s
ballot that would have protected the Second Amendment rights of marijuana
consumers in that state, but the campaign’s signature-gathering drive
ultimately fell short.

As 2024 drew to a close, the ATF issued a warning to Kentucky residents that,
if they choose to participate in the state’s medical marijuana program
that’s set to launch imminently, they will be prohibited from buying or
possessing firearms under federal law.

The official said that while people who already own firearms aren’t
“expected to” turn them over if they become state-legal cannabis patients,
those who “wish to follow federal law and not be in violation of it” must
“make the decision to divest themselves of those firearms.”

Since then, bipartisan state lawmakers have introduced legislation that
would urge Kentucky’s representatives in Congress to amend federal law to
clarify that users of medical marijuana may legally possess firearms,
though no action has since been taken on that bill.

Kentucky Gov. Andy Beshear (D) said in January that he supported the
legislature’s effort to urge the state’s congressional delegation to call
for federal reforms to protect the Second Amendment rights of medical
marijuana patients, but the governor added that he’d like to see even more
sweeping change on the federal level.

“I think the right way to deal with that is not just to focus on that
issue, but to change the schedule of marijuana,” Beshear said at a press
conference. “What we need to change is the overall marijuana policy by the
federal government.”

*Read the full Eighth Circuit opinion in U.S. v. Cordova Perez below:*

The post Appeals Court Vacates Conviction Over Marijuana User’s Gun
Ownership, Noting Lower Court Didn’t Find His Use Caused A Threat appeared
first on Marijuana Moment.