GENESEE COUNTY, MI — Trying to buy a gun, or even dealing with police in any way in some communities, could land medical marijuana patients in reports to federal authorities.
Flushing Police Chief Mark Hoornstra said his department adopted the procedure about six months ago following a training seminar organized by the FBI, which was attended by about a dozen other Michigan law enforcement agencies.
Under the procedure, Hoornstra said his officers report any interactions with individuals identified as medical marijuana patients to the National Instant Criminal Background Check System, or NICS, even if they are not committing a crime or violating the Michigan Medical Marihuana Act.
So far, about 10 medical marijuana users have been reported to the federal government by Flushing Police, Hoornstra said.
The NICS program allows clerks at firearm retailers to quickly identify if a potential buyer has a criminal record or any other red flag, such as drug abuse, that would ban them from purchasing a firearm.
Federal law prohibits the “shipment, transportation, receipt, or possession” of a firearm by anyone that uses or is addicted to a controlled substance, according to Bureau of Alcohol, Tobacco, Firearms and Explosives form 4473, which firearms buyers are required to complete prior to the purchase a gun.
On the 4473 form, potential buyers are asked if they are an “unlawful user of, or addicted to, marijuana or any depressant, stimulant, or narcotic drug, or any other controlled substance.”
Medicinal marijuana is legal in Michigan, but it is still illegal under federal law. This was highlighted in a September 2011 letter sent out by the ATF to all federal firearm dealers.
The letter spells out that gun dealers cannot sell firearms to people that are identified as medical marijuana users.
“The regulations, under which NICS operates, permits the NICS examiners to make an inference of use when the subject is found in possession of a controlled substance,” the FBI’s Stephen Fischer Jr. wrote in an email to The Flint Journal. “If a known user attempts to buy a firearm from a (Federal Firearm Licensee), then NICS can and will deny the transaction.”
Answering “yes” to the drug question on the 4473 disqualifies the potential buyer from purchasing the firearm. However, with the FBI-backed procedure, the NICS program could already know the answer to that question before the buyer ever even fills out the form.
The FBI confirmed that it does receive information from Michigan law enforcement agencies.
“State and local law enforcement do not have to report persons to any of the NICS databases – i.e., they are not mandated by the federal government to do so,” Fischer wrote. “They do so voluntarily for law enforcement purposes.”
However, Fischer said the FBI does not maintain a database specifically to identify medical marijuana patients.
“The NICS does not keep track of medical marijuana users,” Fischer wrote. “It does keep records of denied transactions by persons who have recorded use of controlled substances (e.g., arrests and convictions) within certain time spans and who have been discovered in possession of a firearm.”
Matthew Abel, an attorney with the Detroit-based Cannabis Counsel, a law firm that specializes in marijuana issues, says he believes the procedure of reporting medical marijuana patients to the federal government is in violation of state law.
“The Medical Marihuana Act has provisions that anyone that discloses information is guilty of a misdemeanor,” Abel said.
According to the Michigan Medical Marihuana Act, “applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential.”
The law goes on to say that the information can be used to verify to law enforcement if a medical marijuana patient’s identification card is valid, but “a person, including an employee or official of the department or another state agency or local unit of government, who discloses confidential information in violation of this act is guilty of a misdemeanor, punishable by imprisonment for not more than 6 months, or a fine of not more than $1,000.00, or both.”
Hoornstra defended his department’s procedure, saying that it is up to the federal government to decide what it does with the information after it is received. The chief also said he does not believe he is in violation of state law.
“Our job is to enforce the laws of the state and federal government,” Hoornstra said. “All we do is report.”
Meanwhile, Michigan gun dealers are caught in the middle.
A number of federal firearm licensees around Genesee County said they have been approached by medical marijuana patients about buying firearms but had to break the news to them that they are unable to purchase one.
And while federal law does not require a firearm dealer to ask a potential buyer if they are a medical marijuana user, dealers say they have turned people away if they believe they aren’t legally allowed to purchase a gun.
“We err on the side of safety,” said Dan Compeau, chief operating officer for Williams Gun Sight in Davison. “Firearms are probably the highest regulated things that are sold.”