Cops, Guns, and Marijuana in Hawaii

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Medical marijuana has been legal in Hawaii for quite some time, and as with most medical states, this means screening individuals to allow them to obtain a prescription and also registering them as medical marijuana patients. But Hawaiiís medical registry is different in that it not only confirms the medical access for the patient, but the list is accessible for other purposes.

Hawaii is also unique among states in that it has a state-wide gun registry. Starting to see the potential problem here? Recently, medical patients in Hawaii have been receiving letters asking them to relinquish any guns they own, since using marijuana would be violating federal law. The letters provide a 30 days period for medical patients to surrender their weapons, unless they have a
medical clearance from their doctor stating they are competent to own a weapon. But the letters do not detail what happens if weapons are not voluntarily turned in, and because the police can cross-reference both lists, there is a concern that they may actually track down gun owners who are also patients.

In most states, there are restrictions on owning a weapon if you violate federal law and marijuana is still against federal law. However, most states donít have registry lists to cross-check, so restrictions due to the federal ban on marijuana usually only affect conceal and carry permits and new purchases.

This provokes important constitutional questions regarding medication use, gun ownership, and of course, privacy.

The most striking issue here is the access to the registries by the police. First of all, if they can cross-reference this data, will it lead to other personal information being accessed? Second, marijuana is prescribed here as medication so the question of medical privacy emerges: does disclosing medical marijuana prescriptions violate federal HIPAA (Health Insurance Portability and Accountability Act) laws, or did the patients waive their HIPAA rights when they applied for the MMJ card? Next, the right to gun ownership is in question. Even though marijuana is federally illegal, these individuals are not violating state law. Furthermore, registering as a patient is an act of legal compliance, another indication that these individuals are actually do everything possible to try to abide by the laws of Hawaii. Lastly, if the police are going to use these lists against citizens, will they be indirectly forcing people to not legally comply with registration?

The registry conflict mirrors the conflict between federal and state law, which not only affects the ability of patients to travel but has restricted their gun rights too. Hawaii has regularly denied gun permits to medical marijuana holders, and this has been true for most states with legal marijuana because of this conflict with federal law. But no other state has asked citizens to surrender firearms they already own.

Some point out that despite having been legal, Hawaii only recently approved its first dispensaries, so this has motivated the police to proactively seek medical patients with guns by sending out these letters. Others note that a recent change in the law may be prompting this active gun retrieval. Initially, the medical registry was accessible only to confirm the patientís legal use of marijuana. But a recent change in wording gives police more general access for law enforcement purposes, which many now say is too vague and too broad.

These letters have provoked a huge outcry in the community among patients, gun owners, and where they intersect. HPD has agreed to review their policy on the matter and a Hawaiian physician is drafting a petition to switch to registry numbers for anonymity and to only be used to confirm the person is a legitimate patient. In the meantime, gun owners who are also medical marijuana users are finding themselves caught between the proverbial rock and hard place. And as more and more issues like these emerge, it becomes more and more necessary for the federal government to reconsider its classification on marijuana.

ABOUT THE AUTHOR: Russell Hebets
Russell has successfully defended individuals charged with offenses ranging from traffic violations and DUIs to 1st degree murder and vehicular assault, as well as numerous drug cases. Russell is admitted to the Colorado State Bar as well as being licensed to practice in Federal Court. Russell is active in the defense community and is a current member of the Colorado Criminal Defense Bar and the National College of DUI Defense.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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