A federal law bars anyone from legally owning a gun if they have disclosed use of a controlled substance such as cannabis. Newsday reporter Robert Brodsky examines the issue. Credit: Newsday

For the past two-plus years, Mark Humphreys has been both a licensed pistol owner and a medical marijuana cardholder for treatment of prostate cancer.

But an unusual confluence of federal, state and county guidelines regulating the use of marijuana and firearms recently forced Humphreys to make a difficult decision: Give up his gun or his weed.

When Humphreys, 67, and his girlfriend moved from their home in Nassau’s Oyster Bay Cove to Suffolk’s Lloyd Harbor, they were each forced to re-register their firearms in their new county.

On the Suffolk County Police Department’s pistol license transfer form, Humphreys answered the question of whether he's used any illegal substances, admitting to previously smoking medical marijuana as part of his cancer treatment.

     WHAT TO KNOW

  • A Long Island gun owner who sought to transfer his pistol license from Nassau to Suffolk was forced to make a decision recently — give up his medical marijuana card or his firearm.
  • The Suffolk County Police Department, strictly interpreting federal statutes, told the man, who has cancer, that marijuana users are prohibited from legally possessing a pistol. Police later reversed the decision.
  • The federal government considers marijuana a Schedule I controlled substance, similar to heroin, even as the drug is legal for medical purposes in 38 states, and 24 states allow legal recreational weed.

That’s when he learned that Suffolk had rejected his transfer application and that both he and his girlfriend would have to surrender their firearms because of Humphreys' state-issued medical marijuana card.

Marijuana is legal in New York, both recreationally and medically, while an estimated 20% of residents across the state have at least one firearm, according to a 2020 study.

But a 2011 federal regulation continues to prohibit anyone from legally owning a gun if that person has disclosed they use a controlled substance — a category that still includes cannabis. 

Humphreys ultimately got his pistol license transferred — by agreeing to cancel his medical marijuana card, although Suffolk police now concede, after inquiries from Newsday, that the investigator's original decision was incorrect. 

Months after the ordeal, however, he remains frustrated and aggravated with a system that treats legal marijuana more harshly than alcohol or most opioids — the usage of which would not disqualify someone from legally obtaining a gun. 

“I’m disappointed that Suffolk County would withhold pistol licenses from law-abiding citizens,” Humphreys said. “ … That was a lot of aggravation for nothing. I hope that in the future other law-abiding citizens don't have to go through this.”

Caught in a regulatory black hole

The intersection of gun owners and marijuana users, with proponents of its legalization, brings together factions that collectively make up a large portion of the American population but who don't often find their interests intertwined.

But as marijuana legalization continues to become more commonplace across the nation, the absence of corresponding federal cannabis guidelines has left some users, such as Humphreys, caught in a regulatory black hole.

David Clifford Holland, a Manhattan-based attorney who handles cases involving cannabis, said the federal guidelines are wildly outdated “and just don't make a lot of sense” during a time when the medical benefits of cannabis have been largely accepted as fact.

“The ATF and federal gun policy is not evolving as quickly as the federal government's approach to whether cannabis is medicine,” said Holland, who serves as legal director of Empire State NORML, the state affiliate of the National Organization for the Reform of Marijuana Laws.

Medical marijuana is legal in 38 states, while 24 states allow legal recreational weed. Cannabis in New York has been legal for medical ailments since 2016 and for recreational purposes since 2021.

While marijuana is legal in much of the country, the federal government classifies it as a Schedule I controlled substance, alongside heroin, ecstasy and LSD. The Biden administration, however, recently began the process, through the Drug Enforcement Administration, of reclassifying marijuana as a less dangerous drug.

The prohibition on medical marijuana users legally possessing a firearm — whether a first-time purchase, re-registration or the transfer of a license to a new municipality — traces back to a 2011 memo from the Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF.

The memo, which has been challenged unsuccessfully in federal court, concludes that the 1970 Controlled Substance Act, which prohibits illegal drug users from legally possessing a firearm, makes no exception for medical marijuana, even if it's sanctioned under state law.

“Any person who uses or is addicted to marijuana, regardless of whether his or her state has passed legislation authorizing marijuana for medicinal purposes, is an unlawful user of or addicted to a controlled substance and is prohibited by federal law from possessing firearms or ammunition,” the memo states.

The ATF did not respond to repeated requests for comment about its policy.

A 2019 memo by the FBI's National Instant Criminal Background Check System Section further stipulates that “any marijuana user is prohibited from possessing or purchasing a firearm while using marijuana and for one year after last use.” Possession of a medical marijuana card, the memo states, is sufficient grounds to prohibit the individual from legally owning a gun.

In an emailed statement, New York's Office of Cannabis Management, which oversees the state's medical and recreational marijuana programs, said the existing regulatory structure is unworkable and must change.

“The infringement on gun ownership rights for lawful medical cannabis patients is a prime example of the issues arising from the disconnect between federal and state cannabis laws,” the office said. “We hope that as the federal government reforms its cannabis policies, the rights of law-abiding cannabis consumers will be fully restored.”

A 'ridiculous' turn of events

It's been a difficult few years for Humphreys, a semiretired construction manager.

First, he was diagnosed with prostate cancer, and one of the few medications that provided any source of relief for his pain was medical marijuana. After the cancer went into remission, Humphreys, who was subsequently diagnosed with lymphoma, continued to maintain his medical marijuana card, although he stopped actively using the drug.

When Humphreys and his girlfriend relocated to Suffolk, they thought little of the often mundane process of transferring their pistol licenses — which they've held in Nassau without incident for nearly a decade — to their new county. Nor did he give a second thought to disclosing the medical marijuana usage to law enforcement, given its legality across the state.

But weeks after filling out the application, Humphreys was informed that both he and his girlfriend, who was not a marijuana user, would have to surrender their pistol licenses — in her case because she shared a home with a cannabis user. The department, Humphreys said, eventually reversed course when he turned in his medical marijuana card.

“It's ridiculous,” he said. “It's legal in New York. I can go into the [recreational] dispensary without a license and buy it. But they told me that this was a federal law.”

A Suffolk police spokeswoman on Friday said the Pistol License Bureau misinterpreted the statute and that Humphreys' license transfer should never have been rejected, nor should he have been forced to surrender his medical marijuana card. The bureau contacted Humphreys on Friday to inform him of their error. Humphreys said he will now apply to get his medical marijuana card back.

“A background check is required to hold a pistol license in Suffolk County,” a department spokesperson said in an emailed statement. “As part of the check, all applicants are required to provide medical documentation from a doctor if they are using prescription medication, which includes medical marijuana. While an arrest for possession or sale under existing penal law offenses could disqualify an applicant, an applicant or their household member's use of medical marijuana would not be a reason to deny the application.”

The department said it does not maintain statistics on how many applicants have had their permits rejected because of marijuana usage.

Multiple experts contacted by Newsday said they're unaware of any other New York municipal police force rejecting a pistol license application because of medical marijuana usage.

Those experts agreed that it's unlikely that Suffolk police would have caught Humphreys if he'd failed to disclose his marijuana usage on the pistol transfer form. But the risks for lying on firearms documents are potentially severe.

Earlier this month, President Joe Biden’s son, Hunter, was convicted of lying on gun-purchasing paperwork by claiming at the time that he was not addicted to or using illegal drugs.

Gun rights organizations, including the NRA, did not respond to requests for comment about the Suffolk County Police Department's actions.

The Nassau County Police Department did not respond to requests for comment about its pistol and marijuana policy.

Ruben Lindo, an Ulster County cannabis business owner and gun rights activist, said marijuana users have been unfairly targeted for far too long.

“A lot of cannabis consumers are avid outdoorsmen, hunters and responsible gun owners,” said Lindo, a former pro football player. “These forms don't ask if you're addicted to alcohol or if you abuse prescription narcotics.”

Ironically, Lindo said, if Humphreys had secured his pistol license transfer and then applied for a medical marijuana card, he would have avoided scrutiny.

Change on the horizon?

After years of pressure, the federal government's stance on marijuana — and in the process, its contributory effect on pistol license holders — may be nearing a massive change.

In late April, the Biden administration announced that the Drug Enforcement Administration would recommend moving pot to Schedule III, a category that includes ketamine, anabolic steroids and Tylenol with codeine.

Rescheduling cannabis would allow the federal government to study and research the medical benefits of the drug, potentially opening the door for pharmaceutical companies to become involved with the sale and distribution of medical marijuana in states where it is legal.

But reclassification could take more than a year to implement, and it remains unclear how the change would affect legal gun ownership as Schedule III drugs are still considered controlled substances, albeit those with medicinal benefits.

“This rescheduling journey is going to take a number of years,” said Scheril Murray Powell, an attorney and chief operating officer of the JUSTUS Foundation, a nonprofit marijuana advocacy group, who was raised in Great Neck and Uniondale. “So, nothing has changed for the gun carrier who is also a utilizer of cannabis.”

Any change in federal regulations, meanwhile, may be too little, too late for Humphreys, who is currently undergoing chemotherapy treatment for lymphoma, without the benefit of medical marijuana.

“I'd use it today because it would eliminate the nausea,” Humphreys said, conceding that he could still legally purchase recreational marijuana while holding his pistol license. “It's just completely unfair. The whole thing is crazy because it's all legal.”

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