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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:
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Bipartisan Coalition Of 32 Attorneys General Pushes Congress To Urgently Pass Marijuana Banking Bill
A bipartisan coalition of 32 state and territory attorneys general from across the U.S. are calling on Congress to pass a marijuana banking bill to free up financial services access for licensed cannabis businesses.
In a letter sent to House and Senate leaders on Thursday— led by the attorneys general from Washington, D.C., Georgia, Maryland and Ohio—the officials said they want to see the Secure and Fair Enforcement Regulation (SAFER) Banking Act taken up this session.
“We are a bipartisan group of state and territorial attorneys general who, like you, have a strong interest in protecting the physical and economic wellbeing of our constituents while enabling economic growth and stability in our respective states,” the letter says. “We therefore urge Congress to advance this legislation, which will increase access to regulated banking and financial services for state-regulated cannabis businesses in jurisdictions that have legalized these businesses.”
“It is increasingly critical to move cannabis commerce into the regulated banking system. The majority of states and several territories have legalized some use of cannabis,” it says. “As more states continue to consider and implement legalization efforts, the lack of access to America’s financial system by cannabis businesses—which is a direct result of federal banking law—presents a considerable safety issue for the public.”
The officials stressed that, under current federal policy, many marijuana businesses are forced to operate on a largely cash-only basis, making them targets for crime and putting employees and customers “at greater risk.”
“Allowing access to the nation’s regulated banking system is crucial to public safety and to ensuring that lawful businesses in our states have access to regulated banking services,” they wrote.
The letter also states that the current lack of banking access for the cannabis industry makes tax collection and oversight more challenging, and the SAFER Banking Act “would help ensure that state governments do not forfeit hundreds of millions of dollars in tax revenue that the cannabis industry generates.”
However, despite the attorneys general saying at the top of the letter that they’re voicing support for the “SAFER Banking Act of 2025,” the bill has not yet been reintroduced this session, so it’s unclear whether any provisions might be changed from the prior version that died at the end of the last Congress.
“To address these challenges, we request that Congress advance the SAFER Banking Act or similar legislation. Congress should provide a safe harbor for depository institutions that provide a financial product or service to a covered business in a state that has implemented laws and regulation that ensure accountability in the cannabis industry. An effective safe harbor would bring billions of dollars into the banking sector, enabling law enforcement, federal, state, and local tax agencies, and cannabis regulators in the states and territories to more effectively monitor cannabis businesses and their transactions. Compliance with tax laws would be simpler and easier to enforce with the regulated tracking of funds in the banking system, resulting in higher tax revenues.”
“The SAFER Banking Act is common-sense, bipartisan, and will beneficially impact the safety of the nearly 75 percent of Americans who live in a state where cannabis has been legalized,” the letter concludes. “The bill respects both state sovereignty and the current status of cannabis at the federal level. It does not encourage legalization, nor does it facilitate cannabis sales in states that have chosen not to legalize it.”
“The SAFER Banking Act simply addresses the specific public policy challenges facing states in light of the federal prohibition on banking cannabis-related funds, and it does so in a way that will help move cash from legal cannabis businesses into the highly regulated banking system, where it will be more transparent to state regulators and law enforcement,” it says. “We look forward to working on this bipartisan issue with you.”
The other signatories on the letter are the attorneys general of Alaska, American Samoa, Arizona, California, Colorado, Connecticut, Delaware, Hawai’i, Illinois, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Northern Mariana Islands, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, U.S. Virgin Islands, Utah, Vermont, Washington and West Virginia.
“When legal cannabis businesses are forced to operate in cash, it’s not just inefficient–it’s dangerous,” Arizona Attorney General Kris Mayes (D) said in a press release. “The SAFER Banking Act is a practical solution that will protect workers and communities while ensuring Arizona can effectively collect taxes and oversee this growing industry.”
Michigan Attorney General Dana Nessel (D) said that, “By reducing the risk of crime and improving tax compliance through access to regulated financial services, the SAFER Banking Act has the ability to enhance both public safety and transparency.”
“With billions in revenue, giving cannabis businesses a secure place to bank isn’t just smart policy—it’s common sense,” she said.
Colorado Attorney General Phil Weiser (D), meanwhile, said he’s “been urging Congress to allow cannabis companies to access the commercial banking system for years because of the safety risks many cannabis companies take on simply to do business.”
“This commonsense reform will also make it easier for Colorado to oversee the industry, better protecting consumers, public safety, and public health,” he said.
Meanwhile, the Democratic Senate sponsor of the marijuana banking bill recently said that, despite efforts to coordinate meetings around the legislation, other priorities have taken precedence for now.
Asked about recent comments Sen. Bernie Moreno (R-OH)—the lead GOP sponsor of the SAFER Banking Act this session who told Marijuana Moment that he doesn’t expect the bill to come up until this fall—Sen. Jeff Merkley (D-OR) said, “Hopefully sooner than later in my mind.”
In January, the office of Rep. Dave Joyce (R-OH), who is again leading the effort on the House said, told Marijuana Moment that he would be filing the cannabis banking legislation this session but that its introduction was “not imminent” as some earlier reports had suggested.
A leading anti-marijuana group recently sounded the alarm about a possible attempt to put the cannabis banking measure in a cryptocurrency bill that was advancing on the Senate floor, but that didn’t come to fruition.
With Republicans in control of both chambers and key leadership positions filled by opponents of marijuana legalization, it’s been an open question about whether any cannabis reform legislation stands a chance of passage in the short-term. That’s despite the fact that President Donald Trump endorsed marijuana industry banking access, federal rescheduling and a Florida legalization initiative on the campaign trail. However, he’s been silent on the issue since taking office.
On the House side, a Republican lawmaker said in March he’s hopeful that Congress will be able to get a marijuana banking bill across “the finish line” this session, arguing that the current barriers to financial services for the industry represent a “second tier” of prohibition.
Cannabis industry banking challenges came up in several congressional hearings in March, including a Senate Banking Committee meeting on debanking where senators on both sides of the aisle addressed the lack of financial services access for marijuana businesses.
Meanwhile, in January congressional researchers released a report detailing the subject of debanking—while making a point to address how the marijuana industry’s financial services access problem “sits at the nexus” of a state-federal policy conflict that complicates the debate.
Separately, the Government Accountability Office (GAO) announced in December that it’s convening focus groups comprised of marijuana businesses to better understand their experiences with access to banking services under federal prohibition.
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The industry remains frustrated with the lack of progress on the cannabis banking issue under the last administration.
A Senate source told Marijuana Moment in December that Republican House and Senate leadership “openly and solely blocked” then-Senate Majority Leader Chuck Schumer’s (D-NY) attempt to include the bill in a government funding bill as the session came to a close.
Sens. Elizabeth Warren (D-MA) and Tommy Tuberville (R-AL) had challenged the idea that there was enough GOP support for the SAFER Banking Act to pass on the Senate floor during the lame duck session.
Warren accused certain Republican members of overstating support for the legislation within their caucus, while also taking a hit at Trump for doing “nothing” on cannabis reform during his time in office as he makes a policy pivot ahead of the election by coming out in support of the marijuana banking bill and federal rescheduling.
Sen. John Hickenlooper (D-CO) also recently argued in an interview with Marijuana Moment that the main barrier to getting the marijuana banking bill across the finish line is a lack of sufficient Republican support in the chamber. And he said if Trump is serious about seeing the reform he recently endorsed enacted, he needs to “bring us some Republican senators.”
Prior to becoming House speaker, Rep. Mike Johnson (R-LA) consistently opposed cannabis reform, including on incremental issues like cannabis banking and making it easier to conduct scientific research on the plant.
Meanwhile, on the one-year anniversary of a Senate committee’s passage of the SAFER Banking Act in September, the Congressional Budget Office (CBO) released an analysis on the economic impact of the reform, including the likely increase in federally insured deposits from cannabis businesses by billions of dollars once banks receive protections for servicing the industry.
Separately, the CEO of the financial giant JPMorgan Chase said recently that the company “probably would” start providing banking services to marijuana businesses if federal law changed to permit it.
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Marijuana And CBD Provide ‘Significant Symptom Relief’ For Inflammatory Bowel Disease Patients, Federally Funded Study Finds
A majority of patients with inflammatory bowel disease (IBD) said they felt marijuana and CBD were “beneficial” and provided “significant symptom relief” from their disorder, according to a new federally funded survey-based study.
With support from the National Institutes of Health (NIH), researchers at Case Western Reserve University conducted a survey of IBD patients, inquiring about different treatment options they feel could effectively address the pain and other symptoms associated with their condition.
More than 50 percent of participants who reported using cannabis said they feel it’s an effective therapeutic option, offering “relief from abdominal pain, other pain, stress, anxiety, depression, and nausea/vomiting.”
“The strong support of cannabis and CBD oil as medical treatments and therapeutic effects highlights the potential for cannabis and CBD oil as treatments in IBD,” the study authors said. “Notably, 19.4 percent of IBD patients reported decreased opioid use, and 14.5 percent reported induced remission with cannabis or CBD oil,” the study says.
“The beliefs on the efficacy of cannabis and CBD oil are comparable to that of prescribed medications (e.g., corticosteroids and biologics/immunosuppressants), suggesting that cannabis may be perceived as equally effective. These results show that there exists a strong belief that these substances could be favorable to various IBD symptom relief, including abdominal pain, diarrhea, anxiety, and inflammation.”
The researchers noted that a significant portion of respondents with IBD self-reported using cannabis (54 percent) or CBD (41 percent) for “medical use, symptom relief, pain management, and mental health support.”
“A large proportion, 63 percent, of IBD participants reported that cannabis had a somewhat, very, or extremely beneficial effect in relieving their IBD symptoms, while 57 percent held this belief about CBD oil,” it says.
“Interestingly, we found that IBD patients were more likely to have used cannabis or CBD oil for short-term symptom relief (37 percent and 26 percent, respectively) compared to long-term symptom relief (23 percent and 18 percent, respectively). Such a pattern indicates that, among IBD patients, these substances are considered to be more effective in the management of acute symptoms rather than in the long-term management of the disease.”
The survey-based cross-sectional study involved 139 participants, including 106 IBD patients and 39 non-IBD controls between the ages of 18 and 69.
The authors concluded that the study demonstrated “increasing interest and positive perceptions by IBD patients toward the use of cannabis and CBD oil as complementary or alternative therapies for symptom management.”
It also “highlights the common perception among IBD patients that cannabis and CBD oil are effective therapeutic agents for symptom management, in spite of the lack of conclusive clinical evidence.”
“The findings indicate that a significant proportion of IBD patients use cannabis, notice symptom relief, and prefer its therapeutic use,” the study says.
The results comport with a scientific review of research on the impacts of marijuana on inflammatory bowel diseases such as Crohn’s disease (CD) and ulcerative colitis (UC) that was released last year, finding that cannabinoid therapy helped reduce disease activity and improved quality of life in patients with the chronic diseases.
In March of last year, a separate study in the Journal of Health Research and Medical Science found that “cannabinoids show potential in improving disease activity” and quality of life in patients with ulcerative colitis.
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Author: mscannabiz.com
MScannaBIZ for all you Mississippi Cannabis News and Information.
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