Fried v. Garland

640 F.Supp.3d 1252

Nicole FRIED, et al., Plaintiffs, v. Merrick GARLAND, et al., Defendants.

Case No. 4:22-cv-164-AW-MAF

United States District Court, N.D. Florida, Tallahassee Division

Signed November 4, 2022

Daniel Ryan Russell, Jordane Phillip Wong, William Dean Hall, III, Dean Mead, Tallahassee, FL, for Plaintiffs Nicole Fried, Vera Cooper.

Adam Jared Komisar, Daniel Ryan Russell, Jordane Phillip Wong, William Dean Hall, III, Dean Mead, Tallahassee, FL, for Plaintiff Nicole Hansell.

Daniel Ryan Russell, Jordane Phillip Wong, William Dean Hall, III, Dean Mead, Tallahassee, FL, Ryan Alan Yeary, Caminez & Yeary PA, Monticello, FL, for Plaintiff Neill Franklin.

Jeremy S. Newman, DOJ-CIV, Civil Division - Federal Programs Branch, Washington, DC, for Defendants.

ORDER OF DISMISSAL

Allen Winsor, United States District Judge

Federal law prohibits certain people from possessing firearms. 18 U.S.C. § 922(g). Among them are convicted felons, fugitives from justice, and—relevant here—anyone "who is an unlawful user of or addicted to any controlled substance." Id. As the parties agree, Florida's medical marijuana users are "unlawful user[s] of . . . [a] controlled substance," so this law makes it a crime for them to possess firearms. The primary issue in this case is whether the Second Amendment allows this result.

I.

A.

In 2016, Florida stopped criminalizing the medical use of marijuana. Many people refer to this change as Florida's "legalizing" medical marijuana, but Florida did no such thing. It couldn't. "Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits," United States v. McIntosh, 833 F.3d 1163, 1179 n.5 (9th Cir. 2016), and federal law still prohibits possession of marijuana—for medical purposes or otherwise, see 21 U.S.C. §§ 841(a), 844(a); see also 21 U.S.C. § 812, Sch. I(c)(10), § 812(b)(1)(B). Indeed, federal law "designates marijuana as contraband for any purpose" and "prohibit[s] entirely [its] possession." Gonzales v. Raich, 545 U.S. 1, 24, 27, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005).¹

So while Florida (like many states) has decided it will no longer criminalize medical marijuana, the simple fact is that "[a]nyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes . . . is committing a federal crime." McIntosh, 833 F.3d at 1179 n.5.

As anyone driving by Florida's many marijuana dispensaries can see, though, federal law is not always enforced. In fact, through a series of appropriations riders—frequently called the Rohrabacher-Farr Amendment—"Congress has prohibited the Department of Justice from 'spending funds to prevent states' implementation of their own medical marijuana laws.' " See Standing Akimbo, LLC v. United States, — U.S. —, 141 S. Ct. 2236, 2237, 210 L.Ed.2d 974 (2021) (Thomas, J., respecting the denial of certiorari) (quoting McIntosh, 833 F.3d at 1175-77)). So Congress has precluded the Department of Justice (for now) from prosecuting crimes that Congress (for now) chooses to maintain on the books. Cf. id. at 2236-37 (Thomas, J.) (explaining that "the Federal Government's current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana").

Three Plaintiffs want to participate in Florida's medical marijuana system while possessing guns. But as things stand, their use of medical marijuana—their "unlawful use[ ] . . . of a controlled substance"—makes any gun possession a felony, punishable by up to 15 years in prison. See 18 U.S.C. § 924(a)(8). That is the situation Plaintiffs challenge. They contend that this violates their Second Amendment right to keep and bear arms. And they contend a federal firearms prosecution would violate the Rohrabacher-Farr Amendment.

B.

Plaintiffs are Florida Commissioner of Agriculture Nicole Fried (the "Commissioner"), and three individuals who want to use medical marijuana and possess guns. The Commissioner oversees the issuance of Florida's concealed carry licenses and separately oversees the agriculture-related aspects of Florida's medical marijuana program. ECF No. 12 (Am. Compl.) ¶¶ 25-27. Plaintiffs Vera Cooper and Nicole Hansell currently participate in Florida's medical marijuana program. Id. ¶¶ 29-30, 32-33. They want to purchase firearms for personal protection, and they unsuccessfully tried to do so. Id. ¶¶ 31, 33-34. After they acknowledged on ATF forms that each was "an unlawful user of, or addicted to, marijuana . . . or any other controlled substance," they were unable to buy guns. Id. Plaintiff Neill Franklin is a Florida resident and gun owner. Id. ¶¶ 35-37. He has a qualifying medical condition and would like to participate in Florida's medical marijuana program. Id. But he is not using marijuana because his gun ownership would expose him to prosecution under the federal laws Plaintiffs challenge. Id. ¶ 37.

Defendants are Attorney General Merrick Garland; Director of the Bureau of Alcohol, Tobacco Firearms, and Explosives ("ATF") Steven Dettelbach; and the United States. See Am. Compl.² The United States and ATF enforce the criminal laws at issue, and ATF promulgated the regulation defining "[u]nlawful user." ECF No. 14 at 15.³ ATF also created the form mentioned above. Id. (citing Form 4473). The form asks if the transferee is "an unlawful user of . . . marijuana," and it warns that "[t]he use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside." ECF No. 12-2 at 2.

Plaintiffs bring four counts. Counts I and II seek declaratory and injunctive relief based on the Second Amendment. Plaintiffs specifically challenge 18 U.S.C. § 922(g)(3) and (d)(3), ATF Form 4473, and 27 C.F.R. § 478.11, which together prohibit the purchase or possession of firearms by medical marijuana users. Section 922(g)(3) prohibits unlawful drug users from possessing firearms. And § 922(d)(3) prohibits selling them firearms.

Counts III and IV seek declaratory and injunctive relief based on the Rohrabacher-Farr Amendment. That provision prohibits the Department of Justice from using appropriated funds "to prevent [States] from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana." Consolidated Appropriations Act, 2022, Pub. L. No. 117-103, § 531, 136 Stat. 49 (2022).⁴

Defendants moved to dismiss, ECF No. 13, contending that Plaintiffs lack standing and have not stated a claim for relief, ECF No. 14 at 12. Plaintiffs responded, ECF No. 15, and the court held a hearing. Having carefully considered the parties' arguments, I now grant the motion to dismiss. As explained below, I conclude that Plaintiffs have standing but that their claims fail on the merits.

II.

"Because standing to sue implicates jurisdiction, a court must satisfy itself that the plaintiff has standing before proceeding to consider the merits of her claim, no matter how weighty or interesting." Lewis v. Governor of Ala., 944 F.3d 1287, 1296 (11th Cir. 2019) (en banc). To have standing, "[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). At this stage, Plaintiffs "must 'clearly allege facts demonstrating' each element" of standing. Id. (cleaned up) (quoting Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). And they must show the elements of standing for each separate claim. Davis v. Fed. Election Comm'n, 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008).

The government concedes that Cooper and Hansell have standing for their Second Amendment claim. I nonetheless examine the issue because federal courts must independently ensure they have jurisdiction. Summers v. Earth Island Inst., 555 U.S. 488, 499, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009).

Plaintiffs allege that Cooper and Hansell could not buy firearms because they are "unlawful users" of marijuana. Id. ¶¶ 30-31, 33-34. They also allege that Defendants enforce the laws that keep Cooper and Hansell from purchasing firearms. Id. This is enough to plead injuries fairly traceable to Defendants' actions. And a favorable decision would redress those injuries by allowing Cooper and Hansell to purchase and possess firearms. Cooper and Hansell have standing as to this claim.

Because "the presence of one party with standing is sufficient to satisfy Article III's case-or-controversy requirement," Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 52 n.2, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006), I need not address the remaining Plaintiffs' standing. Still, the government argues (and with some force) that the Commissioner lacks standing because she alleged no cognizable injury. ECF No. 14 at 22-24; ECF No. 16 at 7-10. And it insists I should determine the Commissioner's standing now because the scope of available relief depends on who brings the claim. See ECF No. 16 at 7-8 (arguing that "the scope of any injunction may be narrower if no state official is a plaintiff"). But a court can tailor the scope of the relief at the remedy phase, if necessary. See Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1327 (11th Cir. 2019). For now, it is enough that at least one plaintiff has standing for the Second Amendment claim.

At least one Plaintiff also has standing for the Rohrabacher-Farr Amendment claim, notwithstanding the government's contrary argument. The Amended Complaint alleges that Franklin wants to participate in Florida's medical marijuana program but will not do so because, as a gun owner, his using marijuana could lead to his criminal prosecution. Am....