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Three Consequences of Using Marijuana After Your State “Legalizes”

Posted by Anthony Kuhn
security clearance and marijuana

States across the country are claiming to have legalized marijuana. While they have the authority to do so for State law only, marijuana still remains an illegal Schedule 1 drug and controlled substance to the Federal government. Many people, including gun owners, security clearance holders, and service members will soon learn that marijuana use is certainly still illegal. Anybody falling into one or more of these categories has three major concerns.

1. Marijuana users will fail future NICS firearm background checks

This is a collateral consequence that many fail to consider. Marijuana users are considered to be Prohibited Persons. Question 21(e) of the NICS questionnaire (ATF Form 4473 (5300.9)) asks, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” To give you an idea of how serious the Federal government considers the issue of marijuana use to be, the remaining sub-questions in section 21 (Prohibited Persons) deal with felony arrests and fugitives from justice. The key words to focus on in question 21(e) are “unlawful” and “user.”

Marijuana is illegal in the United States. There can be no lawful use of marijuana in any state. Therefore, all marijuana use is illegal with regard to the Federal government and the aforementioned form. That said, the question asks if you are a user. This question, for now, fails to address possession, distribution, or investments in marijuana. As written, you are not presently required to disclose if you have possessed, distributed, or invested in marijuana manufacturing or distribution through dispensaries or other means. If you intend to visit a dispensary, you will need to provide ID, which will create a record of your purchase. There are avenues to pursue an appeal of the NICS determination, but the process can be difficult to navigate in most states.

2. Marijuana users will have their security clearances denied or stripped

Not all clearance applicants understand that all forms of marijuana use are illegal. Some applicants and clearance holders occasionally visit dispensaries for recreational use or claim that their marijuana use is for medicinal purposes. Regardless of whether the purchase is at a dispensary or the user has a marijuana card, the Federal government considers the use to be illegal.

Guideline H (Drug Involvement and Substance Misuse) of the National Security Adjudicative Guidelines explains that use of controlled substances “can raise questions about an individual’s reliability and trustworthiness, both because such behavior may lead to physical and psychological impairment and because it raises questions about a person’s ability or willingness to comply with laws, rules, and regulations.” Additionally, the SF-86 (Questionnaire for National Security Positions) specifically asks about illegal use, purchase, manufacture, cultivation, trafficking, production, transfer, shipping, receiving, handling or sale (See SF-86, Section 23). Clearly, this goes well beyond including just marijuana users. This includes investing in stocks and dispensaries. As previously stated, the Federal government considers marijuana to be a Schedule 1 controlled substance. Prior marijuana use is not a bar from obtaining a security clearance, but it will make obtaining a favorable adjudication more difficult.

3. Marijuana users will be processed for separation from their military branch

Some service members are tempted to visit local dispensaries in states that claim to have legalized marijuana. Again, you will create a record of visiting that dispensary and of any purchases made. The government does not differentiate between smoking and edibles. Even most CBD products contain a small amount of THC, which is a problem for policies that are considered to be zero tolerance. The record created during a visit to a dispensary might later be used to administratively separate the service member for violations of the UCMJ.

Article 112a of the UCMJ (10 U.S. Code § 912a) deals with wrongful use, possession, manufacturing, distribution, importation and exportation of controlled substances. Article 112b lists the specific substances, which includes marijuana. Therefore, a service member involved in using, possessing, manufacturing, or distributing marijuana in any state or country is in violation of the UCMJ. That service member’s military branch might exercise a mandatory processing for separation policy, initiating separation proceedings against a service member believed to be in violation of Article 112a. The service member has due process and can challenge the action in an Administrative Separation Board or Court-Martial.

While marijuana use might appear to be legal in your state, you should consider your relationship to the Federal government. Consider that, for now, the Federal government still considers marijuana to be a controlled substance and illegal drug, and that they might choose to enforce Federal laws under certain circumstances. Ask yourself if the benefits outweigh the risks.

Anthony Kuhn is a Managing Partner at Tully Rinckey PLLC and Chair of the firm’s National Security and Military Law practice groups. He is a combat veteran with nearly 25 years of service in the United States Army and Army Reserve, an adjunct professor and co-director of the Veterans Law Practicum at the University at Buffalo School of Law, the current Chair of the Erie County Bar Association’s Committee for Service Members and Veterans’ Legal Issues, Chair of the VETCON Alliance, and a member of the NYS Discharge Upgrade Advisory Board.

This entry was posted on Tuesday, April 27, 2021 10:42 am

9 thoughts on “Three Consequences of Using Marijuana After Your State “Legalizes””

    1. Simply ask. If that didn’t work go to a state, then Federal, court and require the records for any plausible reason(s).

      The article is a good reminder. Weed makes you lazy. Who needs to be more lazy?

    2. They would simply ask to start communicating with the state(s) on the issue. It is entirely plausible that the state and/or federal government could build out a database to monitor marijuana users for the purposes of gun control just that there are now databases that track fingerprints, DNA and other information. I expect that one or more gun control politicians will push this agenda at some point soon.

  1. Guess I’ll go work for Elon or another billionaire instead. Uncle Sam will miss out on all the good talent. Langley & Ft Meade already know this.

    1. Agreed. The government will miss out on some good talent. Many good people have their clearance denied or revoked over marijuana use. The medicinal marijuana cases are the most frustrating for many of use security clearance attorneys. Often, the applicant has no idea they are being prescribed by a doctor what the federal government considers to be an illegal substances. Luckily, we can mitigate the issue in many of these cases.

  2. How much time is required to pass after surrendering a medical marijuana card in order to no longer be considered a “user” in regards to firearm background checks?

    1. You are no longer a “user” of marijuana when you discontinue use. For the purposes of a firearm, you could truthfully answer no if you have quit using marijuana. There is no question related to time of last use. For a clearance, the period the adjudicator is most interested in is the last 7 years. They will consider both recency and frequency. Many people with clearances have used marijuana, it’s just easier to mitigate if it was infrequent and/or happened a year or more before applying.

  3. This Stupid Biden Administration is after our weed he still will criminalize it no matter what, F*ck this people F*ck Democrats they want to screw with our rights on the use of Cannabis.

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