In late 2021, the El Paso Police Department responded to a “shots fired” call at the home of John and Paola Connelly. Their neighbor reported that John had threatened him with a machete and demanded that he apologize to John. Upon arrival, the police observed John standing at the home of his neighbor, firing a shotgun. The police arrested John and then spoke with Paola. During that conversation, Paola told officers that John and the neighbor used crack and powdered cocaine together and indicated that she smoked marijuana as a sleep aid and to reduce anxiety. A police sweep of the home turned up drugs, drug paraphernalia and what appeared to be a marijuana greenhouse. There was marijuana, THC edibles, psylocibin, rolling papers, baggies, jars, vape pens, a glass pipe, water bongs, and a grinder, all with marijuana residue. The police also found firearms, ammunition and other weapons scattered throughout the bedroom, living room, and dining area. In the bedroom, police found at least five firearms. Several of them belonged to Paola.
Paola was federally charged with violating § 922(g)(3) for possessing firearms and ammunition as an unlawful user of a controlled substance, and § 922(d)(3) for providing firearms and ammunition to an unlawful user of a controlled substance. Paola prevailed on her second motion to dismiss at the district court, relying on New York State Rifle & Pistol Association, Inc. v. Bruen and the Circuit Court decision in United States v. Rahimi to successfully argue that each offense was a facial violation of the Second Amendment, and that § 922(g)(3) was unconstitutional as applied to her. The government appealed.
The Fifth Circuit affirmed in part and reversed in part. Applying the “history and tradition” test, as formulated in Bruen, the Court found that each law was facially consistent with the Second Amendment. Paola could not establish that “no set of circumstances exists under which [§ 922(g)(3)] would be valid,” because there are sets of circumstances where application of the law would be valid, namely, “banning presently intoxicated persons from carrying weapons.” The analysis for § 922(d)(3) proceeded along the same lines. As the Court put it, “If one can be indicted for being presently intoxicated when arrested with a firearm without violating the Second Amendment it follows that one could be similarly indicted for providing a presently intoxicated individual with a firearm. For this reason, the historical evidence that supports § 922(g)(3)’s facial constitutionality supports § 922(d)(3)’s too.”
Having found that the laws themselves were not facially unconstitutional, the Court still found that § 922(g)(3), as applied to Paola, was in fact unconstitutional, and affirmed the ruling of the district court. Applying the “history and tradition” test, the Court rejected the government’s argument that § 922(g)(3) had historical analogues in American laws regarding intoxication, disarming the mentally ill, and disarming “dangerous” individuals. The laws provided by the government were not “relevantly similar” to § 922(g)(3), the Court held, quoting Rahimi.
“Boiled down, § 922(g)(3) is much broader than historical intoxication laws. These laws may address a comparable problem – preventing intoxicated individuals from carrying weapons – but they do not impose a comparable burden on the right holder. As applied to Paola, § 922(g)(3) restricts her rights more than would any of the historical and traditional laws highlighted by the government. Paola stated that she would at times partake in marijuana as a sleep aid or to help with anxiety, but we do not know how much she used at those times or when she last used, and there is no evidence that she was intoxicated at the time she was arrested. Under the government’s reasoning, Congress could ban gun possession by anyone who has multiple alcoholic drinks a week from possessing guns based on the intoxicated carry laws.”
For years, § 922(g) has made the issue of marijuana for police officers straightforward. If you were an unlawful user of marijuana, you could not carry a gun; if you could not carry a gun, you could not be a police officer. But beginning with Bruen and continuing through Rahimi and now Connelly, the nation’s highest federal courts have become increasingly receptive to the notion that past substance abuse is not a sound constitutional basis for “disarming a sober person.” Continuing challenges to § 922(g) could remove the single-largest obstacle to medical or recreational marijuana use by police officers and other public safety personnel. As the relaxation of state and federal restrictions on medical and recreational marijuana use continues apace, the interplay with that new judicial tendency will grow in relevance for public safety unions.
United States v. Connelly, No. 23-50312, 2024 WL 3963874 (5th Cir., 2024).