Prompted by the Supreme Court to try again, the Fifth Circuit reiterated its stance on the federal gun ban for marijuana users on Monday.
A unanimous panel once again tossed Patrick Darnell Daniels’ felony conviction for being in possession of firearms and “marihuana cigarette butts” (SIC) during a routine traffic stop. It found that the federal gun ban for illegal drug users cannot be constitutionally enforced against an occasional smoker who wasn’t shown to be high at the time of his arrest.
“Daniels’s § 922(g)(3) conviction is inconsistent with our ‘history and tradition’ of gun regulation,” Judge Jerry E. Smith wrote in US v. Daniels. “We do not invalidate the statute in all its applications, nor do we decide that § 922(g)(3) could never cover the conduct of which Daniels stands accused. But applications of § 922(g)(3) must accord with our nation’s history of firearm regulations, and disarming individuals solely for their prior, occasional, or habitual marihuana use does not.”
The decision reinstates the conclusion reached by the same panel in the same case in August 2023. The Supreme Court vacated and remanded that ruling to be reconsidered in light of its US v. Rahimi opinion. With Daniels’ outcome unchanged, the streak of Rahimi-prompted remands returning with the same outcome remains universally intact. That sets the Supreme Court up to decide the issue if it wants to.
While the Daniels panel reached the same ultimate outcome it did before, its analysis did change slightly. That’s because two months after the Supreme Court vacated its previous holding, a separate Fifth Circuit panel issued its own ruling striking down the federal gun ban for drug users as applied to another marijuana smoker in U.S. v. Connelly.
“In that case, we held that the government could not constitutionally apply § 922(g)(3) to a defendant based solely on her ‘habitual or occasional drug use,’” Judge Smith wrote. “That case controls this one.”
The Connelly court’s historical inquiry of firearms regulations for substance users found analogous support for laws that ban individuals from carrying firearms while actively intoxicated but not for “habitual or occasional drug use.”
“This panel is bound to follow Connelly under the rule of orderliness, so we must once again find § 922(g)(3) unconstitutional as applied to Daniels unless the government can show that Daniels was disarmed for reasons above and beyond habitual or occasional marihuana use,” Smith wrote.
He added that because the jury that ultimately convicted Daniels was never asked to decide whether he was an active or continuous drug user, only that he had consumed marijuana “recently enough” to his possessing firearms, his conviction must be overturned.
“In other words, the government’s burden of proof was too low, as it was not required to convince a jury that Daniels was presently or even regularly intoxicated at the time of arrest,” he wrote. “Because of this instructional error, § 922(g)(3) must thus again be held unconstitutional as applied to Daniels.”
Judge Stephen Higginson wrote separately to agree with the panel’s decision but also emphasized his view that it should be construed narrowly.
“As I interpret Connelly, we stated that a conviction under § 922(g)(3) is historically rooted, and thus constitutionally sufficient, when the temporal nexus is one of contemporaneity—meaning the jury found that the defendant possessed a firearm while presently (that is, actively) using controlled substances unlawfully,” he wrote in a concurrence. “Because the jury instruction here allowed the jury to convict Daniels based solely on the conclusion that he had used drugs weeks before he was found in possession of firearms, I would say no more than that his conviction is unconstitutional under Connelly’s binding precedent.”
