Bradley v. United States of America

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOSHUA BRADLEY, ) CASE NO. 1:19 CV 284

)

Plaintiff, ) JUDGE DAN AARON POLSTER

)

vs. ) MEMORANDUM OPINION

) AND ORDER

UNITED STATES OF AMERICA, et al., )

)

Defendants. )

Pro se Plaintiff Joshua Bradley brings this action against Defendants United States of

America, Matthew G. Whitaker (Acting Attorney General), Thomas E. Brandon (Acting Deputy

Director of U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives), and Regina Lombardo

(Acting Associate Deputy Director of U.S. Bureau of Alcohol, Tobacco, Firearms and

Explosives) (collectively “Defendants”). (Doc. #: 1). Bradley asks this Court to enjoin

Defendants from enforcing 18 U.S.C. § 922 and declare that statute unconstitutional because

application of the statute would interfere with his constitutional right to bear arms under the

Second Amendment, and to equal protection, “if and when” he registers for Ohio’s medical

marijuana program to treat his PTSD1 symptoms. (Id. at 3). Plaintiff has filed a motion to

proceed with the action in forma pauperis (Doc. #: 2) and that motion is granted.

For the reasons that follow, this case is dismissed.

1 “PTSD” is the acronym for post traumatic stress disorder.

A. Background

Plaintiff states that marijuana is legal for medical purposes in a number of states,

including Ohio, and is a Schedule 1 substance under federal law “reserved for drugs with the

greatest potential for abuse and with no medicinal value.” Plaintiff alleges he has been

diagnosed with PTSD, which is one of the conditions in Ohio qualifying for treatment with

medical marijuana, and that he is eligible to register for Ohio’s medical marijuana program.

(Doc. #: 1 ¶¶ 8-12).

But Plaintiff claims that he is unable to register for Ohio’s medical marijuana program

because he possesses firearms and ammunition and 18 U.S.C. § 922, which “prohibits unlawful

drug users from owning firearms or ammunition and prohibits firearm dealers from selling guns

to known drug users,” applies to users of medical marijuana. (Id. ¶ 28). Bradley claims in

Count 1 of the Complaint that the application of § 922 to medical marijuana use violates his

right to keep and bear arms under the Second Amendment. (Id. ¶¶ 24-29). In Count 2, Plaintiff

alleges that application of § 922 to medical marijuana use violates his Fourteenth Amendment

right equal protection because the medical marijuana he is allowed to receive under Ohio law is

classified under federal law as a Schedule 1 substance. (Id. 4-5).

Plaintiff seeks declaratory and injunctive relief. Plaintiff claims that if the Court does

not issue an injunction to prohibit Defendants from enforcing § 922, he will go without the

medical marijuana that he needs to relieve his PTSD symptoms. And without a declaration that

§ 922, ATF2 regulations, and ATF’s “open letter to all federal firearms licensees” violate the

2 “ATF” is an acronym for Bureau of Alcohol, Tobacco, Firearms and Explosives.

-2-

Second and Fourteenth Amendments, he would be subject to felony charges and harassment by

law enforcement if he both registered for Ohio’s medical marijuana program and possessed

firearms. (Id. at 5-6).

B. Standard of Review

Pro se pleadings are held to a less stringent standards than pleadings drafted by lawyers,

and must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). That

said, federal district courts are expressly required by 28 U.S.C. § 1915(e)(2)(B) to screen all in

forma pauperis actions and to dismiss before service any such action that is frivolous or

malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a

defendant who is immune from such relief. The standard for dismissal articulated in Ashcroft v.

Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) with respect to

Fed. R. Civ. P. 12(b)(6) also governs dismissal under § 1915(e)(2)(B) for failure to state a claim.

Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). Therefore, in order to survive scrutiny

under § 1915(e)(2)(B), a pro se complaint “‘must contain sufficient factual matter, accepted as

true, to state a claim for relief that is plausible on its face.’” Id. (quoting Iqbal, 556 U.S. at 678).

C. Analysis

1. 18 U.S.C. § 922

Plaintiff’s complaint centers on 18 U.S.C. § 922, but he does not specify the subsection

which he asks this Court to declare unconstitutional and enjoin enforcement.3 However, based

3 In the Complaint, Plaintiff repeatedly states that “18 U.S.C. § 922” “‘prohibits unlawful drug users from owning

firearms or ammunition and prohibits firearm dealers from selling guns to known drug users.’” (See Doc. #:1 at 1).

-3-

upon the language in the Complaint and Plaintiff’s reference to the Open Letter4 issued by ATF

on September 21, 2011, it appears that Plaintiff is referring to 18 U.S.C. §§ 922(g)(3)5 and

(d)(3).6

The ATF Open Letter was issued to “provide guidance” to federal firearms licensees in

response to “inquiries regarding the use of marijuana for medical purposes and its applicability

to Federal firearms laws and regulations.” The Open Letter provides in relevant part that:

Federal law, 18 U.S.C. § 922(g)(3), prohibits any persons who is an “unlawful user of or

addicted to any controlled substance (as defined in section 102 of the Controlled

Substances Act (21 U.S.C. § 802))” from shipping, transporting, receiving or possessing

firearms or ammunition. Marijuana is listed in the Controlled Substances Act as a

Schedule I controlled substance, and there are no exceptions in Federal law for marijuana

purportedly used for medicinal purposes, even if such use is sanctioned by State law.

Further, Federal law, 18 U.S.C. § 992(d)(3), makes it unlawful for any person to sell or

otherwise dispose of any firearm or ammunition to any person knowing or having

reasonable cause to believe that such person is an unlawful user of or addicted to a

controlled substance. . . . Therefore, any person who uses or is addicted to marijuana,

regardless of whether his or her State has passed legislation authorizing marijuana for

medical purposes, is an unlawful user of or addicted to a controlled substance, and is

prohibited by Federal law from possessing firearms or ammunition.

September 21, 2011 ATF “Open Letter to all Federal Firearms Licensees” (emphasis in

original).

2. Plaintiff lacks standing

The Court has jurisdiction over this matter under 28 U.S.C. § 1331, but the Court

nevertheless lacks jurisdiction to proceed if Plaintiff does not have standing to pursue this case.

4 The Open Letter may be found on the ATF public website: https://www.atf.gov/file/60211/download.

5 Section 922(g)(3) criminalizes possession or receipt of a firearm by an unlawful drug user or a person addicted

to a controlled substance.

6 Section 922(d)(3) bans the sale of firearms to individuals whom firearm sellers have reasonable cause to believe

are drug users.

-4-

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “For standing, a party must

establish: ‘(1) ... an injury in fact ...; (2) the injury is fairly traceable to the conduct of defendant;

and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a

favorable decision. In the context of a declaratory judgment action, allegations of past injury

alone are not sufficient to confer standing. The plaintiff must allege and/or demonstrate actual

present harm or a significant possibility of a future harm.’” Gawry v. Countrywide Home Loans,

Inc., 640 F. Supp. 2d 942, 963 (N.D. Ohio 2009) (quoting Fieger v. Michigan Supreme Court,

553 F.3d 955, 962 (6th Cir. 2009)), aff’d, 395 F. App’x 152 (6th Cir. 2010). In the context of

injunctive relief, a plaintiff “must demonstrate a ‘personal stake in the outcome’ in order to

‘assure that concrete adverseness which sharpens the presentation of issues’ necessary for the

proper resolution of constitutional questions. Abstract injury is not enough. The plaintiff must

show that he ‘has sustained or is immediately in danger of sustaining some direct injury’ as the

result of the challenged official conduct and the injury or threat of injury must be both ‘real and

immediate,’ not ‘conjectural’ or ‘hypothetical.’” Plinton v. Cty. of Summit, No. 506-CV-1872,

2007 WL 527866, at *1 (N.D. Ohio Feb. 14, 2007) (quoting L.A. v. Lyons, 461 U.S. 95, 101-02

(1983)), aff’d, 540 F.3d 459 (6th Cir. 2008).

Plaintiff alleges that he possesses firearms and ammunition, and that he “will lose his

RIGHT TO KEEP AND BEAR FIREARMS, if and when he registers for the Ohio

Medical Marijuana Program.” (Doc. #:1 ¶ 18 (emphasis in original)). But Plaintiff’s “if and

when” intention to register for Ohio’s medical marijuana program is too speculative to establish

standing.

-5-

“[I]n Lujan, the [Supreme] Court concluded that the petitioners failed to establish

standing because ‘some day’ intentions – without ... any specification of when the some day will

be – do not support a finding of the ‘actual or imminent’ injury that our cases require.”

Stevenson v. W. & S. Mut. Holding Co., No. 1:11-CV-01354, 2012 WL 1035726, at *2 (N.D.

Ohio Mar. 27, 2012) (some internal quotation marks omitted) (emphasis in original) (quoting

Lujan, 504 U.S. at 564 (affiants’ intent to return to the places they had visited before where, this

time, they will presumably be deprived of the opportunity to observe animals of the endangered

species, is simply not enough to support a finding of actual or imminent injury)); Lujan, 504

U.S. at 564 n. 2 (the concept of imminence “has been stretched beyond the breaking point when,

as here, the plaintiff alleges only an injury at some indefinite future time ...”).

Moreover, “Section 922(g)(3) criminalizes possession or receipt of a firearm by a

unlawful drug user or a person addicted to a controlled substance.” Wilson v. Lynch, 835 F.3d

1083, 1090 (9th Cir. 2016). While Plaintiff alleges that he possesses a firearm, he does not

allege that he is an unlawful drug user or is addicted to a controlled substance. Thus, Plaintiff

“has not shown has not shown a ‘genuine threat of imminent prosecution’ under § 922(g)(3), as

is generally required of plaintiffs raising pre-enforcement challenges to criminal statutes outside

the First Amendment context.” Id. (finding that plaintiff who did not allege she was an unlawful

drug user or addicted to a controlled substance, or that she possessed a firearm, lacked standing

to challenge 18 U.S.C. § 922(g)(3)) (emphasis in original) (citing San Diego Cty. Gun Rights

Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996)). Nor does Plaintiff allege facts which

support standing to challenge § 922(d)(3). He does not claim that he has an Ohio medical

marijuana registry card, or other indicia of unlawful drug use, that would provide firearm sellers

-6-

with reasonable cause to believe he is a drug user and, therefore, refuse to sell him a firearm

pursuant to § 922(d)(3). Id. at 1091 (Plaintiff possessing a Nevada medical marijuana registry

card, but not alleging that she uses marijuana or unlawful drugs, has standing to challenge §

922(d)(3) because possession of registry card gives firearm sellers reasonable cause to believe

she is a drug user).

“Standing is an Article III principle: without standing, a federal court cannot exercise

jurisdiction because there is no case or controversy.” Mitchell v. BMI Fed. Credit Union, 668

(S.D. Ohio 2019) (citing Lujan, 504 U.S. at 560; U.S. Const. art. III, § 2). The party invoking

federal subject matter jurisdiction has the burden of establishing all the requirements necessary

to establish standing. Lujan, 504 U.S. at 561 (citations omitted). This Plaintiff has failed to do,

and this case is dismissed for lack of jurisdiction.

3. Plaintiff fails to state a plausible claim

Even if Plaintiff’s allegations were sufficient to establish standing, his Complaint would

nevertheless be subject to summary dismissal pursuant to § 1915(e)(2)(B). As Plaintiff freely

acknowledges, marijuana is an unlawful drug under federal law (which does not recognize any

medical benefit to the use of that drug), and §§ 922 (d)(3) and (g)(3) bar the possession of

firearms by, and sale of firearms to, unlawful drug users. This action is not the first to challenge

§§ 922(d)(3) and (g)(3) in states which have legalized medical marijuana with respect to

whether enforcement of those statutes violate the card holder’s rights under the Second

Amendment and to equal protection. Other courts considering these issues have concluded that

§§ 922(d)(3) and (g)(3) do not violate the constitutional rights of a medical marijuana cardholder

under the Second Amendment or to equal protection. See Wilson, 835 F.3d at 1092-99; Gibson

-7-

v. Holder, No. 3:14 CV 641 (MCR/EMT), 2015 WL 5635125, at *12 (N.D. Fla. Aug. 3, 2015)

(finding that holder of California medical marijuana card challenging 18 U.S.C. § 922(g)(3) fails

to state a plausible claim, noting that “[e]very circuit court to have considered the issue of the

constitutionality of § 922(g)(3) under the Second Amendment has affirmed its constitutionality”)

(citing United States v. Carter, 750 F.3d 462 (4th Cir. 2014); United States v. Dugan, 657 F.3d

998, 999 (9th Cir. 2011); United States v. Yancey, 621 F.3d 681, 682 (7th Cir. 2010) (per

curiam); United States v. Seay, 620 F.3d 919, 924-25 (8th Cir. 2010); United States v. Patterson,

431 F.3d 832, 835-36 (5th Cir. 2005); United States v. Richard, 350 F. App’x 252, 260 (10th

Cir. 2009)), report and recommendation adopted, No. 3:14CV641/MCR/EMT, 2015 WL

5634596 (N.D. Fla. Sept. 23, 2015); see also United States v. Bellamy, 682 F. App’x 447 (6th

Cir. 2017) (affirming conviction for possession of a firearm by an unlawful user of a controlled

substance, notwithstanding that defendant possessed a medical marijuana card from Michigan,

as marijuana is Schedule I controlled substance under federal statute and the ATF had issued an

open letter to all federal firearms licensees putting them on notice that any person who used

marijuana was an unlawful user prohibited from possessing firearms or ammunition regardless

of whether their state had passed legislation authorizing medical use for medicinal purposes)

(citing 18 U.S.C. § 922(g)(3); 21 U.S.C. § 812; Wilson, 835 F.3d at 1099); United States v.

Patterson, 431 F.3d 832, 835-36 (5th Cir. 2005) (“Prohibiting unlawful drug users from

possessing firearms is not inconsistent with the right to bear arms guaranteed by the Second

Amendment ... [and] Section 922(g)(3) survives Patterson’s constitutional challenge.”); United

States v. Hicks, 722 F. Supp. 2d 829, 934-35 (E.D. Mich. 2010) (defendant’s possession of

marijuana, even if it was for medicinal purposes authorized under Michigan law, violated the

-8-

federal Controlled Substances Act and, therefore, the conditions of defendant’s supervised

release); Kenneth Seligson, A Job for Congress: Medical Marijuana Patients’ Fight for Second

Amendment Rights, 48 Golden Gate U. L. Rev. 63, 77 (2018) (“[U]ntil medical marijuana

patients are deemed law-abiding under federal law, or an exception is created, their Second

Amendment challenges will always fail. Because the courts cannot provide an appropriate

remedy due to the Supremacy Clause, Congress or the executive branch are the proper

institutions to protect medical marijuana patients’ Second Amendment rights.”).

Marijuana is a Schedule 1 controlled substance under federal law with no acceptable

medical use for treatment and is unlawful notwithstanding any state law authorizing medical use

for medicinal purposes. See Bellamy, 682 F. App’x at 450-51. Congress may prohibit illegal

drug users from possessing firearms given the danger presented by users of controlled

substances, and such prohibition does not violate the Second Amendment. Nor does Congress’

prohibition on the sale of firearms to individuals whom sellers have reasonable cause to believe

are drug users, including medical marijuana card holders, violate the holders’ constitutional right

to constitutional equal protection. Wilson, 835 F. 3d at 1098 (§ 922(d)(3) is reasonably related

to reducing gun violence and neither the statute, implementing regulations, nor the Open Letter

violate the equal protection clause); Wilson v. Holder, 7 F. Supp. 3d 1104, 1116 (D. Nev. 2014)

(Second Amendment challenge to § 922(g)(3) fails given that the Ninth Circuit in Dugan, 657

F.3d at 999-1000 joined the Seventh and Eighth Circuit in broadly holding that Congress may

prohibit illegal drug users from possessing firearms.), aff’d sub nom. Wilson, 835 F.3d 1083;

Roberge v. United States, No. 1:04-CR-70, 2013 WL 4052926, at *19 (E.D. Tenn. Aug. 12,

2013) (“All federal courts that have addressed post-[District of Columbia v. Heller, 544 U.S.

-9-

570 (2008)] Second Amendment challenges to 18 U.S.C. § 922(g)(3) have consistently upheld

the statute.”) (citing Dugan, 657 F.3d 998; United States v. Thomas, 426 F. App’x. 459, 461 (7th

Cir. 2011); Yancey, 621 F.3d 681; Seay, 620 F.3d 919; Richard, 350 F. App’x. 252; United

States v. Conrad, 2013 WL 546373 (W.D. Va. Feb.13, 2013); United States v. Emond, 2012 WL

4964506 (D. Me. Oct.17, 2012); United States v. Stacy, 2010 WL 4117276 (S.D. Cal. Oct.18,

2010)).

Based on the facts alleged in the Complaint, which the Court liberally construes in

Plaintiff’s favor, the Court finds no basis upon which to depart from these reasoned lines of

cases to reach a different result. Accordingly, Plaintiff fails to state a plausible constitutional

challenge to 18 U.S.C. §§ 922(d)(3) and (g)(3), and this case is subject to dismissal pursuant to §

1915(e)(2) for this additional reason.

D. Conclusion

For all of the foregoing reasons, this action is dismissed in its entirety pursuant to 28

U.S.C. § 1915(e). Plaintiff’s motion to proceed in forma pauperis is granted.

The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision

could not be taken in good faith.7

IT IS SO ORDERED.

s/ Dan Aaron Polster 8/14/2019

DAN AARON POLSTER

UNITED STATES DISTRICT JUDGE

7 28 U.S.C. § 1915(a)(3) provides:

An appeal may not be taken in forma pauperis if the trial court certifies that it is not taken in good

faith.

-10-