Amicus Curiae Brief — United States, Petitioner v. Ali Danial Hemani

Supreme Court briefJan 29, 2026

Ask Donna

What actually matters in this document.

Text

No. 24-1234

In the

Supreme Court of the United States

UNITED STATES,

Petitioner,

ALI DANIAL HEMANI,

Respondent.

On Writ of Certiorari to the United States

Court of A ppeals for the Fifth Circuit

BRIEF OF DRUG POLICY ALLIANCE

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

Kellen Russoniello

Director of Public Health

Drug Policy A lliance

P.O. Box 811

San Leandro, CA 94577

Zachary J. Stern

Counsel of Record

Stern Law

1900 Hines Street SE,

Suite 110

Salem, OR 97302

(503) 673-6736

zstern@zstern.com

Attorneys for Amicus Curiae

Drug Policy Alliance

389733

(800) 274-3321 • (800) 359-6859

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICUS ............................................ 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 3

THE STATUTE IS VOID FOR

VAGUENESS.................................................. 3

Because Most Americans Have Used

Drugs, the Statute’s Sweep is

Potentially Vast........................................ 6

Congress Distinguished “Unlawful

Users” from “Addicts,” Implying that

“Use” Has a Different Meaning than

“Habitual Use.” ........................................ 8

The Statute Provides No Standard

for Timing, Frequency, or Nexus to

Firearm Possession, Potentially Subjecting Tens of Millions of Americans

to Criminal Penalties for Activity

that is Otherwise Constitutionally

Protected................................................. 11

The Statute Does Not Provide Fair

Notice to Millions of Americans Who

May be Subject to a Felony Conviction and a Prohibition on Future

Gun Possession for Exercising

Otherwise Constitutionally Protected

Rights ..................................................... 14

II.

MARIJUANA USE IS NOT A SOUND

PROXY FOR DANGEROUSNESS .............. 19

III. ARBITRARY ENFORCEMENT OF THE

VAGUE STATUTE WILL EXACERBATE RACIAL DISPARITIES ..................... 23

CONCLUSION.......................................................... 28

TABLE OF AUTHORITIES

Page(s)

Cases

City of Chicago v. Morales,

527 U.S. 41 (1999) ................................................. 26

District of Columbia v. Heller,

554 U.S. 570 (2008).................................................. 7

Gonzales v. Raich,

545 U.S. 1 (2005) ..................................................... 1

Johnson v. United States,

576 U.S. 591 (2015).................................................. 4

Kolender v. Lawson,

461 U.S. 352 (1983).................................................. 4

Liparota v. United States,

471 U.S. 419 (1985)................................................ 11

Loughrin v. United States,

573 U.S. 351 (2014)................................................ 10

Ruan v. United States,

597 U.S. 450 .......................................................... 11

Sessions v. Dimaya,

584 U.S. 148 (2018).................................................. 3

Smith v. Goguen,

415 U.S. 566 (1974)............................................ 4, 26

Standing Akimbo, LLC v. United States,

141 S. Ct. 2236 (2021) ........................................... 15

Timbs v. Indiana,

586 U.S. 146 (2019).................................................. 1

iii

United States v. Augustin,

376 F.3d 135 (3d Cir. 2004) ................................... 13

United States v. Bowens,

938 F.3d 790 (6th Cir 2019) .................................. 13

United States v. Carnes,

22 F.4th 743 (8th Cir. 2022) .................................. 17

United States v. Davis,

588 U.S. 445 (2019)................................ 9, 14, 18, 23

United States v. Marceau,

554 F.3d 24 (1st Cir. 2009) .................................... 13

United States v. Stennerson,

150 F.4th 1276 (9th Cir. 2025) .............................. 13

United States v. Turnbull,

349 F.3d 558 (8th Cir. 2003) ...................... 12-13, 14

United States v. Woods,

571 U.S. 31 (2017) ................................................. 10

United States v. Yancey,

621 F.3d 681 (7th Cir. 2010) ................................. 13

Welch v. United States,

578 U.S. 120 (2016).................................................. 4

Ysleta Del Sur Pueblo v. Texas,

596 U.S. 685 (2022)................................................ 11

Statutes, Rules and Regulations

18 U.S.C. § 922(d)(4) ................................................. 23

18 U.S.C. § 922(g)(1) ................................................... 5

18 U.S.C. § 922(g)(3) ........................................ 2-19, 23

18 U.S.C. § 922(g)(8)(C)(i)......................................... 18

18 U.S.C. § 924(c)(3)(B) ............................................ 24

21 U.S.C. § 802(1) ................................................. 9, 10

21 U.S.C. § 802(17) ..................................................... 9

21 U.S.C. § 812 ............................................................ 7

21 U.S.C. § 844 .................................................... 16, 26

Supreme Court Rule 37.6 ........................................... 1

Other Authorities

ACLU, A Tale of Two Countries: Racially

Targeted Arrests in the Era of Marijuana

Reform (2020),

https://www.aclu.org/publications/tale-twocountries-racially-targeted-arrests-eramarijuana-reform .................................................. 25

Michelle Alexander, The New Jim Crow: Mass

Incarceration in the Age of Colorblindness

(2010)...................................................................... 24

James C. Anthony et al., Comparative

Epidemiology of Dependence on Tobacco,

Alcohol, Controlled Substances, and

Inhalants: Basic findings from the National

Comorbidity Survey, 2(3) Experimental and

Clinical Psychopharmacology 244-68 (Aug.

1994) ....................................................................... 19

Richard C. Boldt, Drug Policy in Context:

Rhetoric and Practice in the United States and

the United Kingdom, 62 S.C.L. Rev. 261

(2011)...................................................................... 24

Caulkins JP, Changes in self-reported cannabis

use in the United States from 1979 to 2022,

Addiction (May 2024),

https://doi.org/10.1111/add.16519 ..................... 8, 16

Center for Disease Control, Cannabis Facts and

Stats, https://www.cdc.gov/cannabis/dataresearch/facts-stats/index.html ............................. 19

Erwin Chemerinsky et al., Cooperative

Federalism and Marijuana Regulation, 62

UCLA L. Rev. 74 (2015)......................................... 15

Aliza Cohen et al., How the War on Drugs

Impacts Social Determinants of Health

Beyond the Criminal Legal System, 54:1

Annals of Medicine 2024-2038 (2022) ................... 25

DEF. INFO. SYS. AGENCY (DISA) GLOB.

SOL., Marijuana Legality by State (last

updated Nov. 18, 2025),

https://disa.com/marijuana-legality-by-state........ 16

Department of Justice Bureau of Alcohol,

Tobacco, Firearms, and Explosives, 27 CFR

Part 478, [Docket No. ATF-2026-0034; ATF

No. 2025R-54T],

https://www.federalregister.gov/documents/20

26/01/22/2026-01141/revising-definition-ofunlawful-user-of-or-addicted-to-controlledsubstance ............................................................... 10

Department of Justice, Bureau of Alcohol,

Tobacco, Firearms, and Explosives, Revising

Definition of Unlawful User of or Addicted to

Controlled Substance, 27 C.F.R. Part 478,

Docket No. ATF-2026-0034; ATF No. 2025R54T,

https://www.federalregister.gov/documents/20

26/01/22/2026-01141/revising-definition-ofunlawful-user-of-or-addicted-to-controlledsubstance ......................................................... 15, 16

Exec. Order No. 14370, 90 Fed. Reg. 60541

(2025)........................................................................ 7

FBI Uniform Crime Reporting Program, Crime

Data Explorer (2024),

https://cde.ucr.cjis.gov/LATEST/webapp/#/pag

es/explorer/crime/arrest......................................... 25

Jolene Forman, Drug Policy Alliance, What Not

to Tell Your Children: Five Things Alex

Berenson Gets Wrong About Marijuana

(2019)...................................................................... 21

Gallup, Guns,

https://news.gallup.com/poll/1645/guns.aspx ......... 7

David Herzberg, White Market Drugs: Big

Pharma and the Hidden History of Addiction

in America (2020) .................................................. 24

Christian MacDonald, A Blunt Reality: How

§ 922(g)(3) of the Gun Control Act Violates the

Second Amendment Rights of Marijuana

Users, 78 SMU L. Rev. Forum 115 (2025) .............. 6

Ellicott C. Matthay et. al., “Assessing Links

Between Alcohol Exposure and Firearm

Violence: A Scoping Review Update.” Alcohol

Research : Current Reviews 2025 Jan 10;45

(1): 01, https://doi/10.35946/arcr.v45.1.01............. 22

Nat’l Conf of State Legis., Restoration of Voting

Rights for Felons, (Aug 19, 2025),

https://www.ncsl.org/elections-andcampaigns/felon-voting-rights................................. 5

vii

National Conference of State Legislatures,

Possession of Firearms by People with Mental

Illness, https://www.ncsl.org/civil-andcriminal-justice/possession-of-firearms-bypeople-with-mental-illness .................................... 23

Pew Research Center, Key Facts About

Americans and Guns, Jul 7, 2024,

https://www.pewresearch.org/shortreads/2024/07/24/key-facts-about-americansand-guns/.................................................................. 7

Pub. L. 117–159, div. A, title II, § 12004(c), 136

Stat. 1329 (June 25, 2022)....................................... 8

Dorsa Rafiei et. al., Fact or Faction Regarding

the Relationship Between Cannabis Use and

Violent Behavior, Journal of the American

Academy of Psychiatry and the Law Online

Dec 2021, JAAPL.210034-21;

https://doi.10.29158/JAAPL.210034-21 ................ 21

Sriram Ramaswamy et. al., Cannabis and

Schizophrenia: A Complex Relationship,

Current Psychiatry 22(12),

https://doi.10.12788/cp.0417 .................................. 22

Craig Reinarman & Harry G. Levine, Crack in

America: Demon Drugs and Social Justice

(1997)...................................................................... 24

Greg T. Rhee, Increasing Use of Cannabis for

Medical Purposes Among U.S. Residents,

2013–2020, 65(3) Am. J. of Prev. Med., 528-33

(Sep 2023),

https://www.ajpmonline.org/article/S07493797(23)00132-0/abstract ...................................... 20

viii

Edlund H. Ringeisen et. al., Mental and

Substance Use Disorders Prevalence Study:

Findings Report, RTI International (2023),

https://www.rti.org/publication/mentalsubstance-use-disorders-prevalence-studyfindings-report/fulltext.pdf .................................... 22

Ira Robbins, Guns N’ Ganja: How Federalism

Criminalizes the Lawful Use of Marijuana, 51

U.C. Davis L. Rev. 1783 (June 2018) .................... 20

Katherine Schaeffer, 9 Facts About Americans

and Marijuana, Pew Rsch Ctr (Apr. 10, 2024),

https://www.pewresearch.org/shortreads/2024/04/10/facts-about-marijuana/ ............... 6

Anne Katrin Schlag, Percentages of problem

drug use and their implications for policy

making: A review of the literature, 6 Drug Sci.,

Pol’y & L. 1 (2020) ................................................. 20

Steven M. Silverstein et. al, Schizophrenia and

violence: realities and recommendations,

Reviewing Crime Psychology, (2020) ............... 22-23

Substance Abuse & Mental Health Servs.

Admin. (SAMSHA), Nat’l Survey on Drug Use

& Health (2025),

https://www.samhsa.gov/data/report/2024nsduh-detailed-tables ................ 6, 17, 19, 20, 21, 22

Helen Sudhoff, Blowing Smoke at the Second

Amendment, Reason Foundation (Oct. 2021),

https://reason.org/wpcontent/uploads/blowing-smoke-at-the-secondamendment.pdf ...................................................... 15

U.S. Census Bureau, Population Estimates, Jul

1, 2024,

https://www.census.gov/quickfacts/table/PST0

45215/00 ................................................................. 25

U.S. CENSUS BUREAU, QUICKFACTS,

https://www.census.gov/quickfacts ....................... 16

United States Attorneys’ Annual Statistical

Report FY 2024,

https://www.justice.gov/usao/media/1399686/d

l?inline ...................................................................... 4

United States Sentencing Commission, FY 2020

through FY 2024 Section 922(g) Firearms

Quick Facts,

https://www.ussc.gov/sites/default/files/pdf/res

earch-and-publications/quickfacts/Felon_In_Possession_FY24.pdf ...................... 4

Shelia P. Vakharia, The Harm Reduction Gap:

Helping Individuals Left Behind by

Conventional Drug Prevention and

Abstinence-Only Addiction Treatment (2024)....... 24

Michael Vitiello, The War on Drugs: Moral

Panic and Excessive Sentences, 69 Clev. St. L.

Rev. 441 (2021) ...................................................... 24

Nora Volkow, National Institute on Drug

Abuse, Addiction Should Be Treated, Not

Penalized (May 7, 2021),

https://nida.nih.gov/about-nida/norasblog/2021/05/addiction-should-be-treated-notpenalized ................................................................ 26

Shaoling Zhong et. al., Drug Use Disorders and

Violence: Associations with Individual Drug

Categories, Epidemiol Rev. 2020 Jan 31; 42(1):

103-116,

https://doi.org/10.1093/epirev/mxaa006 ................ 20

INTEREST OF AMICUS

Amicus is the Drug Policy Alliance (“DPA”), a

501(c)(3) nonprofit organization that leads the nation

in promoting drug policies that are grounded in

science, compassion, and human rights.1 Established

in 1994, DPA is a nonpartisan organization with tens

of thousands of members nationwide. DPA is

dedicated to advancing policies that reduce the harm

of drug use and drug prohibition while seeking

solutions that promote public health and public safety.

DPA is actively involved in the legislative process

across the country and strives to roll back the excesses

of the drug war in favor of sensible drug policy

reforms. DPA regularly files legal briefs as amicus

curiae,

including

cases

involving

the

criminalization of people who use drugs. See, e.g.,

Timbs v. Indiana, 586 U.S. 146 (2019); see also

Gonzales v. Raich, 545 U.S. 1, 5 (2005).

1 Under Supreme Court Rule 37.6, amicus confirms that

no counsel for any party has authored this brief in whole or in

part, and no entity or person, aside from amici’s counsel, made

any monetary contribution intended to fund the preparation or

submission of this brief.

SUMMARY OF ARGUMENT

The Constitution’s prohibition on vague laws

protects the separation of powers by ensuring that

Congress, rather than police, prosecutors, or judges,

defines what conduct is criminal. It also protects

ordinary people by requiring a criminal law to be

sufficiently definite to provide notice of what the law

prohibits.

The statute at issue here, 18 U.S.C. § 922(g)(3)

(the Statute), violates this precept because it prohibits

an “unlawful user” of “any controlled substance” from

possessing a firearm, without defining the quantity,

frequency, or timing of the use that triggers its

application. The Government disagrees. It reasons

that, if this Court reads certain terms into the Statute,

then that modified version of § 922(g)(3) is not

unconstitutionally vague, as applied to Mr. Hemani.

It argues, without relevant authority, that the Statute

operates as a “temporary” disarmament that reaches

only “habitual” drug users. The Government’s

interpretation does not remotely reflect the Statute’s

capacious reach.

Under a plain reading of § 922(g)(3), a

recreational marijuana user faces all the

consequences of a felony conviction, including a

maximum 15-year prison sentence, for possessing a

firearm in an otherwise lawful manner. That result

follows even if the marijuana use occurs entirely

separately from obtaining or handling a firearm.

In substance, § 922(g)(3), as applied here,

punishes drug use under the guise of firearm

regulation. The Statute potentially implicates tens of

millions of Americans, and it fails to provide them fair

notice of the consequences of their conduct.

Nor can the Statute be justified on assumptions

about marijuana use and violence. § 922(g)(3)

provides no standard linking drug use to

dangerousness, impairment, or firearm misuse, and it

offers no guidance on when a person becomes (or

ceases to be) an “unlawful user.” That indeterminacy

exposes ordinary people to felony liability while

leaving law enforcement with unguided discretion, a

dynamic that predictably amplifies existing

disparities produced by inconsistent application.

In our constitutional order, a vague law is no

law at all. Congress is the only branch that has the

power to enact federal criminal laws. Allowing this

prosecution to proceed under § 922(g)(3) as applied

here would require this Court to supply the limiting

principle Congress omitted and to decide when the

Statute applies and to whom. That approach only

furthers the inequitable, selective criminalization of

drug use. It has little, if anything, to do with

regulating firearms.

This Court should affirm.

ARGUMENT

THE STATUTE IS VOID FOR

VAGUENESS

“Vague laws invite arbitrary power.” Sessions v.

Dimaya, 584 U.S. 148, 175 (2018) (Gorsuch, J.,

concurring). The Constitution’s prohibition of vague

laws protects the separation of powers by ensuring

that Congress bears responsibility for determining

what conduct is punished criminally, rather than

members of the judicial or executive branches. Smith

v. Goguen, 415 U.S. 566, 575 (1974). It also ensures

that individuals, consistent with Due Process, have

fair notice of what conduct the law prohibits. Kolender

v. Lawson, 461 U.S. 352, 357 (1983).

The void-for-vagueness doctrine imposes a severe

remedy: dismissal of a federal prosecution. In some

circumstances, the same defect may warrant relief for

similarly situated defendants. See, e.g., Welch v.

United States, 578 U.S. 120, 130 (2016) (applying

Johnson v. United States, 576 U.S. 591 (2015)

retroactively to cases on collateral review).2 The

remedy is severe because the stakes are severe: the

right to live one’s life without unwittingly engaging in

conduct that might result in a felony conviction,

2 Though affirmance would foreclose this § 922(g)(3)

prosecution as applied to Mr. Hemani, the fallout is not as drastic

as the Government intimates. According to the Government,

roughly “300 defendants have been charged with violating

§ 922(g)(3) each year.” Gov’t Br. 6. The Government does not

identify how many of those prosecutions proceeded under the

“addicted to” prong rather than the “unlawful user” prong. Even

assuming all prosecutions proceeded on an “unlawful user”

theory, that figure represents .5 percent of all criminal cases filed

in 2024 and four percent of all § 922(g) cases resulting in

conviction. See United States Attorneys’ Annual Statistical

Report

2024,

pg.

https://www.justice.gov/usao/media/1399686/dl?inline

(52,469

criminal cases filed in United States District Courts in 2024); see

also United States Sentencing Commission, FY 2020 through FY

2024

Section

922(g)

Firearms

Quick

Facts,

https://www.ussc.gov/sites/default/files/pdf/research-andpublications/quick-facts/Felon_In_Possession_FY24.pdf

(the

Government secured 7,419 convictions for § 922(g) offenses in

2024).

confinement, disenfranchisement,3 and a prohibition

on exercising the constitutional right to bear arms.4

As discussed infra, amicus Drug Policy Alliance

(“DPA”) urges this Court to affirm the Fifth Circuit

because 18 U.S.C. § 922(g)(3), as written, subjects an

untenably vague class of “unlawful users” to a felony

conviction and denial of their constitutional rights.5

The fair-notice problem posed by § 922(g)(3) is not

theoretical. It is magnified by the sheer number of

ordinary Americans whose lawful conduct could place

them within the statute’s reach.

3 Except for Maine, Vermont, and the District of

Columbia, people convicted of felony offenses cannot vote while

incarcerated. Nat’l Conf of State Legis., Restoration of Voting

Rights for Felons, (Aug 19, 2025), https://www.ncsl.org/electionsand-campaigns/felon-voting-rights. In 10 states, “felons lose their

voting rights indefinitely for some crimes, or require a governor’s

pardon for voting rights to be restored, face an additional waiting

period after completion of sentence (including parole and

probation), or require additional action before voting rights can

be restored.” Id.

4 18 U.S.C. § 922(g)(1) prohibits anyone convicted of a

felony from possessing a firearm.

5 Amicus does not address whether it is permissible or

appropriate for Congress to categorically prohibit certain groups

from possessing a firearm, including those who have engaged in

violent or threatening behavior or have otherwise exhibited an

inability to exert self-control. Instead, Amicus seeks to

substantiate the practical real-world implication of the Statute’s

vagueness, which is that people exercising their Second

Amendment right to possess firearms are subject to federal

felony prosecutions because of any amount of drug use, no matter

how frequent, problematic, or relevant it is to firearm possession,

or consumption of substances decriminalized or lawful under

state law.

1. Because Most Americans Have Used

Drugs, the Statute’s Sweep is

Potentially Vast

Over 98 percent of Americans live in a state that

permits possession and use of some cannabinoids,

such as marijuana or chemical compounds found

within marijuana, such as cannabidiol (CBD).6 Four

in five Americans live in a county with at least one

marijuana dispensary.7 More than half of American

adults have used an illicit drug in their lifetime (143

million), including 133 million who have used

marijuana.8 More than 20 percent of adults over 26

years old (49.3 million) and one-third of 18 to 25-yearolds (12.2 million people) reported using marijuana in

the past year.9 Over 15 percent of the U.S. population

(44.3 million people), a figure that includes a quarter

of 18 to 25-year-olds, used marijuana in the past

month.10 Marijuana remains11 a Schedule I controlled

6 Christian MacDonald, A Blunt Reality: How § 922(g)(3)

of the Gun Control Act Violates the Second Amendment Rights of

Marijuana Users, 78 SMU L. Rev. Forum 115, 128-30 (2025)

7 Katherine Schaeffer, 9 Facts About Americans and

Marijuana,

Pew

Rsch

Ctr

(Apr.

10,

2024),

https://www.pewresearch.org/short-reads/2024/04/10/factsabout-marijuana/

8 Id.

9 See Substance Abuse & Mental Health Servs. Admin.

(SAMSHA), Nat’l Survey on Drug Use & Health (2025),

https://www.samhsa.gov/data/report/2024-nsduh-detailed-tables

10 Id.

11 In December 2025, the President issued an executive

order directing the Department of Justice, through the Drug

Enforcement Administration (DEA), to reclassify marijuana from

substance under federal law. 21 U.S.C. § 812 Schedule

I(c)(10).

At the same time, America’s strong tradition of

individual gun ownership for the purpose of selfdefense is well documented. District of Columbia v.

Heller, 554 U.S. 570, 593 (2008) (“By the time of the

founding, the right to have arms had become

fundamental for English subjects.”) Today, gun

ownership sits at its highest level in decades.12 Nearly

half of all Americans live in a house with a firearm.13

Given that reality, the overlap between people who

have used marijuana and firearm possession is likely

substantial. Read plainly, 18 U.S.C. § 922(g)(3), which

applies to any “unlawful user of…any controlled

substance,” may subject a large swath of the

population that once consumed drugs and, later,

exercises their constitutional right to possess a

firearm to a felony conviction.14

a Schedule I controlled substance to a Schedule III controlled

substance. See Exec. Order No. 14370, 90 Fed. Reg. 60541 (2025);

accord Gov’t Br. 23. Until the DEA promulgates final regulations

rescheduling marijuana, it remains in Schedule I. The

reclassification to Schedule III would officially recognize

cannabis as having accepted medical use under federal law. See

21 U.S.C. §812.

12 Pew Research Center, Key Facts About Americans and

Guns, Jul 7, 2024, https://www.pewresearch.org/shortreads/2024/07/24/key-facts-about-americans-and-guns/ (As of

2023, 32% of Americans own guns).

13 In 2025, 42% of Americans reported living in a gun-

owning

house.

Gallup,

https://news.gallup.com/poll/1645/guns.aspx.

Guns,

14 In 2022, Congress increased the maximum penalty for

violating the Statute from ten to fifteen years of imprisonment.

The Statute has the potential to ensnare tens of

millions of Americans. The potential consequences are

dire: A gun owner with no prior criminal history who

experiments with marijuana can suddenly—without

any individualized determination of dangerousness—

be stripped of their constitutional right to possess a

firearm, be subject to felony penalties and, depending

on their domicile, be prohibited from voting in

elections due to the collateral consequences of a felony

conviction.15 In a nation where marijuana

consumption is as common as alcohol use,16 it cannot

be the law that any American who uses marijuana

forfeits their constitutional right to firearm

possession.

2. Congress Distinguished “Unlawful

Users” from “Addicts,” Implying that

“Use” Has a Different Meaning than

“Habitual Use.”

The Statute applies to any person who is either “an

unlawful user of or addicted to any controlled

substance.” 18 U.S.C. § 922(g)(3). Congress defined

“addict” as someone who “habitually uses any narcotic

See Pub. L. 117–159, div. A, title II, § 12004(c), 136 Stat. 1329

(June 25, 2022).

15 See supra note 3.

16 Caulkins JP, Changes in self-reported cannabis use in

the United States from 1979 to 2022, Addiction (May 2024),

https://doi.org/10.1111/add.16519 (“[C]annabis consumers report

daily or near daily use, and their numbers now exceed the

number of daily and near daily drinkers.”)

drug,” 21 U.S.C. § 802(1).17 Congress did not define

“unlawful user,” nor did it specify how much one must

“use” within a given timeframe to be an “unlawful

user.” Moreover, the Statute does not require the

“unlawful user” to be impaired at the time they handle

the firearm. Congress’ failure to cabin the Statute’s

reach could subject a person who once unlawfully used

marijuana to a § 922(g)(3) prosecution if that person,

now abstaining from use or engaging in sporadic use,

possesses a gun for self-defense.18 Indeed, Mr. Hemani

finds himself in a similar position.

21 U.S.C. § 802(1) defines “addict” as one “who

habitually uses any narcotic drug so as to endanger the public

morals, health, safety, or welfare, or who is so far addicted to the

use of narcotic drugs as to have lost the power of self-control with

reference to his addiction.” “Narcotic drug” is defined to include

a small list of controlled substances that does not include

marijuana. 21 U.S.C. § 802(17). However, the language used in

the Statute appears to have a broader reach, including anyone

who is “addicted to any controlled substance,” raising doubts of

whether the definition of “addict” applies to the Statute, creating

more confusion and vagueness.

18 Reasonable minds may disagree about whether the

Government would prosecute someone who, years before

possessing a gun, used marijuana on a single occasion. That there

is room for debate only proves the point: a question of whether

the Government would prosecute under those circumstances

necessarily acknowledges that it is unclear if the Government

could apply the Statute under those circumstances. Criminal

laws, particularly those that strip individuals of fundamental

constitutional rights require more certainty. United States v.

Davis, 588 U.S. 445, 448 (2019) (“When Congress passes a vague

law, the role of courts under our Constitution is not to fashion a

new, clearer law to take its place, but to treat the law as a nullity

and invite Congress to try again.”) Further, according to the

Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF),

nearly half of denials for firearm purchases “were predicated on

The Government attempts to cure the

vagueness problem by recasting the scope of the

Statute as a “temporary and limited” firearm

restriction for “habitual users,” which the

Government defines as “those who regularly and

unlawfully use drugs.” Gov’t Br. 3. Elementary

principles of statutory interpretation defeat that

claim.

The Statute applies to both “unlawful users”

and “addicts.” 18 U.S.C. § 922(g)(3).19 To read

unlawful user and addict “as somehow repeating [the

habitual use] requirement, even while using different

words, is to disregard what ‘or’ customarily means.”

Loughrin v. United States, 573 U.S. 351, 357 (2014).

The “ordinary use” of the term “or” “is almost always

disjunctive, that is, the words it connects are to be

given separate meanings.” United States v. Woods,

571 U.S. 31, 45 (2017). Here, the Statute separates

an inference based on a single use,” meaning that people have

been denied their constitutional right to possess a firearm based

on a single instance of past-year use. Department of Justice

Bureau of Alcohol, Tobacco, Firearms, and Explosives, 27 CFR

Part 478, [Docket No. ATF-2026-0034; ATF No. 2025R-54T],

https://www.federalregister.gov/documents/2026/01/22/202601141/revising-definition-of-unlawful-user-of-or-addicted-tocontrolled-substance.

19 As noted, there are strong reasons to believe that the

definition of “addict” in 21 U.S.C. § 802(1) does not apply to

marijuana users. See, supra at note 17. That Congress defined

“addict” as requiring “habitual use” demonstrates that if

Congress wanted to define “unlawful user” as also requiring

“habitual use,” it knew how to do so. However, for present

purposes, Amicus assumes the definition of “addict” applies to

the Statute despite Congress limiting the definition of “addict” to

use of “narcotic drugs,” of which marijuana is not included.

“unlawful users” from “addicts” with the disjunctive

“or.” Thus, if “habitual” use transforms a user into an

“addict,” and the Statute applies to both “addicts” and

“users,” an “unlawful user” must mean something

other than one who habitually uses drugs. The

Government’s framing violates the “usual rule against

ascribing to one word a meaning so broad that it

assumes the same meaning as another statutory

term.” Ysleta Del Sur Pueblo v. Texas, 596 U.S. 685,

698 (2022) (internal quotation omitted). It also defies

the “usual presumption” that different statutory

terms “convey differences in meaning.” Id.

Congress did not define “unlawful user,” but its

separation from “addict,” which requires “habitual

use,” signifies that “unlawful user” requires different

criteria. Congress left those criteria undefined,

resulting in vagueness. That vagueness cannot be

corrected by reading non-existent terms into the

Statute. See, e.g., Ruan v. United States, 597 U.S. 450,

471 (Alito, J., concurring) (“In our constitutional

system, it is Congress that has the power to define the

elements of criminal offenses, not the federal courts.”)

(citing Liparota v. United States, 471 U.S. 419, 424

(1985)).

3. The Statute Provides No Standard for

Timing, Frequency, or Nexus to

Firearm Possession, Potentially

Subjecting Tens of Millions of

Americans to Criminal Penalties for

Activity that is Otherwise

Constitutionally Protected.

In August 2022, the Government accused Mr.

Hemani of violating § 922(g)(3) because he safely

secured his handgun in a locked gun safe in his

mother’s home and admitted that he used marijuana

a few times a week. Resp. Br. 7. There is no allegation

that Mr. Hemani ever mishandled, improperly

brandished, or even carried the firearm outside his

home. Nor does the Government allege that Mr.

Hemani handled the gun while impaired. Yet, despite

the absence of any temporal or spatial nexus between

his gun possession and occasional marijuana use, he

faces a felony prosecution.

The Statute prohibits an “unlawful user of…

any controlled substance” from possessing a firearm.

18 U.S.C. § 922(g)(3). But the Statute does not define

the set of “unlawful users” who are subject to its

application. Even setting aside Congress’s failure to

distinguish use from addiction, § 922(g)(3) provides no

guidance as to when, how often, or under what

circumstances drug use triggers criminal liability.

Does it apply if a person uses marijuana once and,

years later, possesses a gun? What if a person uses

marijuana weekly or monthly but keeps the firearm in

a locked safe? Is every person who possesses a firearm

required to relinquish their firearms or face felony

charges if they use marijuana one time? If not, when

does their use cross the line so that they become an

“unlawful user” who must relinquish their firearms or

face federal prosecution? The Statute does not say.

Congress’ failure to provide clear guidelines

requires those responsible for applying and enforcing

the Statute to unconstitutionally determine who is

subject to it. That, in turn, leaves individuals who

occasionally use marijuana at risk of felony

prosecution for possessing a firearm in an otherwise

constitutionally protected manner. See, e.g., United

States v. Turnbull, 349 F.3d 558, 561 (8th Cir. 2003)

(noting “unlawful user” prong of § 922(g)(3) “runs the

risk of being unconstitutionally vague”).

The circuits are split on whether the Statute is

unconstitutionally vague. But the split itself

illustrates the problem: every circuit that upheld the

Statute did so by inserting different terms into the

Statute, none of which Congress enacted. See, e.g.,

United States v. Yancey, 621 F.3d 681, 682 (7th Cir.

2010) (defining “unlawful user” as one “who regularly

ingests controlled substances in a manner except as

prescribed by a physician”); United States v. Marceau,

554 F.3d 24, 30 (1st Cir. 2009) (defining “unlawful

user” as “one who engages in regular use over a long

period of time proximate to or contemporaneous with

the possession of a firearm”) (cleaned up); United

States v. Bowens, 938 F.3d 790, 793 (6th Cir 2019)

(stating person is “unlawful user” if he “took drugs

with regularity, over an extended period of time and

contemporaneously with his purchase or possession of

a firearm”) (cleaned up); United States v. Augustin,

376 F.3d 135, 139 n.6 (3d Cir. 2004) (concluding

“unlawful user” is one who uses “drugs with some

regularity”); United States v. Stennerson, 150 F.4th

1276, 1286 (9th Cir. 2025) (holding defendant was

“unlawful user” based on “consistent, prolonged,” use

that was “close in time to his gun possession”) (cleaned

up).

Those judicially created glosses only underscore

the vagueness problem. Courts of Appeal provide little

guidance on how to apply them consistently. For

example, how frequently must one use to do so with

“some regularity?” For how long must one use to be a

“consistent” and “prolonged” user? Inserting vague

terms into an already vague statute only compounds

the Due Process problems. See, e.g., Turnbull, 349

F.3d at 561 (recognizing that “courts generally agree

that [the Statute] runs the risk of being

unconstitutionally vague without a judicially-created

temporal nexus between the gun possession and

regular drug use”).

Every court that has upheld the Statute against

a vagueness challenge has done so by adding to the

Statute that Congress enacted, an approach that this

Court has explicitly rejected. United States v. Davis,

588 U.S. 445, 448 (2019) (rejecting the Government’s

invitation to cure vagueness by requiring “casespecific”

analysis

when

Congress

required

“categorical” approach because that required this

Court to “step[] outside our role as judges and writ[e]

a new law rather than applying the one Congress

adopted”). In concordance with longstanding

precedent, this Court should reject the Government’s

invitation to usurp Congress’ role by rewriting the

Statute and should affirm the decision of the Fifth

Circuit.

4. The Statute Does Not Provide Fair

Notice to Millions of Americans Who

May be Subject to a Felony Conviction

and a Prohibition on Future Gun

Possession for Exercising Otherwise

Constitutionally Protected Rights.

As members of this Court have recognized, “the

Federal Government’s current approach” to cannabis

regulation is “a half-in, half-out regime that

simultaneously tolerates and forbids local use of

marijuana,” an approach which “strains basic

principles of federalism and conceals traps for the

unwary.” Standing Akimbo, LLC v. United States, 141

S. Ct. 2236, 2236-37 (2021) (Thomas, J., respecting the

denial of certiorari); see also Erwin Chemerinsky et

al.,

Cooperative Federalism and Marijuana

Regulation, 62 UCLA L. Rev. 74 (2015) (describing

cannabis regulation as “one of the most important

federalism conflicts in a generation”).

§ 922(g)(3) is a trap for the unwary. It subjects

any cannabis user, even in a state that permits its use,

to a potential fifteen-year federal prison sentence.

Standing Akimbo, 141 S. Ct. at 2238 (“A marijuana

user similarly can find himself a federal felon if he just

possesses a firearm.”); see also Helen Sudhoff,

Blowing Smoke at the Second Amendment, Reason

Foundation (Oct. 2021), https://reason.org/wpcontent/uploads/blowing-smoke-at-the-secondamendment.pdf (explaining that anyone who procures

a medical marijuana card is automatically thereby

disqualified from legal firearm ownership).20

20 On January 20, 2026, the ATF announced proposed

amendments to its definition of “unlawful user of or addicted to

any controlled substance.” The proposal would define an

“unlawful user” as a person who “regularly uses a controlled

substance over an extended period of time continuing into the

present, without a lawful prescription or in a manner

substantially different from that prescribed by a licensed

physician.” See Department of Justice, Bureau of Alcohol,

Tobacco, Firearms, and Explosives, Revising Definition of

Unlawful User of or Addicted to Controlled Substance, 27 C.F.R.

Part 478, Docket No. ATF-2026-0034; ATF No. 2025R-54T,

https://www.federalregister.gov/documents/2026/01/22/202601141/revising-definition-of-unlawful-user-of-or-addicted-tocontrolled-substance. It further requires evidence of use with

sufficient “regularity and recency” to show ongoing conduct,

§ 922(g)(3) purports to punish gun possession,

but the Statute’s triggering event is unlawful drug

use. Because the gun possession itself is lawful up

until the minute a person uses cannabis, the

gravamen of the Statute concerns drug use unrelated

to gun possession. That disparity matters because,

absent firearm possession, unlawful marijuana

possession by a person with no criminal history is

punishable only as a misdemeanor. 21 U.S.C. § 844.

The trap could ensnare a significant percentage

of the public. Nearly three-quarters of Americans live

in one of the thirty-nine states that permit

recreational or medical marijuana use.21 More than

half of Americans across 24 states and the District of

Columbia can purchase and consume marijuana for

recreational purposes under the laws of those

jurisdictions.22 Recreational marijuana use is as

common as alcohol consumption.23 Because the

Statute leaves “unlawful user” undefined, its reach

turns on whatever limiting gloss a court supplies. As

while clarifying that isolated, sporadic, or discontinued use does

not qualify. Id. The proposal is currently subject to notice and

comment through June 30, 2026. One plausible reading of this

abrupt shift is a tacit acknowledgment that the Statute, as

written, is unconstitutionally vague.

21 DEF. INFO. SYS. AGENCY (DISA) GLOB. SOL.,

Marijuana Legality by State (last updated Nov. 18, 2025),

https://disa.com/marijuana-legality-by-state

See U.S. CENSUS BUREAU, QUICKFACTS,

https://www.census.gov/quickfacts (calculated based on July 1,

2024, population estimates, excluding states that only allow lowvolume THC consumption as a component of CBD products and

states that only allow medical marijuana use).

23 See Caulkins, supra at note 16.

a result, over 15 percent of Americans (those who have

used marijuana in the past month) but up to as many

as half of the adult population (those who have used

marijuana in their lifetime)24 are at risk of a felony

conviction (and the consequences it carries) if they

possess a firearm in an otherwise constitutionally

protected manner.

The trap is not limited to cannabis users. The

unlawful use of “any controlled substance” may render

one an “unlawful user.” 18 U.S.C. § 922(g)(3)

(emphasis added). Even a single instance of taking a

prescription sleep aid or a pain reliever—if not in

compliance with the prescription25 or if obtained from

a family member or friend—could be enough, under at

least one court’s interpretation, to render one an

unlawful user. See, e.g., United States v. Carnes, 22

F.4th 743, 749 (8th Cir. 2022) (concluding no showing

of “regular drug use” required to qualify as an

“unlawful user”).

More than a quarter of the American

population used an illicit drug in the past year,

including nearly 14 million Americans who misused

prescription psychotherapeutics (e.g., pain relievers,

stimulants, or sedatives).26 That significant cross-

24 SAMHSA, Detailed Tables, supra at note 9.

25 The Government also recognizes this possibility and

attempts to address it in the ATF’s interim rule by disclaiming

that “[a] person is also not an unlawful user if the person, while

using a lawfully prescribed controlled substance, deviates

slightly or immaterially from the instructions of the prescribing

physician.” See Department of Justice, supra at note 20.

26 SAMHSA, Detailed Tables, supra at note 9.

section of the American public has no way to know

whether their occasional use renders them unlawful

users for purposes of § 922(g)(3). That is particularly

problematic for a statute that punishes a person for

exercising a fundamental constitutional right.

The Statute does not provide notice of who

could (or could not) be subject to investigation, arrest,

or prosecution upon the basis of such an allegation.

The constitutional harm is that the decision of who is

subject to punishment is determined by executive and

judicial

branch

functions,

rather

than

constitutionally required Act of Congress. See, e.g.,

Davis, 588 U.S. at 470 (“no matter how tempting, this

Court is not in the business of writing new statutes”).

Congress knows how to criminalize gun

possession in a way that does not contravene Due

Process. For example, Congress has identified specific

circumstances that define when a person may be

deemed a prohibited possessor. See, e.g., 18 U.S.C.

§ 922(g)(8)(C)(i) (prohibiting a person who is subject to

a court order finding that such person represents a

credible threat to the physical safety of an intimate

partner or child). But this Court is powerless to insert

those limitations when Congress did not. See, e.g.,

Davis, 588 U.S. at 448, 469 (rejecting Government’s

“invitation” to “adopt a case-specific approach” to save

a vague statute because the cure to vagueness is “to

treat the law as a nullity and invite Congress to try

again.”)

When Congress fails to define the conduct it

criminalizes, ordinary people lack fair notice of when

lawful behavior exposes them to felony punishment.

§ 922(g)(3) creates that uncertainty on a massive

scale, placing millions of Americans at risk of severe

criminal penalties for conduct that is otherwise lawful

and constitutionally protected.

II.

MARIJUANA USE IS NOT A SOUND

PROXY FOR DANGEROUSNESS.

The Government attempts to defend § 922(g)(3)

by implicitly relying on the assumption that drug use

meaningfully correlates with dangerousness. Those

claims are not supported by sound data.

Most people who try drugs do not use them

problematically and do not develop a substance use

disorder or physical dependence.27 Indeed, over half of

adults in the United States report using some form of

“illicit drugs” within their lifetimes, while a quarter of

adults (69.7 million people) used illicit drugs in the

past year.28

In 2024, 61.5 million American adults used

marijuana, making it “the most commonly used

federally illegal drug in the United States.”29 The

number of Americans using marijuana for medicinal

purposes more than doubled (8 million patients)

27 James C. Anthony et al., Comparative Epidemiology of

Dependence on Tobacco, Alcohol, Controlled Substances, and

Inhalants: Basic findings from the National Comorbidity Survey,

2(3) Experimental and Clinical Psychopharmacology 244-68

(Aug. 1994)

28 See SAMHSA, Detailed Tables, supra, note 9.

29 Center for Disease Control, Cannabis Facts and Stats,

https://www.cdc.gov/cannabis/data-research/factsstats/index.html

between 2013 and 2020.30 In general, “the majority of

drug use is episodic, transient and generally nonproblematic.” Anne Katrin Schlag, Percentages of

problem drug use and their implications for policy

making: A review of the literature, 6 Drug Sci., Pol’y &

L. 1 (2020). In fact, only 15 percent of lifetime

marijuana users met criteria for a cannabis use

disorder in the past year.31 Of those, more than half

were considered to have a mild substance use

disorder, meaning they only met two or three of the 11

possible criteria for a substance use disorder.32 Put

differently, only a small fraction of American

marijuana users develop a problematic relationship

with it.

“Empirical studies demonstrate that marijuana

users are not necessarily violent people.” Ira Robbins,

Guns N’ Ganja: How Federalism Criminalizes the

Lawful Use of Marijuana, 51 U.C. Davis L. Rev. 1783,

1816 (June 2018). As with other drugs, the vast

majority of marijuana users do not commit violence.33

“At most…we can say that this relationship [between

marijuana use and violence] is correlational, and the

30 Greg T. Rhee, Increasing Use of Cannabis for Medical

Purposes Among U.S. Residents, 2013–2020, 65(3) Am. J. of

Prev.

Med.,

528-33

(Sep

2023),

https://www.ajpmonline.org/article/S0749-3797(23)001320/abstract

31 See SAMHSA, Detailed Tables, supra, note 9.

32 Id.

33 Shaoling Zhong et. al., Drug Use Disorders and

Violence: Associations with Individual Drug Categories,

Epidemiol

Rev.

2020

Jan

31;

42(1):

103-116,

https://doi.org/10.1093/epirev/mxaa006.

strength of this relationship varies depending on the

population. For example, there is a stronger

association between cannabis use and violence in

populations with [severe and persistent mental illness

(SPMI)] or [cannabis use disorder (CUD)], but this

association is much weaker among individuals

without SPMI or CUD.”34 The correlation between

drug use and violence is also confounded by factors

like poverty, trauma, and exposure to violence.35

Studies attempting to link marijuana use with

homicides or mass casualty events tend to cherry-pick

a small number of overall violent acts, fail to account

for pre-existing factors that may have increased risk

of violence, and ignore overwhelming data that the

vast majority of the 130 million lifetime marijuana

users have not committed acts of violence.36 By

targeting marijuana and other drug users to keep

firearms away from presumptively risky people, the

Statute fails to include other indicators of violence

that are stronger than marijuana consumption. For

instance, studies reveal that those who consume

34 Dorsa Rafiei et. al., Fact or Faction Regarding the

Relationship Between Cannabis Use and Violent Behavior,

Journal of the American Academy of Psychiatry and the Law

Online

Dec

2021,

JAAPL.210034-21;

https://doi.10.29158/JAAPL.210034-21.

35 See supra at note 32.

36 See Jolene Forman, Drug Policy Alliance, What Not to

Tell Your Children: Five Things Alex Berenson Gets Wrong

About Marijuana (2019).

alcohol are at an elevated risk of committing

violence.37

Some people with mental health conditions,

including schizophrenia, use controlled substances

marijuana.

The

relationship

between

schizophrenia and marijuana is complicated, but the

possible overlap of those who have used marijuana in

the past year (over 23 percent of American adults)39

and those with a lifetime history of schizophrenia

spectrum disorders (less than two percent of American

adults)40 is minimal. Even dubiously assuming a

complete overlap, that would translate to less than 10

percent of lifetime marijuana users have a lifetime

history of schizophrenia. Restricting the fundamental

rights of the remaining 90 percent based on a

correlation that impacts a small minority is indicative

of the Statute’s breadth.41

37 Ellicott C. Matthay et. al., “Assessing Links Between

Alcohol Exposure and Firearm Violence: A Scoping Review

Update.” Alcohol Research : Current Reviews 2025 Jan 10;45 (1):

01, https://doi/10.35946/arcr.v45.1.01.

Sriram Ramaswamy et. al., Cannabis and

Schizophrenia: A Complex Relationship, Current Psychiatry

22(12), https://doi.10.12788/cp.0417

39 SAMHSA Detailed Tables, supra at note 9.

40 Edlund H. Ringeisen et. al., Mental and Substance Use

Disorders Prevalence Study: Findings Report, RTI International

(2023),

https://www.rti.org/publication/mental-substance-usedisorders-prevalence-study-findings-report/fulltext.pdf

41 Further complications are added by the complex

relationship between schizophrenia and violence. Most people

with schizophrenia are not violent and violence committed

accounts for a small fraction of overall violent crime, Steven M.

This case, however, is not about mental illness.

Congress already prohibits gun possession by anyone

who “has been adjudicated as a mental defective or

has been committed to any mental institution at 16

years of age or older.” 18 U.S.C. § 922(d)(4). Further,

all 50 states and the District of Columbia have some

form of firearm prohibition tied to serious mental

health adjudications or commitments.42 The tiny

subset of Americans with serious mental health

disorders who use marijuana are already prohibited

from firearm possession.

Whatever its policy aims, § 922(g)(3) does not

condition criminal liability on any finding of

dangerousness, impairment, or misuse of a firearm.

The Government’s attempt to justify the Statute by

reference to generalized correlations asks this Court

to supply limiting principles that Congress did not

enact. This Court’s vagueness doctrine forbids that

exercise.

III.

ARBITRARY ENFORCEMENT OF THE

VAGUE STATUTE WILL

EXACERBATE RACIAL DISPARITIES.

Generalized drug prohibition-based policies are

not deeply embedded in the historical tradition of the

United States. Cf. Davis, 588 U.S. at 479 (Kavanaugh,

J., dissenting) (noting that “substantial-risk

Silverstein et. al, Schizophrenia and violence: realities and

recommendations, Reviewing Crime Psychology, (2020).

42 National Conference of State Legislatures, Possession

Firearms

People

with

Mental

Illness,

https://www.ncsl.org/civil-and-criminal-justice/possession-offirearms-by-people-with-mental-illness

standards like the one in [18 U.S.C.] § 924(c)(3)(B) are

a traditional and common feature of criminal

statutes”). While there were early attempts by some

states and localities to restrict access to certain drugs,

primarily for specifically targeted classes of people,

there were no significant legal restrictions on the

distribution of drugs until around the beginning of the

twentieth century. Richard C. Boldt, Drug Policy in

Context: Rhetoric and Practice in the United States

and the United Kingdom, 62 S.C.L. Rev. 261, 263

(2011); see also Shelia P. Vakharia, The Harm

Reduction Gap: Helping Individuals Left Behind by

Conventional Drug Prevention and Abstinence-Only

Addiction Treatment (2024). Throughout the last

century, political and economic motivations—often

rooted in racial animus—have driven federal drug

policy. See Michael Vitiello, The War on Drugs: Moral

Panic and Excessive Sentences, 69 Clev. St. L. Rev.

441, 455 (2021), see also Craig Reinarman & Harry G.

Levine, Crack in America: Demon Drugs and Social

Justice (1997).

While some substances are accessible through

the American medical system—largely to more

socioeconomically

privileged

consumers—other

substances are prohibited, stigmatized, and

criminalized. See David Herzberg, White Market

Drugs: Big Pharma and the Hidden History of

Addiction in America (2020).

The overcriminalization of drug use and how it

results in mass incarceration and economic

disenfranchisement, with disproportionally heavier

impacts on communities of color, are well known. See

Michelle Alexander, The New Jim Crow: Mass

Incarceration in the Age of Colorblindness (2010).

Black people, who represent 14 percent of the

American population,43 make up 28 percent of all drug

arrests.44 Considering only marijuana, Black people

are 3.6 times more likely than white people to be

arrested for marijuana possession.45

Since the enactment of the Controlled

Substances Act, punitive drug policies have “subjected

millions to criminalization, incarceration, and lifelong

criminal records, disrupting or altogether eliminating

access to adequate resources and support to live

healthy lives.” Aliza Cohen et al., How the War on

Drugs Impacts Social Determinants of Health Beyond

the Criminal Legal System, 54:1 Annals of Medicine

2024-2038 (2022). Drug offenses remain the leading

cause of arrest in the nation. Over 1.1 million drugrelated arrests were made in 2020, and the majority

were for personal possession.46

Drug enforcement efforts have long been

inequitable and disproportionately levied on

U.S. Census Bureau, Population Estimates, Jul 1,

2024, https://www.census.gov/quickfacts/table/PST045215/00

44 FBI Uniform Crime Reporting Program, Crime Data

Explorer

(2024),

https://cde.ucr.cjis.gov/LATEST/webapp/#/pages/explorer/crime/

arrest

ACLU, A Tale of Two Countries: Racially Targeted

Arrests in the Era of Marijuana Reform (2020),

https://www.aclu.org/publications/tale-two-countries-raciallytargeted-arrests-era-marijuana-reform

46 FBI Uniform Crime Reporting Program, Crime Data

Explorer

(2024),

https://cde.ucr.cjis.gov/LATEST/webapp/#/pages/explorer/crime/

arrest.

communities of color. “Abundant data show that Black

people and other communities of color have been

disproportionately harmed by decades of addressing

drug use as a crime rather than as a matter of public

health.” Nora Volkow, National Institute on Drug

Abuse, Addiction Should Be Treated, Not Penalized

(May 7, 2021), https://nida.nih.gov/about-nida/norasblog/2021/05/addiction-should-be-treated-notpenalized. “Although statistics vary by drug type,

overall, White and Black people do not significantly

differ in their use of drugs, yet the legal consequences

they face are often quite different.” Id.

Given the dramatic disparities that our system

of drug control and enforcement produce, it is

unsurprising that a statute that relies on

classifications of licit and illicit drug use would itself

be prone to arbitrary application. That problem is

compounded by the unclear terms of the Statute,

inviting arbitrary and selective enforcement, with

profound consequences for those to whom it is applied.

This case is a paradigmatic example: Mr.

Hemani’s possession of a small quantity of marijuana,

ordinarily, would be subject to misdemeanor penalties

under 21 U.S.C. § 844. But, because of his constructive

possession of a safely secured firearm in his mother’s

house, his admission of occasional marijuana use

suddenly transforms his exercise of a constitutionally

protected right into a federal felony. Fundamental

rights should not be subject to the whims of

“policemen, prosecutors, and juries [pursuing] their

personal predilections.” Goguen, 415 U.S. at 575;

accord City of Chicago v. Morales, 527 U.S. 41, 65-66

(1999) (O’Connor, J., concurring) (noting a

constitutional defect of a loitering ordinance was that

it granted “absolute discretion to police officers” to

determine when someone might or might not have a

permissible purpose for remaining in an area).

The notion that a person may be vaguely

labeled as an “unlawful user” and subsequently

deprived of a fundamental liberty is irrational. Nor is

it rooted in any equitable historical tradition of the

United States. The Statute operates as an unbounded,

indiscriminate deprivation of fundamental liberties

and should not be tolerated.

CONCLUSION

For all the reasons recited above, this Court

should affirm.

Dated: January 30, 2026

Respectfully submitted,

Zachary J. Stern

Stern Law

1900 Hines St SE, Ste 110

Salem, OR 97302

(503) 673-6736

zstern@zstern.com

Counsel of Record for

Amicus Curiae Drug

Policy Alliance

Kellen Russoniello

Director of Public Health

Drug Policy Alliance

P.O. Box 811

San Leandro, CA 94577

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.