A Delaware judge is putting lawmakers on notice that they may want to take another look at a law that still makes it illegal for someone to have a handgun while carrying a decriminalized amount of marijuana.
In a recent ruling, Superior Court Judge Paul R. Wallace pointed out that the Legislature may not have realized it left on the books a law that bars Delawareans from simultaneously possessing a handgun and any amount of marijuana, even though less than an ounce of marijuana was decriminalized in Delaware in 2015.
Rep. Helene Keeley, D-South Wilmington, said decriminalization has gone smoothly, but that the judge’s ruling will have to be looked at closely to determine if further legislation is necessary.
“The justices in our state communicate to us via decisions and their writings,” she said. “To me, this could possibly be a way of Judge Wallace saying, ‘I knew what you were trying to do with decriminalization, but this one factor was not necessarily looked at 100 percent so you may have to go back and fix it.'”
The legal conundrum arose in February 2016 when the Wilmington police’s drug unit went to an apartment in the first block of 31st St. to arrest 21-year-old Imeir Murray’s mother who was wanted on a probation violation.
After police arrested the mother, they conducted a sweep of the apartment and found Murray and another woman sleeping in his bedroom, according to an arrest warrant written by Marijuana decriminalized.
Based on what they saw, police obtained a search warrant and proceeded to go through Murray’s bedroom. They found marijuana in the top dresser drawer and on a low shelf in his closet, according to Schupp.
Authorities initially believed the marijuana was slightly more than an ounce, but later learned through laboratory testing that it was only 0.798 ounces, or 22.63 grams, which is a civil violation punishable by a $100 fine that can be paid like a traffic ticket, according to Wallace’s opinion.
At the police station, Murray and the woman in the bedroom admitted to possessing marijuana, but said the handgun was not theirs. Murray told police he had found the gun in his closet a few days earlier and had asked everyone in the apartment if it belonged to any of them, but no one took ownership, the warrant said.
Murray was arrested and charged in a grand jury indictment with possession of marijuana, a misdemeanor, and possession of a firearm by a person prohibited, a felony. He was legally allowed to own a firearm, except for a state law enacted in 2011 that says one cannot have a semi-automatic firearm or handgun while possessing a controlled substance.
“It is undisputed that the amount of marijuana found in Murray’s room exposes him to, at most, a civil marijuana possession violation,” Wallace wrote in his April 13 opinion. “It is disputed what legal effect that fact has on the two charges for which Murray was indicted and faces trial in this Court.”
Murray’s attorney, Matthew Buckworth, argued that the firearm charge should be dismissed because the firearm statute wasn’t intended to apply to someone possessing under an ounce of marijuana for personal use.
“It is not fair for someone to have the potential to be felonized for an offense that would otherwise be OK,” Buckworth said. “It was never the intent of the Legislature to criminalize that behavior.”
Wallace disagreed with Buckworth, saying he must apply the law as it currently reads.
“Sure, it’s conceivable that if it ever did, the legislature might choose to eliminate non-criminal marijuana possession as an element of that compound weapons crime,” Wallace wrote. “But, the legislature has not done so. And, this court cannot do so in its stead.”
Wallace pointed to a recent Supreme Court decision in which it said it is beyond the courts’ role to “question the policy or wisdom of an otherwise valid law. Rather we must take and apply the law as we find it, leaving any desirable changes to the General Assembly.”
Murray’s case went to trial in January, and he was found not guilty of the firearm charge, after his attorney argued the firearm in the closet did not belong to Murray. The judge found him liable for a $100 civil violation for the possession of less than an ounce of marijuana.
Even though he was found not guilty of the firearm charge, Wallace decided to still write a court opinion after the fact in April. That signaled to lawmakers a need to take a second look.
Keeley said lawmakers never considered the issue with a firearm would arise when they passed marijuana decriminalization.
Keeley said she and state Sen. Margaret Rose Henry, D-Wilmington, will have to review the current law to see whether the firearm charge should be amended to exclude those caught with under an ounce of marijuana.
“Are you allowed to have alcohol and carry a firearm at the same time?” she said. “If you are allowed to carry a firearm legally, then I don’t see any reason we wouldn’t consider this to be the same.”
Carl Kanefsky, a spokesman for the Department of Justice, would not speak to the legislative intent of the current law, but said it is a crime to possess any amount of controlled substances and a gun together.
“The point of the opinion is that even with the drug considered as a civil violation, the law still allows for the firearm charge because having marijuana is still against the law,” Kanefsky said. “It has not been legalized.”
Last month, Keeley and Henry introduced a bill that would allow state residents 21 and older to purchase up to an ounce of marijuana legally at dozens of stores in the state.
Buckworth said he is hopeful the Legislature will make changes to the firearm charge because they likely never imagined a scenario would arise as it did for Murray.
“I think changing the law is so important because he’s a very good kid,” Buckworth said. “He has a full-time job, and this could have really messed him up. That doesn’t seem like the intent of the legislation.”
credit:delawareonline.com
