Medical marijuana user regains handgun license

December 11, 2005

Holly Danks, The Oregonian

Washington County Sheriff Rob Gordon must return the concealed handgun license that he revoked after a 53-year-old man said he frequently uses medical marijuana, a judge ruled Monday.

After a 45-minute hearing, Washington County Circuit Judge Marco Hernandez said the county did not present enough evidence to convince him that Steven Schwerdt of Beaverton was violating a federal law that prohibits a habitual drug user or addict from possessing a firearm.

"The idea is that Congress did not want people who are under the influence to be buying or possessing guns," Leland R. Berger, Schwerdt's attorney, said after the hearing. "Here, the use is medicinal. I think the sheriff unfairly singles out medical marijuana users."

Gordon took away Schwerdt's permit in September when Schwerdt indicated on a concealed handgun change of address form that he had a medical marijuana card and frequently used the drug. Schwerdt appealed the revocation to Washington County Circuit Court.

Oregon voters approved physician-approved medical marijuana use in 1998. Since then, more than 11,000 residents have received state-issued medical marijuana registry cards.

Elmer Dickens, Washington County counsel, said the sheriff was following the U.S. Gun Control Act, which prohibits people from having guns whose use of unlawful controlled substances is "consistent and prolonged."

According to a motion filed by Berger, federal courts have not ruled whether a medical marijuana patient can get a concealed handgun license or even legally possess a gun in the first place.

Dickens said the sheriff has revoked the concealed handgun licenses of four medical marijuana users. Schwerdt is the only one to go to court.


Chronic pain


Schwerdt said he received a medical marijuana card about a year ago to help relieve chronic pain from arthritis and other conditions related to obesity. He said he weighs 522 pounds, and can't stand or sit for prolonged periods, can't exercise and can't work.

"I am not addicted," he said Monday. "I use it two or three times a week and sometimes go a month without using. The pain dictates."

Schwerdt has had a Washington County concealed handgun license since 1997. But about the only time he carries a gun, he said, is when he drives to the Oregon Coast.

"It's hard to put into words how it makes me feel, but it gives me a little sense of calmness," Schwerdt said.

Schwerdt said a pair of hitchhikers he picked up in downtown Portland more than 30 years ago stabbed him 14 times and left him for dead in Hood River.

Dickens said he would talk to the sheriff before deciding whether to appeal Hernandez's decision to the Oregon Court of Appeals.


Other obstacles


Gordon denied that he is targeting medical marijuana users. The concealed handgun form also asks applicants whether they are illegal immigrants, fugitives from the law, or whether they have been convicted of domestic violence or been dishonorably discharged from the armed forces. Under federal law, people who fall into those groups, as well as users of unlawful controlled substances, are prohibited from possessing guns.

"I can't license someone to carry a weapon that the federal government says they can't have in the first place," Gordon said. "The legislators have to get together and get some clarity on that."

The question about drug use was not included on the concealed handgun forms when Schwerdt last renewed his license in August. The Washington County Sheriff's Office granted his renewal through August 2009; Schwerdt was following the law when he filled out a change of address form in September.

Lt. Shawn Fischer, who at the time was in charge of the county's concealed handgun unit, testified Monday that Schwerdt was "very cordial" and did not appear to be under the influence of drugs when they talked then.


"Risky people"


Dickens asked Hernandez "for a good-faith extension" of the federal law to Oregon's concealed handgun licensing process. In interpreting the Gun Control Act, the U.S. Supreme Court decided that Congress "intended to keep firearms out of the hands of presumptively risky people," Dickens argued.

However, Hernandez noted that Oregon lawmakers failed to give county sheriffs the authority to deny or revoke concealed handgun licenses specifically based on violations of federal law.

Berger said federal law enforcement agencies don't seek out medical marijuana users for prosecution, so local sheriffs shouldn't either. He said Schwerdt's marijuana use is a "responsible adult use of a nontoxic herbal remedy."

Dave Burright, executive director of the Oregon State Sheriffs' Association, said the organization does not have a policy on medical marijuana.

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