Category Archives: Civil Rights

Marijuana Legalization in Minnesota: What Should It Look like?

Has the time come for marijuana legalization in Minnesota?

Opposing legalization is now political suicide

Opposing marijuana legalization for responsible adult use is now political suicide.  That might surprise a few.  But much has changed.

Last month Gallup reported its polling on the issue“Sixty-six percent of Americans now support legalizing marijuana.”

Democracy?  Bipartisan Majorities

And support is bipartisan.  Though more Democrats support marijuana legalization than Republicans, “Gallup found last year that a slim majority of Republicans supported legal marijuana for the first time, and this year’s figure, 53%, suggests continued Republican support.”

Pew Research Center reports similar polling, pointing out that support for marijuana legalization is now double what it was in 2000.

History doesn’t repeat; it rhymes

Students of history draw lessons from the alcohol Prohibition life cycle.  Why did it take so long to end it, even after a majority of Americans opposed it?

The five percent tipping point
Marijuana legalization at the Capitol.  Minnesota NORML.

Marijuana legalization at the Capitol. Minnesota NORML.

One answer?  The tipping point was when about five percent of the voters made legalization a wedge issue.  In other words they would disregard political party, other issues, and vote for a political candidate solely on the issue of re-legalization.  The alcohol Prohibition repeal soon followed.

Elections matter

In the 2018 general election, two single-issue marijuana legalization parties achieved major party status in Minnesota.  Their candidates for statewide office received more than the five percent threshold to qualify as major political parties.

How many elections are won or lost by less than five percent of the vote in Minnesota?  Opposition to the majority will now has a severe price: losing.

The time has come for marijuana legalization.  But what should it look like in Minnesota?

What should marijuana legalization look like in Minnesota?

The issue is Liberty, not marijuana.  Ending marijuana Prohibition is consistent with conservative political values.  Less government means more freedom.  Prohibition is a government bloat program, that destroys lives, destroys our freedom.

We the People have at least equal rights to marijuana as we do to beer and wine.  The fact that marijuana is safer than beer and wine, undercuts the Prohibitionist lie that “marijuana is a dangerous drug.”  Death by overdose happens with alcohol, but cannot happen with marijuana.  Marijuana has no toxic dose level, unlike caffeine, aspirin and many other commonly used, legal drugs.

The three legal models for marijuana 

We’ve seen three models for our legal rights to marijuana, in chronological order:

  1. The Tomato Model
  2. The Prohibition Model
  3. The Beer and Wine Model

The Tomato Model

The Tomato Model of marijuana legalization

The Tomato Model of marijuana legalization

Under the Tomato Model of marijuana laws, the people have rights to marijuana equal to our rights to tomatoes.  The law lightly regulates tomatoes.  Tomatoes are not a crime to grow, possess, or sell.

The Tomato model means laws the repeal of laws criminalizing it.  People are free to do with marijuana what they can do with tomatoes.  We call it de-criminalization.

This was the state of the marijuana laws before the marijuana Prohibition era began.   Advocates of the tomato model say we should return to this.  Of the three legal models, the tomato model is the most conservative.  It protects the People’s Liberty most.

The Prohibition Model

The writing is on the wall: Vote Against Prohibition

The writing is on the wall: Vote Against Prohibition

Marijuana Prohibition never would have happened but for the alcohol Prohibition.  As the alcohol Prohibition was winding down in the 1930s, state by state, the government Prohibition bureaucracy ramped up its anti-marijuana propaganda; much of it with appeals to racism.  They succeeded.  They tricked the public into funding a massive anti-marijuana government bureaucracy.  It was a solution in search of a problem.  At the time, marijuana usage rate was infinitesimal.  Now almost every American has used marijuana at least once, thanks to Prohibition.

Though ten states have legalized marijuana for adult use, Minnesotans still live under the shadow of marijuana Prohibition.  The government still pays police officers to break down doors, toss people’s cars, searching for marijuana.  Then we pay prosecuting attorneys to charge people with marijuana with crimes, label us criminals, strip our civil rights and lock us up.

And enforcement disproportionately impacts African-Americans, despite equivalent usage rates with other ethnic groups.  Marijuana legalization ends these social evils.

The Beer and Wine model

Wine may not be for everyone, but a crime?

Wine may not be for everyone, but a crime?

Under “the beer and wine model,” the people of Minnesota have equal rights to marijuana just the same as to beer and wine.

The metaphor works because people are familiar with beer and wine.  The law treats marijuana the same as beer and wine in every way.  It also works because marijuana is safer than beer or wine.  This undercuts opponents’ “public safety” argument.

Wherever the law now says “beer” or “wine,” we can add the word marijuana.  What could be more simple?

Step one – decriminalization
Prohibition Still Doesn't Work. NORML.

Prohibition Still Doesn’t Work. NORML.

Of course, we need to delete all criminal laws referencing “marijuana” and “THC.”  This includes deleting both from the Schedules in Minnesota’s version of the Controlled Substances Act, now in Minnesota Statutes Chapter 152.  We call this “de-scheduling.”

In addition, the criminal drug laws will be amended to delete all references to THC and marijuana.  Most of these are also in Chapter 152.

That is the decriminalization component.  For supporters of The Tomato Model, that is all we should do.

Step two – regulation

Under the beer and wine model, we not only completely decriminalize, we also enact a set of laws regulating marijuana production and sale.  Here the existing beer and wine laws guide us.

We have equal rights to marijuana as to beer and wine.  So the marijuana laws mirror those regulating beer and wine.

Conservatives and Liberty advocates may prefer The Tomato Model for marijuana laws, as we had before Prohibition.  But here history has another lesson for us.

The legal framework for alcohol was The Tomato Model before the alcohol Prohibition.  But after the repeal of alcohol Prohibition, the laws regulated alcoholic beverages.  We’ll skip the reasons for that.

Suffice it to say, strong public support now exists for re-legalizing marijuana for responsible adult use under The Beer and Wine Model.  The ten states that have legalized so far have substantially followed The Beer and Wine Model.  Marijuana legalization in the Untied States so far means decriminalized and regulated like beer and wine.

What’s the Big Idea?

The Beer and Wine Model is the big idea.  Liberty.  Equal rights.  Civil rights.  Racial justice.  These core American values support the beer and wine model of legalization, far better the evils of Prohibition.

What should marijuana legalization look like in Minnesota?  The People should have at least equal rights to marijuana as to beer and wine.  With that core principle, the rest takes care of itself.

Details Matter Too

We’ll take a deeper dive into the details of proposed legislation in the future.  But now let’s take a look a few of the important details of re-legalization in Minnesota.

Home Grow is Alright With Me

Even with regulated beer and wine, we have the right to produce beer and wine at home in small batches.  Under the beer and wine model for marijuana regulation, we can grow marijuana on our own property, in small batches.

A little Minnesota history

Minnesota laws contradict each other when it comes to forms of marijuana.

In the 1970s, the laws favored plant-form marijuana and disfavored “the resinous form,” which we now call “wax.”  Then they thought “the resinous form” more dangerous than plant-form.   The distinction remains in Minnesota Statutes definition of a “small amount of marijuana.” That definition makes an exception for a small amount of the resinous form of marijuana, which currently remains a crime.

Yet in the 2010s, the Minnesota legislature crafted a Medical Marijuana law which favored “the resinous form” (concentrates) and disfavored plant-form marijuana.  More recently they thought that the resinous form was safer than plant-form.  The legislature then approved only the resinous form, for legal use within Minnesota’s original medical marijuana program.

The public policy in these two sets of laws conflict.

A rose is a rose is a rose

The time has come to end the legal distinction between plant-form and the resinous form.  We should treat all forms of marijuana as marijuana.  It’s the same plant, the same substance.  The distinction between forms creates needless confusion.  If it made any sense, the legislature would not have contradicted itself.

Repair the Minnesota Medical Marijuana Program
The once and future medical cannabis

The once and future medical cannabis

The lack of plant-form and home grow in Minnesota’s medical marijuana program has undermined it.  Now, Minnesota’s medical marijuana program is super-expensive and out of reach for disabled, sick people.  And insurance does not cover it.

The “concentrates only” approach of Minnesota’s medical marijuana program adds unnecessary cost.  Plant-form is less costly to produce.

The lack of legal home grow for Minnesota medical marijuana patients denies access to medical care to low-income, disabled people.  They can grow their own, cheap.

Suppliers and distribution

The law of supply and demand is stronger than criminal law

The law of supply and demand is stronger than criminal law

The “bad model” at this point is Colorado, the first state to legalize.  Why?  Because it  has a super-expensive seed to retail sale surveillance regimen then meant to reassure and deter diversion.  Now that ten states have legalized for adult use, this is an unneeded expense.

If retail cost is too high, the underground economy will continue.  We need to destroy the underground economy using the laws of economics, not failed criminal laws.

Suppliers and distribution.  The existing two medical suppliers and existing legal hemp growers are places to look for beginning suppliers.

Over-taxation

In some other states, over-taxation is a problem.  If retail cost is too high, the underground economy will continue.

Equal rights, and justice:  The “beer and wine model” comes to the rescue again.   We should not tax marijuana more than the beer and wine.  The “sin tax” on beer and wine is already sky-high.

Transitional issues

What are transitional issues?  These are issues that are big problems as we transition from a Prohibition Model, to a Beer and Wine Model of marijuana regulation.   But we expect that ten years after legalization many of these issues will subside.

There are many transitional issues.  Let’s mention a few.

Automatic record voiding of convictions and expungement

Minnesota’s legalization law should include automatic vacating of convictions and public records expungement.

Today, most people who qualify for criminal record expungement never file a Petition for Expungement in court due to cost barriers.  The law should require the government to automatically vacate every criminal conviction related to marijuana or THC, and expunge those public records.  We should remove the burden from the victims of Prohibition and put it on the government.

Many do not know that a typical Minnesota court expungement Order will not fully restore civil rights under federal law.  The conviction itself must be undone, vacated and dismissed, as if never happened.  We must do that, in order to fully restore all civil rights in a way the federal laws will recognize.  A simple sealing of public records will not fully restore civil rights.

Amnesty for Drug War P.O.W.s

We should immediately release all people locked up for any marijuana or THC crime, from jail or prison.

Force the Minnesota Department of Corrections to follow the law

When a court sentences a person to prison, it strips them of their civil rights and are commits them to the Minnesota Department of Corrections (DOC).  The Minnesota DOC revokes supervised release for legal medical marijuana users.  We must stop this Minnesota DOC policy and practice.   We need a statute to reign in this Minnesota DOC violation of existing Minnesota law.

What do you think?

Drop your comment below.

About the author

Thomas C. Gallagher, Minnesota NORML

Thomas C. Gallagher, Minnesota NORML Member

Written by Thomas C. Gallagher.  Gallagher has worked on re-legalization issues for over 30 years.

He is a former Chair of Minnesota NORML and is founding Board Member, since 2011.

Gallagher is also a criminal defense lawyer in Minneapolis with a heavy portion of marijuana defense cases.

Felony doesn’t always impair Minnesota gun rights

A Minnesota felony doesn’t always impair gun rights.  But many still believe that “a Minnesota felony conviction will mean a lifetime loss of gun rights.”  That’s wrong.

Upon completion of probation, gun rights lost after a felony conviction are automatically restored along with other civil rights, under the general rule of Minnesota law.  Exceptions to that general rule are discussed below.

The Right to Firearms

The right to self-defense and firearms is a natural, human right.  It belongs to you because you were born a human being.  The United States was born in revolution and violent struggle to force government to respect our natural rights.  The United States Constitution makes this respect clear.

Fighting for Natural Rights to Firearms, 1781

Fighting for Natural Rights to Firearms, 1781

As the U.S. Supreme Court recently ruled: “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”  District of Columbia v. Heller, 554 US 570 (2008).

The law, however, does limit our rights under some circumstances.  Even so, strict scrutiny must be given to any legal limitations upon our fundamental rights. We are skeptical of legal limitations of our rights.

Certain pending criminal charges or convictions historically have limited our civil rights to firearms.   As criminal defense attorneys, part of our job representing our clients is to understand how to protect their civil rights.

Will any felony conviction cause a lifetime loss of civil rights to firearms?

A common misconception holds that “any felony conviction will cause you to lose your civil rights to firearms forever.”  But a Minnesota felony doesn’t always impair gun rights.

We have heard that wrong statement of the law (that a felony conviction always means a lifetime loss of gun rights) from people who should know better.  Is there any possible explanation for such a widespread misconception about the law?  The two main reasons for this common misunderstanding of the laws are:

  1. Gun laws are complex – short of in-depth study.
  2. The laws have changed – many have failed to update their knowledge.

Solution:  This article will walk you through the law and explain why “a felony conviction” doesn’t always impair Minnesota gun rights indefinitely.  Two common exceptions to that general rule are:  1) “felony crimes of violence” and 2) “misdemeanor crimes of domestic violence.”  If lost, these rights may either be automatically be restored by operation of law; or, their restoration may be possible through a court order or pardon.

Loss of gun rights upon certain pending criminal charges and convictions

Civil rights to firearms can be temporarily suspended while certain criminal charges are pending before the Minnesota court.  They can be also be temporarily or indefinitely lost upon conviction of certain crimes under Minnesota law.  For example, Minnesota Statutes §624.713, subd. 1 (10) (i), says:

Subdivision 1.  Ineligible persons. The following persons shall not be entitled to possess ammunition or a pistol or semiautomatic military-style assault weapon or, except for clause (1), any other firearm:
(10) a person who:
(i) has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;

For someone who has not fully studied the web of Minnesota gun laws, the above excerpt, in isolation, could be misleading.  It seems to say that a felony conviction will result in an indefinite loss of civil rights to forearms in Minnesota.  But below we discuss the other, specific Minnesota statutes to the contrary. 

Every person convicted of a Minnesota felony will lose their civil rights to firearms from the moment of adjudication or conviction until the moment the person is discharged from probation or sentence. Minnesota Statutes §624.713, subd. 1 (10) (i).  Unless their conviction was for a “felony” “crime of violence” or other exception; their rights are automatically restored upon completion of sentence (e.g., probation).

Why a Minnesota felony conviction doesn’t trigger loss of gun rights

The general rule:  Following a Minnesota conviction, civil rights to firearms are restored by operation of statute at the completion of, or discharge from sentence “the same as if such conviction had not taken place.”  Minnesota Statutes §609.165:

“RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS AND AMMUNITION, Subdivision 1. Restoration. When a person has been deprived of civil rights by reason of conviction of a crime and is thereafter discharged, such discharge shall restore the person to all civil rights and to full citizenship, with full right to vote and hold office, the same as if such conviction had not taken place, and the order of discharge shall so provide.”

Note that it doesn’t matter what level the conviction was – felony or misdemeanor.  Gun rights are restored under this general rule statute upon discharge from sentence.  Clearly, a Minnesota felony doesn’t always impair gun rights.

But a Minnesota “felony crime of violence” conviction now causes a default lifetime ban

One of the two major exceptions to the general rule stated above is Minnesota’s statute stripping away civil rights to firearms for life after a conviction for “felony crime of violence.”  Minnesota Statutes §609.165 RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS AND AMMUNITION:

“Subd. 1a. Certain convicted felons ineligible to possess firearms or ammunition. The order of discharge must provide that a person who has been convicted of a crime of violence, as defined in section 624.712, subdivision 5, is not entitled to ship, transport, possess, or receive a firearm or ammunition for the remainder of the person’s lifetime. Any person who has received such a discharge … whose ability to possess firearms and ammunition has been restored under subdivision 1d, shall not be subject to the restrictions of this subdivision.“

The specific list of crimes defined as “felony crimes of violence” is in Minnesota Statutes §624.712, subdivision 5.  A listed crime triggers a lifetime loss of civil rights.  Otherwise, discharge from felony probation or sentence will generally restore gun rights by law.  It’s important to check the list, since despite the label, many convictions on the list are factually non-violent and listed as a technicality, notably marijuana crimes.

Exception to the exception: restoration of gun rights after a Minnesota “felony crime of violence” indefinite ban

What if “felony crime of violence” conviction impairs civil rights to firearms?   A court order or a pardon can restore them.  For more on that see our page: Restoration of Civil Rights to Firearms in Minnesota

What about a federal statute saying a felony conviction triggers a loss of gun rights?

Federal laws are in need of some housecleaning, to convey clear meaning. Bottom line – federal law says that when it comes to taking away and restoring civil rights to guns, the state laws control, not federal.

The Untied States Supreme Court explains

This United States Supreme Court case offers the most succinct explanation:

A federal statute forbids possession of firearms by those convicted of serious offenses. An abbreviated version of the statute is as follows:

“It shall be unlawful for any person—

“(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; …

“to … possess in or affecting commerce, any firearm or ammunition …” 18 U.S.C. § 922(g). …

Until 1986, federal law alone determined whether a state conviction counted, regardless of whether the State had expunged the conviction. Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 119—122 (1983). Congress modified this aspect of Dickerson by adopting the following language:

“What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, …” §921(a)(20).

The first sentence and the first clause of the second sentence define convictions, pardons, expungements, and restorations of civil rights by reference to the law of the convicting jurisdiction. See Beecham v. United States, 511 U.S. 368, 371 (1994). …

We note these preliminary points. First, Massachusetts restored petitioner’s civil rights by operation of law rather than by pardon or the like. This fact makes no difference. Nothing in the text of §921(a)(20) requires a case-by-case decision to restore civil rights to this particular offender. While the term “pardon” connotes a case-by-case determination, “restoration of civil rights” does not.

Caron v. United States, 524 U.S. 308 (1998)

Minnesota law controls

Minnesota law controls

Minnesota law controls

Therefore, Minnesota law, not federal law determines whether a Minnesota felony conviction makes a person ineligible to possess a firearm in Minnesota.  See, also 18 U.S. Code § 921, (a) (20) The term “crime punishable by imprisonment for a term exceeding one year;” and, 27 CFR 478.11.

This is Black Letter Law.  The law is clear and unambiguous.  Minnesota law, not federal law, determines whether a person loses their civil rights to firearms for a felony conviction, and how those rights can be restored.

If you hear anyone repeating the old misinformation about this, refer them to this article for a simple, succinct explanation of the law.  At minimum, know that a Minnesota felony conviction doesn’t always impair gun rights.

“What if I had a felony conviction reduced to a gross misdemeanor after successful completion of a Stay of Imposition?

Short answer: When it comes to gun rights, it doesn’t matter.  Why?

Rights are automatically restored upon discharge from probation or sentence if the Minnesota felony conviction was for a crime not listed in the section 624.712, subdivision 5, list of “felony crimes of violence.”

If the conviction level was later reduced to a non-felony under Minnesota Statutes § 609.13, Subdivision 1; if the conviction was for a “felony” listed as a “crime of violence,” the person convicted is banned from possessing firearms under Minnesota Statutes §724.713, Subd. 1 (10), because the charge was “punishable by imprisonment for a term exceeding one year.” 

What about juvenile adjudications for felony crimes?

For purposes of gun rights a Minnesota juvenile adjudication will trigger the same civil rights disabilities for firearms as a conviction will for an adult.  A juvenile “adjudication” is the functional equivalent to an adult “conviction.”   See, Minnesota Statutes §242.31, RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS.  For juveniles, a Minnesota felony adjudication doesn’t always impair gun rights.

What about civil rights to firearms after a Minnesota “misdemeanor crime of domestic violence” conviction?

See our recent article for a thorough discussion of: Civil Rights to Firearms after a Minnesota “misdemeanor crime of domestic violence” conviction.

Significant events along a criminal law & gun rights timeline

Let’s consider a hypothetical timeline in a person’s life taking into account the effect of criminal law events on their civil rights to firearms.  The person is born in the U.S.A. with their natural rights to firearms subject to mild regulation for age, etc.

Then a felony or selected misdemeanor charge may temporarily suspend the person’s gun rights pending the outcome of those charges in court.  Dismissal, a not-guilty verdict, or a conviction could result. 

If convicted of a felony and selected misdemeanor crimes, the person loses their civil rights to firearms.  After that, the general rule Minnesota statute restores their civil rights to firearms upon completion of sentence (including completion of probation), with exceptions.  For some felony and selected misdemeanor crimes, the Minnesota law exceptions trigger an indefinite or lifetime ban.  Gun rights can later be restored, for example by court order or pardon for people so affected.

The key event periods along the timeline are:

  1. Pending criminal charge
  2. Pending sentence (after conviction, before completion of probation, sentence)
  3. After discharge from sentence, before restoration of civil rights to firearms
The legal grey area between the black letter law

Gun laws are more complex than they need to be.  And we have both Minnesota and federal laws to review – statutes and case-law.  Grey areas of ambiguity exist between the clear, unambiguous areas of gun laws on either side.  Looking forward, no one wants to be on the wrong side of the law or even in a legal grey area.  Once already charged with a crime, however, no one can change the past.  In criminal defense, the legal grey area usually means “not guilty.”

Retrospective view:

When defending against a criminal charge like “Ineligible Person in Possession of Firearm,” that grey area in between is something that we term “reasonable doubt.”  (A person with a pending criminal charge should be sure their defense lawyer is knowledgeable and capable of protecting their civil rights to firearms as part of the defense objective.)

Some prosecutors and some defense attorneys fail to understand gun laws.  This can result in a wrongful conviction for felony “ineligible person in possession of a firearm” of an innocent person, based on a non-listed past Minnesota felony conviction.  Be sure to to retain a criminal defense attorney who knows not only criminal law, but gun law.  One basic test: does the attorney know that a Minnesota felony doesn’t always impair gun rights?  Be sure your defense attorney knows the law.

Prospective view:

But a person with a past conviction, does not want to take any unnecessary chances of being on the wrong side of the law as interpreted by some random law enforcement officer or prosecutor.  Their civil rights may have been fully restored by law, but they may have trouble with a gun purchase permit denial by someone who fails to understand that a Minnesota felony doesn’t always impair gun rights.  To avoid grey-area trouble, that person may wish legal help to ensure recognition of their full civil rights as a citizen.

If someone says that a felony conviction always means a loss of civil rights to firearms, remember that a Minnesota felony conviction doesn’t always impair gun rights.  And recommend that they read this article for the map of the law.

Thomas Gallagher, Minneapolis Criminal Lawyer

Thomas Gallagher, Minneapolis Criminal Lawyer

About the Author:

Thomas C. Gallagher is a Minnesota Defense Attorney who handles criminal cases involving self-defense, and gun crimes cases.  A Second Amendment and Bill of Rights supporter, Gallagher has taught and written extensively on firearms law and the law of self-defense.