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Did Honolulu Police Break Law With ‘Surrender Your Guns’ Letter?

December 1, 2017
Honolulu, Oahu, HI, USA - July 7, 2010: Honolulu police car parked on side of street in Waikiki beach area.
Leafly’s report earlier this week about letters sent by the Honolulu Police Department—ordering medical cannabis patients to surrender their firearms—has raised alarms among patients, doctors, privacy experts, and Second Amendment defenders across the nation.

'It's causing an uproar with our patients, many of whom are hunters.'
Dr. Clifton Otto, Honolulu physician

Our story, which followed up a report from Russ Belville and his Marijuana Agenda podcast, confirmed that the Honolulu Police were sending letters to medical cannabis patients ordering them to “surrender” their firearms within thirty days.

“It’s causing a bit of an uproar with our patients,” Dr. Clifton Otto told Leafly earlier today. Otto is a Honolulu physician certified by the state to register patients in the medical cannabis program. “We have a lot of patients, especially those on the Big Island, who are hunters, and a fair number of them own firearms.”

Related

Surrender Your Guns, Police Tell Hawaiian Medical Marijuana Patients

Registered firearm owners and MMJ patients are receiving these letters from the Honolulu police. (Courtesy of Russ Belville, The Marijuana Agenda)

Police Are Looking For What, Exactly…

The main question now being put to the Honolulu PD and its chief, Susan Ballard (who just took office in early November), is how, when, and why police officials accessed the supposedly secure medical cannabis patient database maintained by the Hawaii State Department of Health. Patient health records, including a person’s registration with the state’s medical cannabis program, are subject to both state and federal confidentiality laws.

'Patient confidentiality is a core component of the medical cannabis program.'
Carl Bergquist, Hawaii MMJ policy expert

“Patient confidentiality is a core component of the medical cannabis program” in Hawaii, according to Carl Bergquist, executive director of the Drug Policy Forum of Hawaii, a founding member of the Medical Cannabis Coalition of Hawaii. “Law enforcement cannot just check the medical cannabis database whenever it feels like it.”

As a result, the MMJ firearm letter program “is being reviewed” by Honolulu PD officials, according to a report from Hawaii News Now.

Related

Can Medical Marijuana Patients Legally Own Guns?

Not What the Database Is For

Patient advocates agree that that police officials may legally confirm the medical cannabis status of a local resident when an officer encounters the resident in possession of cannabis. That’s what the Hawaii Department of Health’s 24-hour automated phone confirmation system exists to do.

Are police legally able to use the same system to check the MMJ status of a resident who’s applying for a firearm permit? Probably so, if the resident indicated that he or she is an MMJ patient on the firearm permit application. That written communication can be seen as consent to release that specific information. In fact, the Department has been denying new firearm permits to MMJ patients for years.

Reporter Anita Hofschneider wrote in the Honolulu Civil Beat:

While the city has denied gun permits to medical marijuana patients for years, the state revised the permit application this month to specifically ask about medical marijuana licenses, HPD spokeswoman Michelle Yu said in an email.

From 2013 to 2016, 67 patients were denied gun permits, and the HPD has sent letters to 30 patients in the last year.

This latest round of letters, however, take things quite a step further by ordering medical cannabis patients to “surrender” any existing firearms under their ownership or control. And it’s not known whether the “surrender” letters were sent only to people who applied for a new permit, or to all firearm permit holders on file with the Honolulu PD.

State law allows law enforcement agencies “reasonable access” to the Hawaii Department of Health’s (DOH) medical cannabis registry to verify a person’s MMJ status and “for official law enforcement purposes.” But the Department of Health’s own guidelines state that the DOH is required to provide law enforcement officials with “limited access” to its Medical Cannabis Registry Program database “as a tool to safeguard the community against illegal cannabis use and/or illegal cannabis grow sites.”

It’s unclear how, exactly, accessing the DOH patient database to order medical cannabis patients to surrender their firearms falls under the category of safeguarding the community against illegal cannabis use or illegal grow sites.

Related

Qualifying conditions for medical marijuana by state

Who Received the Letters

It also remains a mystery whether the “surrender” letters went out only to current firearm permit applicants who indicated that they were also medical cannabis patients (and the police assumed that they might also have previously permitted guns), or if police officials are sending out the letters to all MMJ patients with existing firearm permits.

It’s hard to know, because the Honolulu Police Department has yet to respond to any of Leafly’s questions. And judging by the articles we’ve read this week, we’re not the only news outlet waiting for callbacks. Honolulu Civil Beat put the question—Were the letters sent only to gun permit applicants, or to people with existing permits, or both?—to police spokesperson Michelle Yu, but Yu did not respond.

“We know that HPD checks a patient’s status if that person applies affirmatively” for a firearm permit, Carl Bergquist told Leafly. “But if they’re sending these letters to patients who aren’t applying, how did they do that? Did they just run everyone through the medical cannabis database? That isn’t a verification, that’s a trawling action.”

Did a Small Rule Change Lead to This?

Clifton Otto, the Honolulu physician, believes the trouble stems in part from a little-noticed change to an interpretive rule that the Department of Health adopted in October, 2016. That rule, regarding confidential health information, originally allowed the release of that information to federal, state, or local police “for the purpose of verifying registration with the department pursuant to this chapter.” This chapter referred specifically to the medical cannabis program.

'They should be going after the real hardcore criminals and bad guys versus patients who need assistance with their health care needs.'
Will Espero, State Senator

The October, 2016, rule change added a clause, “or for official law enforcement purposes,” to that rule. That clause opened the door, legally, for pretty much anything the police could reasonably justify as their business, from traffic tickets to homicide.

In light of this week’s story, Otto has drafted a petition to Department of Health Director Virginia Pressler, requesting that the DOH change the rule. Otto’s suggestion would change the language to “utilize only a subject’s registration number, for the sole purpose of verifying compliance with the Registry program pursuant to this chapter.”

That language would prevent police officers from fishing through the DOH’s database using only a person’s name and date of birth.

Related

2017 Cannabis Jobs Count: Legal Marijuana Supports 149,304 Americans

What About the Federal HIPAA Law?

Another question that’s worth raising: Did the Honolulu Police break the federal HIPAA law, which safeguards personal medical information privacy, by trawling the Department of Health’s medical cannabis database?

HIPAA, the Health Insurance Portability and Accountability Act of 1996, is an unusually strong federal law that protects data privacy and safeguards medical information. Remember the viral video of the Utah hospital nurse arrested for refusing to allow a police officer to draw blood from an unconscious patient? She refused the unauthorized draw in part because of HIPAA, which prohibits hospitals from releasing medical information to anyone, including police, without consent from the patient.

There are exceptions to HIPAA for law enforcement officers, but they are very tight and usually require proof of a threat to safety, evidence of a crime, a court order, or other unusual extenuating circumstances. If a person’s medical cannabis status is considered protected health information (PHI), then it’s unlikely that the existence of an old firearm permit would clear HIPAA’s high bar for allowed access.

Why Use Police Resources For This

According to a recent report on Guns.com, Hawaii is the only state to require the registration of all firearms through county police agencies. Leafly was unable to independently verify that, but a number of states have different types of firearm licensing requirements. Most have to do with permits to purchase, but a few require licenses to own. That information can be found here.

The police letters have also raised the ire of at least some state legislative leaders. State Sen. Will Espero, a member of the state’s Medical Cannabis Legislative Oversight Working Group, told Honolulu Civil Beat that the whole operation seems like a waste of time and police resources.

“They should be going after the real hardcore criminals and bad guys versus patients who need some assistance with their health care needs,” Espero said.

Bruce Barcott's Bio Image

Bruce Barcott

Leafly Senior Editor Bruce Barcott oversees news, investigations, and feature projects. He is a Guggenheim Fellow and author of Weed the People: The Future of Legal Marijuana in America.

View Bruce Barcott's articles

  • 45 cal

    Clearly violation of due process protected by US 5th amendment. This police action is yet another example of Liberal led government path to Socialism.

    • Jonah Hirsh

      Yeah, that too.

    • k55f

      As I’ve said before, Not communism-but authoritarianism.Communism is everyone working towards a common goal (fabian communism) Authoritarianism is you all work for us.

      • Fun Please

        A family has a hard time working towards a common goal.
        You can’t have communism without totalitarianism.
        Communism is nothing but philosophy. That’s not economics. Economics takes into account many proven principles. Communism is philosophy of economics for adult children.

    • Philip Marks

      I favor registration and responsible regulation. This is not what I favor; it is absurd. This kind of idiocy can be prevented and still allow reasonable responsible gun use and reasonable regulation.

  • youngju

    If you use marijuana you are barred from owning a firearm. Check the 4473 you fill out when making a firearms purchase. The federal government prohibits illegal drug users from owning firearms and marijuana is illegal by federal law. The state of Hawaii will make every effort to disarm you, so why is anyone surprised?

    • Jonah Hirsh

      Because legally it doesn’t have the TOOLS to disarm you. Its only with the gov’t disregard for explicit language in the federal law that proscribes any kind of registration whatsoever that such things occur.

      State law differs, of course, but it still forecloses gov’t invasion of private medical information.

    • patriot156

      That’s why I say Sessions the POS is behind all this. If he can’t get you one way he will the other.
      I don’t care what people say in defense of that bastard he’s no friend of liberty just the machine.

  • fsilber

    Could not have happened without firearms registration and licensing. As this episode illustrates, the government cannot be trusted with this sort of information.

    • Jonah Hirsh

      BINGO.

  • Karol Hudson

    Who, prosecutes the POLICE when they violate the law ???

    Perhaps a few police chiefs should spend 3 – 5 years in jail to show
    the citizens that the law is applied equally ???

  • ramrodd

    back door control by a police state

    ————————————————————————————–
    Big Pharma puts millions upon millions on drugs and then convince the people that the sheep agree, not realizing they just targeted themselves..

    You know I don’t usually get into conspiracy theories, but some connections are just too convenient.

    First, you build a medical/pharmaceutical industry that successfully pushes the notion that every little sorrow, nervous twitch, or bit of restlessness is a “disease” that needs to be treated with psychoactive drugs. Then you go on a holy crusade to take guns away from the “mentally ill” (and all the bobbleheads who haven’t thought about the implications repeat “good idea, good idea, good idea”).

    So with the consent of the ignorant, complacent, well-programmed, and the devious slimeballs who take advantage of all of the above, any one of the millions who’ve been propagandized into taking one of those psychoactive drugs can become a candidate for losing his or her gun rights. No due process, no nothin’. (Added: Well, maybe the opinion of an authoritarian, anti-gun counselor or shrink.)

    It’s just too-too perfect. Politically elegant.

    The people who are so eager to grab the guns (you will not be surprised) don’t much care whose guns they take in the process. Because after all, the point isn’t preserving rights, it’s taking rights from one and all. Grab the guns from the “wrong” guy? But there are no wrong guys when it comes to taking away firearms!

    Oh yeah, and it helps if you also set up “medical privacy” systems that centralize your health-care data and share it willy-nilly with “authorities.”
    Claire Wolfe

  • ramrodd

    300 million prescriptions for psychiatric drugs were written in 2009 alone..
    Your children on medication for ADHD?
    be careful what you ask for!!

  • Jonah Hirsh

    This illustrates the unacceptable danger of government “firearm registries”. Unacceptable.

    They are used for one thing: CONFISCATION.

  • Dee

    What I want to know is info on the who, what and why of July 7, 2017 at the prince Waikiki hotel. You can’t just clean up a body from the pool deck and pretend it didn’t happen. How has nothing been said about this?!

  • lovingc

    This is a violation of the federal HIPPA laws. An invasion of medical privacy. Guaranteed by law.

  • Exactly. I’ll hold my guns and let the 2nd amendment protect me. Back off coppers!

    • lovingc

      There is a law in place that prohibits a cannabis user from owning a gun. 18 U.S.C. § 922(g)(3), which criminalizes
      possession or receipt of a firearm by an unlawful drug user or
      a person addicted to a controlled substance.
      The second amendment will not protect you.

      • well that sux… just another law that I won’t follow

      • Fun Please

        The law is unconstitutional.
        Completely unenforceable, look at all the prescription addiction.
        Will not comply.

        • lovingc

          Prove it! The SCOTUS says otherwise.

          • Fun Please

            Screw the SCOTUS – the 2nd Amendment proves it otherwise and sets the standard – combat veteran approved
            Come take em +

          • Fun Please

            The police never break the law – that’s the position you and your party take? Lol

      • Andy O’neal

        The person in question would not be an “unlawful “drug user nor an addict since marijuana is not addictive.

      • patriot156

        yeah it will if used as intended.

  • Philip Marks

    I am no great supporter of guns, though have no objective to hunting or target practice. But this is absurd overreach. I am much more concerned about a person who has access to alcohol having a gun. There is no appreciable evidence supporting a danger in associating gun ownership with marijuana use. Gun use perhaps but even that would be pretty unclear.

    • Fun Please

      As someone that fully supports both, with plenty of experience, I would recommend strongly to keep the activities separate.
      Firearm safety begins with a clear head.

  • Fun Please

    Will not comply.

  • Duncan20903

    So where the heck is “the LAW is the LAW (blah, blah, blah)” crowd when authorities decide to break the law and violate their Oath? Up in the peanut gallery cheering that lawbreaking like the hypocritical partisan hacks that they are is where.

  • Karol Hudson

    Writer could with a little more effort on doing his job, seek out the police
    officials who cooked up the confiscatation of guns, and printed their
    names instead of just saying the police dept.

    • canyon_finder

      The name of the police chief’s name behind all this nonsense is right on the letter sent out, part of the article. Her name is Susan Ballard

  • Raul Tsi

    I received a similar letter from the state of NH when I got my cannabis patient card, it was not from a specific police department. It was a notice explaining federal law on the possession of cannabis.

    Quote:

    According to the federal directive, any user of marijuana “is an unlawful user of OR ADDICTED TO A CONTROLLED SUBSTANCE, and is prohibited by Federal Law from possessing firearms or ammunition.

    end quote.

    Last time I checked, Police chiefs are not federal agents. After all, they can say they’re not going to enforce Federal laws on the books regarding illegal immigrants, because that’s not their job. So why it is their job to try to enforce Federal gun laws?

    The Police chief of Honolulu is not just out of line, he is WAY out of line and should resign his position immediately, or be fired without haste.

    • canyon_finder

      The police chief in this case is a woman – just sayin

    • patriot156

      You can bet your sweet bippy that Sessions has his name all over this!

    • Mo Jo

      Send a letter back explaining the 10th Amendment to the Constitution: if a power has not been EXPLICITELY given to the Feds by the Constitution, then that power shall remain with the States and with the People.

  • TPF1

    Why would cannabis users be subject to an arbitrary surrender of their Constitutional rights??! What’s next? Anyone who buys or uses alcohol has no Second Amendment rights either??

    • Aardvark

      Or any other prescribed medication?

  • RandyS

    Clearly, the new chief of police is a progressive socialist democrat that believes the people serve the government, the exact opposite of by, for, and of the people. This is a great example of what the progressive socialists will due if allowed. Remove the police chief and any one that had anything to do with this unlawful, illegal, corrupt and disgusting breach of citizen’s rights.

  • ConquestOne

    I thought Hawaii was a liberal base state with that idiot Obama….Well it seems to me freedom in our country is over.

  • luv1nl1fe

    So, legal medical pot users are not allowed weapons? Using HIPPA, or should I say abusing HIPPA, to disallow a patient to own a defense weapon is a distortion of the law. Next, they will monitor every package store, stores that sell alcohol of any kind and send out these same letters to those who bought beer, wine or liquor. After that, HPD will go back to the doctors and acquire names and medications of all patients of pain medicines, nerve medicines and such… Where will it end? It will not end! To serve and protect, right? Then who the hell is HPD working for? It damn sure does not seem HPD is serving and protecting the public. How will the everyday resident EVER trust HPD after this incident?? What HPD needs to remember is that the Constitution is in full force, including the 2nd Amendment and our civil rights. The police chief must have consulted with Obama on this one…

  • Dawnyb

    It’s absolutely an obsurd and gross demstration of law enforcement’s abuse of power and above the law behavior!

  • Aardvark

    Gee, could this be a leftist ploy? To “legalize” pot and then use it as an excuse to deprive people of their 2nd Amendment rights? I wonder!

    • patriot156

      No not necessarily it’s Sessions who’s DOJ now and he’s as far right as they come. His figure prints are all over this I’d wager.
      It’s been the right as well who’s compromised those rights don’t forget. IT’s also the far right who adamantly appose MJ legalization as well.
      More likely it was far right who threw that language in the 4473’s as well.
      I recall the first time I had to fill one out MJ language wasn’t on the original forms, it later changed. I think it was are you a user of illegal drugs and alcohol then later changed to an illegal user of Marijuana and other drugs as well.
      Don’t make this about the left, for the right is as guilty.

  • patriot156

    Molon labe!
    seriously if you people in Hawaii comply your stupid is as stupid does.
    This is exactly why 4473’s are and should be considered unconstitutional. if your too dumb to compromise on your Second amendment rights, and let this kind of thing happen then you deserve to be disarmed as well.
    If nothing more then remove that language from the lawless 4473’s but the lawlessness goes beyond that.

  • patriot156

    this is exactly why the words shall not be infringed were put into the second amendment to begin with. anyone who supports legislation, registration, or any of the other infringements aren’t truly on your side their still liberals or anti gun.
    While I’d agree Hawaii might be a liberal cesspool the cops took an oath to uphold and protect the bill of rights, and constitution, they are at fault as well. Most cops are right leaning as well so…
    Sessions who’s opposed to Marijuana legalization has his name all over this. Plus it’s not a left right thing both are at fault for allowing and compromising on our rights to begin with.
    More right wingers now days especially if they were born after the Brady act, or just grew complacent over the years are to blame. Which is why people need to go Independent or libertarian and actually think for themselves rather than let the far left or far right do it for them.

  • Mo Jo

    It makes perfect sense! If you are a medical patient of any kind at all, you have no Constitutional Civil Rights anymore!