Did Honolulu Police Break Law With ‘Surrender Your Guns’ Letter?Bruce BarcottDecember 1, 2017
'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.”
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.
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.
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.
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.