On June 21, 2023, the Court of Appeal of Florida (First District) decided Ortiz v. Dep’t of Corrections[i], in which the court examined whether, under the Florida Constitution, Ortiz had a right to use medical marijuana while being employed as a correctional officer.
This case began in May of 2021, when the Department of Corrections, asked Ortiz, who was employed as a correctional officer, to submit to a random drug test. Mr. Ortiz complied. He was notified that he tested positive for marijuana, and he presented his Florida issued qualifying patient identification card, which authorized him to use marijuana for medical purposes. The department offered Ortiz the option of abstaining from the use of marijuana for thirty days, obtaining a note from his treating physician stating that he is not under the influence of marijuana and returning to work. Ortiz refused. The Department of Corrections notified Mr. Ortiz that it was terminating his employment, based on their strict policy prohibiting the use of marijuana, even for medical purposes.
Ortiz requested a hearing before the Public Employees Relations Commission (PERC) and argued that he had a right under the Florida Constitution to use medical marijuana when he was off-duty and that he never worked when he was impaired. The PERC upheld the termination. Ortiz appealed to the Florida Court of Appeal.
On appeal, Ortiz acknowledged that, as a correctional officer, he was required to qualify with a firearm once a year, and under certain circumstances such as a riot, carry a firearm on duty. The court noted that these requirements are codified under Florida law.[ii]
The court of appeal also noted that under federal law marijuana is considered a controlled substance with no medical purpose. Further, under federal law, regular users of certain controlled substances, to include marijuana, cannot lawfully possess firearms. Specifically, the court of appeal stated
Federal law makes it a felony for certain prohibited persons” to possess a firearm. 18 U.S.C. § 924(a)(8) (2022). Among the activities that would cause someone to be classified as a prohibited person is the unlawful use of a controlled substance under the Controlled Substances Act, 21 United States Code section 802. 18 U.S.C. § 922(g)(3). Marijuana is a schedule I drug under the Controlled Substances Act. 21 U.S.C. § 812(c)(10). Under the Act, Schedule I drugs are deemed to have “no medicinal purpose for treatment in the United States, have a high potential for abuse, and lack acceptable safety measures even when used under proper medical supervision.” 21 U.S.C. § 812(b)(1). Therefore, under the Act, there are no valid prescriptions for marijuana. Because marijuana may not be validly prescribed under federal law, mere possession of marijuana is a felony under federal law. Gonzales v. Raich, 545 U.S. 1, 14, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005). Accordingly, the use of marijuana by a person who is in possession of a firearm is unlawful. The law does not require the use of marijuana to be contemporaneous to the possession of a firearm. United States v. Banks, 43 F.4th 912, 917 (8th Cir. 2022). It requires the unlawful use to have occurred recently enough to indicate that the individual is actively engaged in such conduct or that the person has used the drug for an extended period. United States v, Carnes, 22 F.4th 743 (8th Cir. 2022); United States v. Tanco-Baez, 942 F.3d 7, 15 (1st Cir. 2019); United States v. Bowens, 938 F.3d 790, 793 (6th Cir. 2019).[iii] (emphasis added)
The court of appeal then upheld Ortiz’s termination from the Department of Corrections reasoning that because Ortiz uses medical marijuana to treat post traumatic stress disorder, he is a regular user of marijuana, and although he can legally possess marijuana under Florida law, he cannot legally possess it under federal law. Therefore, he cannot legally possess a firearm, and he is required to qualify with a firearm once a year. The Florida statute that sets forth requirements for correctional officers requires that they “possess good moral character.”[iv] The court of appeal stated
To possess good moral character, a correctional officer cannot engage in any activity that could give rise to a felony conviction even if he is never charged with the offense. Fla. Admin. Code R. 11B-27.0011(4)(a). These requirements lead us to believe Mr. Velez Ortiz cannot use medicinal marijuana and maintain his certification as a correctional officer even if Article X, section 29 of the Florida Constitution extends as far as he contends.[v]
Therefore, the court upheld his termination and stated
Because Mr. Velez Ortiz could not perform an important requirement of the job of corrections officer, training with and using firearms, without being in violation of federal law and causing other agency personnel to be in violation of federal law, his termination was lawful.[vi] (emphasis added)
Implications of this Case:
The reasoning of the Florida court seems sound – particularly federal law prohibits regular users of marijuana from possessing firearms. As such, it seems that officers that wish to regularly use medical marijuana, would not be allowed to possess a firearm, even on-duty. This case does not speak to the question of an officer who infrequently uses medical marijuana. As this is an emerging area of law, law enforcement executives would be wise to clearly state to agency personnel their agencies stance regarding the use of the use of medical marijuana.
Note: Court holdings can vary significantly between jurisdictions and are only binding in their jurisdiction. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] No. 1D22-375 (Fla. App. Decided June 21, 2023)
[ii] §§ 943.13(9), 943.13(11), 943.135(1), 943.17(1), Fla. Stat.; Fla. Admin. Code R. 11B-35.0021(1)(a).
[iii] Ortiz, No. 1D22-375 at 3-4
[iv] § 943.13(4), (7), Fla. Stat.
[v] Ortiz, No. 1D22-375 at 3
[vi] Id. at 4
