Whipped Cream Difficulties

Because he got high, Ryan Boehle threatened to shoot cops.

Okay, that may be a slight exaggeration: “he planned to celebrate his 50th birthday by shooting police because he was upset about a drunken driving arrest in which his blood test came back negative for alcohol”.

Mr. Boehle was arrested. The police seized a total of 13 guns, “1,110 bullets” (sorry, I’m quoting the Statesman here) and 6.3 grams of marijuana.

Mr. Boehle was never actually charged for the threats. The judge in the case is quoted as calling his writings “marijuana-induced gibberish.” It sounds like this is one of those true threat/not a true threat sort of legal distinctions that Ken White keeps trying to explain to myself and other people, and I keep not understanding, but that’s getting off topic.

(Also, “Marijuana-Induced Gibberish” would be a great name for a band.)

But we have to throw him in jail for something, right?

(“Why?” Hey, that’s not the kind of question you should be asking.)

I know! We’ll get him for “making a false statement in connection with the attempted acquisition of a firearm”! Mr. Boehle has a misdemeanor domestic violence conviction from 1993 in Connecticut: he allegedly “slapped, choked and bit his girlfriend”. As a result of this, he apparently failed the background check at three Austin area gun shops (again, per the Statesman).

However, during pretrial litigation the charge was determined to be insufficient to prohibit gun possession.

Oh, dear. Now what is the state going to do?

Wait: there’s that devil’s lettuce they found!

With their case weakening, prosecutors held tight to the gun-and-weed charge, using it to successfully to argue that Boehle should be denied bond and kept in jail pending the resolution of the case. Characterizing Boehle as a habitual marijuana user took little effort from the government, which not only had the pot found in his home but also test results from the DWI arrest that showed the presence of the drug.

Cutting closer to the end of the story, Mr. Boehle pled out to a charge of “owning a gun as a prohibited person”. You see, pot is still federally illegal, and the law says it is illegal for a pot smoker to own guns.

The 5th U.S. Circuit Court of Appeals established the definition of an unlawful drug user who is unable to own guns in 1999, when it affirmed the conviction of a Midland man who had been arrested several times with marijuana. He argued on appeal that the law fails to establish a time frame for when a person must use a controlled substance in connection with the possession of a firearm. The court ruled that an ordinary person could determine the man was a drug user. He was sentenced to two years in prison.

This doesn’t happen a lot. The Statesman quotes one California attorney who specializes in pot law as saying he’s never seen this in 50 years of practice. On the other hand, though, the Honolulu PD famously recently sent out letters to people with medical marijuana cards: “Give up your guns, or else.” (They apparently haven’t followed through on the “or else” part yet.)

Mr. Boehle was sentenced to five years of probation, and will be drug tested as part of that. The twist at the end is: he has a form of epilepsy, and wants to use a low THC marijuana extract to treat it. But he’s going to have to get his probation terms modified to allow this treatment. Texas has only recently legalized the use of the extract to treat epilepsy (“…only after a patient has tried at least two other treatments”) so Mr. Boehle will be venturing into uncharted territory.