A Texas judge has dismissed a case against a man arrested for marijuana and firearms with prejudice, citing Second Amendment concerns.
On July 15, 2021, the El Paso Police Department (EPPD) responded to a report of a fight at a private home. When officers entered the home, they observed a large bag filled with marijuana that had been vacuumed and sealed. After cleaning the house, they found a second bag of drugs. Police applied for a search warrant for the house due to marijuana, which was obtained. Police recovered several firearms during the search.
Police contacted the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), who responded to the scene and arrested Adrian Gil II for possession of a firearm while using marijuana. The man had a New Mexico medical marijuana card, but admitted he knew it was illegal to possess a gun while using marijuana. “I just love good cannabis,” he said.
After Gill was arrested, the only charges he faced were possession of a firearm while using marijuana. He pleaded guilty in criminal court. The judge sentenced the man to 36 months in prison and three years of supervised release. Mr. Gill plans to immediately appeal the Supreme Court’s Bruen decision, which was handed down after his arrest, to the Fifth Circuit Court of Appeals.
In the Bruen decision, SCOTUS stated that for a firearms law to be constitutional, it must be consistent with the text, tradition, and history of firearms regulations dating back to the era in which the law was created. Mr. Gill is a member of the political class and therefore part of “the people.” Firearms are carryable weapons covered by the original text of the Second Amendment. Given these facts, Mr. Gill’s actions are likely constitutional. The burden then shifts to the government to prove that the law is consistent with the text and tradition of firearms regulations.
The Fifth Circuit Court of Appeals ruled that the government had failed in its burden of proof. They quashed the conviction and sent the case back to criminal court. Essentially, it was as if the original trial never happened and the conviction was set aside. Mr. Gill’s attorney immediately moved to withdraw his guilty plea and dismiss the case. The government opposed the motion.
The government asked the court not to withdraw the defendant’s guilty plea. The court does not have to force the defendant to withdraw the plea unless one of several circumstances occurs. Defendants may withdraw their guilty pleas if the law changes to make what was once illegal legal. In this case, the Bruen decision changed Second Amendment jurisprudence. The court determined that the defense had met its burden and granted the motion to withdraw the plea.
The court then moved to dismiss the case using the Bruen test, which looks only at text, tradition, and history. Previously, there was an interlocutory scrutiny, but Bruen’s opinion prevents courts from making such adjustments. The judge ruled that the law banning marijuana users from owning guns is likely unconstitutional. The judge granted the motion to dismiss with prejudice, meaning the government cannot refile the case.
The order reads as follows: “The court finds that the defendant provided a fair and just cause for permitting withdrawal of the guilty plea, and the government must comply with 18 U.S.C. 922(g)(3). The court finds that the defendant has not met the burden of proving that there is a historical analogy sufficient to justify disarming him. Because it is unconstitutional as applied, it would permit the defendant to withdraw his guilty plea and have the charges against him dismissed with prejudice.”
Mr. Gill was released and is now free to resume his life.
About John Crump
Crump is an NRA instructor and constitutional activist. John wrote about firearms and interviewed people from all walks of life and about the Constitution. John lives in Northern Virginia with his wife and sons. Follow John at X (@crumpyss) or www.crumpy.com.
