Mathew Lavon Payne had taken to shouting and waving around an AK-47 rifle at his home.
The 44-year-old Sulphur Springs man struggled with drug addiction and deteriorating mental health and as a result had exhibited some recent erratic behavior, court records show. But he was not a hardened criminal with a long rap sheet. Still, people felt something should be done — just in case.
Payne was arrested in late 2019 and pleaded guilty to a rarely-used federal charge: possession of a firearm by an unlawful user of a controlled substance. In April, a judge in Plano sentenced him to 30 months in federal prison.
The death toll from gun violence including mass shootings continues to rise as does the threat of domestic terrorism. Congress has not passed any comprehensive gun control measures in years due to ideological disagreements. Instead, federal prosecutors are left with the nation’s drug laws as a key tool to keep guns out of the wrong hands. In North Texas, that has included neo-Nazis, anti-government extremists, heavily-armed individuals who made threats, various street criminals and others.
Specifically, the government is using a law that makes it a crime for “unlawful users” of drugs to have guns and/or ammunition. A previous drug conviction is not necessary, just ample evidence of ongoing drug use such as recent arrests, positive drug screens or an admission of drug use to police. One need not have had any previous run-ins with the law; even social media photos of someone using marijuana or other drugs will suffice.
“I think it’s a response to the mass shootings, probably,” said Heath Hyde, who was Payne’s defense attorney. “A way of controlling people who they don’t think should have guns.”
Hyde said the Payne case is the only one he’s handled involving that charge. He says it appears that prosecutors are using it in response to “behavior altered by drug use.” He said his client had posted photos of himself with guns on social media but never threatened to shoot anyone. A concerned citizen who saw the posts became alarmed and called the FBI to report it, he said.
The police had been called to the residence before, Hyde said. Payne, he said, had been acting like he was under the influence of drugs. He said Payne has undergone drug treatment since his arrest and is clean and doing well for the first time in a long while.
“It’s done in a way to allow authorities to maybe prevent something bad that they think might happen,” Hyde said.
This strategy has proven successful in North Texas and nationwide. But as Texas inches towards legalizing marijuana for medicinal use, as three-dozen states have already done, there is some concern that legal gun owners who use the leafy drug to treat their painful conditions could become collateral damage. Arrests of marijuana users in states that have decriminalized the drug, although rare, have occurred.
“We’re talking about very sick people who are finding relief with cannabis and should not have to choose between their medicine and their right to self-defense,” said Heather Fazio, director of Texans for Responsible Marijuana Policy.
The U.S. attorney’s office in Dallas declined to comment.
One can drink beer and liquor – even be a raging alcoholic — and still legally own guns in America. But smoke a joint in the privacy of your home and you could be charged with a federal felony carrying a penalty of up to a decade in prison. Fazio said she hasn’t seen such scenarios play out. But the law, she said, can have a “chilling effect” on patients who are using cannabis legally under their state program.
“That should not keep someone from being able to purchase a firearm for self defense and to protect their family,” she said.
Texas’ medical marijuana program allows those with certain medical conditions like terminal cancer, epilepsy and multiple sclerosis to have access to cannabis with a low level of THC through a prescription. Attempts to increase the allowable strength of the drug and expand the number of qualifying ailments have failed, but advocates like Fazio say it’s only a matter of time.
Fazio said much more dangerous, mind-altering and addictive substances are available by prescription, such as opioid painkillers. Yet that doesn’t prevent such patients from owning guns, she said.
“The idea that people would have their right to self-defense jeopardized just because the federal government is clinging to failed policies of prohibition is completely unacceptable,” Fazio said.
As the Colorado-based Millennial Policy Center put it in a 2019 report: “The result is that it is technically legal for a gun owner to use cocaine or methamphetamine to treat a condition, but a felony if he or she turns to medical marijuana.”
Those being targeted under that law typically have either no criminal history or a minor one. Otherwise, they could be charged with being a felon in possession of a firearm, one of the most common offenses in federal court.
But some of the nation’s worst domestic terrorists and mass shooters lived a quiet existence with no criminal record before committing violence, said Brian Poe, a Fort Worth defense attorney and former federal prosecutor.
As the number of active shooters increased, Poe said, the Justice Department instructed U.S. attorneys to “use every code you can to combat this kind of stuff.”
“Personally, I think it’s there to use as a kind of a catch-all, if they haven’t been able to find anything else to charge them with,” Poe said.
A review by The Dallas Morning News of some recent local cases indicates that the law has been used against alleged dangerous extremists as well as nonviolent offenders suspected of selling drugs.
Federal agents, for example, believed Gabriel Roberts was addicted to methamphetamine and manufacturing synthetic Oxycodone and Xanax using a “pill press” at his Royse City home. Yet when agents executed a search warrant in 2019, the press was not there. They did find, however, 14 firearms including an assault rifle, court records show.
The search also “yielded evidence of drug use and drug manufacturing,” court records say, such as a scale, blow torch, syringes and a pipe. Roberts was charged with being an illegal drug user in possession of firearms and with having an unregistered silencer. He pleaded guilty to the silencer charge and was sentenced in March to 30 months in prison.
His attorney could not be reached for comment.
Timothy McQuarters Jr., also was indicted on the firearms charge — in Dallas in November 2020.
Prosecutors said McQuarters, 26, sold marijuana out of his apartment. They said a “large quantity” of the drug was seized from him as well as guns. But he wasn’t charged with a federal drug offense, according to court records. He has pleaded not guilty and is scheduled to go to trial next month in Dallas.
His attorney could not be reached.
It’s also illegal under federal law for people to own guns if they’ve ever been committed to a mental institution or been convicted of a domestic violence offense. North Texas prosecutors have successfully used those provisions to prosecute people deemed to be dangerous. Legal experts say such laws are resulting in an increasing number of Americans being disqualified every year from gun ownership.
The Brady Act, which requires background checks, makes it a crime for “unlawful” drug users or addicts to own guns even if they’ve never been violent or in trouble before with the law. Anyone who purchases a gun from a licensed dealer must sign a federal form affirming they’re not an illegal drug user. A wrong answer can lead to another federal felony offense — acquiring a firearm from a licensed dealer by false or fictitious statement.
Dealers cannot knowingly sell guns or ammunition to medical marijuana patients — a prohibition that has been upheld on appeal. But it is not an automatic lifetime ban. Once a person stops using drugs, they may own guns again.
Rick Briscoe, legislative director for Open Carry Texas, said the right to bear arms is a “fundamental right” in the U.S. that predates the Constitution. He called it a “scary thought” that otherwise legal gun owners who post photos of themselves using marijuana on social media could be prosecuted for it in federal court.
Official numbers are not kept, but Dru Stevenson, a law professor at South Texas College of Law-Houston, said about 200 people are prosecuted each year in the U.S. in cases where that firearms offense is the lead charge. That’s a relatively small number, given the enormous federal caseloads and the number of Americans who use illegal drugs.
It’s more common for the charge to be added to an indictment to “ratchet up” the possible sentence and put pressure on defendants to accept a plea deal, Stevenson said. “This is more a tack-on charge to give prosecutors leverage,” he said.
That may have been the case with Lancaster bodybuilder Philip Russell Archibald, who is accused of selling steroids and threatening violence against police.
Archibald, 29, who is linked to the boogaloo boys anti-government extremist movement, was indicted last year on three drug counts as well as a single count of being an unlawful drug user in possession of a firearm. He has agreed to plead guilty to several counts, but it won’t become official until a judge approves it in the coming weeks.
Prosecutors say he posted threats online during the May 2020 social justice protests, telling people to “go shoot pigs.” Archibald also posted a video telling others to travel to Minnesota and “bring heat” and use “guerilla warfare,” according to prosecutors. Archibald was in downtown Dallas after curfew, armed with a rifle, and he also posted on social media that he was “hunting Antifa” and was going to “kill” looters, according to court records.
His attorney could not be reached for comment.
Archibald isn’t the only alleged extremist targeted by North Texas prosecutors under the firearms law.
Aiden Bruce-Umbaugh, 23, was a member of AtomWaffen Division, a neo-Nazi hate group, officials said. He pleaded guilty to unlawfully possessing a firearm due to drug use and was sentenced last year in Lubbock to 30 months in federal prison.
Bruce-Umbaugh, dressed in tactical gear, had been pulled over by police in 2019 while driving outside Lubbock. Officers found an AR-15 rifle, two AK-47 rifles, a 9mm pistol, ammunition, marijuana and a vial of THC oil, court records show.
Erin Nealy Cox, the U.S. attorney in Dallas at the time, said her district was committed to “keeping guns out of the hands of dangerous individuals.”
“As a drug user, this defendant should never have been allowed to possess firearms,” she said in a statement. “We’re grateful to our law enforcement partners for helping us keep this defendant, and his guns, off the streets.”
A dangerous medicine
Some defense attorneys have challenged the controversial gun law, calling it unconstitutionally vague. Others have argued that it violates the Second Amendment. But federal appellate courts have so far upheld the convictions, including one that cited a “well-established link between chronic drug use and violence” in its opinion issued last year.
Stevenson, an expert in regulatory law who wrote a paper last year on drug use and firearms, said the cases that have gone to trial typically involved people who used to be drug users but got clean. He said he agrees with critics that the law is vague about what constitutes an “unlawful” drug user.
Courts have interpreted that to mean drug use must be “reasonably contemporaneous” to the gun possession, he said. One doesn’t have to be caught with drugs and guns at the same time, he said. You just have to be an “ongoing drug user” who happens to have guns, he said.
The idea behind the law, he said, is that guns are dangerous and regular drug users are not always lucid and in control of their faculties, making it a potentially deadly mix. And it’s easier for politicians on both sides of the gun control debate to agree that keeping them away from drug users is a good idea, Stevenson said.
One could, however, make the same argument about alcoholics, who are equally dangerous with guns, he added.
Stevenson has argued that the nation’s federal drug laws have become “functionally speaking, our society’s primary mechanism of gun control.”
The big problem with that currently, he said, is the fact that many states have legalized marijuana use. This complication has led to more legal challenges, Stevenson said. And some states have passed laws preventing officials from sharing data on approved medical marijuana users with law enforcement, to avoid the conflict.
Still, for the average lawful marijuana user, it’s likely not a concern, Stevenson said, adding that one would have to be committing other crimes to draw the attention of law enforcement. As he put it: “How is anyone going to know?”
You could be in the wrong place at the wrong time, he said, if for example a friend gives you a joint and you are carrying a gun. But authorities try to be reasonable, Stevenson said. If you’re getting arrested again and again for drug use, authorities can reasonably “draw an inference,” he said.
Joshua Blake Hulsman, 28, had no prior convictions. But when he allegedly made threats against Walmart, where he worked, he was charged last year in Sherman with possessing ammunition while being an unlawful drug user.
Hulsman has suffered from bipolar disorder for about 12 years and has had several “manic episodes” requiring him to undergo inpatient treatment, court records show. During his most recent episode, in February 2020, he “became fixated” on improving the worker’s compensation system for all Walmart employees, records say.
“He made several statements, such as taking Walmart down and that it was a 10,000-mile climb but that he would get it done,” court records said.
Around that time, police found him “dancing in the street and blocking traffic,” court records show. He was taken into custody for mental health evaluation and admitted for treatment. Hulsman never threatened physical violence, but his comments were reported to law enforcement, court records show.
When police searched his home, they found ammunition but no guns, as well as 2 ounces of marijuana. Hulsman has pleaded not guilty to the charge and is awaiting trial. His attorney could not be reached.