â€‹The 9th Circuit last week heard arguments to let a Native American church get some marijuana replaced that federal drug agents confiscated and local police destroyed years ago.
Mooney said he planned to use the marijuana in certain religious ceremonies, specifically “lunar use” and “sweat lodge use.” He contends that the DEA interfering with those activities constitutes a violation of his religious freedom.
The DEA gave the confiscated cannabis to the Honolulu Police Department, which unceremoniously destroyed it.
A federal judge refused to grant the declaratory and injunctive relief in April 2010, finding no imminent threat of prosecution and that the police had closed the case. Three months later, the court also rejected newer claims relating to the seized marijuana [PDF
Besides asking to have his marijuana replaced, Mooney and the church requested damages for its “theft and conversion.”
However, U.S. District Judge Susan Oki Mollway said “the court could not order the government to return that which it does not have” under the Religious Freedom Restoration Act of 1993.
Monetary damages were also out of the question since the law “does not waive sovereign immunity and authorize lawsuits for money damages,” the judge claimed.
|Judge Mary Murguia, U.S. Court of Appeals for the 9th Circuit, asked whether Mooney had used marijuana since the initial seizure|
â€‹At an appellate hearing on last Monday, Judge Mary Murguia asked whether Mooney had used marijuana since the initial seizure, and if he had been able to practice his religion since.
There had been no other seizure, answered Mooney’s attorney, Michael A. Glenn.
“Mr. Mooney consumes it—cannabis—every day, so yes, you can assume so,” he said in regard to Mooney practicing his religion.
Judge Stephen Trott, who before becoming a federal judge used to be a member of the original 1960s folk group the Highwaymen, wanted to know why Mooney has not petitioned for religious exemption.
“My client thinks it’s a waste, especially in the absence of a protective order,” Glenn answered. “RFRA does not require an arrest.”
“Does it contain a waiver of sovereign immunity?” Judge Murguia asked.
“It does not,” Glenn answered, adding “the District Court missed the point that cannabis was seized pursuant to the Controlled Substances Act.”
Glenn said he and his client were ready to share a “laundry list” of details about which religious activities require cannabis.
|Judge Stephen Trott to the DEA: “You took someone’s property, without due process, and you destroyed it!”|
â€‹But Judge Trott said production of such a list might open a person to self-incrimination or perjury.
“You’d need to be read your Miranda rights before giving up such information,” he said.
The hearing reportedly took a comical turn when Department of Justice attorney James Luh took the podium.
Luh tried to justify the marijuana seizure, but said “limited resources” ensure that the government currently has no interested in prosecuting Mooney, and has never had any interest in doing so. Law enforcement wasn’t even aware of Mooney’s activities until FedEx turned over the package of marijuana, Luh said.
“How can you say what you did is not enforcement?” Judge Trott interrupted Luh to ask. “That’s what you do! You took someone’s property, without due process, and you destroyed it!”
“We don’t know that the church is not distributing,” Luh lamely answered.
“Would it be enough for them [Mooney and the church] to have told you how much cannabis to return to them?”
“Yes,” Luh answered.
“And what would be the chance that they would fear [future] penalty?” Judge Murguia asked. “Because, although there hasn’t been a seizure since, there was already a seizure.”
Luh reportedly stammered as he mumbled that such a situation would be “unlikely.”
“They could still submit an administrative request,” Luh claimed. “RFRA requires a case-by-case evaluation, even though it doesn’t provide specifically for religious use of drugs.”
Judge Trott laughed aloud when Luh claimed he would need to “consult with the government” in the interest of attorney-client privilege before committing further.
“Would you concede that if you knew the exact weight of the cannabis?” Judge Trott asked. “Would that be enough for you to give that amount back? I find it hard to believe that FedEx didn’t weight the package to determine how much to charge.”
Luh answered that still would not be enough.
“We didn’t become aware of the church until the package was received,” he claimed. “There’s no active enforcement. The evidence was destroyed, and that’s it. There was no active investigation.”
Glenn was adamant in his brief rebuttal about not conceding any of his demands.
Judge Murguia asked whether Glenn would at least concede to sovereign immunity.
“We do not!” Glenn answered emphatically.
“If there’s a right to the property, we take the position that the ‘take clause’ comes into play,” Glenn said. “And we’d want an order that says they can’t prosecute. We’re seeking the cannabis back. It’d be nice to have an order, and perhaps money damages.”