Metropolitan News-Enterprise


Tuesday, April 10, 2012


Page 3


Ninth Circuit Says Church Group May Sue to Stop Marijuana Seizures


By a MetNews Staff Writer


A 250-member Hawaii church whose members claim they smoke marijuana as part of a sacramental rite may sue to block the federal government from seizing its supply, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Claims by the Oklevueha Native American Church of Hawaii, Inc. for a declaration that it has the right to use marijuana under the Religious Freedom Restoration Act are ripe for adjudication, the panel ruled. The panel overturned U.S. District Judge Susan Oki Mollway’s ruling to the contrary, but ruled that the government is immune from liability for damages.

The Oklevueha church filed suit after a June 2009 incident in which federal agents seized from FedEx a package containing one pound of marijuana. The seized marijuana, worth about $7,000, was turned over to Honolulu police and destroyed.

The addressee of the package, Rex Mooney, who also uses the name Raging Bear, is a member of the church. He was not charged with a crime, but filed suit against the federal government as a result of the seizure.

The complaint alleged that the church is affiliated with the Native American Church, which has 500,000 members in 24 states. Mooney alleged that he is a spiritual leader of Seminole ancestry, founded the Oklevueha church, and is its president and medicine custodian.

Marijuana use, according to the complaint, is a “sacrament/eucharist” in the church, in which all 250 members participate. While the Native American Church espouses the use of peyote—its members’ use of that drug being exempted by federal regulation from the Controlled Substances Act—the Oklevueha church says it uses marijuana in addition to and as a substitute for peyote.

The plaintiffs said they fear the government will raid their ceremonies or otherwise seize their marijuana, just as it raided another Hawaii-based church that uses marijuana in 2010.

In granting the government’s motion to dismiss, Mollway ruled that the declaratory and injunctive relief claims were not ripe, that the church lacks associational standing to assert the rights of its members, and that the government is immune from damages for RFRA violations because the statute—which provides that the government may not interfere with religious practices in the absence of a compelling interest—does not unambiguously waive sovereign immunity.

Judge Mary H. Murguia, writing for the Ninth Circuit, said the district judge was correct as to immunity, but wrong as to ripeness and standing.

The injunctive and declaratory relief claims are ripe, the judge said, because the seizure of the FedEx package makes it unnecessary for the plaintiffs to show a likelihood of future prosecution.

“Plaintiffs need not allege a threat of future prosecution because the statute has already been enforced against them,” the judge explained. “When the Government seized

Plaintiffs’ marijuana pursuant to the CSA, a definite and concrete dispute regarding the lawfulness of that seizure came into existence....This case is unique in that unlike most

enforcements of criminal statutes, the seizure did not result in a criminal proceeding that could have afforded Plaintiffs the opportunity to assert their constitutional and statutory challenges to the enforcement of the CSA against them. But it does not follow that because this enforcement and seizure of property did not provide Plaintiffs a process in which to raise their claims, those claims are not now ripe.”

As for standing, the judge said, the complaint adequately alleged that all church members use marijuana. More detailed allegations concerning each member’s use are not required for the church to sue on the members’ behalf, the appellate jurist said.

The opinion was joined by Senior Judges Alfred T. Goodwin and Stephen S. Trott.

The case is Oklevueha Native American Church of Hawaii, Inc. v. Holder, 10-17687.


Copyright 2012, Metropolitan News Company