CALIFORNIA CAREGIVERS UNION, CORP
 

LA PAZ COUNTY PUBLIC DEFENDER

1400 Kofa Avenue

Parker, AZ 85344

State Bar Firm Number 00135100

IN THE QUARTZSITE JUSTICE COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF LA PAZ

STATE OF ARIZONA,

Plaintiff,

vs.

SHASHON JENKINS,

Defendant.

TR2008-02718

MOTION TO DISMISS COUNT D AND

COUNT E OF THE COMPLAINT

(Hon. Elizabeth M. Williams)

The Defendant, Shashon Jenkins, through undersigned counsel, hereby moves this Court

to DISMISS Count D (A.R.S. § 13-3405(A)(1) (Attempted Possession of Marijuana)) and Count

E (A.R.S. § 13-3415(A) (Attempted Possession of Drug Paraphernalia) of the above-captioned

case, as unconstitutional and violating the Mr. Jenkins’ rights under the Constitution and laws of

the United States, and the Constitution and laws of the State of Arizona. Mr. Jenkins’ argument

is contained in the Memorandum attached to this Motion.

RESPECTFULLY SUBMITTED on September 11, 2008.

___________________________

Kaniatari:io J. Gilbert

Attorney for the Defendant

Copies of the foregoing hand delivered and/or faxed this date to:

Karen Hobbs, La Paz County Attorney's Office

By _________________________

MEMORANDUM OF LAW

I. FACTS:

On April 2, 2008, at 5:06PM Arizona Time, on Interstate-10 at approximately milepost 13,

Shashon Jenkins was stopped by Officer Creager of the Arizona Department of Public Safety for an

alleged speeding violation. Shashon Jenkins is a resident of the State of California, as well as an

ordained minister in the Universal Life Ministry, which preaches broad understanding and

enlightenment, including the use of marijuana included as a sacrament. Shashon Jenkins is also an

advocate for the religious and medical use of marijuana through the California Caregivers Union.

At the time of the traffic stop, Officer Creager alleges that he “immediately spelled the odor

of fresh marijuana, coming from inside the passenger compartment.” Officer Creager, without

reading Miranda, placed Shashon Jenkins into custody and immediately proceeded to conduct a

warrantless search of the vehicle. Officer Creager found a plastic container with approximately 27

grams of marijuana, and a glass pipe with residue inside of the glove compartment. At this point,

Officer Creager read Miranda. Shashon Jenkins consented to standard field sobriety tests 45

minutes later, and passed the field sobriety tests with flying colors. Officer Creager said that

Shashon Jenkins “was not impaired.” Officer Creager charged Shashon Jenkins with, inter alia, one

count of A.R.S. § 13-3405(A)(1) (Attempted Possession of Marijuana) and one count of A.R.S. §

13-3415(A) (Attempted Possession of Drug Paraphernalia).

II. ARGUMENT:

A. A.R.S. §§ 13-3405(A)(1) and 13-3415(A) are unconstitutional as violative of the

United States Constitution and the United States Code.

The Constitution of the United States, specifically the First Amendment states,

“Congress shall make no law respecting the establishment of religion, or prohibiting the free

exercise thereof.” U.S.Const. Amend. 1. The First Amendment is applicable to Arizona through

the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), State v.

Hardesty, Slip Op., 2008 WL 2930107 (Ariz.App. Div. 1, July 31, 2008) at *2. Well established is

that the government may not impose regulations on beliefs or specific religious doctrine, Sherbert

v. Verner, 374 U.S. 398, 403 (1963), but the government is free to regulate conduct associated with

religion. Hardesty, supra at *2. The “First Amendment does not prohibit governments from

burdening religious practices through neutral, generally applicable laws.” Id. at *4 (citing

Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 885 (1990)). In response to Smith,

Congress enacted the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb-1

through 2000bb-4, which prescribed the formula by which a statute may be challenged based on a

violation of religious freedoms. “RFRA provides in part: ‘Government may substantially burden

a person’s exercise of religion only if … [it] (1) is in furtherance of a compelling governmental

interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’”

Hardesty, supra at *4 (quoting RFRA, 42 U.S.C. 2000bb-1(b)).

In Hardesty, the court affirmed convictions for similar violations of the case at bar.

However, in Hardesty, the Trial and Appellate Courts took a peripheral view of whether the statutes

complied with the RFRA requirements that they be the “least restrictive means” of furthering a

“compelling governmental interest.” Here, there is no dispute that A.R.S. §§ 13-3405(A)(1) and 13-

3415(A) are laws of general applicability, designed to protect the public safety from the ills of drugs.

See Hardesty, supra at *6.

Mr. Jenkins disputes that Arizona has not used the least restrictive means because

there has been no provision for a religious exception, where such a religious exception exists in

other laws of general applicability. Arizona has established that an unlawful act occurs when

a person under the age of twenty-one years [has] in

the person’s body any spirituous liquor. In a

prosecution for a violation of this paragraph…it is a

defense that the spirituous liquor was consumed in

connection with the bona fide practice of a religious

belief or as an integral part of a religious exercise and

in a manner not dangerous to public health or safety.

See A.R.S. § 4-244(40)(a) (Unlawful Acts – Underage Drinking). No one can argue that underage

drinking is a law of general applicability, designed to protect the public safety, yet the legislature

saw fit to include a religious use exception under that statute.

Since the Arizona Legislature has provided a religious use exception for a conviction

of Underage Drinking, also a class 1 misdemeanor, in passing the drug possession statutes at issue

in this case, the Legislature should have used the least restrictive means to further the compelling

governmental interest of protecting public safety. Because the government has failed to allow for

the possession and use of drugs in connection with bona fide religious ceremonies, in light of the

fact that the government has provided such an exception in other laws of general applicability for

the public safety, the statute is unconstitutional. Accordingly, Mr. Jenkins requests that this Court

dismiss Counts D and E of the complaint.

B. A.R.S. §§ 13-3405(A)(1) and 13-3415(A) are unconstitutional as violative of the

Constitution of the State of Arizona and the Arizona Revised Statutes.

The Constitution of the State of Arizona guarantees the “liberty of conscience” so

long as such liberty is not used to “excuse acts of licentiousness.” U.S.Const. Amend. 1.

Licentiousness has never been defined. But see Anonymous v. Anonymous, 436 P.2d 157, 158

(Ariz.App. 1968) (reversing the child custody order for a mother because of adulterous behavior that

the court labels as licentious). Like the Congress of the United States, the Arizona Legislature has

enacted a statute similar to RFRA, prescribing certain protections against government infringement

on the free exercise of religion. See Free Exercise of Religion Act, A.R.S. §§ 41-1493 to 1493.02

(“FERA”). FERA prescribes substantially the same equation as RFRA in that the State may only

burden the free exercise of religion if the government demonstrates that such burden “is both…In

furtherance of a compelling governmental interest[…and…t]he least restrictive means of furthering

that compelling governmental interest.” A.R.S. § 41-1493.01(C), see also Hardesty, supra at *6.

As previously discussed, there is no dispute that A.R.S. §§ 13-3405(A)(1) and 13-3415(A) are laws

of general applicability, designed to protect the public safety from the ills of drugs. See Hardesty,

supra at *6. But in enacting the statutes at issue, the government seeks to criminalize the

manufacturing, possession, trafficking, selling, giving away, and use of dangerous substances

because such substances pose a threat to the general health and welfare, and to public safety. See

Chapter 34, A.R.S., Title 13.

In this case, Mr. Jenkins was exercising his free exercise rights as guaranteed by the

Arizona Constitution. The statutes at issue in this case were enacted to criminalize the recreational

use of dangerous substances that pose a substantial threat to public safety. Mr. Jenkins is an

ordained minister and practitioner within the Universal Life Ministry, and a sacrament of that order

includes the religious and ceremonial use of marijuana. Officer Creager’s report clearly indicates

that Mr. Jenkins was not impaired at the time of the stop, and therefore Mr. Jenkins was not abusing

the protections afforded him under the Arizona Constitution. Accordingly, Mr. Jenkins requests

that this Court dismiss Counts D and E of the complaint.

III. CONCLUSION:

For the reasons stated, Mr. Jenkins moves this Court to dismiss Count D and Count E of the

complaint in the above-captioned case.

RESPECTFULLY SUBMITTED on September 11, 2008.

___________________________

Kaniatari:io J. Gilbert

Attorney for the Defendant


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