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Arizona Dismiss Charges For Rev. Jenkins on Religious Use of Cannabis!! Praise God!!
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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 awarrantless 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 45minutes 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