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Prosecution Not Required for Religious Marijuana Use Lawsuit

By Robyn Hagan Cain on April 09, 2012 | Last updated on March 21, 2019

The Ninth Circuit Court of Appeals ruled on Monday that a plaintiff doesn’t have to be prosecuted under a criminal statute to challenge the statute.

Oklevueha Native American Church of Hawaii, Inc. (Oklevueha) and Michael Rex Mooney a.k.a. Raging Bear sued the federal government, seeking declaratory and injunctive relief barring the government from enforcing the Controlled Substances Act (CSA) against them after their marijuana was seized and destroyed. (They also asked for the return of or compensation for the seized marijuana.)

The plaintiffs allege that they consume marijuana as a “sacrament/eucharist” in their religious ceremonies, and that their religious marijuana use is protected by the First Amendment and the Religious Freedom Restoration Act (RFRA).

The district court dismissed the claims for declaratory and injunctive relief on ripeness grounds. It also dismissed the claim for the return of, or compensation for, the seized marijuana because the marijuana had been destroyed and monetary damages are not available under RFRA.

Oklevueha is a 250-member independent chapter of the Native American Church (NAC), an earth-based healing religion, which administers "Sacramental Ceremonies" that involve drug consumption of drugs. NAC members' religious use of peyote is exempted from the prohibitions of the CSA, but there is no such exemption for marijuana.

Raging Bear Mooney is the founder, president, and medicine custodian of the Oklevueha chapter. All 250 Oklevueha members consume marijuana in religious ceremonies to enhance spiritual awareness and facilitate direct experience of the divine. Mooney uses marijuana daily, and other Oklevueha members use marijuana in "sweat" ceremonies, which occur twice a month at various private locations in Oahu and are only open to NAC members.

In June 2009, federal law enforcement officers in Hawaii seized from FedEx one pound of marijuana that was addressed to Mooney and intended for Oklevueha use. The marijuana was turned over to the Honolulu Police Department and later destroyed. The seized marijuana was worth approximately $7,000.

While there is no indication that Mooney or other Oklevueha members were prosecuted in connection with religious marijuana use, the group sued, claiming they fear for their ability to continue to cultivate, consume, possess, and distribute marijuana for religious purposes without being branded criminals and made to face fines and imprisonment. The district court tossed the lawsuit, but the Ninth Circuit Court of Appeals reinstated some of Oklevuehas' claims.

The Ninth Circuit ruled that Oklevuehas could not seek return of, or compensation for, the seized marijuana, but that the group could pursue its claims for declaratory and injunctive relief. The court reasoned, "The seizure of Plaintiffs' marijuana that has already occurred creates a justiciable case and controversy about plaintiffs' constitutional and statutory entitlement to use marijuana for religious purposes," reports The Wall Street Journal.

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