館長の裁判闘争
Richard Davis' "Constitutional Challenge," against the State of Arizona and the Federal Government for the Right to possess as property, plant, grow, harvest, sell and consume (as food, medicine, sacrament and recreationally), Cannabis Sativa and its seed and all Extracts thereof.
Richard M Davis, Attorney pro per
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA STATE OF ARIZONA
NO. CR96-92561
Plaintiff
vs
RICHARD MARVIN DAVIS
Defendant
MOTION TO DISMISS BASED ON SECTION 1 ARTICLE 2, OF THE ARIZONA CONSTITUTION IN THE CASE OF ARIZONA V. RICHARD M. DAVIS. (Assigned to the Hon. Brian Ishikawa)
"Power never gives up without a demand, never has, never will"
-Carved in stone. Los Angeles Public Library.
Defendant Richard Marvin Davis, is being charged with sales of Cannabis (three counts) and Possession of Cannabis for sale (one count).
Defendant Richard Marvin Davis, attorney pro per moves to dismiss the above charges based on a judicial review of Cannabis Prohibition as per Article 2, Section 1 of the Declaration of Rights, of the Arizona Constitution which reads in full:
SECTION 1. "A FREQUENT RECURRENCE TO FUNDAMENTAL PRINCIPLES IS ESSENTIAL TO THE SECURITY OF INDIVIDUAL RIGHTS AND THE PERPETUITY OF FREE GOVERNMENT."
The defendant seeks to establish that the Criminal Codes in Title 13, the Health and Safety codes in Title 36, and the Luxury tax codes in Title 42 of the Arizona Revised Statutes pertaining to the plant Cannabis Sativa, under which he has been charged violates his inalienable and fundamental right to possess as property, plant, grow, harvest, sell and consume (as food, medicine, sacrament and recreationally), Cannabis Sativa and its seed as given to him by the Creator.
In order for government to remain free, it must
recognize individual rights are limits on government. Rights
came first, then the form of government we chose to protect
those rights.
We will argue that the prohibition of Cannabis
Sativa by the federal government and by the government of the
state of Arizona, is unconstitutional, a violation of the
fundamental principles, and a violation of free government,
which is responsible for the security of individual rights.
In addition, directly relating to Cannabis
prohibition in Arizona, are Treaties into which the U.S.
Government has entered, including in this case, the United
Nations Charter, and the U.N. Single Convention on Narcotic use,
1962. Both treaties have meaning in this case through Article VI
of the U.S. Constitution:
"This Constitution, and the Laws of
the United States which shall be made in Pursuance thereof; and
all treaties made, or which shall be made, under the Authority
of the United States, shall be the supreme Law of the Land; and
the Judges in every state shall be bound thereby, any thing in
the Constitution or Laws of any State to the contrary
notwithstanding..."
The defendant asks the court to re-establish
an inalienable right to farm, taken away by the Marijuana Tax
Act of 1937. Sixty (60), years is a long time to fail to
question such an important prohibition, one with such
devastating consequences, as we will show, on our inalienable
and fundamental rights. Alcohol Prohibition by comparison
lasted only 13 years, was executed by Constitutional Amendment,
and should have been precedent for any other prohibition. Even
then drinking was not prohibited, as smoking Cannabis now is.
The Marijuana Tax Act and all subsequent
Cannabis laws, including those of Arizona should be repealed by
the court as unconstitutional, as should U.N. Cannabis Laws be
removed from all drug schedules.
The defendant has standing to invoke Article
II, Section 1 of the Arizona Constitution, as he is charged
with four felony counts that could total more than
twenty-seven(27), years in prison for selling five (5), grams of
Cannabis Flowers that were his property, grown by the defendant
on his land, and sold at market, in the inalienable American
tradition of farming, with the complicity of the Arizona
Government (Cannabis Dealer's License and Cannabis Luxury tax
Law.) The five (5), grams of Cannabis were an accompaniment
to an educational packet stamped as required by Title 42 of
the Arizona Revised Codes, with Arizona Department of Revenue
Cannabis Tax Stamps.
Because it is timely, and related to Cannabis
Prohibition, and is subject of Arizona States Rights vs. Federal
Rights, and fundamental voting rights, the defendant
challenges the constitutionality of the Legislature to overturn
Proposition 200 based on faulty drug scheduling of
Cannabis, and faulty Federal authority based on Cannabis
Prohibition. Voting Rights are considered a fundamental
right under the constitution. The defendant asks the court to
establish that Initiative rights are voting rights and may
not be burdened by the legislature for less than compelling
reasons, which Cannabis Prohibition is not. For example, we
now know that Cannabis is safer than many foods we consume,
non-toxic, and has no deaths associated with its consumption
in five thousand(5,000), years of recorded history (DEA
Docket#86-22,p.27, Uncontroverted fact No.15.). In addition we
ask that Proposition 200 be examined for violations of
fundamental freedoms in regard to Cannabis, based on the right
to privacy and equal protection, and "no harm no
foul." |
The defendant seeks the most
fundamental protection, and all the protections against Cannabis
Prohibition allowed by the Laws of the Land and the Laws of the
State of Arizona. The defendant realizes that as an
individual citizen of the United States and the World that all
the freedoms and rights he seeks belong to all citizens of the
world, citizens of these United States and the citizens of the
great state of Arizona. The defendant seeks these
rights and freedoms for the farmers who cannot plant the worlds
most important agricultural crop due to Cannabis Prohibition. The
defendant seeks these rights and freedoms for those patients who
have chosen to use Cannabis for medicine, and are made into
criminals by Cannabis Prohibition. The defendant seeks
these rights and freedoms for those incarcerated by the
very laws of Cannabis Prohibition, so they may be set free by
the court. The defendant seeks these rights and freedoms for
future generations who will come to rely on Cannabis as a basic
resource, renewable and sustainable for generations to come. The
defendant asks the court therefore to allow him to bring into
play all issues surrounding Cannabis Prohibition for court
review, in accordance with Article II, Section 1 of Arizona's
Declaration of Rights.
INDIVIDUAL RIGHTS
In order for the government to remain free, it
must recognize that individual rights are limits on government. Rights
came first, then the form of government we chose to protect
those rights. The preamble of the Arizona Constitution states:
"We the people of the State of Arizona, grateful to
almighty God for our liberties, do ordain this
Constitution." And the Declaration of Independence also
states from whence our inalienable rights arise: "We
hold these truths to be self evident, that all Men are
created equal, that they are endowed by their Creator with
certain inalienable rights, that among these are Life,
Liberty and the Pursuit of Happiness, that to secure these
Rights, Governments are instituted among Men..."
Inalienable rights as defined by Blacks Law
Dictionary are:
"Rights which are not capable of
being surrendered or transferred without the consent of the one
possessing such rights e.g., freedom of speech or, religion, due
process, and equal protection of the laws." [Morrison v
State, MoApp., 252 S.W2d 97, 101.]
In "The Constitution of Arizona,"
by John R. Murdock, A.M., is the following explanation of
Section 1, Article II of Arizona's Constitution: In the history
of Anglo-Saxon peoples, there have been many struggles with
arbitrary Kings. Our forefathers contended with King George for
the inalienable rights of Englishmen in the Old Country had
wrung their rights and liberties from tyrannical kings by force,
or threat of force. The never-to-be-forgotten charters of
Anglo-Saxon liberties are the Great Charter, or Magna Carta, the
Petition of Right, the Habeas Corpus Act, the Bill of Rights,
and the Declaration of Independence...
The Constitution of the United States contains a Bill of Rights.
Each of the other forty seven states has in its constitution a
declaration of rights, or bill of rights, so Arizona but
reiterated these ancient safeguards of individual liberty.
In spite of our study of history each oncoming generation is apt
to take too much for granted and to accept, unappreciatively,
things as they are, forgetting the long struggle necessary to
establish government by the people." (1) |
Inalienable rights are given to individuals, women and men. They
are not given to governments, groups, families( as in family
values), religions, nations or states. Individuals. The
defendant is, an individual. The individual defendant Mr. Davis
holds a Constitutional (First Amendment) right to redress his
grievances, especially when these grievances are about the
unconstitutionality of the very laws that threaten his liberty,
in this case. The U.N. Universal Declaration of Human Rights (to
which the United States is bound by Treaty), addresses this
right to redress grievances: Preamble,
"Whereas recognition of the inherent
dignity and of the equal and inalienable rights of all members
of the human family is the foundation of freedom, justice and
peace in the world. Whereas member states have pledged
themselves to achieve, in cooperation with the United Nations,
the promotion of universal respect for and observance of
human rights and fundamental freedoms..."
And Article 8 of this declaration reads, "Everyone
has the right to an effective remedy by the competent national
for acts violating the fundamental rights granted him by the
constitution or by law."(2) The defendant
declares his right to an effective remedy by restoring to him
his inalienable right to Cannabis Sativa, and its seed, and an
end to Cannabis Prohibition. The defendant has broken no
laws, because of this illegal prohibition.
The defendant Mr. Davis, holds a
Constitutional (First Amendment) right to free speech, and will
exercise that right in this document. At such a time, with his
liberty at stake, the defendant asks the court to recognize his
right to give the whole truth as seen through his eyes as an
individual citizen of these United States. Goodpasture argues
this point (Arizona L R., Vol. 15, p490.): "Just so far
as, at any point, the citizens who are to decide an issue are
denied acquaintance with information or opinion or doubt or
disbelief or criticism which is relevant to that issue, just so
far the results must be ill-considered, ill-balanced planning
for the general good. It is that mutilation of the thinking
process of the community against which the First Amendment
to the Constitution is directed. The principle of freedom of
speech springs from the necessities of the program of
self-government."
Without free speech there is no redress,
without redress there is no justice. The defendant asks the
court to recognize the chaos surrounding the Cannabis laws
in general, and in specific to recognize the validity of our
right to the seed of Cannabis and all the natural benefits of
that right. The whole truth, including an explanation of the
contents of the U.S.A. Hemp Museum, of which the
defendant is curator, must be heard for the sake of
individual rights and free government, due to the deception and
cover-up of sixty (60) years of Prohibition.
As a non-lawyer, the defendant often hears
from lawyers that we must not ask for too much, only give your
best arguments, your best chance of winning. The defendant asks
the court to consider that Prohibition of Cannabis Sativa in law
started with the Marijuana Tax Stamp Act of 1937. It's
effect, if not its purpose was to control farm production,
control medical cannabis, and misrepresent the most important
plant in the history of mankind as a killer drug, assassin of
youth, deserving the prohibition of use, even by adults in the
privacy of their homes. This prohibition came in one lump sum,
and must be ended one day, by one act of repeal through judicial
review based on the strictest review of fundamental
principles. |
Section2. Article II of the Arizona Declaration
of Rights reads: "All political power is inherent in
the people and governments derive their just powers from the
consent of the governed, and are established to protect
and maintain individual rights."
Again from Murdock (ibid.): "This
statement reaffirms the democratic views of government
expressed in the Declaration of Independence. The phrase
governments derive their just power from the consent of the
governed, is taken from the Declaration itself. It was
Jefferson's view that the principle business of government is to
safeguard the individual in his rights. This is the fundamental
reason for written constitutions, as they set the limits
within which a government may act and thus protect the
individual citizen against encroachment by that
government." And from Lamson, Michael A., Arizona
Law Review, Vol. 18, pp. 207-231, 1976: "The power of
government to interfere with individual liberty is inherently
limited in the United States. On the federal level, the
government may act only pursuant to its powers specifically
enumerated in the Constitution." (3.)
Nowhere in the Constitution is the federal
government given the power to limit Mr. Davis' inalienable right
to possess as property, plant, grow, harvest, sell and consume
Cannabis Sativa and its seed, and any other plant, as given to
him by the creator, "Less than a hundred years ago ,
Americans regarded the production, distribution, and consumption
of drugs as a fundamental right," Szasz, Thomas, "Our
Right to Drugs," 1992, Praeger, NY, NY. (4.)
According to Cannabis History, two Presidents, Washington and
Jefferson, grew marijuana/cannabis/hemp. These Americans
assumed the right to the seed for us, and for the defendant, (an
American individual, born in Arizona), by defining an
inalienable right as one from the Creator.
We were born with the right to the Creator's
seed. In United States vs. Butler, 297 U.S. 1, 1936, the U.S.
Supreme Court held: "From the accepted doctrine that the
United States is a Government of delegated powers, it follows
that those not expressly granted, or reasonably to be implied
from such as are conferred, are reserved to the states or to the
people. To forestall any suggestion to the contrary, the
Tenth Amendment was adopted. The same proposition, otherwise
stated, is that powers not granted are prohibited. None to
regulate agriculture production is given, and therefore
legislation by Congress for that purpose is forbidden."
"It is an established principle that
the attainment of a prohibited end may not be accomplished under
the pretext of the exertion of powers which are granted..."
"The power of taxation, which is
expressly granted, may of course be adopted as a means to carry
into operation another power also expressly granted. "But
resort to the taxing power to effectuate an end which is not
legitimate, not within the scope of the Constitution, is
obviously inadmissible..."
|
THE RIGHT TO DECIDE
We were born with the right to choice,
which is the essence of liberty. Laws Prohibiting the free
exchange in the marketplace of substances intended for private
or medical use by the individual are unconstitutional based
on the right to privacy. The government took away our right to
drugs, including Cannabis, and launched a war on its own
citizens, violating fundamental principles such as due process,
equal protection, privacy, religion, property, speech, cruel and
unusual punishment, voting rights, the right to agriculture and
other laws of the land.
"State governments may act pursuant
to the broad general police power so long as the matter has not
been entrusted to the exclusive control of the federal
government by the Constitution..."
Pursuant to its role as protector of the public interest, the
state evaluates individual conduct in terms of whether or not is
is deemed harmful to the public. In addition to the
requirement of a public purpose or interest, in the criminal
sphere the state police power must be used only to prevent
public harm. The harm which criminal law seeks to avoid must be
general in effect and public in nature. Specifically excluded
from this concept is self-harm supposedly flowing to the
individual from his own actions. (5). Because the purpose of
government is to protect individual rights, "the
greater good of individual freedoms far outweighs any
governmental interest in proscribing conduct that effects only
the actor himself." In the words of John Stewart
Mill:
"The only purpose for which power
can rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others. His
own good, either physical or moral, is not sufficient warrant...
The only part of the conduct of anyone which he is amenable to
society is that which concerns others. In the part which merely
concerns himself, his independence is, of right, absolute. Over
himself, over his own body and mind the individual is sovereign.
"(J. Mill, On Liberty, p.13 Shields ed. 1956).
(6).
In other words, from Lamson, "...conformity
to majoritarian moral dictates is insufficient justification for
interference with individual liberty." This
limitation is a natural outgrowth of the desire to protect
the individual from arbitrary actions and tyranny of political
rulers. This view is consistent with the principles of natural
law which formed the foundation of American constitutional
government. |
The framers were profoundly influenced in their
drafting of the constitution and the Declaration of Independence
by the," natural rights," political
theory of John Locke, which recognizes an inalienable right of
liberty. Certain fundamental and inherent rights of man flowing
from this right of liberty were recognized as limitations upon
the power of the state by the early American patriots. Thus,
natural rights establish the foundation of civil rights. The
omission of a bill of rights from the body of the Constitution
was grounded on the founding Fathers concern that it would in
fact curtail these inalienable rights and afford a colorable
pretext for the government to claim more power than was actually
granted. Recently, this argument has been utilized to
substantiate the inclusion of the ninth (9th), amendment into
the Bill of Rights. The broad language of the ninth amendment,
coupled with the natural rights philosophy underlying the
American form of government, leads to the conclusion that
there are additional fundamental rights which exist alongside
the fundamental rights specifically mentioned in the first
eight(8), amendments.
John Adams, the second U.S. president and
one of our founding fathers, stated the principal of
fundamental, natural rights this way: "You have
rights antecedent to all earthly law; rights derived from the
great legislator of the universe." The right to
share in the creators bounty and the choice within and among
that bounty clearly belongs to the defendant, Mr. Davis, and by
extension to all people. The right to possess and use the seed.
Your right and my right as individuals. A right that cannot
be transferred to another or taken away by any government.
In his article in the Arizona Law Review,
(Vol. 15 p. 519. FUNDAMENTAL RIGHTS), the author, Goodpasture
comments on the strength of these fundamental principles and
rights, and the judicial review responsible to that strength:
"In the course of this article, I have tried to
review the constitutional law of fundamental rights and to
discern the fundamental principles underlying it. The basic
conclusions have been that there is a definite set of
fundamental rights; that they are fundamental essentially
because they have specific important structural implications for
the regulation of governmental power which other rights do not
have; and that these rights may may not be burdened except to
protect against real and serious threats to the policy itself.
These fundamental rights have been broadly categorized as
political participation rights and fairness rights. The
former require the strictest judicial review. The latter
imply judicial review commensurate with the importance of the
interests affected by legislation, at least as long as we
genuinely have a system of judicial review. Such review requires
consummate impartiality, extraordinary sensitivity to
justice, comprehensive, fully open analysis of both governmental
and personal interests and, in general, a high order of judicial
statesmanship. Under this standard, many cases now quickly
and summarily resolved will become difficult, but the
constitutional promise of fairness, and therefore justice, will
be more closely fulfilled."
The defendant asks the court to apply the
strictest judicial review to the many fundamental rights and
principles violated by Cannabis Prohibition. |
THE VIOLATIONS OF CANNABIS
PROHIBITION The
inalienable right to Agriculture. Article II Section 1 of
the Arizona Constitution's Declaration of Rights states in full,
"A frequent recurrence to fundamental principles is
essential to the security of individual rights and the
perpetuity of free government." Prohibiting
farmers from the means of production of Medicine and raw
materials from the Cannabis Sativa plant has created legal and
social consequences which should be changed as a matter of
fundamental principle. The defendant claims that a fundamental
and inalienable right to agriculture , including the seeds of
nature, is his, and that this principle is essential to the, "perpetuity
of a free government." A government that
controls the means of production is not a free government, but
communistic; and a marketplace that does not allow farmers to
compete in it with Cannabis Sativa in its entirety is not a free
market. To this end the defendant asks the court to
declare a return of the people of the inalienable right to the
seeds of the earth, and the agriculture that the right implies.
And indeed an emergency exists for our
farmers, stripped of their right to grow Cannabis Sativa by an
unconstitutional prohibition, who are unable to compete in a
world reawakening to the most important agricultural crop the
world has ever known. Hemp is now subsidized in the entire
European Community, one thousand dollars to the acre. There
are no trees left in Europe, with which to make the tens of
thousands of different products made from pulp fiber, including
paper products and building materials. Canadian
farmers are totally free to plant Cannabis Sativa in 1998, after
four years of tests, provided the government controls the seed.
And medicine is not allowed. And people will still go to jail
for recreational use, though it is harmless to use in Canada. Half-way
measures such as exist in Arizona, California and Alaska, do not
make right a sixty (60), year old statute that now controls
agricultural production of Cannabis, which should be forbidden.
Inalienable, fundamental principles are
involved in that our founding fathers had the right to the
seeds of the earth without question. Our first and third
presidents Washington and Jefferson were both Cannabis farmers,
with privilege and immunity not now available to the defendant.
"The result of using the Commerce Clause as a pretext
for drug prohibition is that, de facto as well as de jure, the
American government is empowered to deprive us, as it sees fit,
of our ancient freedom to grow, on our own soil, for our own
consumption any crop of its choosing." (Szasz).
Article 28 of the U.N. Single Convention on
Narcotic Drugs, 1961, Section 2., states:
"This Convention shall
not apply to the cultivation of the
Cannabis plant exclusively for industrial purposes (fibre and
seed) or horticultural purposes."
The defendant asks the court to overturn
Cannabis prohibition which is in violation of his inalienable
right to agriculture and the Cannabis seed. Also, "horticultural
purposes," implies a right to garden, a right to
cultivate flowers, fruits (seeds), or ornamental plants of the
Genus Cannabis for home use, and should be covered by the above
privacy rights of individuals in their homes. |
THE PRECEDENT OF PROHIBITION
"Prohibition goes beyond the bound of reason in that it
attempts to control a man's appetite by legislation, and makes
crimes out of things that are not crimes."-Abraham
Lincoln
The defendant contends that the Prohibition of
Alcohol is a precedent in the case of Cannabis Prohibition,
which should have required a Constitutional Amendment to effect
prohibition, not an act of Congress as was the Marijuana Tax Act
of 1937. Cannabis as a prohibited plant is therefore illegal.
Again the above Article II Section 1 of the Arizona Constitution
demands a second look at the, "fundamental
principles," as essential to the security of
individual rights and the perpetuity of free government.
"A prohibition
law strikes a blow at the very principles upon which our
government was founded."
-Abraham Lincoln
Prohibition happened with alcohol, created
a legal mess, and was overturned. Alcohol was made legal. One
day in 1933, prohibition of alcohol ended after thirteen (13),
years of hell in America. Cannabis is now in its
sixtieth (60), year- 1937 to 1997, and we ask the court to end
this prohibition by declaring Cannabis prohibition
unconstitutional based on the fundamental principles and
inalienable rights of the defendant and all individual citizens
of the United States of America.
PRIVACY AND CANNABIS "If
the right of privacy means anything, it is the right of the
INDIVIDUAL, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a
person as the decision whether to bear or beget a
child." [405 U.S. at 453, 92 S.Ct. At 1038,
31L.Ed.2d at 362] This is a right relating to the autonomy of
the individual, not a place.
Again the right to privacy pertained to the
freedom of the individual to decide as to her course of action
and was related to any situs,:[410 U.S. 113, 93 S.Ct.
705, 35L.Ed.2d 147 (1973).]
"Thus it appears that the United States Supreme Court
has found a right to privacy to exist as to activities within
the home or with reference to values associated with the home,
and additionally, as a right of personal autonomy, to make
decisions that shape an individuals personal life."
And to quote the Alaska Supreme Court: "Since
the citizens of Alaska, with their strong emphasis on individual
liberty, enacted an amendment to the Alaska Constitution
expressly providing for a right to privacy not found in the
United States Constitution, it can only be concluded that, that
right is broader in scope than that of the Federal Constitution.
As such, it concludes not only activities within the home and
values associated with the home, but also a right to be left
alone and to do as one pleases as long as the activity does not
infringe on the rights of others. Thus, the decision whether to
ingest food, beverages or other substances comes within the
purview of that right to privacy." And, "Privacy
in the home is a fundamental right, under both the federal and
Alaska constitutions." |
Alaskan adults over the age of nineteen (19), upheld by the
Alaska Supreme Court, in Ravin vs. State of Alaska, 537 P2.d
494, 509-10 (Alas.1975), and citing the U.S. Constitutional
privacy as fundamental , have the right to possess, grow,
consume and smoke Cannabis (marijuana), in their homes based on
the constitutional right to privacy. We ask the court to
recognize the same right for the people of Arizona, based on
their constitutional right to privacy and Article IV.
Section 2. of the U.S. Constitution, which reads, "The
Citizens of each State shall be entitled to all Privileges
and Immunities of Citizens in several States."
The state of Arizona also has a similarly
strong right to privacy in its Constitution: Article II,
Section 8 states: "No person shall be disturbed in his
private affairs, or his home invaded, without authority of law."
"Therefore Cannabis Prohibition places an undue
burden on this fundamental right and should be repealed by this
court."
The U.N. Universal Declaration of Human Rights
to which the U.S. is bound by treaty, addresses the fundamental
right to privacy in Article 12: "No one shall be
subjected to arbitrary interference with his privacy, family,
home or correspondence, nor to attacks upon his honor and
reputation. Everyone has the right to protection of the law
against such interference or attacks."
"The U.S. 9th Circuit Court of
Appeals for Nine Western states, including California, relied on
previous abortion rulings last month, (May 1996), when it
decided that Americans have a right to personal liberty and
privacy that gives them, rather than the government, the right
to decide to end their suffering when they are terminally
ill."
Judge Stephen Reinhardt of Los Angeles,
writing for the 8-3 majority, quoted from Supreme Court rulings
upholding the privacy right. (L.A. Times, April 3, 1996.)
RELIGIOUS FREEDOM VS. CANNABIS PROHIBITION
"Over himself, over his own
body and mind, the individual is sovereign." This
concept of liberty by John Stuart Mill influenced those who
penned the words of the first item in the first amendment called
our Bill of Rights: "Congress shall make no laws
respecting an establishment of religion, or prohibiting the free
exercise thereof." No law. That is just
about a clear a way as is possible of expressing a limit on the
power of government. No law. Therefore it is clear that a
prohibition that blocks the defendant from exercising control
over practice of religion, even an individual religion such as
his is unconstitutional. The defendant uses the natural flowers
of the Cannabis plant as a sacrament, both smoked and eaten, to
honor the connection between his own sovereignty and that of the
Creator. This practice was mandated by the defendant more than
thirty (30), years ago. Interference with religious freedom
is a fundamental violation by Cannabis prohibition, which should
be repealed. |
ARTICLE 18, of the U.N. Declaration of Human Rights, emphasizes
the individual nature of freedom of religion and its practice: "Everyone
has the right to freedom of thought, conscience and religion;
this right includes freedom to change his religion or belief,
and freedom, either in teaching, practice, worship and
observance." (Bolding by the defendant).
Again it seems clear that any prohibition of any natural
substance as a religious sacrament violates fundamental rights
and principles.
Goodpasture (Arizona Law Review, Vol. 15,
p.490), citing Sherbert vs. Verner (374 U.S. 398 (1963) which
held freedom of religion to be fundamental, argued all First
Amendment rights are fundamental:
"Religious freedom, of course, is
analogue of freedom of opinion. Speech assumes a variety of
human purposes and opinions and would be severely threatened
were there on freedom of religion."
Indeed, it is impossible to say which freedom is primary, for
both appear to stem from a basic principle that no man should be
allowed to proscribe ultimate truths or ultimate conceptions of
the good for other men. Both affirmatively recognize the
individual pursuit of ultimate goals, and both protect
minority interests against the power of political majorities:
freedom of speech by requiring majorities to be at least
formally open to reasoned appeals and to be aware of the effects
of their decisions; freedom of religion by prohibiting action
which could destroy at least certain important minorities at
their root. The first amendment freedoms are all practical
expressions of these vital principles and equally merit
fundamental protection.
PROHIBITION OF CANNABIS VS. THE RIGHT TO DRUGS
"None of the measures tried to solve the drug
problem have worked." -Thomas Szasz "In
the English-speaking world, especially since the seventeenth
(17th) century, the word FREEDOM has meant the inalienable right
to life, liberty and property, the first two elements resting
squarely on the last." (Szasz).
John Locke wrote in 1690, "Yet
every man has a Property in his own Person. This No Body has any
right but to himself. The Labor of his Body and the Work of his
hands, we may say, are properly his." More
than any other single principle, this idea informed and animated
the framers of the Constitution. "If the United
States mean to obtain and deserve the full praise due to wise
and just governments," wrote James Madison in
1792, "they will equally respect the rights of property
and the property in rights."
The defendant wants to show that, because
both our bodies and drugs are types of property, producing,
trading in and using drugs are property rights and drug
prohibitions constitute a deprivation of basic constitutional
rights. The defendant argues the following using Szasz' list. |
1. The right to chew or smoke
a plant that grows wild in nature, such as hemp
(marijuana/cannabis), is anterior to and more basic than
the right to vote.
2. A limited government,
such as that of the United States, lacks the political
legitimacy to deprive competent adults of the right to use
whatever substances they choose.
3. The constraints on the
power of the federal government, as laid down in the
Constitution, have been eroded by a monopolistic medical
profession administering a system of prescription laws that
have, in effect, removed most of the drugs people want
from the free market.
4. Hence it is futile to
debate whether the War on Drugs should be escalated or
de-escalated, without first coming to grips with the popular,
medical and political mind-set concerning the trade in drugs
generated by nearly a century of drug prohibitions.
"How can the government of the
United States, crafted and considered to possess the most
prudently limited powers of any government in the world,
prohibit a competent adult from growing or ingesting an ordinary
plant, such as the coca leaf or hemp? And how can
it impose such a staggeringly disproportionate punishment,
compared for example, to the punishment imposed on many persons
convicted of murder, on an individual who inhales the products
of such a plant?" (Szasz)
The defendants answer is it cannot, because of fundamental
protections, and Cannabis prohibition must be stricken by the
court.
CANNABIS PROHIBITION AS CRUEL AND UNUSUAL
PUNISHMENT The defendant
would be remiss if he failed to mention Amendment VIII of the
U.S. Bill of Rights, and Article II, Section 1 of
Arizona's Declaration of Rights, barring cruel and unusual
punishment. Cannabis prohibition has spawned a rash of
penalties that are in violation of the right to be free of cruel
and unusual punishment. For example, the defendant is facing
in this case up to almost thirty (30), years in prison for
allegedly selling five (5), grams of Cannabis flowers that are
his property and posed no harm to the buyer, (DEA Docket #86-22,
1988). The defendant asks the court to overturn Cannabis
prohibition because of this violation of law.
It is hard to imagine a penalty for
possessing, growing, selling, using, wearing, eating,
manufacturing, smoking or drinking flowers given to us by the
Creator. Because of the arguments put forth by the defendant
in this motion, all laws relating criminal penalties to
Cannabis should be strictly scrutinized by the court system at
every level of government from Arizona to the United nations. Regulation
is rational, prohibition is not rational and should be
discarded in the light of lack of harm required to establish a "compelling
state reason."
In addition, harm must be weighed against the benefits of
the earth's number one renewable, sustainable natural resource.
In so many ways, Cannabis Sativa must respond to a
national emergency, as it did in World War II. This new
emergency is based on legal, economic, environmental, medical
and societal (anti-violence and drug withdrawal), uses of the
Cannabis plant. |
CANNABIS PROHIBITION AND MEDICAL USE
OF CANNABIS Unless we put
medical freedom into the constitution, the time will come when
medicine will organize itself into an undercover
dictatorship." - Dr. Benjamin Rush, A signer of
the Declaration of Independence.
The United Nations Single Convention on
Narcotic Drugs, 1961, to which the U.S. Government is a
signatory, and which entered into force with respect to the U.S.
on June 24, 1967, states in the Preamble:
" The Parties, CONCERNED with
the health and welfare of mankind, RECOGNIZING that
the medical use of narcotic drugs continues to be indispensable
for the relief of pain and suffering and that adequate provision
must be made to ensure the availability of narcotic drugs for
such purposes."
This U.S. Treaty is the Law of the Land. Any
law that prohibits the availability of Cannabis for medical use
is obviously not CONCERNED with the pain and suffering of
its citizens. And the prohibition has created a national
emergency to deal with seriously ill patients going to jail for
the use of Cannabis. The medical emergency is the most
damning in a free country, like the U.S.A. is supposed to be. We
have imposed a police state prohibition that makes criminals out
of patients and their physicians and friends. We have known for
nine (9), years that Cannabis Sativa, in its natural form has
not one death associate with its use, anywhere in the world, at
any time in history. This is a FACT. Another fact
from the same Judge Francis L. Young, Chief Administrative
Law Judge for the U.S. Drug Enforcement Administration,
1988, (D.E.A. Docket #86-22): "Marijuana in its
natural form is one of the safes therapeutically active
substances known to man. By any measure of
rational analysis, Marijuana can be safely used within a
supervised routine of medical care."
Due to the extreme safety of Cannabis
Sativa in its natural state, which is non-toxic and has recorded
no fatalities in five thousand (5000), years of recorded medical
use history, the defendant asks the court to notify the
Secretary General of the United Nations, requesting that
Cannabis Sativa be removed altogether from the Schedules of the
Single Convention as allowed by Article 3, and all rights be
returned to the peoples of the world.
Individuals who need medicine, physicians who
prescribe medicines, such as opium, cocaine, morphine,
barbiturates or amphetamines have the privilege of using the
drugs and immunity from arrest with a doctor's prescription. The
defendant, who uses Cannabis Sativa in its vegetable state
as medicine and controls its production, has neither
privilege nor immunity available to him. Article II Section
13 of the Arizona Constitution states in full:
"No law shall be enacted granting
to any citizen, class of citizens, or corporation other than
municipal, privileges or immunities which, upon the same terms,
shall not equally belong to all citizens or corporations." |
EQUAL PROTECTION AND DUE PROCESS
A. EQUAL PROTECTION, EQUAL PRIVILEGES
AND IMMUNITIES.
It is evident that the legislature has made
the possession, use and sale of one (1), recreational drug,
Cannabis/Marijuana, a criminal offense while at the same time, the
possession of other recreational drugs, such as coffee, alcohol
or tobacco, all of which may cause death, are not prohibited.
Cannabis by contrast has no deaths
associated with its use. (Uncontroverted fact #4, DEA Docket
#86-22, 1988).
In Arizona, individuals who need medicine,
physicians who prescribe medicines, such as opium, cocaine,
morphine, barbiturates or amphetamines have the privilege of
using the drugs and immunity from arrest with a doctor's
prescription; the defendant, who uses Cannabis Sativa in its
vegetable state as medicine and controls its production, has
neither privilege or immunity available to him. Article 2,
Section 13 of the Arizona Constitution states in full:
"No law shall be enacted granting
to any citizen, class of citizens, or corporation other than
municipal, privileges or immunities which, upon the same terms,
shall not equally belong to all citizens or corporations."
In Arizona, individuals who desire
recreational drugs such as alcohol, tobacco, coffee or any of a
multitude of over-the -counter medical drugs of varying risk, or
any of a multitude of herbal preparations, have the privilege of
using the drugs and herbs and immunity from arrest. The
defendant uses herbal Cannabis both recreationally and
medicinally, and has neither privilege nor immunity available to
him. Article 2, Section 13 as above, the "privileges and
immunities" clause, specifically prohibits such arbitrary
classification.
In Arizona, producers and licensed sellers and
distributors (under the Luxury Privilege Tax, Title 42), of
recreational drugs such as alcohol and tobacco, considered in
terms of safety to be much more dangerous than Cannabis, have
the privilege of producing and selling on the free market and
immunity from arrest. The defendant who both produces and sells
Cannabis, and who is licensed to do so under the Luxury
Privilege Tax Code, Title 42, has neither privilege nor immunity
available to him. Article 2, Section 23 as above, specifically
prohibits such arbitrary classification.
It is clear that the equal protection
guarantee is a constantly evolving right. As the Supreme Court
stated in Harper vs. Virginia State Board of Elections, 383 U.S.
663, 669 (1966):
"The Equal
Protection Clause is not shackled to the political theory of a
particular era. In determining what lines are constitutionally
discriminatory, we have never been confined to historic notions
of equality, any more than we have restricted due process to a
fixed catalogue of what at a given time deemed to be the limits
of fundamental rights...Notions of what constitutes equal
treatment for purposes of the Equal Protection Clause DO
change." |
The Supreme Court initially set out the test for
the validity of statutes under the Equal Protection Clause in
Skinner vs. Oklahoma, 316 U.S. 535, 539 (1942) as follows:
"When the law
lays an unequal hand on those who committed intrinsically the
same quality of offense and sterilizes one and not the other, it
has made an invidious a discrimination as if it had selected a
particular race or nationality for oppressive treatment...
Sterilization of those who have thrice committed grand larceny,
with immunity for those who are embezzlers, is a clear, pointed
unmistakable discrimination."
In the 1960's, the Supreme Court has added an
additional dimension to the Equal Protection guarantee: where
the statute effects a fundamental right, the classification must
be supported by a compelling government interest, and must be
narrowly drawn. See Shapiro Vs. Thompson, 394 U.S. 618, 634
(1969); McLaughlin Vs. Florida, 379 U.S. 184 (1964); Harper vs.
Virginia State Board of Elections , 383 U.S. 663 (1963). In
Harper, the Court stated, 383 U.S. at 670:
"We have long
been mindful that where fundamental rights and liberties are
assured under the Equal Protection Clause, classifications which
might invade or restrain them must be closely scrutinized and
carefully confined."
The defendant has argued above, that Cannabis
Prohibition involves many fundamental rights. Those arguments
are applicable to the equal protection argument made in this
portion of the motion and will not be repeated here. For the
same reasons as discussed above, the prohibition of
Cannabis involved "fundamental" rights and liberties
in terms of the Equal Protection Clause. In terms of farmers,
patients, the incarcerated and those at risk, Cannabis
Prohibition makes a mockery of the Equal Protection Clause.
B. IRRATIONAL CLASSIFICATION
The argument as to a misclassification is
similar in nature to those used above concerning equal
protection. For example in Ledger-Enquirer Company vs. Brown,
213 Ga. 538, 100 S.E. 2d 166 (1957) the Supreme Court of Georgia
had occasion to discuss the power of the Georgia legislature to
classify, stating at S.E. 2d 168:
"It is clear
that the legislature may, for purposes of legislation, classify,
and may legislate with respect to each classification. The power
of the legislature to classify for the purpose of legislation,
however is not without limitation. The classification must be
natural and not arbitrary. It must have a reasonable relation to
the subject matter of the legislation and must furnish some
legitimate ground of differentiation."
Cannabis as marijuana is classified as a
Schedule I, dangerous drug, with no medical value. Cannabis
as above, has no deaths associated with its use in five
thousand (5000) years of medical use, while legal alcohol
annually causes one hundred thousand (100,000), deaths (not
including 50% of all highway deaths and 65% of all murders) and
legal tobacco causes 400,000 plus deaths annually. Even
coffee is estimated to cause 1,000 to 10,000 deaths (from ulcers
and irregular heartbeats, etc.). The inclusion of Cannabis to
Schedule I is both unnatural and arbitrary. |
The converse of the above ruling must be equally
true. The inclusion of Cannabis/Marijuana within the
classification of Schedule I drugs must be based upon some "legitimate
ground," for the inclusion to be correct. As
shown by the facts presented in this motion, Cannabis/Marijuana
simply does not fit within such classification in terms of
legitimate societal interest.
The United States Supreme Court has held that
a classification which does not rest upon a reasonable basis and
which is essentially arbitrary in nature constitutes a violation
of the Equal Protection Clause. See, McLaughlin vs. Florida,
supra. where the court held at page 191:
"Judicial
inquiry under the Equal Protection Clause, therefore, does not
end with a showing of equal application among the members of the
class defined by the legislation. The courts must reach and
determine the question whether the classifications drawn in a
statute are reasonable in light of its purpose, in this case,
whether there is an arbitrary or invidious discrimination
between those classes covered by Florida's cohabitation law and
those excluded."
Even if the legislature was laboring under
some misconception with respect to the proper classification for
Cannabis/Marijuana, nevertheless the court had a duty to
rectify said error by holding the statute in question
unconstitutional. As pointed out by the U.S. Supreme Court
in Meyer vs. Nebraska, supra, at page 401: "(A)
desirable end cannot be promoted by prohibited means."
Further, as pointed out by the Supreme Court
in Levy vs. Louisiana, 391 U.S. 68 at page 71:
"While a state has broad power when
it comes to making classifications (Ferguson vs. Skrupa, 372
U.S. 726, 732), it may not draw a line which constitutes an
invidious discrimination against a particular class. (See
Skinner vs. Oklahoma, 316 U.S. 535, 541-542.) Though the test
has been variously stated, the end result is whether the line
drawn is a rational one. (See Morey vs. Doud, 354 U.S. 457,
456-466.)
In English vs. Miller, 341 Fed. Supp. 714
(1972) the District Court for the Eastern District of Virginia
considered the constitutionality of the Virginia law classifying
marijuana as a narcotic and held at page 171:
"The classification of marijuana
as a narcotic is, in this Court's opinion, violative of the
equal protection clause of the United States Constitution. The
statutory pronouncement that "every substance not
chemically distinguishable," from coca leaves and opium,
cannabis and isonipeciane" is a narcotic drug, as
referred to in Virginia Code 54-487 (14), is so vague that, even
if it could be pharmacologically substantiated, due process
considerations compel its repudiation."
In the English case, in footnote number
four (4), at page 718 the court noted as follows:
"The court's
power to determine the actual state of facts concerning
marijuana, as well as the court's reliance on current writing of
authorities in a rapidly developing field, is based upon
pronouncements of the U.S. Sup. Ct. in Brown vs. Board of
Education, 347 U.S. 483, 494, F.N. 11, 74 S.Ct 686, 98 L.Ed. 873
(1954) where unquestionably the court has the power to determine
the true state of facts upon which the law is based."
(See also, People vs. Sinclair, supra, (1972.)
According to Justice Holmes, even a judge
being bound to declare the law must know or discover the facts
that established the law. (See, Prentis vs. Atlantic Coast
Line Co., 211 U.S. 210, 1908). |
The courts have deferred to the rationality of
the legislature in proscribing the possession of marijuana even
though no legislative histories have been published which could
offer the courts the basis for the legislature's promulgation of
such laws. All that the courts have upon which to base their
deference is the stated purpose of the statute. To Justice
Holmes, the proposition that a mere statement of a proposition
is sufficient to establish that proposition as a factual
justification for a statute is erroneous:
"Obviously the
facts should be accurately ascertained and carefully weighed,
and this can be done more conveniently in the Supreme Court of
the District than here. The evidence should be preserved so that
is necessary it can be considered by this court."
For purposes of this argument the
state may have a compelling interest to regulate man made drugs,
but Cannabis Sativa may not be rationally included within this
category. Scientific evidence of any "compelling,"
harm from this natural plant must be challenged by the
defendant. This may have been the belief of the legislators
at the time the law was passed. A Court has an on-going duty
to examine legislation in light of modern developments. See,
for example, Abie State bank vs. Bryan, 282 U.S. 765 at 772.,
stating:
"...Even though a
police power enactment have been or may have seemed to be valid
when made, later events or later- discovered facts may show it
to be arbitrary and confiscatory."
Thus, in performing this duty, this Court
must look into the factual situation which exists in light of
today's knowledge. (See Suffolk L. Rev. 55 (1968) at 59,
60.) The defendant urges the Court to consider the potential
benefits wasted by misclassification and prohibition of the
plant Cannabis Sativa. The totality of the arguments herein show
present classification of Cannabis so erroneous that such
classification is unreasonable, irrational, arbitrary and
unconstitutional, and in violation of the equal protection and
due process clauses of the Fourteenth (14th), Amendment of the
United States Constitution and the Constitution of the State of
Arizona. |
CLOSING REMARKS
In closing, I would like to thank the court
and spotlight the words of Justice Kevanaugh, People vs.
Sinclair, 387 Mich.91; 194 N.W.2d 878 (1972). He argued that the
criminalization of marijuana was unconstitutional as "an
impermissible intrusion upon the fundamental rights to life,
liberty and the pursuit of happiness and...unwarranted
interference with the right to possess and use private
property."
He stated as a constitutional principle that "an
individual is free to do whatever he pleases, so long as he does
not interfere with the right of his neighbor or society,"
and did not believe that "Big Brother,"
can dictate in the name of public health what one consumes in
private.
The defendant asks the court at this juncture
to remember the inter- relatedness of the above arguments. Cannabis
Sativa is an agricultural crop and it must be allowed access to
the free market to accommodate the amount of medicine and
biomass required. Cannabis farmers of all forms and purposes
must not be intimidated by a police state.
It is the responsibility of the court to recognize Cannabis
as a right of the people. By usurping Cannabis rights through
prohibition, the U.S. Government has caused untold
constitutional damage, untold pain and suffering, untold
environmental damage and erosion of national security by
depleting our forests and our oil reserves, and by participating
in fossil oil wars. We ask the court to rule that Cannabis
belongs to the defendant as property, and all the people of the
world, an inalienable right. And to dismiss the charges
against him. END
RESPECTFULLY SUBMITTED
this 19th day of June, 1997.
Richard M. Davis
Attorney Pro per
STATE'S
RESPONSE TO DEFENDANT'S MOTION TO DISMISS BASED ON SECTION
I, ARTICLE II, OF THE ARIZONA CONSTITUTION IN THE CASE:"
STATE OF ARIZONA Vs. RICHARD M. DAVIS" COPIES of
foregoing mailed this19th day of June,1997 to:
Clerk of the Court
Superior Court
222 East Javelina Drive
Mesa, Arizona 85210
The Honorable Brian Ishikawa
Judge of the Superior Court
222 East Javelina Drive
Mesa, Arizona 85210
David Flader
Maricopa County Attorney's Office
222 East Javelina Drive
Suite 200
Mesa, Arizona 85210
Michael Walz
Attorney at Law
45 W. Jefferson, Suite 412
Phoenix, Arizona 85003
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