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HEMP LEGAL MATTERS ROOM GUIDE


HEMP CONSTITUTIONAL CHALLENGE.

 Richard M. 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:

    "http://www.hempmuseum.org.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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