HONOLULU (CN) - The 9th Circuit heard arguments to let a Native American church reclaim cannabis that drug officials seized and destroyed years ago.
Michael Rex "Raging Bear" Mooney and the Oklevueha Native American Church of Hawaii filed a complaint for declaratory and injunctive relief in 2009 after the Drug Enforcement Administration seized a FedEx package containing about 5 pounds of cannabis in Tupperware containers.
Mooney says he planned to use the cannabis in certain religious activities, namely "lunar use" and "sweat lodge use," and that interference with those activities curbed his religious freedom.
The DEA passed the seized cannabis to the Honolulu Police Department, which said it "routinely" destroyed it.
Finding no imminent threat of prosecution and that the police had closed the case, a federal judge refused to grant the declaratory and injunctive relief in April 2010. Three months later, the court also rejected newer claims relating to the seized cannabis.
In addition to seeking restoration of the product, Mooney and the church requested damages for its "theft and conversion."
Under the Religious Freedom Restoration Act of 1993, however, U.S. District Judge Susan Oki Mollway said "the court could not order the government to return that which it does not have."
Monetary damages were also off the table since the law "does not waive sovereign immunity and authorize lawsuits for money damages," she added.
At an appellate hearing Monday, Judge Mary Murguia asked whether Mooney had used cannabis since the initial seizure, and if he had been able to practice his religion since.
Mooney's attorney, Michael A. Glenn, answered that there had been no other seizure. "Mr. Mooney consumes it - cannabis - every day, so yes, you can assume so," he said.
Judge Stephen Trott asked why Mooney had not petitioned for religious exemption, as plenty of others have done successfully.
"My client thinks it's 'a waste,'" Glenn said, "especially in the absence of a protective order. RFRA does not require an arrest."
Murguia asked, "Does it contain a waiver of sovereign immunity?"
"It does not," Glenn answered, adding that "the District Court missed the point that the cannabis was seized pursuant to the Controlled Substances Act."
Though Mooney had not informed the trial court which religious activities require cannabis, Glenn said he and his client are ready to share a "laundry list" of those details.
Judge Trott said he understood that production of such a list might open a person to self-incrimination or perjury.
"You'd need to be read your Miranda rights before giving up such information," he said.
The hearing turned a bit comical when Justice Department attorney James Luh took the podium. Luh justified the cannabis seizure and limited resources ensure that the government has, and had, no interest in prosecuting Mooney. Law enforcement was not even aware of Mooney and his church until FedEx turned over the package, he said.
Trott interrupted to ask, "How can you say what you did is not enforcement? That's what you do! You took someone's property, without due process, and you destroyed it!"
Luh answered, "We don't know that the church is not distributing."
Judge Murguia asked, "Would it be enough for them [Mooney and the church] to have told you how much cannabis to return to them?"
Luh answered, "Yes."
Judge Murguia asked, "And what would be the chance that they would fear [future] penalty? Because, although there hasn't been a seizure since, there was already a seizure."
Luh hesitated as he answered such a situation would be "unlikely."
"They could submit an administrative request," he said. "RFRA requires a case-by-case evaluation, even though it doesn't provide specifically for religious use of drugs."
Trott laughed when Luh said he would need to consult with the government in the interest of attorney-client privilege before committing further.
"Would you concede that if you knew the exact weight of the cannabis," Trott asked. "Would that be enough for you to give that amount back? I find it hard to believe that FedEx didn't weigh the package to determine how much to charge."
Luh answered that it would not be enough. "We didn't become aware of the church until the package was received," he said. "There's no active enforcement. The evidence was destroyed, and that's it. There was no active investigation."
In Glenn's brief rebuttal, he was adamant about not conceding any of the demands.
Murgia pressed whether he would at least concede to sovereign immunity.
"We do not!" Glenn said, emphatically. "If there's a right to the property, we take the position that the 'take clause' comes into play. And we'd want an order that says they can't prosecute. We're seeking the cannabis back. It'd be nice to have an order, and perhaps money damages."
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