NOTICE
The defendant, appearing specially by his attorney and reserving his right to challenge the court’s jurisdiction, hereby provides notice that on a date and at a time and place to be designated by the court, the defendant will move the court for an order granting the motion(s) attached to this notice.
MOTION
The defendant, appearing specially by his attorney and reserving his right to challenge the court’s jurisdiction, moves the Court to modify the conditions of the defendant’s bail. This motion is brought pursuant to the 8th and 14th Amendments to the United States Constitution.
More specifically, this motion addresses the United States Constitution’s guarantee that:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of …”
As well as Minnesota’s Constitution, Article I, Section 16, Freedom of Conscience; No Preference To Be Given To Any Religious Establishment Or Mode Of Worship, in part:
“The enumeration of rights in this constitution shall not deny or impair others retained by and inherent in the people. The right of every man to worship God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any religious or ecclesiastical ministry, against his consent; nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by law to any religious establishment or mode of worship;.”
And South Dakota’s Constitution, Article VI, Section 3, Freedom of religion – support of religion prohibited, in part:
The right to worship God according to the dictates of conscience shall never be infringed. No person shall be denied any civil or political right, privilege or position on account of his religious opinions; …
No person shall be compelled to attend or support any ministry or place of worship against his consent nor shall any preference be given by law to any religious establishment or mode of worship
AS GROUNDS, the defendant asserts:
I. LEGAL AUTHORITY
1. Mr. Karimi is a citizen of South Dakota.
2. Mr. Karimi was released on pre-trial release in Minnesota. This pre-trial supervision continues to subject him to the following special conditions:
– Defendant shall not use or possess controlled substances or drug paraphernalia without a valid prescription
3. On April 12th, 2022, Mr. Karimi objected to all the conditions imposed because they violate the “Free Exercise Clause” of the first amendment to the Constitution which proscribes laws prohibiting the free exercise of religion.
4. This Court is fortunate that it can address an issue that Supreme Court Justice Thomas could not. Justice Thomas published a statement United States Supreme Court’s June 17, 2021, denial of a writ of certiorari in STANDING AKIMBO, LLC, ET AL., v. UNITED STATES. Justice Thomas began with the case that enshrined the Government’s compelling interest in prohibiting marijuana:
Sixteen years ago, this Court held that Congress’ power to regulate interstate commerce authorized it “to prohibit the local cultivation and use of marijuana.” Gonzales v. Raich, 545 U. S. 1, 5 (2005). The reason, the Court explained, was that Congress had “enacted comprehensive legislation to regulate the interstate market in a fungible commodity” and that “exemption[s]” for local use could undermine this “comprehensive” regime. Id., at 22–29. The Court stressed that Congress had decided “to prohibit entirely the possession or use of [marijuana]” and had “designate[d] marijuana as contraband for any purpose.” Id., at 24–27 (first emphasis added). Prohibiting any intrastate use was thus, according to the Court, “‘necessary and proper’” to avoid a “gaping hole” in Congress’ “closed regulatory system.” Id., at 13, 22 (citing U. S. Const., Art. I, §8). Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning. Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana. This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary.
In addition to expressing his concerns regarding the “…disjuncture between the Government’s recent laissez-faire policies on marijuana and the actual operation of specific laws…” Justice Thomas also addressed equal justice. His statement touched on the injustices that result from our incoherent policies in relation to our Fourteenth Amendments Equal Protection guarantee.
Yet, as petitioners recently discovered, legality under state law and the absence of federal criminal enforcement do not ensure equal treatment.
CITATION TO THOMAS
. Against this background, and subsequent to the United States Supreme Court’s reaffirmation of the law in Fulton v. City of Philadelphia, Mr. Karimi raises his objections to his special bond condition.
In Fulton v. City of Philadelphia, the Court held that rather than examining the validity of its holding in Smith, the case could be decided on the narrower issue of the applicability of Smith. The Fulton Court began with the holding in Smith:
Smith held that laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable. 494 U. S., at 878-882.”
The Fulton Court found that Smith, by its own terms was inapplicable to the controversy before this Court:
As the plurality pointed out in Bowen v. Roy, supra, 476 U.S., at 708, 106 S.Ct., at 2156-57, our decisions in the unemployment cases stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of “religious hardship” without compelling reason.
(emphasis added) Smith at 884
Just as Justice Thomas explains infra, the government’s enforcement of marijuana laws has undermined the reasoning in Smith, over the years. Likewise, the reasoning in Smith is inapplicable to the case before this Court.
The DEA provides, “Guidance Regarding Petitions for Religious Exemption from the Controlled Substances Act Pursuant to the Religious Freedom Restoration Act” (Attachment “A”) which clearly indicates that the government continues to exercise the discretion to grant religious exemptions regarding controlled substances.
Whether or not the decisions are that limited, they at least have nothing to do with an across-the-board criminal prohibition on a particular form of conduct.
Id.
Clearly there is no across the board prohibition on marijuana under federal law. Likewise, there are exemptions under federal law for peyote, a Schedule 1 substance. The federal peyote exemption was further explained in Employment Division v. Smith, 494 U.S. 872 (1990), where the U.S. Supreme Court said the federal peyote exemption does not require a state to allow the use of peyote as long as the state law is neutral and generally applicable (no exceptions). The DEA explained in its page addressing “Peyote Exemption for Native American Church:”
A statutory exemption limited to the NAC, to the exclusion of other religions whose use of peyote is central to established religious beliefs or practices, would be unconstitutional under the Establishment Clause if it discriminated among otherwise equally situated religions. No different conclusion would be required because the “preferred” religion is composed of American Indians, since the special treatment of Indians under our law is grounded in their unique status as political entities, not in their religion or culture. On the other hand, since no group other than the NAC is likely to be able to establish its entitlement to the exemption, the DEA would be justified in adopting procedures designed to minimize the administrative burdens of extending the exemption to other groups.
The truth was laid bare in United States v. Boyll:
The United States adopts a racially restrictive reading of 21 C.F.R. 1307.31, arguing that the protection contained therein applies only to members of the Native American Church who are American Indians. It claims that Mr. Boyll cannot be a member of the Native American Church because “membership is limited to persons who [sic] ethnic descent is at least twenty-five percent derived from American Indian stock, and to the spouses of such persons“; that, therefore, Mr. Boyll cannot be a member of the Native American Church since neither he nor his spouse is twenty-five percent American Indian.
The Boyll court having addressed the government’s twenty-five percent truthful position also addressed Constitutional concerns and their individual importance:
THERE is a genius to our Constitution. Its genius is that it speaks to the freedoms of the individual. It is this genius that brings the present matter before the Court. More specifically, this matter concerns a freedom that was a natural idea whose genesis was in the Plymouth Charter, and finds its present form in the First Amendment to the United States Constitution — the freedom of religion.
United States v. Boyll, 774 F. Supp. 1333 (D.N.M. 1991)
The Government’s “war on drugs” has become a wildfire that threatens to consume those fundamental rights of the individual deliberately enshrined in our Constitution. Ironically, as we celebrate the 200th anniversary of the Bill of Rights, the tattered Fourth Amendment right to be free from unreasonable searches and seizures and the now frail Fifth Amendment right against self-incrimination or deprivation of liberty without due process have fallen as casualties in this “war on drugs.” It was naive of this Court to hope that this erosion of constitutional protections would stop at the Fourth and Fifth Amendments. But today, the “war” targets one of the most deeply held fundamental rights — the First Amendment right to freely exercise one’s religion.
As Justice Thomas noted, the “Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.” (Standing Akimbo).
In 2009 and 2013, the Department of Justice issued memorandums outlining a policy against intruding on state legalization schemes or prosecuting certain individuals who comply with state law. In 2009, Congress enabled Washington D. C.’s government to decriminalize medical marijuana under local ordinance. Moreover, in every fiscal year since 2015, Congress has prohibited the Department of Justice from “spending funds to prevent states’ implementation of their own medical marijuana laws.” United States v. McIntosh, 833 F. 3d 1163, 1168, 1175–1177 (CA9 2016) (interpreting the rider to prevent expenditures on the prosecution of individuals who comply with state law)
South Dakota, where Mr. Karimi resides, currently is under the protection of this financial rider from federal funds being spent on ultimate users of medical cannabis ( see exceptions for ultimate user allowance in 21 U.S.C. § 822(c)(3)), for lawful users of South Dakota’s medical cannabis program.
No honest argument can be made to refute the reasoning of the Fulton Court’s applies here, as the law is not applied “across the board” as explained by Justice Thomas in Standing Akimbo. There is no jurisdiction where the prohibition against marijuana is “a law of general application.” When a statute infringes on free exercise, the Minnesota Constitution, South Dakota Constitution, and United States Constitution demand strict scrutiny. Again this very point was addressed just recently when Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, was reiterated in Fulton:
… where such a law is not neutral or not of general application, it must undergo the most rigorous of scrutiny: It must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest. Neutrality and general applicability are interrelated, and failure to satisfy one requirement is a likely indication that the other has not been satisfied. Pp.531-532.
When the question is correctly stated, it cannot be answered by saying the State of South Dakota or the United States has a compelling interest in enforcing drug laws. The correct question requires that the court weigh whether the government has a compelling an interest that would justify denying an exception to the law. Clearly exemptions are possible as the “Guidance Regarding Petitions for Religious Exemption from the Controlled Substances Act Pursuant to the Religious Freedom Restoration Act” is promulgated by the Drug Enforcement Agency. Furthermore, federal exemptions are already contemplated in federal code:
21 U.S.C. § 822(d) allows exemptions to manufacture, distribute, and dispense controlled substances
21 U.S.C. § 822(c)(3) provides an exemption for an ultimate user
21 U.S.C. § 802(27) an ultimate user is someone who lawfully obtains a controlled substance
21 C.F.R. § 1307.03 is an application for exemption
There is no factual basis to support the State’s assertions that there is a compelling interest in the enforcement of all drug laws, given the various exemptions.
Mr. Karimi anticipates that the State will argue that it has an interest in enforcing state laws. However, the question before the Court, “…whether it has such an interest in denying an exception to [Mr. Karimi].” (CITE) Mr. Karimi again asserts that interference with his right to worship according to the dictates of his conscience is unconstitutional as applied to him. The Constitution requires courts to “scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.” O Centro, 546 U. S., at 431. (emphasis added).
Another change that supports Mr. Karimi’s position is the weakened state of the compelling government interest in the regulation of marijuana. The Fulton Court explains that when strict scrutiny is employed this is a distinction that makes a difference:
A government policy can survive strict scrutiny only if it advances “interests of the highest order” and is narrowly tailored to achieve those interests. Lukumi, 508 U. S., at 546 (internal quotation marks omitted). Put another way, so long as the government can achieve its interests in a manner that does not burden religion, it must do so.
Fulton v. City of Phila. (2021).
Mr Karimi is aware of the distinction between a bail condition and a law. Nevertheless, the special condition of his supervised release prohibits Mr. Karimi from using his sacrament entheogen central to his religion, while secular use is not prohibited in any way. Permitting secular conduct (federal rider forbidding funds being spent on ultimate users acting in compliance with state law) while prohibiting similar religious conduct undermines the state’s assertion of a compelling interest. Again, this settled law is restated in Fulton:
A law also lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way. See id., at 542-546. In Church of Lukumi Babalu Aye, Inc. v. Hialeah,…”
Fulton v. City of Phila. (2021)
5. There is no compelling interest that justifies the burden placed on the constitutionally guaranteed right to Free Exercise under the state and federal Constitutions, not because of a law of general application, clearly not when secular entities are allowed to undertake the same activities.
6. Mr. Karimi submits to this Court that this special condition interferes with the protections afforded by 42 USC 2000bb-1 Free exercise of religion protected which provides in pertinent part:
(a) In general
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) Exception
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person-
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(c) Judicial relief
A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
7. Mr. Karimi MOVES this Court to remove the special condition of his bond.
CONCLUSION
This Court must apply Strict Scrutiny for the following reasons. Secular use and possession of cannabis is permitted by a lawfully enacted law but prohibited for Mr. Karimi’s religious use. The exemptions under state and federal law undermine the assertion that the prohibition is generally applicable. The state and federal governments have made discriminatory exemptions for other religions.
Strict Scrutiny requires this Court to weigh whether the State’s can meet its burden (1) to show it is acting in furtherance of a compelling governmental interest that would justify denying a religious use exception to the law. (2) that it is using the least restrictive means of furthering that compelling governmental interest.
REQUESTED RELIEF
Mr. Karimi requests that his supervised release conditions be amended to remove the special condition, leaving only the standard conditions.
Signed,
________________________________________________________ Date: April 12, 2022
Jason Karimi
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