Litigation Report

It’s June 14, 2023. It is a beautiful, clear afternoon here in Silver City, New Mexico, and bright sunrays, sifted through the gently tossing branches of alligator junipers, are sliding through the windows. It’s a privilege to know that on such a beautiful day, I’m spending my time well, working to advance the cause of visionary religion.

 

I’m Working for You

I’m telling you this because, as the attorney of record in AYA v. Garland, our lawsuit in the United States District Court for the District of Arizona, all AYA members are my clients. Although I report directly to Scott Stanley, he is not standing in court alone. In AYA’s complaint, we allege “associational standing” to advance the rights of all AYA members, everyone who has sat in ceremony with AYA, so you are all present in a very consequential sense, while represented, privately, through our Arizona nonprofit religious corporation.  

 

AYA Has Associational Standing to Represent its Congregation

The Department of Justice doesn’t much like the doctrine of associational standing. In our last round of briefings, the DOJ argued in support of its motion to dismiss the case, that it was not enough for AYA to allege that it was seeking to secure the free exercise of religion on behalf of its congregation.  Rather, the DOJ unsuccessfully argued, individual members needed to step forward and have their faith questioned in the process of litigation. Judge Silver fully rejected that argument. In her opinion denying the motion to dismiss, at page 7 line 23, she stated:

Defendants first argue Plaintiffs have failed to allege any AYA member has suffered an injury sufficient to establish they would have standing to sue in their own right. However, Plaintiffs have alleged ayahuasca is a central component of AYA members’ religion, and that if ayahuasca shipments continue to be seized, their members will be unable to practice their religion. Defendants also argue that individual members must participate in the litigation, destroying AYA’s associational standing.   However, the Ninth Circuit in Oklevueha answered this question on closely related facts, and held that “it can reasonably be supposed that the [AYA’s prospective relief], if granted, will inure to the benefit of those members of the association actually injured.” 676 F.3d at 839 (quoting Warth v. Seldin, 422 U.S. 490, 515 (1975)). There is no need for the kind of individualized inquiry Defendants suggest.   Accordingly, Plaintiffs have alleged facts sufficient to support standing. Defendants’ motion to dismiss for lack of standing is denied.

Please take another look at those words that I highlighted above: “There is no need for the kind of individualized inquiry defendants suggest.”  This is because by incorporating AYA as a separate legal person, distinct from the congregation, AYA can seek an exemption from this poorly stitched one-size-not-fitting-all Federal regulation on behalf of a whole group of people who do not have to line up at the courthouse and swear to the depth of their faith and experiences inside our maloka. If you are an AYA member, if you have ever sat in ceremony with us or plan to, you get the benefits of the lawsuit without having to risk your name, reputation, and freedom by daring the DEA to prosecute you for having the temerity to assert your rights in open court.

 

A Bit of Steel at the Center

Make no mistake, someone’s name has to be revealed in this litigation. So far, that has been Scott’s, but it won’t be the names of our membership. The DEA through its lawyers at the Department of Justice were not shy about letting us know in their filings that, despite the strength of the case law in our favor, unless and until we hold the court order in our hands confirming that AYA’s visionary communion ceremonies are acts of protected free exercise under the First Amendment, they consider Scott’s ministry to be in violation of the law.  It takes a certain amount of nerve to file a declaration, as Scott has, telling a Federal District Court judge under oath that he had conducted over 120 ceremonies in the State of California over a period of several years. As I told Scott, the only people I had ever seen swearing to violations of the Controlled Substances Act in federal court were signing  plea agreements.,   Something has clearly shifted.  We’re making inroads, with more road to travel. –

 

Who We’re Facing, and Why We Will Win

The DEA has a budget of over $2.3 Billion and 10,000 employees, including 4,000 special agents and hundreds of attorneys.  It dictates the drug enforcement policies of the Department of Homeland Security and Customs and Border Protection.  Bringing these administrative behemoths to heel in Federal Court is no small task, and if it weren’t for the years I spent as a Federal Public defender, I probably would be loath to attempt it. But DOJ lawyers are people like the rest of us, and the Supreme Court has given us a pathway to achieve our goal. From the very beginning of my relationship with Scott and the AYA congregation, I have been confident that I can prove their sincerity before an impartial judge.

 

Judge Silver has shown through her most recent ruling that she will provide us with the forum where we can make our case effectively. On June 28, unless there is some unanticipated rescheduling, I will get to appear in front of her Honor personally for the first time. At that time, it would perhaps be significant to see some faces from the AYA congregation in the gallery — some veterans who have experienced healing from PTSD, some substance-abuse counselors who have seen the anti-addictive power of ceremony healing lives shattered from drug abuse, and others who have experienced their own personal miracles through the practice of visionary Communion.  Just because your church has associational standing doesn’t mean you can’t show up to make your personal interest known.  Quite the contrary – I have always found it heartening to represent clients who could fill the gallery with sympathetic onlookers.

 

Federal Litigation — Cooperating to Achieve Competitive Advantage

You might wonder what will happen at our hearing, that is formally called a Case Management Conference.  Allow me to explain a little bit to you about federal court proceedings.  You may think they’re highly adversarial, because they can result in dramatic consequences, but the truth is a little different.  To explain dramatically, I’ll share a story I once heard about how General Grant dealt with two Union soldiers who were fighting — he had them stripped and rolled together in barbed wire. Presumably, that initiated a more cooperative attitude.

 

There seems to be a little bit of General Grant every federal judge these days, because they require an extraordinary amount of cooperation between plaintiffs and defendants in civil cases.  Once a case gets through the initial motion to dismiss phase, as ours has, the court orders the lawyers to conduct a series of joint conferences that require attorneys for both sides to get together and compile “joint statements,” to articulate what the case is about, what they agree on, what they disagree on, and how they believe the court should handle the disagreements. We just had one of those conferences, and not surprisingly, AYA has disagreements with the DOJ.

 

AYA Wants to Know the Scope of DEA Seizures and Investigations

Some of those disagreements are about the scope of the lawsuit. AYA believes that we should be able to ask questions about whether DEA, DHS, and CBP have been engaged in conducting investigations about the visionary Church community,. We think it is relevant to show that, without judicial protection, we are exposed to being misidentified as profane drug users. We also think it is relevant to establish what kind of injunctive relief we are entitled to. After all, if there have been no investigations, the judge is unlikely to order that there be no investigations in the future. Before judges forbid something being done in the future, they usually want to know that it happened in the past. Depending upon the scope of the litigation, AYA may be allowed greater or lesser leeway in conducting discovery, the process in which we obtain documents and testimony that discloses the Government’s position and activities.

 

AYA Wants to Make an Equal Protection Argument

The DOJ also does not want us to be able to argue that we are entitled to injunctive relief because the DEA provides better service to persons and businesses seeking regulatory services for secular purposes than it provides to religious organizations seeking religious exemptions to engage in Free exercise use of a controlled substance.  This is called an “equal protection claim,” and arises under the 14th amendment, that guarantees equal protection to all persons regardless of religious creed. The DOJ contends that an equal protection claim is beyond the scope of our RFRA claim.  We disagree, because under RFRA, if AYA is a legitimate church, the DEA must show that it is applying “least restrictive means” of enforcing the drug laws in its dealings with AYA.  We argue that the DEA provides less restrictive options for secular purposes.  For example, every law enforcement officer has an exemption that allows them to handle controlled substances without being charged for drug crimes. Many law officers abuse this exemption to engage in drug trafficking. So, we argue, if police officers can have an unpoliced exemption simply because they have a badge, the DEA cannot properly be offering the “least restrictive interpretation” of the drug laws by requiring visionary churches to jump through the hoops they currently must jump through to satisfy the DEA. And as we know from the Soul Quest case, regardless of how many hoops they jump through, the DEA simply does not grant exemptions to visionary churches until they are told to do so by a Federal District Court judge. Meanwhile, no police officer in need of an exemption from the narcotics laws has to jump through any hoops whatsoever.

 

So that’s our equal protection argument, but whether it comes within the scope of our RFRA claim isn’t all that clear. We have alleged another claim for Declaratory Relief, that may also be a vehicle for our equal protection claim, so we have arguments to make.  Judge Silver may tell us at the Case Management Conference who she agrees or disagrees with, or she may keep her opinion to herself, and require the lawyers to hash it out through further litigation.  We shall see.

 

AYA Asserts the Right to Protect Sensitive Information

Another thing AYA and the Government don’t agree about is how much we have to reveal to the Government about AYA practices. We know that the DEA would love to be able to ask us detailed questions about where we get our medicine, how we import it, where we store it, who conducts ceremonies, etc. But in our view, many of those things are not relevant to the case, and other things should not have to be disclosed without some protections being in place.  This is because, thanks to the “Establishment Clause” of the First Amendment, Government cannot pry into a church’s internal workings.  Further, under the Fifth Amendment, individual members of the congregation need not make statements under oath that would have a tendency to expose them to potential criminal prosecution.   Finally, the Supreme Court has ruled that an organization has associational standing to assert the Fifth Amendment rights of its members, accordingly, AYA can assert the Fifth Amendment on behalf of its congregation, even though, as a corporation, it does not itself enjoy the Fifth Amendment privilege against self-incrimination, that is accorded only to living, breathing human beings.  So how do we resolve these disputes?  AYA contends that some information sought by the Government should be subject to a protective order that firewalls that information off from the enforcement officers within the DEA. The government has not previously been confronted with this strategy by a visionary church, and they are not about to roll over.

 

Come See for Yourself

So these are the kinds of issues that may come up at the Case Management Conference on the 28th, because they will help the judge to understand the issues at stake, the positions of the parties, and schedule future proceedings to accommodate the process of preparing the case for trial. If you are a member of the AYA community, I invite you to join us in the courtroom on June 28 at 2:00 PM in Judge Silver’s courtroom at 401 W. Washington St. in Phoenix AZ 85003. Should you wish to read Judge Silver’s judicial profile, you can find it at this link.