ON PREY AND PREDATORS

For I send you out as sheep among wolves,
therefore be ye wise as serpents and harmless as doves.
Matthew 10:16

 

Predators in the Natural World

Since I was a child, I have been fascinated by predation. That might’ve been due to movies and TV shows glorifying big cats, eagles, wolves, sharks and gators, while emphasizing that we were lucky we didn’t have to compete with them anymore, since we no longer lived in caves as hunters and gatherers.  As you know, being a hunter and gatherer exposes one to the risk of being – yes — hunted and gathered.

The Darwinian scenes from nature documentaries rather collided with the religious concept that all of this would someday be a thing of the past, with the lion lying down with the lamb in Christian depictions of paradise.  Lying somewhere between the lions on the hunt in the pages of National Geographic and the Christian Peaceable Kingdom, was the reality depicted in photographs of lions playing within striking distance of wildebeests and other herbivores, all peaceably sharing the water hole.

Things began falling into place as I learned about ecological balance, that dictates that predators prey upon the more vulnerable specimens – the newborn, the sick, and the feeble.  Thus, predators eliminate weak younglings, keep the herd free of disease, and eliminate the old.  The very beauty of the herd can be traced to the pruning imposed by the predators.  As Farley Mowat wrote, quoting an Eskimo hunter – due to millions of years of predation by wolves, the wolves and caribou have become one animal.

Discovering Human Predators

Fast forward 30 years, and with the aid of my law degree, I found myself studying predator /prey relationships in human society. I’d spent plenty of years feeling like prey in human society, and police were definitely high on the list of predators.  I suppose my induction into the ranks of predators began when I got a California law license and went into the business of litigation, because ultimately lawsuits are all powered by coercive force.  But I didn’t really see it that way until I became a member of law enforcement, which happened after I’d been a lawyer for about five years. 

I moved up to Oregon from LA, and found myself in the same position as a lot of young Oregon lawyers, broke. My position in a personal injury law firm in Medford, was literally paying me one dollar for every five I had been earning in LA. Then I got a call from a fellow who was leaving the local District Attorney’s Office, and said he had just heard about my arrival in town and admission to the Oregon bar, and he wondered if I wanted to interview for his job, which was misdemeanor prosecution. The outgoing fellow was a Spanish-speaker, and I was fluent in Spanish, so this was seen as a plus for the diversity goals of the office. I interviewed, and got the job, and soon I was making one dollar for every five I’d been making in LA, but now I was earning the money putting people accused of DUI, domestic violence and petty theft into jail and on probation.

Although the sentences the judges imposed on the people I convicted were relatively mild, the workload and emotional burden of handling these cases was heavy. Domestic violence cases in particular were very loaded with emotional potential, and the prosecution had to fight long-standing biases about how men and women should get along.  Cops often made bad investigators and disinterested witnesses in domestic violence cases, and I swear some of them couldn’t figure out how to use a camera to photograph a black eye to save themselves from perdition. I sure couldn’t teach them.

Dealing Deuces with Officer Ford

DUI cases were more cut and dried, and police enjoyed doing them.  One afternoon, I was listening in on casual conversation between a couple of Medford police officers as we walked across the courthouse parking lot on the way to a hearing where I was calling them as witnesses.   As I listened to their small talk, I realized they had a predatory mindset toward DUI-enforcement. They called a DUI arrest a “deuce,” as in a card game.  They discussed stalking and arresting DUI suspects with the good humor of a couple of hunters homing in on the peculiarities of rabbits or quail. The predator/prey dynamics became central to the outcome of one case in particular, involving a young, attractive, DUI defendant — we’ll call her “the dance-away girl.”

Medford Police Officer Billy Ford was a skilled predator, so he was surveilling cars pulling out of the parking lot of a local drinking spot, Ground Zero, right around closing time.   He started tailing her, and stalked her all the way across town, staying behind her but not turning on his lights, waiting for her to break a traffic law.  Eventually, anxious as hell because this cop was on her ass, she rolled through a stop sign, although she claimed she came to a full stop.

After Officer Ford pulled her over, right in front of her house, he asked her to do some “field sobriety tests,” and based on her performance, he decided she was under the influence, and took her to the Jackson County Jail, where she blew a .07 blood alcohol level, just shy of the .08 legal limit.  Being “under the legal limit,” however, didn’t mean she couldn’t be convicted of driving under the influence.  Officer Ford believed she was too intoxicated to drive, he had the field sobriety test results showing intoxication, and a .07 is a pretty good little buzz.  So, being young and aggressive, I took it to trial.

At trial, the young lady presented well, wearing a modest dress that had a nice float to it as she stepped up to the witness stand and told her story.  Public defender Joe Solga, my good friend at the time, represented her, and did a great job of evoking sympathy for this delicate creature, who had been on the very doorstep of her home when Officer Ford pulled her over and took her to jail. I called Officer Ford to testify why he thought she was impaired, even though she hadn’t blown an .08, and he testified about how she did the “walk and turn” test, and how her eyeballs jiggled during the “gaze nystagmus” test, etcetera.  Thus, there was a credibility battle between the predator and prey.  You may not be too surprised to learn that Miss Dance-away won that battle and went home with a unanimous verdict of acquittal.  Officer Ford wasn’t too disappointed,  because after all, he knew it was a thin case.   So thanks to the justice system and a good public defender, a chase the predator thought had ended with arrest had an epilogue that turned the story around.

The Tale of the Scholarly Samurai

Now, in a minute I am going to tie this all up and connect it to a matter of specific interest to practitioners of visionary religion – how visionary churches can avoid becoming the prey of predatory drug cops. 

There once was a man born into a samurai family in peacetime, so he didn’t engage in military activities.  He became a calligrapher.  One day he was walking through town, when a ruffian bumped into him, claimed he’d been insulted, and demanded satisfaction in a duel. With his family honor at stake, but no skill in swordplay, the scholar was in a tough position.  He went to seek advice from his old sword teacher, and found him at his dojo.

His teacher expressed surprise at seeing him. “I haven’t seen you in forever.  I hear you’ve become a pretty good calligrapher.”

The scholar explained that he had done well as a calligrapher, but the situation involved facing a ruffian in a duel.  He asked the old master what he should do.

The master asked him”Do you still have a sword?”

“Yes,” answered the scholar.

“Well then,” said the teacher, “Tomorrow morning, dress yourself, take your sword and tuck it into your waistband, and head up to the dueling grounds.  Once there, face your opponent, and as you draw and raise your sword above your head, place your mind in the same state it is in when you are doing calligraphy, right at that moment when your brush is poised over the blank page, ready to write the first character. Most likely, it will be a mutual slaying.”

The next morning, the scholar arrived at the dueling grounds, faced his foe, and followed his sword master’s instruction, drawing the sword and calmly raising it to the striking position.

The ruffian seemed confused, cocked his head, looked at him curiously, and then said, “Sorry, got the wrong guy,” before withdrawing from the field.

What happened?  Unexpectedly, the predator saw not prey, but a predator unfazed by threat, ready to deliver a killing blow.  The scholar was, indeed, the wrong man.

Adopting Protective Coloration – A Dubious Strategy Based on Faulty Legal Analysis

Some lawyers advise visionary churches to try and adopt a sort of protective coloration, by complying with a complex formulation referred to as the Meyers test.  United States v. Meyers,  a 1996 Tenth Circuit decision that provides a checklist of the kinds of religious “accoutrements” that, some say, will help visionary religion practitioners look more like religious people and less like drug dealers.  This view, widely bandied about in visionary religion circles, is based a faulty legal analysis that we should reject.

There are three reasons to reject Meyers.  First, the Meyers “multi-factorial test” was designed to sink the claims of non-traditional faiths, as Justice Brorby noted in his dissent: “Because I do not believe it is the proper role of the court to establish a factor-driven test to be used to define what a religion is, I respectfully dissent.”  Second, as Justice Brorby further observed, “The ability to define religion is the power to deny freedom of religion.” In the Ninth Circuit, this line has been repeatedly quoted as good reason to refuse to apply the test the Meyers majority elaborated.  Third, the Meyers dissent directs us to another line of Supreme Court cases that advance a clear test of religious faith that is favorable to visionary religion, that we will discuss below.

So let us turn away from worshipping the Meyers test, that encourages people to adopt religious camouflage, such as division of the sexes, wearing ceremonial clothing, and intoning group prayers, as a form of protective coloration.  Because sporting camouflage springs from fear, and does a disservice to the radical honesty that lies at the heart of visionary religion.  Instead, let us build our legal defense on a solid foundation, and derive confidence from Supreme Court decisions that strengthen confidence in our own, self-generated faith.

Building on the Rock of Moral Certainty

The Supreme Court’s decisions on how to determine whether someone is engaging in religious  free exercise protected under the First Amendment and RFRA, rather than trying to dodge some criminal law, comes from a case in which a man was accused of being a draft dodger.  In his defense he offered a humanistic creed, not founded on belief in a Supreme Being.  He simply said he couldn’t live with himself if he killed another man simply because his country called him an enemy of the United States.

That man was Pete Seeger, probably most remembered for singing next to 60s icons like Joan Baez and Caesar Chavez during the grape picker’s strikes of the 60s.  But Pete was a fixture at peace rallies, environmental actions, and other progressive gatherings for at least forty years. His courageous stand against military conscription resulted in a beautiful page in Supreme Court jurisprudence, where the High Court explained that the draft board had made an error had made an error when they decided that Pete Seeger’s purely moral conviction, untethered to a belief in a supreme God, was not religious.  To explain its reasoning, the High Court quoted the Catholic theologian Paul Tillich:

[Seeger] decried the tremendous ‘spiritual’ price man must pay for his willingness to destroy human life. In light of his beliefs and the unquestioned sincerity with which he held them, we think the Board, had it applied the test we propose today, would have granted him the exemption. We think it clear that the beliefs which prompted his objection occupy the same place in his life as the belief in a traditional deity holds in the lives of his friends, the Quakers. We are reminded once more of Dr. Tillich’s thoughts:

‘And if that word (God) has not much meaning for you, translate it, and speak of the depths of your life, of the source of your being, or your ultimate concern, of what you take seriously without any reservation. Perhaps, in order to do so, you must forget everything traditional that you have learned about God * * *‘. Tillich, The Shaking of the Foundations. 57 (1948).

There we have it right from the mouths of the Justices.  Your religion is “the source of your being, your ultimate concern, what you take seriously without any reservation.”

So when I define visionary religion practice as free exercise, that is never merely a sanctified form of drug dealing, but rather a complete commitment to the use of sacred medicine for sacred purposes, I emphasize that this impulse springs from the practitioner’s own moral impulse to drink the medicine.  If you believe that is the best thing for your heart and mind, you possess the core belief that the First Amendment protects.

Avoiding Three Things That Look Bad

 But how will that protect us from the badged predators who think visionary religion is just an excuse for dodging the drug laws?  Well, my daddy had a saying that helps me understand this sort of balancing act.  He would say, “My son, don’t do good things that look bad, and don’t do bad things that look good.”

In light of the Seeger case, ceremonial visionary religion practice looks very good.  So how can we avoid screwing that up?  What would make our good thing look bad? 

Although a lot of people have trepidation about it, I don’t think taking money for a ceremonial fee makes you look bad, unless it’s your primary concern, or funds a luxurious lifestyle.  Religious practitioners of all faiths pay fees for everything from baptisms to marriages and funerals, and providing a medicine ceremony for seekers of visionary communion is a big job that cannot be performed without charging ceremonial fees. The Supreme Court has explained that because fundraising is necessary to pay for proselytizing, and proselytizing is protected as free exercise, religious fund solicitation is constitutionally protected activity.  Those fees should be reasonable, of course, but we need not be particularly shy about receiving them.

In my opinion, there are four main things that can make a visionary church look bad: (1)selling any controlled substance in a package to be consumed outside of ceremony, (2) not screening people applying to attend a ceremony for religious intent, (3) not screening for physical and psychological suitability, and (4) possessing firearms.  While few visionary churches possess firearms, the practice poses great danger, and thus must be flagged for avoidance.

The First Unwise Practice: Selling Controlled Substances for Use Outside Ceremony

Let’s take selling controlled substances for use outside of ceremony first.  Selling a controlled substance is bad, because the drug cops can testify that controlled substances are being sold under circumstances where no ceremony is taking place. They can also send someone to buy drugs, which is called a “controlled buy,” which is a prelude to having a search warrant issued to bust the sellers for selling drugs.  Once that has occurred, it may be too late to present an effective religious defense.  You have fallen into the court system, your lawyer is behind the eight ball and will charge accordingly, and your legal position will be weak.

Wrapping  a controlled substance sale in some kind of ceremonial garb is not going to help. Nor will sincere good intentions that the people receiving the controlled substance will use it in a sacred, ceremonial manner remove the taint of the appearance of drug dealing. The Brotherhood of Eternal Love was arguably established by people who thought that distributing LSD was spiritual practice, but that did not save those who were arrested from being convicted of running an international drug conspiracy that put them in Club Fed for decades.

The Second Unwise Practice:  Loose Admissions Practices

The second unwise practice, being too loose in your admissions practices, goes hand-in-hand with selling controlled substances. If you don’t monitor people at all for religious intent, that’s not very church-like. While it’s true that a Catholic priest seeing a new parishioner at Sunday service would likely not interrogate them about their religious intent, Fr. O’Malley has few reasons to suspect the motivations of aspiring Catholics.  Being a Catholic doesn’t provide any special privileges that would make it useful to pretend to be one.  

By contrast, many drug cops think visionary religion is a sham that people put on to get high and pretend it’s legal.  Leave aside what we know personally — that very few people seek recreational access to psychedelics in the ceremonial environment – the cops believe it.  Accordingly, this is a box we need to check.  In our intake process, we must ask and confirm in writing that people have a religious motivation to enter ceremony before we admit them.

The Third Unwise Practice: Not Screening People for Psychological and Physical Suitability

The third unwise practice is not screening people for psychological and physical conditions that make them unsuitable candidates for visionary communion.  The screening process should be supplemented by a warm and friendly orientation before any sacrament is shared, so that participants who experience fear or anxiety as the medicine takes hold know that they are among friends who will care for them during difficult moments.  Failure to keep this rule exposes you to the risk that someone will have a psychological breakdown or a physical emergency while everyone else is trying to experience visionary communion.  That can result in contacts with first responders and law enforcement, and that can quickly spiral into a serious problem.

The Fourth Unwise Practice:  Possessing Firearms

Guns and controlled substances just don’t mix.  I’ll tell you a quick story to bring the message home.  Once, when I was a Federal Public Defender, I was appointed to represent a guy who was house-sitting a beautiful home in the Oregon woods when the DEA raided the house, looking for the owners, who happened to be dealing grams of LSD.  Big business, but he knew nothing about it.  He was sleeping when the DEA rousted him, and on the nightstand was a half-smoked joint, aka, a roach.  The roach was checked into evidence, along with a thirty-aught-six hunting rifle found in his closet.  When I went to negotiate with the US Attorney, who quickly realized my client knew nothing about the LSD smuggling the owners were engaged in, I hoped for a dismissal.  But no sir, said AUSA Bob Thompson – my client was a “Controlled Substance User in Possession of a Firearm,” a crime right there next to “Felon in Possession of a Firearm,” and the best deal I could get was plead guilty and get a six month sentence.  Ouch!  

In addition to being a crime all by itself, possession of a large quantity of a controlled substance along with a gun will destroy your visionary religion defense and expose you to enhanced penalties under the sentencing guideline that can add many years in federal prison to a sentence.  So that’s all you need to know, right?  I don’t say that you can’t be a target shooter if you’re into visionary religion, but please do yourself a favor and never possess a gun and a controlled substance at the same time.  The consequences could be life-shattering.

The Rewards of Discipline

If base your practice on deep moral conviction, and avoid doing these three things that have potential to make your visionary religion practice look bad, you are going to look like a good visionary religion practitioner.  This appearance will come from deep inside you, and not look like an ill-fitting costume you donned for defensive cover.

Yes, it requires some discipline. You cannot engage in any sales, even of micro doses to supplement the ceremonial experience.  You must eliminate all other controlled substances from the ceremonial environment and other potential target locations, and you can’t play with guns. But through this discipline, you will substantially reduce your risk of attracting predatory law enforcement attention, because you will not look like prey.

Adding the Final Circle of Protection: Legal Representation Secured in Advance

 Having groomed yourself to present a true appearance of yourself as a visionary religion practitioner, you can add one more circle of protection.  Because after grooming yourself impeccably, you are still sharing and consuming sacraments during visionary communion ceremonies, and this alone can make you an object of predatory law enforcement attention. Like the scholar whose strong pose disconcerted the ruffian, thus saving himself from likely death in a meaningless duel, if you actually encounter hostile law enforcement, you need to assume a defensive posture that communicates a potential for negative consequences to the predator.

The Secret Power of the Least-Appreciated of the Miranda Warnings

To understand what’s at stake in communicating with law enforcement, we have to talk about Miranda rights.  You know, everyone’s heard the line, “What you say can and will be used against you.”  What’s rarely mentioned is that the words “can and will” are misleading.  The point is “What you say will be used against you.”  Miranda rights were created by the Supreme Court as an extra protection against police coercing confessions from vulnerable suspects.  Everyone knows you have “a right to remain silent,” and remaining silent when questioned by police is usually a good policy.

But here’s a valuable secret — the Miranda warnings contain an even more valuable option that you can use to protect yourself in a police encounter, but most people don’t realize it.  That is the right to have an attorney present during questioning.  Most people think it’s worthless, because after all, who can pay for an attorney to be present right now?  But it’s often what you aren’t told that is most important, and that’s the case here.  Because when you say to the officers, “I will be happy to answer questions, but I will have to have my lawyer present during any questioning,” and you hand them your lawyer’s phone number, something amazing happens.  They have to stop talking to you.  

Avoiding Confessions Often Ends an Investigation

 As a practical matter, invoking your “right to counsel” shuts down the most dangerous phase of the interaction with law enforcement, because without a lawyer, you can be pushed to make admissions that will be used against you.  And because you’re not a criminal defense lawyer, you don’t know what’s helpful and what’s hurtful to your case.  The police, on the other hand, have a pretty good idea of what they need to get you to say to make their work easy.  You see, police talk about investigating crimes, but mostly they seek to induce confessions.  When you make them figure out the case against you, they often fail, because it’s a lot of work to put a prosecution together without a confession, and many of them have no idea how to do that.  But everyone knows how to coerce an admission from a frightened suspect.

Let the Lawyer do the Lawyer’s Job of Keeping You Free To Engage in Free Exercise

Don’t let your confidence make a fool of you.  While you may think that you can talk eloquently about the purity of your practice and the sincerity of your moral intentions, this can be as dangerous as stepping directly off a cliff. Only a skilled criminal attorney, trained in asserting a free exercise defense, is qualified to answer questions about a client’s use of controlled substances as religious free exercise. So the quickest way to show a predator that you are not prey is by presenting a credible threat. If all goes well, the encounter could easily end like that between the ruffian and the scholar, with your predator realizing that you are not prey, and better pickings can be found elsewhere. And on any given day, that is quite good enough for me.