Why We Didn’t Settle With the DEA and Continue to Litigate
It seems preordained now, but our efforts to negotiate a settlement with the DEA this past summer did not result in any kind of agreement, except an agreement to return to federal court. As you may recall if you read my prior post on this matter, the DEA approached AYA to initiate settlement talks. In retrospect, it’s hard to imagine why.
AYA’s goal was to reach agreement on a Least Restrictive Means Agreement that would allow AYA to import and distribute Ayahuasca with DEA authorization. This of course meant opening up AYA to some sort of examination by the DEA, but in order to keep a safe distance between AYA and DEA enforcement officers, we needed genuine protections from potential abuse of our disclosures.
Small surprise – once we got to talking, the DEA wasn’t willing to assure AYA that negotiations would not be interrupted by enforcement activity. That’s the sort of thing you can’t leave to supposition, because before they filed RFRA lawsuits against the DEA, both the Santo Daime and the UDV were raided by the DEA, even while engaged in discussions with the DOJ about obtaining Free Exercise exemptions from the Controlled Substances Act. The DEA’s hardline position didn’t make a lot of sense, if they were serious about negotiating, because it was like one General saying to the other, “Let’s talk peace, but no cease fire, because our army must be free to attack.” I think we would all agree that’s a non-starter. But the DEA, using the DOJ as their lawyer, wasn’t quite as candid as my hypothetical General, so it took us a while to figure it out.
Things We Knew Before We Started
Well before we decided to sue the DEA, back in January 2020, NAAVC informed the DEA that its “Guidance” document describes a sham procedure that was never intended to give fair consideration to the Free Exercise needs of visionary religion. In its first complaint, AYA likened the Guidance procedure to a painting of a door on a wall that, while having all the appearance of an entryway, would never admit anyone.
In addition to being a sham, intended to sucker visionary churches into throwing away their congressionally granted rights under RFRA to initiate District Court lawsuits, the Guidance is a blatant attempt to induce visionary churches to waive their First Amendment rights to keep their ecclesiastical activities free from government supervision, criticism, or condemnation. To subject ourselves to DEA’s hostile scrutiny, from which the First Amendment protects churches, is to throw away valuable constitutional rights and invite the disaster that has been visited upon every church that ever asked the DEA to evaluate its sincerity.
Not only does the Guidance require that churches abandon their right to be free of DEA scrutiny, it violates the Fifth Amendment right of every individual member of the church congregation to be free of compelled self-incrimination. Again, this is a precious liberty won by the blood of patriots in the Revolutionary War. To throw it away for no reason is folly. Nothing that John Hancock and the other signers of the Declaration of Independence fought for is worth throwing away. Least of all to make the DEA happy.
All of these arguments have been voiced by AYA and NAAVC repeatedly throughout the litigation over the last two yours. I would have hoped that they were made plain to the DEA and the DOJ since we articulated them from our very first federal court complaint to explain why AYA did not submit a Guidance petition. Particularly when Judge Roslyn Silver agreed with AYA and rejected the DOJ’s contention that the DEA guidance procedure was a necessary prerequisite to filing a RFRA lawsuit. So we were hoping that someone at DOJ in Washington DC had gotten the message that AYA and its members would not abandon their First and Fifth Amendment protections, and further – that the court would never compel us to.
Going Where Only Angels Are Permitted to Tread
Foolishly, we thought we had made some progress with the DOJ when Judge Silver put paid to the DEA’s erroneous contention that AYA had to submit a Guidance petition before filing a RFRA lawsuit. Based on that legal victory, we hoped to persuade the DEA to conduct whatever investigation it needed to establish that AYA could perform a Least Restrictive Means Agreement (“LRMA”), without violating our First and Fifth Amendment right. We call it a LRMA because under RFRA, the court applies a “shifting burden of proof” to decide the case. First AYA must show that it is a legitimate Ayahuasca church. Then the burden then shifts to the DEA to show why it can’t offer AYA a regulatory regime less restrictive than total prohibition. Of course, at this point, the DEA can’t ever make that showing, because they’re already administering LRMAs very successfully with the Daime and UDV.
We wanted a LRMA providing at least the same rights to AYA as the UDV obtained via its settlement agreement with the DEA. I had a copy of the agreement, and went through it in detail, so I was fully informed of how the DEA currently regulates UDV’s importation and distribution of Ayahuasca. It’s long and boring, but the LRMA contains no secret sauce – it’s just a list of things the DEA won’t prosecute the UDV for, and another list of things the UDV will do, like submit drug importation forms to the DEA and Customs, notify the DEA when it receives shipments, allow the DEA agents to inspect the security of their storage locations, and provide the names of a few people who actually handle importation and distribution.
So I figure, they’ve done it twice, with UDV and the Daime, so they should be willing to do it again for AYA. And it seemed to me that the DEA could question some responsible people at AYA, under proper Fifth Amendment protections against misuse of their disclosures, and thus determine that AYA could perform the terms of a LRMA. In support of that conclusion, we already have submitted a declaration of Jonathan Goldman of the Daime, who endorsed the legitimacy of AYA in a sworn declaration.
So you can understand my line of thinking. No rocket science here, just logic. We claim to be just like the UDV and the Daime, so the DEA should just focus on whether we really are, and then we can join the regulated churches, perform our duties and be allowed to import Ayahuasca under a LRMA.
About Those Guardrails We Mentioned
I told the DOJ lawyer, right at the outset, “AYA will not submit to the DEA judging the sincerity of our religious practices.” I proposed that we focus on things we could agree on. I suggested the DEA should spend its time figuring out whether AYA could live up to the duties of being a regulated church, because that involves some construction work, developing some human infrastructure, and a good bit of form-filling.
Moreover, the DEA didn’t need to inquire into our sincerity. After all, we’ve got a federal district court judge authorized by Congress to adjudicate AYA’s sincerity, so let’s not take Judge Silver’s job away from her, and let’s not give it to the DEA, that’s staffed entirely by drug cops and lawyers, and doesn’t recruit any Divinity School graduates. That was my view. You just don’t want the DEA adjudicating the sincerity of anyone’s religion, because as the old adage says, if the only tool you have is a hammer, every problem looks like a nail.
As AYA’s lawyer, I wasn’t about to let the DEA hammer on my client. No good could come of that. Every DEA evaluation of religious sincerity that has ever been done resulted in the conclusion that the petitioners were just trying to dodge the drug laws by pretending to be all holy. But as far as I’m concerned, all of those DEA decisions and the conclusions people try to draw from them is, and will remain, irrelevant to AYA’s lawsuit. They are irrelevant because the DEA has no authority to judge the religious sincerity of anyone, so they are misconceived from the outset. They will remain irrelevant, because AYA will never submit to the DEA’s judgment of the sincerity of our congregation or our facilitators.
The Doubters Had the Better of the Argument
Of course we had doubts when the DEA proposed trying to resolve the case without litigation, but saying “no” to settlement opportunities is usually a bad idea in litigation. Judges tend to think that those who refuse to engage in negotiations might be being obstinate and requiring the court to decide issues that could be resolved by agreement. So I told the DOJ lawyers we could go ahead and discuss the matter, but the first thing would be to put First and Fifth Amendment guardrails on the whole process. That meant two things: (1) that AYA could conduct ceremonies during the DEA negotiations, and (2) that we would not have any information we disclose during the DEA evaluation process used against us in the litigation or as evidence in support of prosecution.
The DEA responded to this opening by telling us that we were living in a dream world. It was déjà vu all over again. The DEA process would be conducted like a Guidance petition, with no meaningful changes to accommodate AYA’s concerns. Nothing we disclosed would be off-limits for use, and the DEA could share it with local law enforcement authorities who might commence prosecutions against us, and they could use it in this litigation against us. Additionally, they told us what AYA would have to reveal to satisfy the DEA’s desire to judge us. We would have to provide the DEA investigators with a list of all participants in our facilitation process, and let them inspect all of our facilities, and let them question anyone they wanted to. All without any assurance that it wouldn’t all be used against us.
Back on the Chain Gang
At that point, it was clear we were not going to get anywhere with this process, so I asked the DOJ to sign an agreement requesting the court to put the case back on the active calendar, because settlement was not going to happen. We filed that agreement, and the court put the case back on the active docket. Then the DOJ filed a motion to dismiss the fifth amended complaint, and we are waiting for a decision from Judge Silver. We anticipate, and you are invited to join us in prayer that wisdom will shine in the courthouse, and Judge Silver will approve our fifth amended complaint, give the government a few weeks to file an answer admitting or denying the allegations of the complaint, and set a schedule for future proceedings.
NAAVC General Counsel
March 24, 2023