A Guide to Invoking the Right to Counsel for Visionary Religion Practitioners

Visionary Religion Practitioners are a Law Enforcement Target

Like political rebels under an oppressive government, visionary religion practitioners stand in opposition to established laws, and therefore are exposed to the risk of criminal prosecution.  For some time, the mood has existed in the visionary church community that law enforcement is tolerating our engagement with visionary sacraments, and thus, our ceremonies may be considered quasi-lawful.  If this was perhaps the case, it is no longer.  The Department of Homeland Security is currently generating a steady caseload of state-court drug prosecutions that start with a Customs seizure of Ayahuasca paste, proceed to a postal delivery of a simulated package of sacrament, and culminate in the issuance and execution of a search warrant at the home of a visionary religion practitioner.

Police Methods for Inducing Psychic Surrender to Interrogation

You might think that once a detective is standing at your door, showing you a warrant, as armed men enter your home and start taking inventory of all your possessions, that at that point, there is no hope of defending yourself from this legal assault.  But you would be wrong, and if it caused you to give in to the impulse to please your captors, you could gift them a damning confession.

Most people think police are trained to investigate crimes, but that is largely a myth, because police “investigation” amounts to making a list of suspects from whom to elicit confessions.  Police methods are designed to destroy the sense of privacy, undermine the right to remain silent, and thus elicit confessions.  The shock and awe effect of a search of one’s home is intended to bulldoze the hope of keeping anything private and induce the surrender of all constitutional rights.  At such a time, one may literally be unable to formulate rational, sequential thoughts, and could be in great danger of making damaging statements merely to establish a comfort level with the interrogators.  And make no mistake, virtually any statement you make can be used against you, because prosecutors are ingenious at imputing bad intent to what the speakers thought were statements that might prove their innocence.

When you are the focus of criminal suspicion, and you speak with police, you’re violating Yogi Berra’s rule to “never get involved in a game of which you do not know the rules.”  The police know the rules, and you do not; therefore, you must not play that game.

From “Know Your Rights” Cards to “Invoke Your Rights” Cards

Criminal defense attorneys and civil rights advocates have known about how dangerous the interrogation session is for those at risk of being criminally accused.  “Know Your Rights” cards like the ones the ACLU sells advise people of their rights when stopped by law enforcement, but they do not actually speak for you.  Paradoxically, the Supreme Court has ruled that just remaining silent doesn’t invoke your right to silence.  Which means that giving police written notice of your invocation makes sense.  Take note also – once you’ve given them that card, they have received undeniable proof that you invoked your rights, and that makes it more likely they’ll honor them.

A Spoonful of Sugar Helps the Medicine Go Down

But how do you do it?  How do you give the officer the disappointing news that you are all lawyered-up already?  Actually, handing them a piece of paper is far easier than looking them in the face and telling them what they don’t want to hear.  Indeed, I’d recommend you don’t look at in a policeman’s eyes at all – they’re trained to intimidate to induce fear and cooperation – just look at the floor, at their forehead, or their hat.  By handing them a paper notice that identifies you as some lawyer’s client, you push a button in their brain that says, “You have received a notice that imposes a duty upon you.”  And respecting the constitutional rights of citizens becomes their duty.

Once an investigative subject presents a card invoking the right to counsel, it’s the policeman’s duty to stop questioning the subject.  If you do it respectfully, you will elicit a compliant response almost every time.  You can hand them the card while saying something reassuring like, “I’m sure our attorney can answer all your questions.  Can you give me your card, and I’ll have him call you?”  Like Mary Poppins said, “A spoonful of sugar helps the medicine go down,” so be polite and pleasant as you invoke your rights.

A Product Whose Time Has Come

All of this sounds wonderful, but where is the card that will do the talking for you?  NAAVC answers this need with the  Invocation of Rights Cards we provide to all of our members.  Whenever you’re confronted with a law enforcement inquiry, you can deploy one, and give the police a unique experience.

Let’s Watch the Rest of this Movie

What will happen when you invoke your rights?  Every law-abiding police officer will know that it is time to completely cease interrogating you until and unless you have a lawyer present.  That means you have closed the most dangerous opening through which you could be exposed to criminal liability – your own mouth.

Suppose the officer wants to push it?  Suppose he says, “Are you saying you’d rather go to jail with me right now than answer a few questions?”  This is a great point to just smile and point at the card.  You can follow that up with, “Those are the rights I’m invoking.”

The Limits of the Police Power to Arrest

What is the likelihood that the officer would arrest you for refusing to talk?  That’s a fact-specific question that I can’t answer without knowing some facts.  But I can tell you what mental process the police officer should go through.  Assuming the cop doesn’t already have an arrest warrant, in which case you’re as good as jailed already, she has to ask herself this question:  “Did I see this person commit a felony?”  If the answer is “Yes,” the officer can lawfully arrest that person.  Otherwise, the arrest would quite likely be invalid, especially if it occurred at the home of the arrestee, because under established Supreme Court precedent, a warrant is almost always required to arrest someone in their home.

Summary

During any police encounter, it is best to avoid all risk of making statements that police and prosecutors will interpret as a confession.  The only way to reliably do that is by invoking your right to counsel, and the most reliable way to invoke that right is by presenting a written statement.  Presenting a written statement makes sense because the Supreme Court said you actually have to invoke your right to silence, so doing it in writing allows you to both invoke and remain silent.  Once you have invoked, a law abiding officer will not try to coerce you into making any further statements.  If an officer breaches his duty and arrests you for coercive effect, you will very likely be released sooner and with less consequence if you stand by your invocation of counsel.

Arizona Yage Assembly v DEA Update

Iowa Aska v. IRS: Three Ways to Lose a RFRA Case, and One Argument Visionary Churches Should Always Make

On March 31, 2023, Judge Beryl Howell in the District of Columbia dismissed a RFRA lawsuit filed by the Iowa Aska Church seeking to compel the IRS to issue a letter confirming the church’s tax exempt status under IRS Code 501(c)(3), i.e., a “501(c)(3) Letter.”  

The bad result is not surprising, because the DOJ had three arguments for dismissal, and Iowa Aska’s lawyers failed to counter any of them effectively. 

Let’s start with the first argument.  The DOJ argued that Iowa Aska had pled no facts to establish how it had been damaged by the IRS refusal to issue the 501(c)(3) Letter.  As a result, Iowa Aska lacked “standing to sue.”  This wasn’t because the church suffered no damage, but because its lawyers failed to identify cognizable damage in the complaint.

A Missed Opportunity to Plead Financial Damage from Interference With Proselytizing

What kind of damage could the church’s lawyers have asserted? They could have alleged the IRS’s refusal to issue a 501(c)(3) Letter was substantially burdening the church’s free exercise by inhibiting its ability to proselytize. The Supreme Court held some time ago that, because it takes money to spread the Gospel, and because the government cannot interfere with spreading the Gospel, religious people can’t be taxed for selling books that teach their religious doctrine. From this principle, we can infer that any interference with a church’s efforts to raise money for its religious purpose is a substantial burden on free exercise.

So Iowa Aska could have alleged something like this: “Due to the IRS refusal to issue a 501(c)(3) Letter, Iowa Aska is damaged in its efforts to obtain donations from prospective donors, because most attorneys and accountants will advise prospective donors not to donate to a church that has not received a 501(c)(3) Letter.”  Seems obvious, but somehow, they missed it.

Instead of arguing financial damages due to the refusal to issue the 501(c)(3) Letter, Iowa Aska’s lawyers argued the church was damaged because it had petitioned the DEA under its “Guidance” procedure, and getting a 501(c)(3) Letter would improve its chances of getting the exemption.  The DOJ refuted that argument by pointing out that Iowa Aska’s problem was not with the IRS, but rather with the DEA, that was not acting on their petition.

The DEA’s “Guidance” Petition Procedure Claims Another Victim

Iowa Aska’s Guidance petition provided a second basis for the dismissal of its RFRA claim, because Iowa Aska stopped conducting ceremonies pending the DEA’s review of their petition, as required by paragraph 7 of the Guidance.  Based on this evidence, Judge Howell concluded that the church had “voluntarily” stopped holding ceremonies, and thus, its free exercise of religion wasn’t “substantially burdened.” No substantial burden? No standing to sue under RFRA.  I have debunked the Guidance elsewhere as a phony pseudo-procedure concocted by the DEA to induce visionary churches to waste their time and give away their constitutional rights. Soul Quest saw its lawsuit against the DEA dismissedbecause it attempted to comply with the Guidance.  Now, in the Iowa Aska case, another RFRA lawsuit by a Guidance petitioner bites the dust.

To Establish RFRA Standing, Visionary Churches Must Take Bigger Risks Than Mainstream Christian Believers

Two things to take note of here: First, Judge Howell seems to have overlooked the fact that Iowa Aska was required, by paragraph 7 of the Guidance, to not engage in the practice of visionary communion while the DEA reviewed its petition.  This compelled cessation of religious practice should clearly constitute a “substantial burden on free exercise” under RFRA, and thus entitle them to standing.

Second, this rule that requires a visionary church to actually be using a controlled substance while the RFRA lawsuit is pending, rather than simply to allege that the desires to use a controlled substance in visionary communion ceremonies, seems to be unique legal obstacle that applies only to visionary religions.  Mainstream religious practitioners are not required to act in defiance of law.  Quite the contrary – as the Supreme Court’s recent decision in 303 Creative v. Elenisdemonstrates, a Christian desirous of shunning same-sex marriage partners can allege a First Amendment violation based on her speculative fear that, were she to offer to create celebratory websites for marrying couples, she might be compelled by Colorado law to create a website for a same-sex marriage.  Therefore, she was granted an exemption from that Colorado public-accommodations law, the type of law that was originally adopted to prevent motel operators from refusing to rent rooms to people of color.  That’s a whole lot of judicial relief bestowed upon someone whose exposure to risk was entirely hypothetical.  Meanwhile, visionary religions are booted out of court when they refrain from engaging in religious ceremony because the DEA told them not to?  Seems like an unfair application of standing rules to wedge the courthouse door shut, but as visionary religion lawyers, we’re accustomed to seeing double standards incorporated into the obstacle course our clients must run to obtain religious exemptions from controlled substance laws.

So what’s the take-home lesson here?  Very simple – to avoiding having their RFRA lawsuits dismissed, visionary churches must refrain from petitioning for an exemption from the DEA and must continue their visionary practice while litigating.  Instead, they have to have the courage of their convictions, engage in free exercise, and be prepared to defend themselves in a court of law.  And since that’s what’s required, I suggest you try this only after first putting your lawyer on speed-dial.

Drinking Ayahuasca Without a DEA Exemption: Religious Free Exercise or Crime?

Judge Howell’s third reason for the dismissal was that drinking ayahuasca without a DEA exemption is not an “exempt purpose” under the tax code, but rather a purpose that runs “contrary to public policy.”  That is an unfortunate ruling to have in our RFRA jurisprudence, and it is particularly sad that the Iowa Aska lawyers failed to present an available counter-argument.

The Missing Counter-Argument: Free Exercise is Never a Crime

A nonprofit lacks an exempt purpose if it “promotes activities which are prohibited by federal and state laws, violate public policy is reflected in those laws, and tend to promote illegal activities.” As Judge Howell put it pointedly, “absent a CSA exemption, plaintiff’s primary activities therefore amount to the illegal distribution and promotion of the use of the controlled substance, a non-exempt purpose.”  So according to Judge Howell, you’re a drug dealer unless and until a judge says you’re a religious person engaged in visionary communion.

This analysis implies that, thanks to the judge’s order finding a church to be engaged in sincere religious practice, a drug dealer is cleansed of the taint of illegality, and emerges a minister, while his or her followers are judicially transformed from a gang of drug users into a religious congregation.  This theory is kind of strange.  The law doesn’t usually work like that. 

When a judge acquits a defendant in a criminal case because the proof was insufficient, they don’t become innocent.  Rather, their original innocence is vindicated.  Similarly, when the Daime won its RFRA case in Oregon District Court, Judge Panner simply found that the group had always been using Ayahuasca religiously, and had never engaged in criminal drug dealing.

Quite simply, free exercise is never a crime, and visionary religion practitioners are never properly subject to criminal prosecution. How do I know this is true? That’s why, in both the UDV case and the Oregon Santo Daime case, when the litigation ended, the medicine the DEA had seized was returned to the churches.  It was returned because it was never lawfully seizable.

Why was the seized Ayahuasca seized unlawfully?  Because under the Fourth Amendment, only evidence of a crime is subject to seizure, and since it was possessed for religious purposes, the seized Ayahuasca was not evidence of a crime. Neither the UDV nor the Daime had committed criminal acts when they imported their sacrament; rather, they engaged in protected free exercise.  The non-criminal nature of their free exercise was retroactively recognized by the courts, going all the way back to the day when the medicine was seized.

As Easy as Flipping Heads or Tails

Okay, so if possessing a controlled substance can be a crime or a religious act of free exercise, how do we draw the distinction between religious free exercise and crime?  Consider it like a coin that has two sides.  When we look at the eagle on one side of a quarter, and George Washington on the other side, we know those are two sides of one coin.

We even use it as a way to pick between opposed ideas by tossing the quarter and calling “heads or tails.”  Even though they appear on one coin, the “head” side of the coin can never be the “tails” side.  In the same way, free-exercise use of a controlled substance can never be crime.  When we file a RFRA lawsuit, we ask a United States District Court Judge to recognize that our use of a controlled substance has been lawful free exercise from the very beginning, or as we say in Latin, ab initio.  Therefore, we have been engaged in religious practice, and have committed no crime.

AYA Raises the Argument that Free Exercise is Lawful Ab Initio

To date, the argument that free exercise use of a controlled substance is lawful ab initio has been alleged in only one visionary religion RFRA lawsuit – AYA v. Garland, 2:20-02373, now pending in the District of Arizona before the Hon. Roslyn O. Silver.  In her recent decision denying the DOJ’s motion to dismiss AYA’s RFRA claim, Judge Silver took note of the “ab initio” language when she summarized AYA’s claim: “Plaintiffs seek a declaration and injunction providing that their ‘importation[,] use, possession, or transportation of Ayahuasca for bona fide religious use in Visionary Communion is lawful ab initio, and not a violation of the CSA.’”  So the concept is now moving into the scope of judicial attention, where it can be given consideration.

Judges are not likely to articulate this doctrine spontaneously. From their point of view, it makes sense that until they tell a litigant that what they’re doing is lawful, the lawfulness of their conduct may be in doubt. Obviously, the DOJ isn’t going to stop arguing that visionary religion equates to criminal conduct until the DEA gives its approval.

Closing With a Note of Caution

If you’re a visionary religion practitioner, you should neither think of yourself as a criminal, nor forget that the DEA and law enforcement think you are.  Because of this disconnect between how law enforcement sees you and how you see yourself, I urge you to learn how to avoid the legal dangers inherent in the practice of visionary religion.

This article is intended to illuminate the challenges of navigating the complexities of the law while engaging in sincere religious practice.  While we wait for more visionary churches to secure judicial approval for their religious use of controlled substances, practicing visionary religion remains a path that the wise will undertake only with the assistance of a sincere and competent legal guide.