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OfflineKindofBlue
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Registered: 10/14/14
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Re: Ask a defense attorney [Re: Anonymous #94]
    #21596103 - 04/25/15 05:31 PM (8 years, 9 months ago)

What is active mycelium classified as? I don't have any, but I've always wondered how this would be classified in a court...? Like, what would the charge be? Is it a felony offense?


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Invisiblesh4d0ws
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Re: Ask a defense attorney [Re: KindofBlue]
    #21598085 - 04/26/15 06:30 AM (8 years, 8 months ago)

Production of mushrooms.

mycelium contains psilocybin. Unless youre talking about legal edible mushrooms.


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InvisibleTomandjerry58
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Re: Ask a defense attorney [Re: sh4d0ws]
    #21598306 - 04/26/15 08:38 AM (8 years, 8 months ago)

If I were to join this church would I have ground to stand on if I were arrested? They also have a branch in my state now that's allowing new members and aya, cannabis, peyote ceremonies.  DOes this also allow you to grow?

http://nativeamericanchurches.org/membership-account/membership-checkout/?level=4


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InvisibleEnlilMDiscord
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Re: Ask a defense attorney [Re: KindofBlue]
    #21598395 - 04/26/15 09:18 AM (8 years, 8 months ago)

Quote:

KindofBlue said:
What is active mycelium classified as? I don't have any, but I've always wondered how this would be classified in a court...? Like, what would the charge be? Is it a felony offense?



That'd be a drug manufacturing charge.


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InvisibleEnlilMDiscord
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Re: Ask a defense attorney [Re: Tomandjerry58]
    #21598407 - 04/26/15 09:22 AM (8 years, 8 months ago)

Quote:

preschooler said:
If I were to join this church would I have ground to stand on if I were arrested? They also have a branch in my state now that's allowing new members and aya, cannabis, peyote ceremonies.  DOes this also allow you to grow?

http://nativeamericanchurches.org/membership-account/membership-checkout/?level=4



Just being a member of the church doesn't help you.  You have to be a member of an indian tribe as well.  Of course, all of that only matters in court.  You'd still be arrested, charged, held in jail, etc. while you await trial.


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InvisibleTomandjerry58
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Re: Ask a defense attorney [Re: Enlil]
    #21598471 - 04/26/15 09:44 AM (8 years, 8 months ago)



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InvisibleEnlilMDiscord
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Re: Ask a defense attorney [Re: Tomandjerry58]
    #21598483 - 04/26/15 09:51 AM (8 years, 8 months ago)

Why would you cite a land-use law?

The relevant law here is the American Indian Religious Freedom Act.  It says, in relevant part:

Quote:


Notwithstanding any other provision of the law, the use, possession, or transportation of peyote by an Indian who uses peyote in a traditional manner for bona fide ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or by any State.


(emphasis mine)

It goes on to define "indian":

Quote:


(1) the term 'Indian' means a member of an Indian tribe;




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InvisibleTomandjerry58
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Re: Ask a defense attorney [Re: Enlil]
    #21598549 - 04/26/15 10:22 AM (8 years, 8 months ago)

If im reading right the land use law correctly its opens up the possibilities for the rights of the nac to operate anywhere?

DO you really think they are going to pull a "race card" here?

Also im allowed to join the church but not allowed use of the sacrament? "2.the term ‘Indian tribe’ means any tribe, band, nation, pueblo, or other organized group or community of Indians. Wouldn't the nac be an organized group of Indians?


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Re: Ask a defense attorney [Re: Tomandjerry58]
    #21598589 - 04/26/15 10:38 AM (8 years, 8 months ago)

You think that joining their religion makes you an indian?  I suppose you can argue that in court, but that probably wouldn't work.  If you want to become an indian, you'd probably have to go through whatever process that particular indian tribe requires for membership.  Good luck with that.

The bottom line is that none of it matters.  If you're looking for a way to escape prosecution for possession of peyote, there are many easier ways to do it.


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InvisibleTomandjerry58
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Re: Ask a defense attorney [Re: Enlil]
    #21598748 - 04/26/15 11:20 AM (8 years, 8 months ago)

Im not looking for just peyote, but any sacraments used by the church. Idk though I'm assuming this would provide a ton of "legal red tape" before they could accurately convict you.More so than if you weren't able to provide anything and just be convicted in county court.

Its would be a clear infringement of persons first amendment rights


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Re: Ask a defense attorney [Re: Tomandjerry58]
    #21598764 - 04/26/15 11:24 AM (8 years, 8 months ago)

Not according to current jurisprudence it wouldn't.  Drug use for religious purposes is not protected under the First Amendment in any way.

As far as drugs other than peyote, they aren't protected by the AIRFA. 

As far as "red tape", not so much.  You'd be convicted and sent to jail.  Sure, you can appeal, but you'll be serving your time during the appeal...


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InvisibleTomandjerry58
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Re: Ask a defense attorney [Re: Enlil]
    #21598822 - 04/26/15 11:41 AM (8 years, 8 months ago)

Well I sure wouldn't use u as my attorney :lol: I would go to jail!!

Again how can these people operate in the united states then .....they are not a tribe. They are just a church. http://www.oklevueha.org/Home_Page.html http://www.ayaquest.com/


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Re: Ask a defense attorney [Re: Tomandjerry58]
    #21598837 - 04/26/15 11:45 AM (8 years, 8 months ago)

Anyone can advocate for anything.  That doesn't mean they're exempt from the law.  There are literally hundreds of sites on the internet that claim to have some way of exempting people from laws.  None of them work.


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InvisibleTomandjerry58
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Re: Ask a defense attorney [Re: Enlil]
    #21602707 - 04/27/15 06:44 AM (8 years, 8 months ago)

Quote:

Enlil said:
Anyone can advocate for anything.  That doesn't mean they're exempt from the law.  There are literally hundreds of sites on the internet that claim to have some way of exempting people from laws.  None of them work.



Ok took a little reading but this is why. A little long but it very well may be in our interest to understand. Full history.

THis refers to religious exercise

http://en.wikipedia.org/wiki/Free_Exercise_Clause Mostly this is the law accompanying the first amendment  "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" Ok so this held up for awhile even tho some case were lost. But one monumental win was http://en.wikipedia.org/wiki/Wisconsin_v._Yoder which I thought you would like since you love the amish so much as per your sig:lol: Basically yoder siting this clause about the issue of students in his clan or whatever going to school past the 8th grade. He won the case and they still practice this today from what I understand.

The http://en.wikipedia.org/wiki/Employment_Division_v._Smith was the case that outraged the public and changed the law. The supreme court ruled in favor of the employment division of Oregon against two rehab workers that were fired from their job for testing positive for mescaline. ANd denied unemployment.

The public was outraged here and congress answered with http://en.wikipedia.org/wiki/Religious_Freedom_Restoration_Act also full text


42 USC CHAPTER 21B – RELIGIOUS FREEDOM RESTORATION
42 USC § 2000BB – CONGRESSIONAL FINDINGS AND DECLARATION OF PURPOSES

(a) Findings
The Congress finds that—
(1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;
(2) laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
(3) governments should not substantially burden religious exercise without compelling justification;
(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
(5)the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.
(b) Purposes
The purposes of this chapter are—
(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.
42 USC § 2000BB–1 – FREE EXERCISE OF RELIGION PROTECTED

(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) of this section.
(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.
42 USC § 2000BB–2 – DEFINITIONS
As used in this chapter—
(1) the term “government” includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, or of a covered entity;
(2) the term “covered entity” means the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States;
(3) the term “demonstrates” means meets the burdens of going forward with the evidence and of persuasion; and
(4) the term “exercise of religion” means religious exercise, as defined in section 2000cc–5 of this title.
42 USC § 2000CC–5 – DEFINITIONS
In this chapter:
(1) Claimant
The term “claimant” means a person raising a claim or defense under this chapter.
(2) Demonstrates
The term “demonstrates” means meets the burdens of going forward with the evidence and of persuasion.
(3) Free Exercise Clause
The term “Free Exercise Clause” means that portion of the first amendment to the Constitution that proscribes laws prohibiting the free exercise of religion.
(4) Government
The term “government”—
(A) means—
(i) a State, county, municipality, or other governmental entity created under the authority of a State;
(ii) any branch, department, agency, instrumentality, or official of an entity listed in clause (i); and
(iii) any other person acting under color of State law; and
(B) for the purposes of sections 2000cc–2(b) and 2000cc–3 of this title, includes the United States, a branch, department, agency, instrumentality, or official of the United States, and any other person acting under color of Federal law.
(5) Land use regulation
The term “land use regulation” means a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.
(6) Program or activity
The term “program or activity” means all of the operations of any entity as described in paragraph (1) or (2) of section 2000d–4a of this title.
(7) Religious exercise
(A) In general
The term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.
(B) Rule
The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.

42 USC § 2000BB–3 – APPLICABILITY
(a) In general
This chapter applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.
(b) Rule of construction
Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.
(c) Religious belief unaffected
Nothing in this chapter shall be construed to authorize any government to burden any religious belief.

42 USC § 2000BB–4 – ESTABLISHMENT CLAUSE UNAFFECTED
Nothing in this chapter shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion (referred to in this section as the “Establishment Clause”). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this chapter. As used in this section, the term “granting”, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.

THis passed the house 97 to 3 and bill Clinton signed it into law.

First tested here I believe  http://en.wikipedia.org/wiki/Gonzales_v._O_Centro_Espirita_Beneficente_Uniao_do_Vegetal Enter the Oklevueha Native American Church. Whish it took awhile but the supreme court ruled in there favor stating that the use of ayahausca was no different than peyote. And the government did not pose a substantial burden. The got there way.

Led by jefferey Bronfman
here he is with paul staments

The "land act" I sited was because of another issue they had in san Antonio with tribal grounds or somethings...congress then passed another to revise that. After they lost a case.


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OfflineNizzyJones
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Re: Ask a defense attorney [Re: Tomandjerry58]
    #21602772 - 04/27/15 07:19 AM (8 years, 8 months ago)

:nojustno:


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Re: Ask a defense attorney [Re: Tomandjerry58]
    #21602824 - 04/27/15 07:41 AM (8 years, 8 months ago)

First, preschooler, I want to applaud your efforts at researching the law.  More people should do that, and I always encourage it.  The problem, of course, is that old adage, "A little knowledge is dangerous."

The Religious Freedom Restoration Act doesn't apply to state law.  It was ruled unconstitutional for that purpose.  See: City of Boerne v. Flores. This means you can't rely on the RFRA as a defense to any state prosecution.  The case you cited was about a federal prosecution.

Also, and this point is just for clarity, you shouldn't confuse statutory protections with Constitutional protections.  The Exercise Clause of the First Amendment is the highest law of the land, but not very powerful.  The RFRA is a federal law, but only insofar as it complies with the Constitution.  Since it violates section 5 of the Fourteenth Amendment, it is invalid as applied to the states.


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InvisibleTomandjerry58
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Re: Ask a defense attorney [Re: Enlil]
    #21602976 - 04/27/15 08:44 AM (8 years, 8 months ago)

Was it not seen as "unconstitutional" or  invalid to section 5 of the 14th amendment, because the law wasn't designed to protect land just people?...in walks http://en.wikipedia.org/wiki/Religious_Land_Use_and_Institutionalized_Persons_Act

And I appreciate that you appreciate the research:thumbup:

I have more research to do statutory protection/constitutional protections. Incredibly interesting stuff here tho.

Lots of information in this link regarding the subject if anyone is interested. http://law2.umkc.edu/faculty/projects/ftrials/conlaw/freeexercise.htm


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InvisibleEnlilMDiscord
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Re: Ask a defense attorney [Re: Tomandjerry58]
    #21603021 - 04/27/15 08:58 AM (8 years, 8 months ago)

It was found unconstitutional because the federal government's power under section 5 of the fourteenth amendment is limited to rights under that amendment.  Since the SCOTUS had already ruled that the First Amendment (as incorporated to the states under the fourteenth amendment) didn't protect people from laws of general applicability, Congress couldn't use the fourteenth to pass a statute to protect that non-right.

To break it down a bit more in case my legalese is too dense:

1. The SCOTUS ruled that the Exercise Clause of the First Amendment didn't protect against laws of general applicability.
2. Congress wrote the RFPA in response to that case.  That law was intended to apply to state and federal law.
3. The only way Congress can pass a law that preempts state law is if the federal law is a valid exercise of federal power.  There is no power to just invalidate state law, so congress hung its hat on the 14th amendment.
4. Section 5 of the 14th amendment gives congress the power to protect all rights under that amendment.  Since the first amendment is applied to the states under the 14th amendment, congress can pass laws to protect the first amendment under section 5
5. BUT, the SCOTUS had already found (see 1 above) that the first amendment didn't protect against laws of general applicability, therefore, there was no right to protect. 
6. This meant that the federal government had no power to invalidate state laws under section 5, so the RFPA doesn't apply to state law.  It still applies to federal laws, of course, since Congress always has the power to modify federal law.




And you're way off about the land use law.  It has zero applicability to this topic.


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InvisibleSun King
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Re: Ask a defense attorney [Re: Enlil]
    #21603134 - 04/27/15 09:28 AM (8 years, 8 months ago)

Quote:

Enlil said:
If you want to become an indian, you'd probably have to go through whatever process that particular indian tribe requires for membership.  Good luck with that.





The Indians should sell tribe memberships.


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Re: Ask a defense attorney [Re: Sun King]
    #21603151 - 04/27/15 09:32 AM (8 years, 8 months ago)

The more of a commercial endeavor it becomes, the less it looks like a bonafide religion or a bonafide religious ceremony.  At some point, a prosecutor will argue that it's just a way to avoid drug laws and people are making money from it.  At some point, that argument will win the day.


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