THIS IS A CASE ABOUT A WOMAN AND HER RIGHT TO HAVE HER GOD GIVEN PLANT People of the State of New York, Plaintiff, AMENDED Because Art 221.05 of the New York State Penal Law is fraudulent, invalid, overbroad Abigail Storm-Eggink, pro se, sui juris, and repugnant to the Constitution of the United States upon inescapable grounds without prejudice, under protest Defendant Please take notice that upon annexed affidavit of myself, Abigail Storm-Eggink, pro se, sui juris and upon the papers and proceedings heretofore filed or had herein the undersigned will move this court to be held in the City Court of Albany County, State of New York at One Morton Street Albany NY Aug. 28th, 2009 at 9:00 AM in the forenoon or as soon thereafter as I may be heard for an order Therefore, New York State Penal Law Sec 221.05 is repugnant to the Constitution and must be struck down because it runs contrary to the purpose of state laws which are created to enforce and support the rights of the people not to sweep them away. As a direct result of such an unconstitutional law the Albany City police and New York State police measures have trespassed on my religious freedom to openly, innocently and peacefully walk down a public street carrying one of my precious cannabis hemp plants on my way to the Capitol building to seek a meeting with Governor David Paterson and State Senators to petition them for a redress of grievances concerning the unconstitutional and criminally fraudulent prohibition of cannabis hemp in New York State because it continues to cause irreparable damage to me, the environment, the economy and the quality of life of every citizen and inhabitant of New York State for no good reason and with no measurable results. Facts 1) I Abigail Storm, have resided in the counties of Ulster and Sullivan in the State of New York for the past 20 years 2) I will admit without prejudice that I own the two cannabis hemp plants seized unlawfully from me by officers under color of law and it is my personal property. 3) I have been charged under color of law for two counts of: 4) I Abigail Storm-Eggink now come before this court to exercise my fundamental rights to a fair hearing of the facts as guaranteed by First, Fourth, Fifth, Sixth, Ninth, Tenth and Fourteenth Amendments of the Constitution of the United States and Article 1 Sections 3, 5, and 11, and Article 17 Sec 1 and 3 of the New York State Constitution, and Public Law 103-141(HR 1308) and protected under Federal Statutes Title 18 Sec 241 and 242. 5) If 15 states allow citizens to possess cannabis medicine then the citizens of those 15 states have rights that the residents of New York do not. I say people living in New York State do not have equal protection or due process. How can the inhabitants of one state have more rights than the inhabitants of another state? And how can New York State under a “medical marijuana” law advocate that the rights of some New York citizens who are "seriously ill" will be protected if they use cannabis medicine while the rights of other citizens who are not "seriously ill", who prefer to use cannabis as a medicine because it’s preventative, safe and effective, are not going to be protected? Is the state now our doctor and our parent? To this day the New York State Legislature, and every governor since Nelson Rockefeller, has neglected to re-examine the laws against cannabis hemp possession and their fraudulent nature, thereby remaining complicit in the conspiracy against the rights of New Yorkers and the Deprivation of the rights of New Yorkers under color of the 1971 Controlled Substances Act of New York. I. VIOLATION OF OATH OF OFFICE: TREASON This year, 2009, the New York State Assembly has passed a "medical use of marijuana" bill for the third year that would allow select "very seriously ill" people with special permission from the health department to use small amounts of cannabis hemp "marijuana", while denying others its use as a medicine, perpetuating the fraud of treating marijuana as a dangerous narcotic making millions of New Yorkers out to be criminals, rather than acknowledging the plant’s true description as a natural, safe, effective herbal remedy. (See: Richard Gottfried's Medical Marihuana Bill # 7542) The aforementioned bill does not require that cannabis hemp "marijuana" be removed from the Schedule 1 listing, which implicates all of the legislators who voted for it in the same fraud that Governor Rockefeller was involved in and perpetuating. Members of the New York State Senate Democratic Conference have also sponsored a similar or identical bill and passed it through the health committee, chaired by Senator Thomas Duane. (See: Senate Health Bill # 4041A) Being that the Schedule 1 listing of cannabis in the Public Health Law is fraudulent, any further additions or exceptions added to it are also fraudulent in that they do not correct the fundamental error that makes the law invalid. Cannabis has multiple effective medical uses and has virtually no potential for abuse, nor does it have any toxic side effects, when compared to narcotic drugs or popular toxic substances such as sugar, caffeine, tobacco and alcohol, therefore it cannot accurately be listed as a Schedule 1 Controlled Substance. Being that the listing of the cannabis plant as a Controlled Substance is, by itself, criminal in nature, the perpetuation of the flawed law that consistently causes such grievous damage to the general public and the functions of government, by the office-holders of all three branches of government, is also a crime. The lawmakers of the State of New York, who have taken the oath of office, are duty bound to correct such a fundamental error in our penal law, especially when the error is causing such grievous harm to people and society as a whole. The U.S. Supreme Court has stated that “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” Cooper v. Aaron 358 U.S. 1, 78 S.Ct. 1401 (1958). Sending people to jail for an innocent act when evidence reveals that the law upon which their conviction stands is fraudulent is a treasonous act in violation of the oath of office. U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 s Ct. 1683, 1687 (1974) stated that, “when a state officer acts under a state law in a manner violative of the Federal Constitution, he comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States.” [emphasis supplied in original] If a judge does not fully comply with the Constitution, then his orders are void, in re Sawyer, 124 U.S. 200 (1888), he/she is without jurisdiction, and he/she has engaged in an act or acts of treason. Whenever a judge acts where he/she does not have jurisdiction to act, the judge is engaged in an act or acts of treason. U.S. v. Will, 449 U.S. 200, 216, 101, S.Ct 471, 66 L.Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821) In 1988 the Drug Enforcement Administration's own Administrative Law Judge, Francis Young, concluded, after extensive testimony, that "marijuana in its natural form is one of the safest therapeutically active substances known to man." I. POLICE MEASURES AFFECTING INNOCENT ACTS Ct. 16A Am Jur 2d Sec 344 - Police measures affecting innocent acts, "The legislature, in enacting a police regulation, may include within the purview of the statute acts innocent in themselves where the inclusion of such acts is necessary in order to make the regulation effective. On the other hand, it has also been said that the legislature, in the exercise of its police power, may not validly make it a crime to do something which is innocent in itself merely because it is sometimes done improperly, attended by improper motives, or done as part of an illegal scheme. An act which has no tendency to affect or endanger the public in connection with health, safety, morals, or general welfare, and which is entirely innocent in character, is not within the police power. And a person may not be deprived of his or her liberty for the doing of an act which is not, and cannot be made, unlawful." Ct. Ex parte Dees 46 Cal. App. 656, 189 P. 1050 (1st Dist. 1020) The New York State legislature recognized over 30 years ago when they passed the Marijuana Reform Act in 1977 decriminalizing possession of small amounts of marijuana for personal use that smoking marijuana was an innocent act. Dick Gottfried, who was Codes Committee Chair and sponsor of the bill, wrote in his Memorandum in Support that marijuana causes “little or no harm” while prohibition causes more harm than good, “JUSTIFICATION: The average citizen who merely uses a small quantity of marijuana for personal use at home or to share with friends would no longer fear arrest, jail, or a criminal record. Every year thousands of our neighbors are arrested and prosecuted for simply possessing marijuana. Thousands of lives are scarred; thousands of hours of police and court time are wasted. The cost to those arrested and their families, and to the taxpayers, is staggering. Yet the scientific evidence clearly shows no significant harm- or no harm at all- from marijuana use. And marijuana use has skyrocketed despite our present tough penalties. (In Oregon and California, under bills similar to this, after one year there was no significant increase in marijuana use.)” (emphasis added) Why has the New York State Legislature established and maintained an unwarranted system of punishment for innocent New Yorkers who are simply growing, possessing or using marijuana which the legislature admitted “clearly shows no significant harm - or no harm at all?” And why does it matter how much you have if it’s so harmless? Aspirin can kill you and you can possess as much as you want. The same is so with alcohol, cigarettes, sugar, coffee, and many more products. Marijuana has never killed anyone. Where is the equal protection under this law? Another statement on the same document from Gottfried added, FISCAL IMPLICATIONS: Would save state and local governments about $50 million a year in police, court and correction costs.” According to statistics today there are nearly 12,000 people in New York’s prisons incarcerated under the drug laws, most of them minor offenders with no history of violent behavior. It costs New York $520 million a year to imprison them. Over thirty five years the laws have cost the state billions of dollars and ruined tens of thousands of lives. That means ending this Godless prohibition would spare thousands of innocent people, save the taxpayers about $300 million per year and re-establish a sound penal system. Also attached to the 1977 Marijuana Reform Act is Legislation Report #143 from the NYSBA which agrees with Gottfried entirely, “Simply stated, there is no compelling reason for possession of small amounts of marijuana to remain a criminal offense. In 1975 there were 27,644 marijuana arrests in New York State of which 94% were for simple possession, involving mostly young people, at an estimated cost of $45 to $60 million. Criminal justice resources can be more effectively spent on prevention of serious crimes and enforcement of the laws against serious crimes. Respect for laws will be fostered since enforcement of the harsh, outmoded marijuana law has encouraged invasion of privacy and violation of civil liberties.” Although the invasion of privacy and violation of civil liberties continues it is clearly evident that the New York State legislature sees possession, cultivation and/or use of cannabis hemp “marijuana” as innocent acts, not criminal acts. It is however a criminal act to continue to enforce a law that simply interferes with the free exercise of religious rights while having no compelling interest to do so. That is to trample on the very essence of freedom. II. IT IS THE COURT'S DUTY TO UPHOLD THE CONSTITUTION "The court has a duty to uphold the Constitution when a statute is in fact unconstitutional; the court's duty is to declare it invalid, no matter how desirable or beneficial the purpose might be." Ct. Wilson v. Department of Revenue, 169 Ill. 2d 306, 314-315 (1996) Any person or law that prohibits me from the free exercise of any of my God given rights by threatening to deprive me of my liberty, my property, my children, my health or my rights is trespassing on me and the Constitutions of the State of New York and the United States. Among the many blessings I receive from cultivating and using cannabis hemp as part of my religious practice and as a safe herbal remedy is the blessing it provides as a whole protein food that I can grow myself. And from its thousands of other potential uses I can make products by hand as a way to support myself economically. These blessings of food, health and prosperity which come directly from the fruit of my own labors through the cultivation of an herb God created for me are called inalienable rights and they are protected under a) The First, Fourth, Fifth, Sixth, Ninth, Tenth and Fourteenth Amendments to the United States Constitution and b) Article1, Subsection 2, 3, 5, and 11 and Article 17 of the New York State Constitution. MR. JUSTICE BLACKMUN delivered the opinion of the Court Roe v. Wade: MR. JUSTICE STEWART, concurring, "In a Constitution for a free people, there can be no doubt that the meaning of `liberty' must be broad indeed." Board of Regents v. Roth, 408 U.S. 564, 572 The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the "liberty" protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. See Schware v. Board of Bar Examiners, 353 U.S. 232, 238 -239; Pierce v. Society of Sisters, 268 U.S. 510, 534 -535; Meyer v. Nebraska, 262 U.S. 390, 399 -400 Cf. Shapiro v. Thompson, 394 U.S. 618, 629 -630; United States v. Guest, 383 U.S. 745, 757 -758; Carrington v. Rash, 380 U.S. 89, 96; Aptheker v. Secretary of State, 378 U.S. 500, 505 ; Kent v. Dulles, 357 U.S. 116, 127; Bolling v. Sharpe, 347 U.S. 497, 499 -500; Truax v. Raich, 239 U.S. 33, 41. [410 U.S. 113, 169] As Mr. Justice Harlan once wrote: "The full scope of the liberty guaranteed by the Due Process Clause cannot be found in, or limited by, the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." Poe v. Ullman, 367 U.S. 497, 543 (opinion dissenting from dismissal of appeal) (citations omitted) In the words of Mr. Justice Frankfurter, "Great concepts like . . . `liberty' . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged." National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (dissenting opinion)...the statutes outstripped these justifications and swept "far beyond any areas of compelling state interest." 314 F. Supp., at 1222-1223. III. LACK OF SUBJECT MATTER JURISDICTION DUE TO FRAUD The fatal flaw of cannabis prohibition is the lies, discrimination, and fraud upon which it is based. In fact, the state of New York and this court have no jurisdiction or standing to prosecute me under the cannabis prohibition laws because they are fraudulent, overbroad and unconstitutional, having no good intent other than to bind and disparage citizens so that they have no access to the most harmless and beneficial plant on earth, cannabis hemp. This is well documented and evident in the documents I am submitting to this court. My evidence reveals that a malicious plot was hatched in 1938 to ban and eradicate cannabis hemp and the whole hemp industry through lies and deception which have been perpetuated to this day. My evidence shows that in 1937 cannabis hemp was about to become a billion dollar industry which was in direct competition with synthetic drugs, synthetic fibers, cotton, plastics, steel and toxic fuel. Instead of identifying cannabis hemp by its familiar name it was identified by the term, “Marijuana”, a Mexican slang word for the flowers of the plant, used for thousands of years for medicinal and spiritual uses. This enabled the perpetrators of the fraud to hide the fact that they were attempting to outlaw the hemp industry that was about to boom. Those who were set to gain from its prohibition then created a full scale campaign of lies about “marijuana’ being a dangerous drug in order to deceive the public and remove cannabis from American farmers, giving its competitors a higher stake in the marketplace. Congressional hearings reveal that false questionable testimony was given favor and true credible testimony was rejected in order to create the Marijuana Tax Act, a fraud in and of itself. The fraud began when Harry Anslinger, head of the Federal Narcotics Bureau, and others, started the spread of lies about the effects of “marijuana” falsely describing it as a dangerous drug which caused insanity and death. These lies began a 71 year campaign, criminal in its intent, against the cannabis hemp growers, which brings me, one of its latest victims, to this court. I seek only justice from this court to end this cruel, inhumane, unconstitutional prohibition which has wreaked havoc on law and order, cost trillions of dollars and destroyed millions of lives and is contrary to the role of the state which is to defend and protect its citizens from all enemies foreign and domestic. The prohibition of cannabis has been an act of treason from its inception by warring against and undermining the people, the Constitution of the United States and the Constitution of the State of New York. New York State has been complicit in this crime against the people by falsely listing cannabis hemp as a Schedule 1 Controlled Substance that has no medicinal value and I assert that the evidence attached hereto reveals that the New York State Legislature erred when they ignored evidence on public record as far back as the beginning of time , and more specifically 1937, that cannabis hemp is not dangerous and therefore should never have been listed as a "most dangerous and useless" Schedule 1 Controlled Substance and yet it remains so to this very day under the New York State Public Health Law Sec 3302. And if you possess cannabis in violation of Article 3302 or 3382 you are punishable under the New York State Penal Law Art. 221. A law based on lies and deception is a fraud and therefore null and void. Evidence reveals that cannabis is in truth a safe herbal, and extremely effective, home remedy that, before 1937, had been used as a medicine for thousands of years for treating everything from a toothache to cancer and was never historically noted as a danger to society. Evidence reveals that cannabis has never been the cause of any death, has no toxic side-effects and is non-addictive. The claim by New York State lawmakers that cannabis is a dangerous substance which needs to be strictly controlled because it has no medical value and has a high potential for "abuse" is worse than frivolous; it is fraudulent, deceptive, arbitrary, and capricious and therefore neither the Health and Safety Law Article 3302 nor the Penal Law Sec 221.00 have any standing and must be struck down. 4. THE LAWS ARE IN CONTRAVENTION OF MY GOD GIVEN RIGHTS The above stated laws of the State of New York deny me, defraud me and deprive me of any access to the cannabis hemp plant, which my Father in Heaven created for me and all people as a blessing. Genesis 1:11, 12, and 27-29, “And God said Let the earth bring forth grass, the herb yielding seed, and the fruit tree yielding fruit after his kind, whose seed is in itself, upon the earth: and it was so. And the Earth brought forth grass, and herb yielding seed after his kind, and the tree yielding fruit, whose seed was in itself, after his kind: and God saw that it was good. …So God created man in his own image, in the image of God created he him; male and female created he them. And God blessed them, and God said unto them, Be fruitful, and multiply, and replenish the earth and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth. And God said, Behold, I have given you every herb bearing seed; to you it shall be for meat.” Cannabis is the only plant whose seed could be called meat because its seed has a whole protein that is higher in content than beef, fish, chicken, tofu, or cheese and is for man, a perfect food. These are my beliefs. Therefore, New York State laws which deny me access to the cannabis hemp plant infringe upon the free exercise of my religious beliefs and are in contravention of my God given rights. The "free exercise of religion' is the right to walk our own path and see where it takes us and as long as we do not harm or threaten to harm, anyone's person or property, our freedom to partake of and share with other likeminded people what God has freely given us is an inalienable protected right of a free sovereign people under the Constitution of the United States Amendment 1, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...or the right of the people to peacefully assemble..." And the New York State Constitution Article 1 Sec 3. "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind..." George Washington who also professed to be a Christian also grew cannabis hemp and obviously believed it was one of the inalienable rights which he was securing when he signed the U. S. Constitution. This is made obvious by his words, "Make the most of the Indian hemp seed; sow it everywhere." The main reason our government was established was to secure the blessings of liberty given to all people by our creator, so that we would be free to love one another and to live in peace. Religious freedom affords me the opportunity to live according to my religious beliefs which is to listen to God and do what he says; not what man says. Thomas Jefferson wrote, "In matters of power then let no more be heard of confidence in man but bind him down from mischief with the chains of the Constitution." Jefferson said these words when he was helping to create the document that would protect the people's rights because he knew that lawmakers can fall under the influence of private interest groups and bankers who want legislation passed that will protect their investments and who will go to great lengths such as lies and deception to deliberately thwart the passing of laws that protect the rights of the people to live a life of faith and to gain economic independence through the fruit of their own labors. Jefferson's beliefs about prohibition were profoundly prophetic, "If people let government decide what food they eat and what medicine they take, their bodies will soon be in as sorry a state as are the souls of those who live under tyranny." Why would the State of New York deliberately keep a law in place that they know deliberately ignores and denies the sovereign rights of the people of New York State to have access to cannabis medicine which is proven and known to be a natural safe herbal remedy for everything from a headache to cancer? And why would they then turn around and pass through the Assembly and Senate Health Committees a medical "marijuana" bill that is so restrictive that only the very seriously ill New Yorkers can have it? If it is safe for the seriously ill it should be available to all and why isn't the doctor the one deciding which of his patients can use this medicine? Doesn't this infringe upon the privacy between a doctor and his or her patients? This is arbitrary and capricious lawmaking at its worst and a violation of the equal protection clause of Article 1 Sec 11 of the New York State Constitution which states, "No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall because of race ... creed or religion, be subjected to any discrimination of her civil rights by any other person or by any... corporation or institution, or by the state or any agency ... of the state." I don't go to doctors for medicine. I use prayer and natural, safe herbal remedies for my healing. Therefore New York State Law Art 3302 and 3382, which prohibits me by restricting me from freely choosing or cultivating cannabis, a plant given to me by God, for my healing and benefit, is discriminatory in its intent because it doesn't protect my rights to use cannabis, a natural herb I can grow in my own garden, unless I am a state certified very seriously ill person with a doctor's prescription. Besides the state choosing who gets the medicine, they also are choosing how we get it, how often we take it, where and how we store it, who can be with us when we take it, and how much we can have on any given day. And what happens to these very sick people, their caregivers or their doctors if they don't abide by these strict measures? They will be standing here before this court being treated like criminals, the same as I am. This is senseless enforcement of unjust laws that are a blatant infringement on my religious freedom to simply heal myself with my own safe medicine from my own garden without any infringement or interference from the state. When I mentioned to Dick Gottfried, Assembly Health Committee Chair, and his counsel, Brian O'Malley, who wrote the medical marijuana bill, that the bill was too restrictive and unconstitutional because it continues to deny the vast majority of New Yorkers their right to this safe effective herbal medicine which can be grown in one's own back yard Gottfried said, "This is the most we can do... this is the only thing you can expect to get in the way of cannabis law reform for at least the next 4 years, or longer". Assemblyman Gottfried has been in the New York State legislature since 1970, the longest standing member in both the Senate and Assembly. His district is in Manhattan. There are at least 100 arrests for simple cannabis possession per day on average in New York City alone. Possession of cannabis is an innocent act. Any person who represents the people of the state and continues to perpetuate the lie that cannabis is a dangerous substance that needs to be controlled, while sending innocent New Yorkers to jail and worse for possessing cannabis, is guilty themselves of criminal negligence, deprivation of rights, and conspiracy against rights and can be prosecuted under Federal Statutes which prohibit such crimes against the people. In order to amend the Public Health Law both Assemblyman Gottfried and Senator Duane must cooperate or it cannot be corrected through the legislative branch. The Senate Health Committee chair, Thomas Duane, also from the Manhattan District, refused for months to allow anyone from our organization to meet with him or his staff regarding crimes against the people and constitutional infringement which was evident in the language of the medical marijuana measure he was about to pass through the Senate Health Committee. Nonetheless, he made an announcement on his website and contacted the press that he was to introduce the measure Bill # S4041A and passed it through his committee anyway. The bill is identical to Assemblyman Gottfried’s Medical Marijuana Bill #7542. Pauline Sabin, who was instrumental in ending alcohol prohibition realized that because, “the incumbent politicians who had… strongly supported prohibition for many years, by increasing penalties” realized, “someone had to protect them from the political consequences of changing their minds.” I also realize there does not seem to be an available remedy through the New York State legislature to reverse the 70 year “get tough” stance on marijuana prohibition because incumbent politicians are afraid for the same reason. In later statements, she elaborated further on her objections to prohibition. , "The young see the law broken at home and upon the street. Can we expect them to be lawful?" Because there is an immediate necessity to stay the avoidable injuries caused by the enforcement of the prohibition of marijuana cultivation, possession and use I turn to this court for protection from any further arrest and prosecution through the nullification of the above mentioned unconstitutional laws to ensure public health and safety. To make matters worse, New York State is in the middle of an economic crisis and the governor keeps cutting the state budget back, forfeiting many programs designed to aid the people of the state of New York. Yet, the governor is ignoring, or is not being told, or does not have the ability to see, that the most readily available obvious answer to our economic woes is to end the fraudulent prohibition of cannabis cultivation and allow the cannabis hemp industry to take root. The governor must be willing to amend the Health Laws or it cannot be amended through the Executive Branch. On behalf of myself and the people of this state who have been falsely accused and/or incarcerated under color of New York State Health and Safety Laws in Sec 33 and NYS Penal Law Art 221 I ask this court to examine with strict judicial scrutiny all the evidence, taking into consideration all the innocent people whose lives have been and are being ruined by this fraudulent arbitrary and capricious prohibition and to strike down these laws as null and void. Article 221 – PENAL OFFENSES INVOLVING MARIHUANA Why would the state of New York continue to prohibit New York farmers from cultivating industrial hemp which would immediately bring landowners out of debt, begin to turn profits and bring new investors to New York? People who have researched the hemp industry know hemp is health and wealth for those who are willing and able to grow it, whether it's cultivated for fuel, fiber, food, paper, or medicine, it is a green clean sustainable homegrown industry that will heal our economic woes. Why would the legislators and the governor refuse to look at the evidence of the lies that began the prohibition of cannabis and end the lies that keep it in place? It appears the state is in a conflict of interest. If the people grow the cannabis they will make lots of money. If the state stays in control of growing cannabis the state will make the money by charging the people for marijuana, regulate their use and even control the purchase price. The state therefore, by keeping cannabis on the Controlled Substances list as a Schedule 1 drug, can be in complete control of the whole hemp industry. This is in violation of my religious freedom and the freedom of all New Yorkers to freely grow, buy or sell cannabis and all its wonderful products and to prosper thereby. The state must find its revenue by taxing the sales of cannabis as with other non-toxic products. Sec 345 - Freedom to Contract: "The rule that liberty of contract is constitutionally protected, and that governmental power to limit this liberty must rest on some reasonable basis and cannot be arbitrarily exercised, applies with full force to police regulations which impose restrictions upon such freedom. Hence, a statute limiting the right of a citizen to contract with reference to his or her property must tend to promote the public good in some way; otherwise, it is an unwarranted interference therewith." It is evidently up to this court to set in order the errors of law discovered herein. Evidence shows that billions of dollars from the cannabis hemp industry could be secured by New Yorkers through the abolition of this bad law. Several legislators and their staff with whom I've met on this issue said until the State can find a way to regulate and tax cannabis sales and distribution the y will not be changing the law. This means the state is in direct conflict with the needs, the rights and the interests of the citizens that they are sworn to serve and protect. I stand before this court as evidence that the rights of the people of New York State to benefit spiritually, physically, economically, and environmentally from their own homegrown cannabis hemp plants have not been protected for more than 70 years as guaranteed to them by the Constitutions of the State of New York and the United States and that the denial of these rights has caused me and all New Yorkers grievous irreparable damage. Therefore, Your Honor, in order to fulfill your duty as an instrument of the people, by the people and for the people and in order to protect and secure all the rights of all the people of the State of New York guaranteed by the Constitution of the State of New York and the Constitution of the United States, I urge you to end the grievous and irreparable damage of the false listing of cannabis hemp as a Schedule 1 Controlled Substance by declaring all of New York State Public Health and Safety Law Art 33 and all of the New York State Penal Law Sec. 221.00 which refer to cannabis marijuana as null and void. Summary and Conclusion My beliefs are that cannabis hemp is a sacred gift from God for the healing of man and the healing of nations, and that its possession and uses are innocent acts which cause no damage to my neighbor and that these rights are God given inalienable rights protected under the Constitutions of the State of New York and the United States and that these rights cannot be lawfully swept away by opinion or the inferior laws of man or by this court. THERFORE the complaint in this matter should be dismissed in its entirety, and all materials seized including the cannabis hemp plants should be returned to Abigail Storm-Eggink, forthwith. Abigail Storm Eggink pro se, sui juris As a sovereign human being, all rights reserved Without prejudice under protest or under threat of Slavery UCC 1-308, UCC 1-207, UCC 1-103 STATE OF NEW YORK -------------------- People of the State of New York , Plaintiff, AFFIDAVIT IN SUPPORT OF -against- Abigail Storm-Eggink, pro se, sui juris, without prejudice, under protest or under threat of slavery Defendant My evidence reveals that a malicious plot was hatched in 1938 to ban and eradicate cannabis hemp and the whole hemp industry through lies and deception which have been perpetuated to this day. My evidence shows that in 1937 cannabis hemp was about to become a billion dollar industry which was in direct competition with synthetic drugs, synthetic fibers, cotton, plastics, steel and toxic fuel. Instead of identifying cannabis hemp by its familiar name it was identified by the term, “Marijuana”, a Mexican slang word for the flowers of the plant, used for thousands of years for medicinal and spiritual uses. This enabled the perpetrators of the fraud to hide the fact that they were attempting to outlaw the hemp industry that was about to boom. Those who were set to gain from its prohibition then created a full scale campaign of lies about “marijuana’ being a dangerous drug in order to deceive the public and remove cannabis from American farmers, giving its competitors a higher stake in the marketplace. Congressional hearings reveal that false questionable testimony was given favor and true credible testimony was rejected in order to create the Marijuana Tax Act, a fraud in and of itself. The fraud began when Harry Anslinger, head of the Federal Narcotics Bureau, and others, started the spread of lies about the effects of “marijuana” falsely describing it as a dangerous drug which caused insanity and death. These lies began a 71 year campaign, criminal in its intent, against the cannabis hemp growers, which brings me, one of its latest victims, to this court. I seek only justice from this court to end this cruel, inhumane, unconstitutional prohibition which has wreaked havoc on law and order, cost trillions of dollars and destroyed millions of lives and is contrary to the role of the state which is to defend and protect its citizens from all enemies foreign and domestic. The prohibition of cannabis has been an act of treason from its inception by warring against the people, the Constitution of the United States and the Constitution of the State of New York . New York State has been complicit in this crime against the people by falsely listing cannabis hemp as a Schedule 1 Controlled Substance that has no medicinal value. This is fraudulent and unfounded. I would like to point out that the New York State legislature has already passed a medical marijuana measure through the Assembly 3 years in a row. The Senate has passed it through the Health Committee and it is now in the Codes committee. Yet, they have not moved it off the Schedule 1 list; Schedule 1 Controlled Substances have no medical benefits. The State is therefore participating in a fraudulent scheme to control cannabis, which is a safe effective medicine for all kinds of illness, and keep it from New Yorkers who don’t have “a very serious illness”, according to the new law. This is not for the public good. Therefore, the claim that the state has a greater compelling interest than the people of the state of New York in keeping cannabis on the controlled substances list is fraudulent and unlawful. The belief or claim that the State of New York has any authority given to it by the Constitution of the State of New York or the Constitution of the United States to arrest and/or incarcerate people, confiscate their property or remove their children when they have harmed no one and caused no damage just because they are growing, possessing, selling and/or consuming cannabis is fraudulent and unfounded and therefore, has no standing and has been null and void since its inception; void ab initio. Over the past year, starting in May, 2008, I have had many meetings with legislators or their staff and have attempted to meet with the governor, to no avail, about the gross error of law that is prohibiting New Yorkers from growing the valuable cannabis hemp plant. In this time of economic crisis, when New Yorkers need a sustainable economy, free healthcare, and free food, it is even more apparent that this unlawful prohibition of cannabis hemp and all its derivatives should and could be nullified because it is founded on lies for ill intent and blatantly ignores the right of every sovereign citizen to have their own homegrown safe, effective medicine instead of costly dangerous pharmaceuticals, to have their own viable home based business, instead of being in the unemployment line, and to grow their own protein rich quality food instead of standing in a soup line. I now ask the court to do what the governor and state lawmakers have failed to do. The evidence I bring to the court verifies that there are at least 25,000 uses for the cannabis plant, including medicine. Every use of cannabis is created by God for the benefit of humankind and yet all are swept aside by the overbroad, unconstitutional and unlawful prohibition of cannabis hemp under New York State laws. In an attempt to re-educate the lawmakers about cannabis I have hand delivered pages and pages of facts about the many uses of the plant for fuel, fiber, food, medicine, paper and composite building material. I have also supplied pages and pages of information regarding the unlawful conspiratorial means used by the U.S. Department of Treasury, the Drug Enforcement Agency, Congressmen, pharmacologists, and private businessmen to create the 1938 Marijuana Tax Act and Nixon's Controlled Substances Act, which denies and damages the citizens of New York as well as deprives them of their God given inalienable rights to health, wealth and happiness. The evidence reveals that the only intent and purpose of cannabis prohibition was to defraud Americans of the valuable cannabis hemp plant so that domestic farmers and business men could not continue to take advantage of the green market economy that promised them millions of dollars in sales from hemp products. The key factor to this boom in hemp products in the 1930’s was a new machine which had just been invented called the decorticator which broke down the fibers of the hemp plant and separated the seeds for production and manufacturing. I repeat, the Marijuana Tax Act was a malicious plot designed to put innocent farmers out of the hemp business under the guise of protecting Americans from a dangerous drug called "marijuana" supposedly brought in by Mexicans to morally corrupt America 's youth. When, in fact, there was no public outcry or evidence to support the government's claims. To the contrary, Dr. Woodward, counsel to the A.M.A. sent a letter of protest representing the A.M.A.'s concerns that Congress was making a grave mistake. Dr. Woodward also came and testified that the A.M.A. was never asked their opinion on the matter of cannabis being a dangerous drug and actually questioned their lack of evidence from reputable sources like schools, police, hospitals, or any other credible report that would validate their claims that cannabis needed to be eradicated. All Harry Anslinger presented as evidence of his claim was newspaper stories, ads and movie shorts which portrayed cannabis “marijuana” as dangerous. The newspaper stories were in the form of editorials by Randolph Hearst. He was going to benefit from cannabis prohibition because he had millions of acres of trees that he intended to use for paper. Hemp was a better source of pulp for paper because the yield was higher per acre and the process was cheaper, easier and less toxic. My personal damage from cannabis prohibition is a life of persecution and deprivation of religious rights and economic freedom which involves all the enjoyment and blessings from the cultivation and use of the cannabis plant which my God, the God of the Holy Bible, gave to me. I know this because my Bible tells me so. In Genesis 1 my Lord proclaims that every herb bearing seed that he created will be for me to consume. My evidence shows that cannabis hemp seed is the highest and purest source of whole protein food which I can grow in my own garden. However, the New York State laws prevent me from providing my own food, clothing, medicine, paper and fuel, etc., by threat of incarceration and or fine. This is unconstitutional and a violation of every divine, i.e., inalienable right I have guaranteed to me by the Constitution of the United States ; Amendment 1: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” and the Constitution of the State of New York ; Article 1 § 3: "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind..." Also, I am protected from conspiracy against rights by USC Title 18 §241: "If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same..." and against deprivation of rights under color of law; USC Title 18 §242: On June 30 and July 3, 2009, I knew that, under color of law, my rights were threatened by arrest by the New York State police and the Albany city police but I felt compelled to exercise my rights in order to secure the blessings of liberty guaranteed to me by the Constitution of the State of New York Article 1, and the Constitution of the United States; 1st Amendment, because I also know that a right not exercised is waived and I waive no rights. I also informed the Albany City police and the State police that they had the authority and duty to protect my rights by not arresting me while I was engaged in my duty to protect my rights and the rights of every New Yorker by seeking an audience with Governor Paterson for a redress of grievances concerning arrests for cannabis possession. However, they chose to ignore their oath of office to support the U.S. Constitution and the New York State Constitution, which protects my rights, and instead enforce the State Laws which deny me and are in violation of my rights. Therefore, I stand here before this court to seek a redress. This is what happened on June 30th. I was walking down S. Pearl Street with one of my cannabis hemp plants on my way to see Governor Paterson and the Senators, who were still in session, about a redress of grievances concerning the unconstitutionality of New York State laws against possession of cannabis in all its forms. On July 3rd I was on the premises of the State Capitol building with another plant still seeking a redress. I wanted to know by what authority anyone would have me, or anyone, arrested for cultivating the valuable cannabis hemp plant when evidence shows it has been a fraud from the beginning created to deprive me and all New York citizens of their God given rights to plant cannabis and benefit from it in every way possible which is an innocent act, not criminal. It is a misuse of police power and a misuse of public funds to continue to treat people like criminals by using the police to threaten them or me with deadly force in order to deprive us of our God given rights. I was handcuffed, put in a patty wagon and called before a judge in handcuffs for innocently walking down the street with a plant on the way to the Capitol building for a redress of grievances. There was no call to the police by any neighbor accusing me of any act of violence nor did I appear as a threat to anyone. The prohibition of cannabis is simply an unjustifiable bad law. Even some of the officers involved in both of my arrests for possession said they hoped I would be successful in overturning this prohibition because they don’t see cannabis as a danger to anyone. Prohibition has been a lie and a plague since it started and the court would be doing all New Yorkers a favor by declaring it null and void. "Redress v. 1. To set right, remedy or rectify. 2. To make amends for. n. 1. Satisfaction for wrong done; reparation. 2. Correction." I would further like to state to the court that it is my God given inalienable right to plant my cannabis hemp plants and to freely share what God has freely given to me for my benefit and for all mankind: Genesis 1: 11, 12, 26-31; “And God said, Let the earth bring forth grass, the herb yielding seed, and the fruit tree yielding fruit after his kind, whose seed is in itself, upon the earth: and it was so. And the earth brought forth grass, and herb yielding seed after his kind, and the tree yielding fruit, whose seed was in itself, after his kind: and God saw that it was good.” “…So God created man in his own image, in the image of God created he him; male and female created he them. And God blessed them, and God said unto them, Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth. And God said, Behold, I have given you every herb bearing seed, which is upon the face of all the earth, and every tree, in the which is the fruit of a tree yielding seed; to you it shall be for meat. And to every beast of the earth, and to every fowl of the air, and to everything that creepeth upon the earth, wherein there is life, I have given every green herb for meat: and it was so. And God saw everything that he had made, and, behold, it was very good.” “Make the most of the Indian hemp seed. Sow it everywhere.” I also testify that New York State ’s laws prohibiting cultivation of cannabis prevents me from gaining economic independence through the fruit of my own labors in order to create for myself a sustainable income which would enable me to freely discharge my religious duties which are to help provide for the widows and the fatherless in their affliction: Industrial Hemp as a Cash Crop for Colorado Farmers Source: (http://www.votehemp. VII. Current Hemp Market in the United States Hundreds of entrepreneurs are now selling imported hemp products. However, they are stifled by high prices and uncertain availability since all of the hemp is imported from overseas. Demand for hemp products in the U.S. is enormous. Hemp clothing and accessories have become a fashion trend.57 Tree- free hemp paper is also in demand.58 The market has a potential of as much as $15 to $30 billion a year.59 IX. Benefits of Hemp Production Hemp will be a profitable crop for farmers because of the volume of hemp each crop produces, the number of different products that can be made from hemp, and the demand for hemp products. Not only is hemp profitable, but it is a desirable crop to grow for other reasons. Hemp is a renewable and sustainable resource. It will help shift our economy away from dwindling non-renewable petroleum resources and help preserve our forest resources. Hemp is the strongest natural fiber.60 It has an extremely high cellulose content.61 It is biodegradable.62 It requires no herbicides to grow.63 It can be used to make paper, cloth, rope, particle board, plastic, paint, varnishes, linoleum, dynamite, fuel, food, and cardboard. It will create new jobs and make Colorado competitive with other countries. It is the fiber of the 1990s. My duties to God also bring me to this court to seek judgment on behalf of myself and all those afflicted and oppressed by the enforcement of this unjust legislation which is primarily used against the poor and needy who unjustly end up in jail for an act that causes no harm to others. The poor have no ability to defend themselves and are therefore urged by court appointed lawyers to yield their rights to a trial. Having no money to pay for a proper defense they often end up in prison for exercising their God given rights to benefit in every way from cannabis. I stand in the gap as a part of my religious beliefs as instructed by my Lord, to give a voice to the oppressed and the needy who have done no harm to anyone and yet are treated as criminals. Isaiah 1:17; “Learn to do well; seek judgment, relieve the oppressed, judge the fatherless, plead for the widow.” “Psalm 10:17-18: “LORD, thou hast heard the desire of the humble: thou wilt prepare their heart, thou wilt cause thine ear to hear: To judge the fatherless and the oppressed, that the man of the earth may no more oppress. For the LORD your God is God of gods, and Lord of lords, a great God, a mighty, and a terrible, which regardeth not persons, nor taketh reward: He doth execute the judgment of the fatherless and widow, and loveth the stranger, in giving him food and raiment.” Proverbs 31:9; “Open thy mouth, judge righteously, and plead the cause of the poor and needy.” Psalm 82:4; “Deliver the poor and needy: rid them out of the hand of the wicked.” With all respect I would also like to remind the court and all its officers that God has given power to you through the Constitutions of the State of New York and the United States to protect the rights of the citizens of the United States : The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974) stated that “when a state officer acts under a state law in a manner violative of the Federal Constitution, he comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States .” By law a judge is a state officer. The judge then acts not as a judge, but as a private individual (in his person). The U.S. Supreme Court has stated that “No legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958) If a judge does not fully comply with the Constitution, then his orders are void, In re Sawyer, 124 U.S. 200 (1888), he/she is without jurisdiction, and he/she has engaged in an act or acts of treason. Whenever a judge acts where he/she does not have jurisdiction to act, the judge is engaged in an act or acts of treason: U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980); Cohen v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.eEd. 257 (1821) With the court’s blessing I intend to prove to this court that the original motive of cannabis prohibition was not to save Americans or New Yorkers from a dangerous drug but was the handiwork of wicked men and women who through “studied deception” sought to gain control of the most valuable plant in the world in order to eradicate it so that the American farmers would not be made rich from its products and become economically independent. And that the original prohibition was The Marihuana Tax Act, a treasonous act which never intended to collect taxes, but was a vehicle to open the door for the manufacture of less desirable toxic, as well as, inferior products made from petrochemicals, pharmaceuticals, cotton, man-made fibers, and wood pulp, etc., in order to gain control of the world’s market share for production of paper, fuel, medicine, textiles, and food, etc. The evidence of this crime against the people of the great state of New York and all Americans is contained in excerpts from: 1. The Cannabis Conference where Harry Anslinger and his cohorts maliciously and mercilessly contrived the plan to deceive the public and Congress about the effects of cannabis consumption and create a crime where there was no crime. 2. The testimony of Dr. Woodward, counsel to the A.M.A. who protested the use of the word “marijuana” and the claim that cannabis was a dangerous drug which caused insanity. 3. The testimonies of farmers and producers of cannabis hemp products who were going to be damaged by the treacherous Marijuana Tax Act 4. The letters of hemp companies who were going to be put out of the hemp business because of the fraudulent claim that cannabis plants contained a dangerous drug. 5. Article from Popular Mechanics Magazine Feb. 1938 which revealed the millions of dollars that Americans were going to make from hemp production in the 1930’s because of the invention of a new machine called the “decorticator” which eliminated the labor intensive harvesting of hemp. 6. Article from Mechanical Engineering by George A. Lower, Feb. 26, 1937; "Flax and Hemp: From the Seed to the Loom", Also revealing the promise to American farmers of millions of dollars from hemp production, an industry which today would be in the billions. The billion dollar hemp industry written about did not include smoking products. 7. Letters between the Department of Treasury agents and Harry Anslinger revealing Anslinger’s deliberate attempts to wipe out and thwart anyone in the hemp industry. Obviously, they were not “marijuana” growers. 8. NYC Mayor Fiorello LaGuardia’s report which debunked claims that the U.S government made about the dangers of cannabis “marijuana” which was compiled by the New York Academy of Medicine. 9. President Nixon’s Shafer Commission Report which also discredited these false claims about the “dangers” of smoking cannabis flowers “marijuana”. Even though Shafer’s report advised against putting cannabis on a Schedule 1 list because it wasn’t found to be dangerous, Nixon created the “Substances Control Act” which did just that and started his “War on Drugs.” 10. Richard Nixon Tapes reveal the discrimination and prejudice against minorities which fueled his war against “marijuana” users referring to them as “lowlifes”. In conclusion, I ask the court to dismiss the charges against me and find that the deprivation of all my inalienable rights to exercise my religious beliefs and benefit from the cannabis hemp plant is unlawful and far outweighs any compelling interest of the State of New York to continue to unlawfully deprive me or any other citizen or inhabitant of the valuable cannabis hemp plant. I would further ask the court in the interest of justice to order the return of my cannabis hemp plants. Respectfully submitted by, Abigail Storm- Eggink____________________ Sworn to before me this ___day of July, 2009 __________________________________ NOTARY PUBLIC ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- STATE OF NEW YORK ALBANY JUSTICE COURT THE PEOPLE OF THE STATE OF NEW YORK, AFFIRMATION IN OPPOSITION OF OMNIBUS MOTION ABIGAIL STORM-EGGINK, Abigail Storm-Eggink, Sui Juris without prejudice acting on my own behalf, hereby affirm under penalty of perjury: 1. That I am the defendant in the above named action and that on June 30th, 2009 I was walking to the capitol building with my cannabis plant in public view as an act of exercising my God given right to possess my cannabis plant as private property. Police showed up, unlawfully took my property without due cause and told me I was under arrest even though the offense P.L. 221.05 requires only an appearance ticket. Nonetheless, I was handcuffed, put in a paddy wagon, taken to the police station, and shackled to a bench for hours, then put in a waist belt with handcuffs and brought before a judge in a courtroom full of people. After being arraigned I was taken back to the police station where the handcuffs were removed and I was released on my own recognizance. I was charged with unlawful possession of cannabis “marijuana”, which is deemed by the State of New York to be a violation under New York State Penal Law 221.05. 2. I was also arrested on July 3, 2009, for possession of a cannabis plant while seeking a redress at the capitol for an end to cannabis prohibition. State Police took my property and issued me an appearance ticket. For these two charges I stand before this court. 3. I submit this affirmation in response to Assistant District Attorney Matthew Peluso’s affirmation in opposition of omnibus motion submitted on August 28, 2009. 4. The basis of my knowledge in this affirmation is made upon information and belief, based on research of the establishment of the Marijuana Reform Act of 1977 with its accompanying documents, the New York State Controlled Substances Act, historic origins of cannabis prohibition including government documents and hearings, scientific findings concerning the usefulness and health effects of cannabis consumption, historical and recent records of industrial and medicinal uses of cannabis hemp and subsequent state reforms of cannabis laws to accommodate such use. MOTIONS TO DISMISS Mr. Peluso, hereinafter referred to as the Prosecutor, says, It is well established that “…the courts are reluctant, and it is only as a last resort, that they will strike down a solemn legislative enactment on the ground that it is unconstitutional.” Matter of Ahern v. South Buffalo Ry. Co., 303 N.Y. 545, 555 (N.Y. 1952). The defense would like to respond that it is also well established that strict judicial scrutiny is appropriately applied when a legitimate question of constitutionality of a statute is brought to the court by a damaged party. Under strict scrutiny the court presumes the policy to be invalid unless the government can demonstrate a compelling interest which justifies the policy. These New York State Laws which make it a crime for me to grow my own healing herb on my own property and to possess it, to benefit from it, or to freely share it with my brethren, my friends and my neighbors, strike a blow deep in the heart of my religion and my privacy and must be remedied. For decades I have had to live a life of fear and dread because of this prohibition and I and millions of others say it has done enough damage for absolutely no benefit. My Lord gave me the precious cannabis plant and He’s the reason I’m here to say to this court that the free exercise of my religion is protected and guaranteed by the Constitution of the State of New York and the Constitution of the United States, which is the Supreme Law, and the Legislature’s constitutional jurisdiction must pass the test of strict judicial scrutiny: The law must be narrowly tailored, must serve a compelling government purpose, and must be the least restrictive means to accomplish that purpose. “Where there is a significant encroachment upon personal liberty, the State … may prevail only upon showing a subordinating interest which is compelling.” Grizwold v. Connecticut, 381 U.S. 479, 497, 85 S. Ct. 1678 (1965) “Such a law, even though enacted pursuant to a valid state interest, bears a heavy burden of justification…and will be upheld only if it is necessary and not merely rationally related to the accomplishment of a permissible state policy. McLaughlin v. Florida, 379 U.S. 184, 196 (1964) “Legislative enactments must be narrowly drawn to express only the legitimate state interest at stake.” Grizwold v. Connecticut, 381 U.S. at 485, 85 S. Ct. at 1682 (1965). “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Terry v. Ohio, 392 U.S. 1, 9 (1968) “A full custodial arrest is … a severe intrusion on an individual’s liberty, its reasonableness hinges on the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U.S. 295, 300 (1999) “The heart of the Fourth Amendment…is a severe requirement of specific justification for any government intrusion upon protected personal security. In the absence of compelling justification, the police power does not extend so far as to permit the government to protect an individual against himself and that the concern for public health and safety is relevant only insofar as the action of one individual may threaten the well-being of others.” United States v. Kiffer, 477 F2.D 349, at 354 (1973) “Under the Fourth Amendment, the central inquiry is the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” Terry v. Ohio, 392 U.S. 1, 19 (1968) “And, unless justified as a valid exercise of the police power, the act assailed must be declared unconstitutional because the enforcement thereof has deprived Petitioner of his liberty and property without due process of law.” The State Supreme Court of Alaska decided unanimously in Ravin v. State, No. 1156, May 27, 1975, that: “…no adequate justification for the state’s intrusion into the citizen’s right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown. The privacy cannot be breached absent a persuasive showing of a close and substantial relationship of the intrusion to legitimate governmental interest. Here, mere scientific doubts will not suffice. The state must demonstrate a need based on proof that the public health or welfare will in fact suffer if the controls are not applied….The state cannot impose its own notion of morality, propriety or fashion on individuals when the public has no legitimate interest in the affairs of these individuals.” Your Honor, this court is a last resort to bring attention to and strike down, the unlawful cannabis prohibition laws and the cruel unwarranted punishment of innocent people who are victims of an unreasonable and fraudulent war against a God given herb and those who want to cultivate it. Since May 3, 2008, I and others have reached out to and communicated with the offices of nearly all of the legislators of the NYS Government and the Governor's office including meeting with Governor David Paterson's Chief of Staff, Charlotte Hitchcock and received no real attention to the matter regardless of the gravity of the consequences of the enforcement of these laws in violation of the Constitutions of New York State and of the United States and the implications that the government could be enforcing a duplicitous unconstitutional law. (See Letter to Governor’s Chief of Staff -Pg 32 -Exhibits in Evidence) In a recent article in the Albany Times Union regarding this case two Senators were interviewed and asked what they thought. Senator Golden said he hopes “they throw the book” at me and Senator Farley said he “didn’t think anyone took us seriously”. (See Times Union Article Pg 109) Enclosed in my evidence file on page 36 submitted Aug 5, 2009, is a letter from Senator Parker (See Senator Parker’s response) stating he can only support the “medical marijuana” bill introduced by Senator Duane, which is the most arbitrary restrictive marijuana reform bill New York State has introduced to date and is even more repugnant to the Constitution than the Marijuana Reform Act of 1977. The new Assembly bill, passed in the Assembly in June, 2009, would blatantly violate the sovereign rights of the people by prohibiting even the “very seriously ill” patients from growing this safe herbal free medicine in their own garden. The Senate is expected to follow suit, chopping away at our rights to have this plant until there’s no rights and no cannabis medicine, just some expensive, adulterated government issued marijuana pill that is “safer”, and has toxic side effects, of course. It is my right to take action in peaceful pursuit of the protection of the Constitution and the free exercise of my religion which includes the right to protect the precious cannabis plant, which is a central part of my religious life, from any further eradication by the State of New York. God also gave me cannabis to provide me with food, fiber, fuel, oil, building materials, rope and safe, effective medicine to refurbish me and those I minister to on my path of faith. This is my religion and ownership of natural plants as gifts from our creator falls under protection of inalienable rights of the people, not the state. A real and provable reason for cannabis cultivation and use to be prohibited in New York State has not been presented by either the Legislature of New York State or the courts since the enactment of the earliest laws against marijuana possession in this state. All of the anti-marijuana laws are discriminatory and have been perpetuated, developed and enforced under the guise of public health without any government officials ever demonstrating reliable evidence of a compelling governmental interest for cannabis cultivation or possession to be a police matter. When New York State created the Marijuana Reform Act of 1977, which created Article 221 of the Penal law, it neglected to use the power given to the states to protect citizen’s rights. Article 221 gave the appearance that the legislature was protecting the people from “harsh sanctions”, but the law is deceptive and repugnant and at great cost to the taxpayers and citizens of this state because it falsely claims that the government has authority to arbitrarily invade the privacy of people and their homes, confiscate their property, remove their children and subject them to fines and imprisonment because of an assumed moral superiority of the Legislature over the public. This is deliberately discriminatory and clearly arbitrary, therefore, a violation of the Fourth Amendment and the Fourteenth Amendments of the Constitution of the United States. In Graham v. Connor the court declared, “the seizure of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard. The Fourth Amendment provides an explicit textual source of constitutional protection against…physically intrusive government conduct…must be the guide for analyzing [Petitioner’s] claims.” 490 U.S. 386, 395 (1989) My possession of the cannabis plants on the days that I was arrested were a deliberate act of religious faith and a last desperate attempt to petition the government for the protection of my inalienable God given right to cultivate, possess and freely assemble to use and share the cannabis plant and the state cannot lawfully take it away or convict me of a violation without proving that my actions were harmful to others or that their law which deprives me of my rights serves a legitimate government interest by the least restrictive means. “The Fourth Amendment right against unreasonable searches and seizures, …”protects people, not places,” and therefore applies as much to the citizen on the streets as well as at home or elsewhere.” Terry v. Ohio, 392 U.S. 1, 2 (1968) "The individual may stand upon his constitutional rights as a Citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the state or to his neighbors to divulge his business, or to open his door to an investigation, so far as it may tend to incriminate him. He owes no such duty to the state, since he receives nothing there from, beyond the protection of his life and property. His rights are such as existed by the law of the land long antecedent to the organization of the state...He owes nothing to the public so long as he does not trespass upon their rights." -Hale v. Henkel, 201 U.S. 43 (1905) Although the Prosecutor states that the courts are reluctant to strike down a solemn legislative enactment on the grounds that it is unconstitutional, it still stands that this is a necessary and vital issue to be addressed in a court of law with strict scrutiny applied and with all of the facts in full review so that this long debated and controversial moral and legal issue can be clarified and judged without prejudice or political bias. If the facts truly show that a solemn legislative enactment is clearly unconstitutionally established and enforced, being that the legislature has refused to address and correct this error, then the court, as a last resort for the people to obtain a fair redress of grievances regarding the unjust law, upon such finding, is compelled to rule in favor of the defendant and strike down the legislation in question, thereby duly protecting the rights of the citizens from any further invasion. “If the legislature transgresses the boundaries of that authority their acts are invalid [because] they violate a fundamental law, which must be our guide, whenever we are called upon as judges to determine the validity of a legislative act.” Ct. Calder v. Bull, 3 U.S. 386, 399 (1798) The Prosecutor stated that, the court in People v. Young ruled: "Courts should not lightly strike down a legislative enactment... It is axiomatic that a strong presumption of constitutionality attaches to all legislative action. A fundamental rule of construction is to preserve constitutionality of legislation unless we are restrained by clear, unequivocal and express constitutional prohibition." 46 A.D. 2d 202, 207 (NY A.D. 1974) In response I would like to draw attention to the fact that my private fundamental rights secured by the Constitution of the United States have been, and continue to be, invaded by the action of the New York State Marijuana Reform Act of 1977 and therefore this court is rightfully justified in questioning the validity of this law. “Until some invasion … of private rights secured by the Constitution of the United States, the action of the states in this respect is beyond question in the courts of the nation.” L’Hote v. City of New Orleans, 177 U.S. 587, 596 (1900). “The full scope of the liberty guaranteed by the Due Process Clause cannot be found in, or limited by, the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking includes a freedom from all substantial arbitrary impositions and purposeless restraints…and which also recognizes, what a reasonable and sensitive judgment must, that certain interest require particularly careful scrutiny of state needs asserted to justify their abridgement.” Poe v. Ullman, 367, U.S. 497, 543 “The Controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests…It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character,…Where there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937) I would like to remind the court that there is no reason why we should solely rely on legislators to protect our liberty. Quite to the contrary one of the writer’s of the Constitution, Thomas Jefferson, said, “In matters of power then let no more be heard of confidence in man but bind him down from mischief with the chains of the Constitution.” He helped establish three branches of government as a check and balance to prohibit Constitutional violations by lawmakers. I am not asking this court to lightly strike down a legislative enactment. I take this matter very seriously and the record shows that the costs that New Yorkers have already paid and continue to pay because of the series of irresponsible acts of incumbent politicians have only helped to maintain a dangerous black market economy, a population of young people with criminal records, a corrupted justice system. Assemblyman Richard Gottfried worded it perfectly in his memo in support of the Marijuana Reform Act of 1977, “Every year thousands of our neighbors are arrested and prosecuted for simply possessing marijuana. Thousands of lives are scarred; thousands of hours of police and court time are wasted. The cost to those arrested and their families, and to the taxpayers, is staggering.” I am in no way claiming to be a special case due to my personal religious beliefs or because of the particular manner in which I was arrested, but rather I am acting sui juris as a representative of the general rights of the citizens of New York State as protected under the State and U.S. Constitution and as such I use the free exercise of religion only as an example and in compliance with court proceedings. This is an issue involving state government representatives who have boldly and blatantly violated the rights of the citizens of the state, and should not be in any way mistaken for a fanciful defense of some delinquent act of an individual violating a sound statute. I allege that in the matter of judging this case the court is restrained by clear, unequivocal and express constitutional prohibition on several grounds, which I have illustrated here in great detail. Neither this court nor the Legislature or any law enforcement officers receiving pay from the government of New York State have lawful jurisdiction to prohibit cultivation of a medicinal herb which is a valuable economic plant without presenting proof or otherwise demonstrating a reasonable justification for such strict and invasive regulation of one’s private life. “Legislative authority to abridge [plaintiff’s liberty and] property rights…can be justified only by exceptional circumstances and even then, by reasonable regulation only, and that legislative conclusions based on findings of fact are subject to judicial review.” Nebbia v. New York, 291 U.S. 502, 543; 54 S.Ct. 505, (1934)” If the Legislature in 1977 recognized that, “Thousands of lives are scarred; thousands of hours of police and court time are wasted. The cost to those arrested and their families, and to the taxpayers, is staggering,” then what was the government’s compelling interest to continue to spend taxpayer’s money to incarcerate and ‘scar’ people and their families who got caught more than two times in 3 years with small amounts? Anyone who had more than an ounce can be put in jail even though the state has already found that marijuana use causes “no significant harm or no harm at all”. How could a substance that has been found by the state to have little or no harm be any more harmful if one has more than a small amount and what is the state's compelling interest to arrest people for possessing or sharing a harmless substance? If there is a sound reason for the Legislature to enact and/or perpetuate cannabis prohibition, it should be a simple matter for them to present such evidence. Nixon’s National Commission on Marijuana and Drug Abuse (Shafer Commission) concluded, “…we believe that government must show a compelling reason to justify invasion of the home and privacy in order to prevent personal possession of cannabis or consumption of cannabis hemp flowers. We find little in the effects of cannabis hemp’s flowers or in its social impact to support such a determination. Legislators enacting Prohibition did not find such a compelling reason 72 years ago; and we do not find the situation any more compelling for cannabis today.” It falls on the government to at least explain and support with some fundamental truth or reasoning the existence of a law in question when so many inalienable rights appear to be violated. As the Constitution grants authority for our elected representatives to enact laws to provide for the safety and well being of its citizens, it does not allow or imply any authority delegated to the Legislature to enact laws that threaten and deteriorate the safety and well being of the public and therefore is barred from establishing invasive and aggressive prohibition laws that unnecessarily restrict personal freedoms without any factual grounds to support their reasoning. Laws that restrict personal freedom must serve some compelling government interest, and not serve to satisfy the imaginings and political bantering of inflammatory law enforcement theories such as the statements often used in the justification of the cannabis prohibition. Regarding unconstitutional official acts American Jurisprudence explains, “The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the Supreme Law of the land, and any statute, to be valid, must be in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows: The general rule is that an unconstitutional statute, though having the name and form of law is in reality no law, but is wholly void and ineffective for any purpose; since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would had the statute not been enacted. Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it…Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby….No one is bound to obey an unconstitutional law and no courts are bound to enforce it.” 16 Am Jur 2d, Sec 177 late 2d, Sec 256 The Prosecutor says that, "Fundamental to the very concept of separation of powers is the oft-stated principle that legislative enactments are presumed constitutional and presumed to be supported by facts known to the legislature and found by them to require the legislation." People v. Perez, 56 Misc.2d 424 NY Sup. 1967). Generally, legislative enactments may be presumed to be constitutional and supported by facts known to the legislature and found by them to require the legislation, but not when it is clearly provable that enactments are not supported by the facts known to the legislature and the facts contradict any alleged reasoning that supposedly requires the legislation. The court cannot presume that the legislative acts under review in this case are constitutional and supported by facts known to the legislature when there is undeniable proof that the acts are not supported by facts and are clearly unconstitutional by fundamental standards of civil rights. The people have inalienable rights that should not lightly be swept aside based on the Legislature’s claim that there is good reason to do so. “…such rights…do not vanish simply because the power of the state is arrayed against them. Nor are they enjoyed in subjection to mere legislative findings.” Nebbia v. New York, 291 U.S. 502, 548; 54 S.Ct. 505 (1934) The 1972 National Commission on Marijuana and Drug Abuse (Shafer Commission Report) lays out some of the fundamental issues that reveal total prohibition to be unconstitutional, “Application of the Criminal Law Is Constitutionally Suspect: a. “The preference for individual privacy reflected in the debate over the philosophical limitations on the criminal law is also manifested in our constitutional jurisprudence. Although no court, to our knowledge, has held that government may not prohibit private possession of marihuana, two overlapping constitutional traditions do have important public policy implications in this area. b. The first revolves around the concept that in a free society, the legislature may act only for public purposes. The "police powers" of the states extend only to the ‘public health, safety and morals.’ In the period of our history when the people most feared interference with their rights by the government, it was generally accepted that this broad power had an inherent limitation. For example, early prohibitions of alcohol possession were declared unconstitutional on the basis of reasoning such as that employed by the Supreme Court of Kentucky in 1915 in the case of Commonwealth v. Campbell stating: "It is not within the competency of government to invade the privacy of the citizen's life and to regulate his conduct in matters in which he alone is concerned, or to prohibit him any liberty that the exercise of which will not directly injure society". c. The purpose of selling it, or even giving it to another,’ and that ‘ownership and possession cannot be denied when that ownership and possession is not in itself injurious to the public', the Kentucky court concluded that: "The right to use liquor for one's own comfort, if they use it without injury to the public, is one of the citizen's natural and inalienable rights.... We hold that the police power-vague and wide and undefined as it is-has limits ...” d. Even the perceived dangers of opium were not enough to convince some members of the Judiciary that the government could prohibit possession. It is historically instructive to consider these words, penned in 1890, by Judge Scott in Ah Lim v Territory: “I make no question but that the habit of smoking opium may be repulsive and degrading. That its effect would be to shatter the nerves and destroy the intellect; and that it may tend to the increase of the pauperism and crime. But there is a vast difference between the commission of a single act, and a confirmed habit. There is a distinction to be recognized between the use and abuse of any article or substance.... If this act must be held valid it is hard to conceive of any legislative action affecting the personal conduct, or privileges of the individual citizen, that must not be upheld.... The prohibited act cannot affect the public in any way except through the primary personal injury to the individual, if it occasions him any injury. It looks like a new and extreme step under our government in the field of legislation, if it really was passed for any of the purposes upon which that character of legislation can be sustained, if at all”. e. “While the judiciary is the governmental institution most directly concerned with the protection of individual liberties, all policy-makers have a responsibility to consider our constitutional heritage when framing public policy. Regardless of whether or not the courts would overturn a prohibition of the personal possession of cannabis hemp, we are necessarily influenced by the high place traditionally occupied by the value of privacy in our constitutional scheme. f. “Accordingly, we believe that government must show a compelling reason to justify invasion of the home and privacy in order to prevent personal possession of cannabis or consumption of cannabis hemp flowers. We find little in the effects of cannabis hemp’s flowers or in its social impact to support such a determination. Legislators enacting Prohibition did not find such a compelling reason 40 years ago; and we do not find the situation any more compelling for cannabis today.” The Prosecutor says, the burden of proof is on the defendant to show, beyond a reasonable doubt, that the legislative enactment is invalid, and even then the Court should only strike the law as the "last unavoidable result." Van Berkel v. Power, 16 N.Y.2d 37, 40 (NY 1965); Paterson v. University of State of New York, 14 N.Y.2d 432, 438 (NY 1964); Wiggins v. Town of Somers, 4 NY2d 215, 218 (NY 1958). The defendant has proffered insufficient evidence to show that Cannabis prohibition laws should be restrained by a clear constitutional prohibition. When a First Amendment right is restricted by the government and a damaged party is complaining, the courts are compelled to weigh the constitutionality of the statute in question by the standards of strict judicial scrutiny. Thus the burden is on the government to prove the constitutionality of the law. To pass strict scrutiny, the law or policy must satisfy three prongs: First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections. Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored. Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong. Nevertheless, I will prove that the legislative enactment is invalid on several grounds. I ask this court and the prosecuting attorney to review the evidence that I am presenting and truthfully determine if the facts show that the legislation prohibiting cannabis cultivation and possession in New York State is and has always been invalid based on constitutional grounds and/or because of fraud in the creation of the laws. I. FRAUD: Common law fraud has nine elements: 4. The Legislature's knowledge of its falsity; Assemblyman Richard N. Gottfried, as Codes Committee Chair in 1977, knew and stated in his memorandum supporting the Marijuana Reform Act of 1977, that “scientific evidence clearly shows no significant harm or no harm at all from marijuana use.” 5. The Legislature's intent that it shall be acted upon by law enforcement, prosecutors and judges; The Legislature knew that law enforcement, prosecutors and judges would act upon and enforce their law. II. EQUAL PROTECTION CLAUSE 1. Total prohibition of cannabis cultivation or possession under the pretense of public health and safety without any factual basis, arbitrarily threatens farmers and consumers of cannabis hemp with prosecution, while those who buy, sell or consume alcohol, which is far more dangerous to health and safety, are protected by law from any charges. 2. Total prohibition of cannabis cultivation or possession of this safe herbal remedy under the pretense of public health and safety threatens farmers and consumers with prosecution, while those who buy, sell or consume mind altering, toxic and deadly pharmaceutical drugs are only required to attain a doctor’s prescription. 3. Total prohibition of cannabis cultivation or possession under the pretense of public health and safety threatens farmers and consumers with prosecution, while those who buy, sell or consume highly toxic and deadly tobacco products are protected from facing any charges. 4. Total prohibition of cannabis cultivation or possession under the pretense of public health and safety threatens farmers and consumers with prosecution, while those who buy, sell or consume foods made with refined sugar which is highly addictive and deadly substance, are protected from the threat of prosecution. 5. Total prohibition of cannabis cultivation or possession of cannabis, a safe herbal remedy that can be grown at home for free and is safe and effective as a preventative medicine, while allowing only licensed growers and people with a doctor’s prescription to legally have it, provides no equal protection for those who can’t afford a doctor or aren’t “seriously ill” and face penalties if they possess or use it. III. FREE EXERCISE CLAUSE 1. The right to exercise one’s religious beliefs is violated when the government enacts laws that prohibit a person from possessing naturally grown herbs for communing with God, for health and well being, as an incense or oil without such laws serving any compelling governmental interest. 2. The governmental interest cannot be so illusive that the people know of no reason why their rights are being restricted. Prohibiting possession of “mind-altering” medicinal herbs when there is not a proven public health and safety concern is an issue of personal values. IV. RIGHT TO PRIVACY A person’s property and how they use it is of no legitimate concern to the government until there is a complaint of harm or danger to or from their neighbors. Laws that are “for the public good” must protect the sanctity of the home and person and protect individual liberty. “The Constitution expressly declares, that the right of acquiring, possession, and protecting property is natural, inherent, and unalienable. It is a right not ex gratia from the Legislature, but ex dibitio from the Constitution.” Vanhorne’s Lessee v. Dorrance, 2 U.S. 304 (1795) “…the seizure of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard. The Fourth Amendment provides an explicit textual source of constitutional protection against…physically intrusive government conduct…must be the guide for analyzing [Petitioner’s] claims.” Graham v. Connor, 490 U.S. 386, 395 (1989) “The Fourth Amendment right against unreasonable searches and seizures, …”protects people, not places,” and therefore applies as much to the citizen on the streets as well as at home or elsewhere.” Terry v. Ohio, 392 U.S. 1, 2 (1968) “No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Terry v. Ohio, 392 U.S. 1, 9 (1968) A full custodial arrest is…a severe intrusion on an individual’s liberty, it’s reasonableness hinges on “the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U.S. 295, 300 (1999) “Legislative authority to abridge [plaintiff’s liberty and] property rights…can be justified only by exceptional circumstances, even then, by reasonable regulation only, and that legislative conclusions based on findings of fact are subject to judicial review.” Nebbia v. New York, 291 U.S. 502, 543; 54 S.Ct. 505 (1934) V. PUBLIC WELL-BEING 1. Cannabis hemp is arguably the most useful industrial plant material in the world. 2. Cannabis resinous oil is a notably safe and widely usable effective medicine. 3. Cannabis as a social lubricant which brings harmony, whereas alcohol stirs up strife. 4. The laws as they are on the books create a difficult and awkward relationship between responsible adults whose common sense leads them to find cannabis to be a valuable and useful plant prohibited only by an unconstitutional law and police who are expected by law to arrest people and seize private property when cannabis is found in a person’s possession. “In the absence of compelling justification, the police power does not extend so far as to permit the Government to protect an individual against himself and that the concern for public health and safety is relevant only insofar as the action of one individual may threaten the well-being of others.” United States v. Kiffer 477 F2.d 349 (1973), at 354 “If, therefore, a statute purporting to have been enacted to protect the public health …or the public safety has no real or substantial relation to those objects, or is palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” 123 U.S. 623, 661 VI. UNENFORCEABLE A law making the private possession of a substance a crime, when millions of New Yorkers find it safe and virtually harmless to use, is unenforceable and inevitably targets certain people who are already under suspicion of the police for whatever reason, while leaving the law for the most part unenforced and impossible to be taken seriously by the majority of those who possess the substance. Nevertheless thousands of people are caught and arrested each year for marijuana possession without ever harming or endangering anyone. Richard Gottfried stated in his memo in support of the Marijuana Reform Act that “…marijuana use has skyrocketed despite our present harsh penalties.” The New York Public Interest Research Group stated in their 1977 legislative memo: “…for whatever reason, state law enforcement agencies have chosen to place a disproportionate emphasis on marijuana arrests. The New York State Division of Criminal Justice Services (DCJS) has found that in 1975, 68 percent of all drug arrests, and 87 percent of all upstate drug arrests were for marijuana. The DCJS concluded: To the extent that enforcement, especially outside New York City, is so heavily oriented towards enforcement of marijuana violations, those laws do not appear to have achieved their objectives. “…the law is not, and can never be, even a marginally effective deterrent. There is no way that New York could jail even a small fraction of the 2 to 3 million state citizens estimated to have tried marijuana. In addition, few judges are willing to mete out harsh penalties now on the books. The law is unenforceable-so it rarely is a determining factor when a person decides whether or not to use marijuana.” In the case that the court finds that the state has not proven that a law is valid, the court has the lawful jurisdiction to strike the law, as has been expressly recognized by the Prosecutor. Being that the law in question is unjustifiably burdensome and heinous in its violation of fundamental rights and misuse of government resources. It is the last unavoidable result and justified action for this court to rule in defense of my rights, as well as the rights of those similarly situated, as is the sworn duty of representatives of the New York State Government, by granting the dismissal of the charges brought against me on grounds that they are based on the enforcement of unconstitutional and/or fraudulent legislation and to nullify the wrongfully established law. A. Allegations of Lies and Deception The Prosecutor says, Defendant motions for dismissal first on the grounds that the definition of marijuana as a Schedule 1 Controlled Substance by the New York Health and Safety Code 3382 is Fraudulent, deceptive, overbroad, arbitrary, and capricious, arguing that it is simply an unjustifiably bad law." While legal grounds for dismissal on this basis are unclear, the defendant nevertheless proffers evidence that is-at best - tenuous, and demands that the Court declare the marijuana prohibition null and void. The grounds for dismissal on the basis herein mentioned, that the cannabis prohibition statutes in New York State are fraudulent, deceptive, overbroad, arbitrary, and capricious, are that the present case and controversy calls for immediate injunctive relief by this court to settle this legal dispute between myself and the State of New York’s assumption of authority to restrict my religious exercise and to seize my person and seize and destroy my private property, which I am claiming is unlawful and unconstitutional and therefore should not be enforced by this court. No one is bound to obey an unconstitutional law and no courts are bound to enforce it. Any person acting on behalf of the government who tries to prevent an individual from exercising individual rights which the Constitution protects (such as the right to vote or to practice religion) is committing an unconstitutional act. The legal basis for my allegations are that laws based on lies and fraud are void ab initio and should not be enforced or kept on the books once evidence of fraud is proven to be accurate, that laws must not infringe on the right to safety and security, or the right to free exercise of religion, without serving some compelling governmental interest. Also, by neglecting to act on the 1972 findings of the Nixon Administration's Shafer Commission, and other federally sanctioned scientific evidence, the Legislature violated their oath to “support the Constitution … and to faithfully discharge the duties of the office…” when they willingly and knowingly enacted a law that was not supported by a reasonable government purpose or serving a legitimate public interest based on findings of fact, thereby denying me my right to Due Process and denying me my intangible “right to honest service”, punishable under 18 U.S.C. § 1346, the Honest Services provision. 18 U.S.C. § 1346 states that “the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.” In 1971 the Legislature and the Governor of the State of New York arbitrarily and fraudulently used Section 3300 of the Public Health Law (New York Controlled Substances Act) to deceive the people, law enforcement officers and courts of New York State by labeling cannabis hemp as an object of “illicit” drug use, dishonestly defining it as having a high likelihood of abuse and no medical value, and thereby justifying its total prohibition with enforcement of harsh sanctions by the threat of deadly force in 1971. This was done without any factual proof of a reason for such a regulation. Then in 1977, in light of increasing pressure from the public advocacy groups and mounting scientific evidence, corroborating the findings of the Shafer Commission Report, Assemblyman Richard Gottfried proposed a bill called the Marijuana Reform Act of 1977 that claimed to provide “penalties and procedures more reasonably appropriate to the nature of marijuana.” Assemblyman Gottfried’s statements in his memo in support of the bill indicated that he and his colleagues had no compelling reason to re-establish the prohibition of the private possession or cultivation of cannabis other than to discourage an activity that the Legislature intends “not to encourage or condone”. His justification for reducing the penalties for those who possess small amounts is as follows: “Every year, thousands of our neighbors are arrested and prosecuted for simply possessing marijuana. Thousands of lives are scarred; thousands of hours of police and court time are wasted. The cost to those arrested and their families, and to the taxpayers, is staggering. Yet the scientific evidence clearly shows no significant harm or no harm at all from marijuana use.” He gives no reason why people who possess more than an ounce of a substance that causes “no significant harm” should be charged as criminals, but rather emphasizes that, “The average citizen who merely uses a small quantity of marijuana for personal use at home or to share with friends would no longer fear arrest, jail, or a criminal record.” By passing the bill, members of the Assembly and the Senate became complicit in a fraudulent act to preserve cannabis prohibition in New York State by justifying it as a reform of harsh drug laws. Despite the scientific evidence referred to by Gottfried and multiple appeals by organizations such as the New York Civil Liberties Union and the Bar Association of New York to re-examine and/or repeal the criminal laws concerning cannabis, the Legislature guarded and preserved the prohibition and the Schedule 1 Listing of marijuana under the guise of a reform bill, thus pacifying the protestors of the prohibition while re-authorizing law enforcement to continue to prosecute violators and imprison the sellers and growers. The Legislature’s claim that the penalties applied in the new law are “more reasonably appropriate to the nature of marijuana” is clearly deliberately deceptive and dishonest, because no criminal penalties are reasonably appropriate or constitutionally imposed on people who possess, use or cultivate a substance that causes “no significant harm.” The stated intention of the Legislature not “to encourage or condone the recreational use of marijuana…” mentioned in the purpose of the Marijuana Reform Act, is not a reasonable basis for a criminal law. Therefore the charges against me should be dismissed and the statutes I am charged with violating should be nullified and stricken down. “If, therefore, a statute purporting to have been enacted to protect the public health,… or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge and thereby give effect to the Constitution.” Mugler v. State of Kansas 123 U.S. 623, 661 (1887). A citizen who is charged with the violation of New York P.L. 221, because of the fraudulent listing of cannabis as a Schedule 1 Controlled Substance in Section 3300 of the Public Health Law, cannot receive due process of law in the courts when the scientific findings acknowledged by Assemblyman Gottfried, the sponsor of the bill, contradict any pretense of a public health concern, therefore the statute that I am charged with violating should be nullified as fraudulent and arbitrary and the charges against me dismissed. The Schedule 1 Listing of cannabis makes Section 3300 of the Public Health Law, New York Controlled Substances Act, overbroad, because it unnecessarily infringes on my First Amendment right to free exercise of religion. The stated purpose of the act is to combat illegal use of and trade in controlled substances. By listing cannabis, an integral and valued part of my religious practice, as a controlled substance, the statute’s purpose of combating illegal use of and trade in such substances reaches beyond the legitimate public concern that certain substances should be regulated and controlled by the government. The government has made cannabis a controlled substance and its use illegal without showing a reasonable basis for its prohibition, and there is insurmountable evidence that it is not a real public health threat which has been reviewed and considered by the legislators in their official capacity. Furthermore, because the "true nature of marijuana" does not fit the definition of a Schedule 1 Controlled Substance (high likelihood of abuse and no medical value) there is no legitimate reason to prohibit cultivation or possession of cannabis by classifying it as a Controlled Substance on the Schedule 1 list. Therefore, the prohibition of my religious practice of cultivating and using this plant is an abusive and overreaching application of Section 3300 of the Public Health Law in its purpose of combating illegal use and trade of controlled substances. We ask therefore that the court dismiss the charges brought against me because of this unlawfully incorrect and overreaching control of my religious use of marijuana and that the sections of Article 33 of the Public Health Law concerning cannabis “marijuana” and sections of the New York State penal law that concern cannabis "marijuana", be stricken down as unconstitutional. The Prosecutor says, A similar argument was considered in People v. Fillhart, where the court found that "In addition to the presumption of the constitutionality of a statute of the New York State Legislature, there is an adequate foundation to hold that the Marijuana Reform Act of 1977 is Constitutional," stating as grounds for their conclusion that "The manufacture, use and possession of any controlled substance which affects the behavior, mood and judgment of persons is a legitimate area of concern over which the Legislature has power to regulate." 93 Misc.2d 911, 914 (N.Y.Co.Ct. 1978) I contend that in the case that a substance was legitimately listed as a controlled substance and was proven to be a substantial harm or danger to the public, the above statement might be a reasonable standard to follow. However, being that I am presenting proof that cannabis was not listed as a controlled substance in accordance with any scientific evidence of a public health concern or to serve any compelling government interest, it should be treated as other substances that effect behavior, mood and judgment and are not controlled substances, such as alcohol, coffee, cold medicine, Ritalin or tobacco. “In the absence of compelling justification, the police power does not extend so far as to permit the government to protect an individual against himself and that the concern for public health and safety is relevant only insofar as the action of one individual may threaten the well-being of others.” United States v. Kiffer 477 F2.d 349 (1973), at 354. “Such a law, even though enacted pursuant to a valid state interest, bears a heavy burden of justification…and will be upheld only if it is necessary and will be upheld only if it is rationally related to the accomplishment of a permissible state policy. McGlaughlin v. Florida, 379 U.S. 184, 196, (1964) Alcohol is the prime example of a substance that is proven to be more powerful in its affects on behavior, mood and judgment than marijuana and is not listed as a controlled substance because the government, when repealing the alcohol prohibition, found it more logical to leave the responsibility to the individual to decide whether or not they will possess or consume alcohol, as long as they are not harming others. The listing of cannabis arbitrarily as a controlled substance, contrary to the findings of the Shafer Commission Report and other scientific findings that it is not a significant danger to public health and safety, and thereby arbitrarily subjecting those who would benefit from the plant to civil or criminal penalties is a violation of the Equal Protection Clause. People who enjoy the use of marijuana, as opposed to alcohol, for relaxation or social stimulant need not be burdened with a special prohibition law, such as the Marijuana Reform Act of 1977, which made possession of small amounts a violation, while those who prefer alcohol are able to buy as much as they want, no matter how dangerous it is, of their mood altering substance at a liquor store or convenience store and are only required to abide by laws concerning driving while intoxicated or having an open container. Also the court should take notice of the fact that other than the listing of cannabis as a controlled substance in the Public Health Law, the government has made no claim that there is a public health threat posed by cannabis consumption. Assemblyman Gottfried, who sponsored the Marijuana Reform Act, referred to the scientific evidence of “no significant harm or no harm at all from marijuana use” as a justification for reducing the sentences for first and second time offenders. As it stands currently the Legislature’s only claim of reasoning for arresting and imprisoning people is that it does not condone such behavior, regardless of the fact that being of no significant harm, it poses no threat to public health or safety. The Prosecutor mocks the Defendants right to possess and cultivate a valuable plant as irrelevant, referring to the cannabis hemp industry as “making large sums of money on marijuana-related products” and disregards a person's right to maintain their own health, with their own chosen home remedy, saying that potential health benefits are also irrelevant. This is an example of how the status quo of condescending attitudes about cannabis cultivators can influence the judgment of law enforcement officials, and cause them to forget the limits that the Constitution has established to restrict the government to passing only laws that truly promote the health and well-being of the public. In Fuentes v. Shevin, the Court stated, “that the prohibition against the deprivation of property without due process of law reflects the high value, embedded in our constitutional and political history, that we place on a person’s right to enjoy what is his, free of governmental interference.” 407 U.S. 67, 81 (1972). Cannabis industries were well established and on the verge of a boom in this country in the 1930s as illustrated in Popular Mechanics Magazine Feb. 1938, when the Marijuana Tax Stamp Act was established which successfully choked out the legitimate promising industry. Being that the plant was arbitrarily demonized as a dangerous narcotic, and its beneficial uses have been scoffed at for decades by law makers and enforcers despite the enormous irreparable harm that the cannabis prohibition has done directly and indirectly to the safety and well being of society, economically and socially, it is of the utmost importance that citizens' rights to live free of oppression and to have access to this plant for health, wealth and spiritual well-being be taken seriously and examined with the non-prejudicial scales of justice. The people have a right to reap the benefits of their own labors on the land and to pursue happiness by making personal decisions to improve their health and wealth. “The great end for which men entered into society was to secure their property.” Boyd v. United States, 116 U.S. 616, 627; 6 S. Ct. 524 (1886) “Property is everything which has an exchangeable value, and the right of property includes the power to dispose of it according to the will of the owner.” Slaughter-House Cases, 83 U.S. 36, 127 “The right to use and enjoy one’s property is a fundamental right protected by both the State and Federal Constitutions, Buskey v. Town of Hanover, 1990, 577 A2d 406, 133 NH. 318. “The Congress [of the United States] makes the following findings: (1) Individuals enjoy a fundamental right to own and enjoy property which is enshrined in the United States Constitution.” Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, Title 22 U.S.C.-6081 A law cannot lightly sweep away such fundamental personal freedoms without demonstrating a specific need to apply such restrictions. “Legislative authority to abridge [plaintiff’s liberty and] property rights can be justified only by exceptional circumstances and even then by reasonable regulation only, and that legislative conclusions, based on findings of fact, are subject to judicial review.” Nebbia v. New York, 291 U.S. 502, 543; 54 S.Ct. 505, (1934) “One’s right to life, liberty and property may not be submitted to a vote; they depend on the outcome of no elections.” West Virginia Board of Education v. Barnette, 319 U.S. 624, 638 (1943) “A ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interest in that property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984) In 1937, two letters from the World Fiber Company to the Treasury Department illustrate the importance of the cannabis plant in our nation’s economic development potential, the opportunities it offered to small farmers and the detrimental result of cannabis prohibition:
Oct. 12th, 1937 Mrs. George Bass, Supervisor, Federal Narcotics Bureau, Federal Building, Chicago, Ill., Dear Mrs. Bass: Pursuant to your conversation yesterday with Mr. Fruend, one of my associates in the World Fibre Corporation with reference to Hemp development of the United States. I understand that during this conversation, Dr. A. O. Paul of California, came up for discussion. As you doubtless know, Dr. Paul has spent considerable time and money in bringing about this development in California, during which time, he has encountered the same question of narcotics. Dr. Paul advises me that in order to satisfy members of the state legislature of California, that there were no ill effects from the Hemp Plant where it was grown for Fibre, "before" it went to flower. He even told me that he had insisted that they - members of the legislature -- use this article, which they did, and decided that there was nothing that they could detect which was injurious to anyone. I am also compiling a letter, setting forth the full details as to the tremendous commercial development in growing and processing Hemp Fibres and Hemp Hurds, which should have your earnest consideration before any attempt is made to smother a development which means so much to American agriculture and industry. The published article which appeared in the Tribune under the date of October 11th, has created a serious and detrimental influence upon the future development of this stupendous industry, and has resulted in this company receiving telegrams and long distance phone calls from all parts of the country, attempting to ascertain the true conditions surrounding this new narcotics law. I believe therefore, that some sort of a qualifying statement should be made by you or the department at Washington, that capital, the American Farmer, Labor and Industry may know what future action will become necessary. Your immediate attention, clarifying this situation, will be greatly appreciated. Yours sincerely, WORLD FIBRE CORPORATION BY Signed H.W. Bellrose H.W. Bellrose – President _____________________________________________________________ Mrs. George Bass, Supervisor, Federal Narcotics Bureau, Federal Building, Chicago, Ill., Dear Mrs. Bass: A re-birth of the hemp and flax fibre industry in this nation can only be accomplished through mechanical means of decortication, in order to compete with cheap "coolie" foreign hand labor. This problem of the mechanical decortication of bast and soft fibres has had the attention of many of the most prominent agricultural interests, as well as engineers of prominence throughout the world. It has remained however, for the inventive genius of an American to solve this difficult problem, and as a result after years of research and experimental work, and large expenditures of money, the World Fibre Corporation Mechanical Decorticating machine has proved itself the acme of efficiency, producing fibre from hemp or flax so low in cost that foreign importations and competition can be eliminated. The World Fibre Decorticating machine represents to the fibre industry what the ELI COTTON GIN was to the cotton industry. The average layman is rather incapable of comprehending the vast effect the fibre industry will have upon agriculture and industry in general. Let us begin with agriculture, the real basis of all wealth: The growing of hemp by the American farmer means the growing of a crop that goes into industry and into the Human stomach, and therefore, constitutes the only resolution of the present day agricultural problem. Hemp is a weed eradicator and a soil builder. The markets open to bast fibres is unlimited, effecting as it does, the entire textile industry from bast, [sic] burlaps, carpet warp, canvas, tents and awnings, waste materials, the finest of linens. Hemp fibre can be woolenized and cottonized and its uses cover a field of some four thousand textile articles. We are importing today hundreds of millions of dollars of these products both in manufactured and fibre form. Then again, after the fibre of the hemp stalk has been removed by machine, there is left a by-product, "wood hurds" which contain 75% Alpha Cellulose. These wood hurds are used in the manufacture of paper, T.N.T., Rayon Silk, Cellophane and Cellulose; and the records reveal that some 25,000 articles and so forth, are now being manufactured from Cellulose. In the paper pulp industry alone, we are importing 80% of all paper as paper stock, and this industry runs well over one billion dollars per annum. It is evident therefore, of the tremendous and vast opportunities that exist in this reborn industry. Why import products that the American Farmer can grow here? Why send hundreds of millions of dollars to foreign shores when the World Fibre Corporation Decorticating Machine revolutionizes this colossal industry, and creates added wealth to the American Farmer, to industry and to labor, by keeping this money at home. Yours sincerely, WORLD FIBRE CORPORATION BY Signed H.W. Bellrose H.W. Bellrose – President This year, 2009 is the third year that the Assembly has passed Assemblyman Richard Gottfried's Medical Use of Marijuana bill, acknowledging the medical uses of the plant, yet no one in the Legislature has proposed to repeal the false listing of marijuana as a Schedule 1 Controlled Substance. Backyard cannabis growers would still be treated as criminals and hemp farming to produce paper, plastic, building materials or fuel would still be treated as a felony offense by its legal definition as a large scale production and trafficking of a controlled substance. The following is a quote of an e-mail bulletin sent to me by the Marijuana Policy Project which has been lobbying for the Medical Marijuana bills in all the states and in Washington, D.C., “The current Assembly bill, A. 9016, is a new, significantly modified medical marijuana bill that Assembly Health Committee Chair Richard Gottfried (D-Manhattan) introduced in June to garner support from senators of both parties. Senate Republicans who are open to allowing medical marijuana have long opposed allowing patients and designated caregivers to grow small amounts of marijuana. The bill would instead allow for safe access by allowing state-registered regulated entities to dispense medical marijuana to qualified patients. We expect that similar changes will be made to S. 4041-A to attract Republican support.” Still, not one legislator is making moves to rectify the unjustified cannabis prohibition that is keeping this state from benefiting from the many medicinal and industrial uses of a plant that can put the state in a position to build a healthy eco-friendly self-sustaining economy. The many ways that the plant and its bi-products can be used to improve the quality of life of New Yorkers and the state's economic infrastructure are not seen by the legislators to be important enough for them to reveal to their colleagues and constituents that the cannabis prohibition is adverse to the public good. No matter what office in government we appeal to, the reasoning for the prevailing position among politicians is that they will become a political outcast in the capitol or the majority of their constituents will not re-elect them if they move to overturn cannabis prohibition. They are, understandably, afraid to bring up the truth and admit that the government has been negligent on this issue for decades. It is this stiff-necked refusal of the Legislature to consider repealing the unfounded prohibition that has brought me to challenge the law as a fraud and a violation of the Constitution, and left me no other logical avenue than to bring the controversial plant into plain sight at the State Capitol, inviting the attention of the police, and being charged with the very laws that I am challenging which are a crime against the people. The fraud is proven by the definition of a Schedule 1 Controlled Substance. The weight of scientific evidence disqualifying cannabis as a Schedule 1 Controlled Substance, the statutory presumption that the courts should be able to rely on the Legislature’s honest law making based on true legislative findings and legitimate interest, the harsh penalties applied to people who cultivate possess or traffic in cannabis because of its false classification, the Legislature’s expressed intention “not to encourage or condone recreational use of marijuana”, and the resulting damages caused by the enforcement of the Penal Law against people found with cannabis. There can be no charges held against me in this case without violating my inalienable rights to Due Process. Therefore the Schedule 1 listing of cannabis and related New York State Penal Laws should be found null and void and the charges against me dismissed. The Prosecutor says, There is a statutory presumption that the "Legislature has investigated and found the existence of a situation showing or indicating the need for or desirability of the legislation." Van Berkel v. Power, 16 NY2d 37, 40 (NY 1965); East New York Savings Bank v. Hahn, 293 N.Y. 622, 627 (NY 1944), affd. 326 US 230 (US 1945). Accordingly the Court here need not usurp the legislature's role by considering the effects on society of controlling a given drug, absent some showing of criminal intent or fraud in the creation of the law; here, no evidence has been proffered toward such a showing. Therefore, the motion to dismiss this case should be denied. The statutory presumption that the Legislature has investigated and found a situation showing or indicating the need for or desirability of the legislation does not give the Legislature free license to make laws void of reasoning and unsubstantiated by established facts and protect such groundless legislation from the scrutiny of the judicial branch when challenged by members of the damaged public. The court's strict scrutiny of the suspected infringement on the rights of the citizens by the legislation in question is not a usurpation of the legislature's role. The legislature was acting beyond the constitutional limits of its power when it enacted legislation that would prohibit, with harsh sanctions, a precious and valuable asset of the people which causes no harm to their neighbor without the state having a realistic or grounded statement of purpose. When the New York State Controlled Substances Act was passed it was an adoption the federal Controlled Substances Act following a traditional relationship between the state and federal governments, regarding drug laws, but as it concerned marijuana there was a well known question circulating among law makers, scientists and civil rights activists as to whether or not it was dangerous or deserved to be prohibited along with other drugs that were known to cause harm. President Nixon commissioned a study, created by an act of Congress, Public Law 91-513, the National Commission on Marijuana and Drug Abuse (The Shafer Commission), which was published in1972. The Commission found that marijuana was insignificant as a “drug problem” in relation to the well-being of society and warned that its prohibition was unconstitutional. In all of the information available to the legislature, since the Controlled Substance Act of New York was established until the present day, regarding the nature of marijuana use and its effect on society, there has been no known justification for the plant to be listed as a controlled substance. The government is only allowed to make laws that are for the public well-being. Yet the New York State Legislature shamelessly approves of perpetuating the antiquated system of arresting, imprisoning and seizing of property of anyone found with more than an ounce of cannabis, the sole justification being that the Legislature does not “encourage or condone recreational use” of cannabis. This is a crime; a war against the Constitution. More than just an incidental constitutionally suspect piece of legislation, the listing of cannabis as a Schedule 1 controlled substance was a fraud that purposefully served to deceive the Legislature, the courts, law enforcement and the public into categorizing natural homegrown cannabis as the same level of danger as highly toxic, highly addictive and judgment impairing drugs that were being manufactured by black market cartels by the ton, smuggled into the country, and sold on street corners. The original federal laws that restricted marijuana use in 1937 were so thoroughly successful at eliminating the viable hemp industries that the New York Public Health Law treated cannabis simply as a controlled substance and provided no exception to those who would cultivate cannabis for industrial or medicinal purposes. The legislation’s reasoning was supported only by people’s fears of the unknown by exploiting the euphoric use of cannabis as justification for policing the private lives of citizens under the guise of enforcing necessary drug laws. Drug laws have been accepted as necessary and useful by the government in general, but the listing of cannabis as a controlled substance has never been justified by facts and was strongly advised against by the federally sanctioned Shafer Commission. For many decades there has been an inherited political trend favoring synthetics industries and pharmaceutical medicine over the growth of homegrown cottage industries and self-medication with herbal remedies. Every year, cannabis is found to have more and more uniquely beneficial properties and promising uses for industrial development. Every year the evidence that cannabis is a safe and effective medicine for a wide range of illnesses undermines the integrity of the cannabis prohibition and justifiably gives rise to questions from the public as to why people are still being arrested for a crime that was invented by a few bureaucrats and politicians such as Narcotics Bureau Commissioner Harry Anslinger, President Richard Nixon, and Governor Nelson Rockefeller, whose actions served to strengthen and empower law enforcement agencies in order to appear tough on crime, at the expense of exploited and persecuted minorities, people who value cannabis as a medicine and the taxpayer who unwittingly funds such policies.
The fraudulent cannabis prohibition in this state has cost the people tremendously by wasting public funds, robbing law enforcement time, causing irreparable harm to the people who are falsely convicted by the invalid law, the threats and intimidation of those who wish to cultivate cannabis for their own private use, and denying the state the opportunity to build a flourishing economy with millions of new jobs based on eco-friendly hemp-based building supplies, fuel, plastics, paper, textiles, and a multitude of non-toxic alternatives to the consumer goods that we buy in stores today, a way to create safer, non-toxic environments that will be less prone to cause sickness. To conclude my argument on the fraud issue I will quote the famous speech by Roger Mills against prohibition in 1887: “Prohibition was introduced as a fraud; it has been nursed as a fraud. It is wrapped in the livery of heaven, but it comes to serve the devil. It comes to regulate by law our appetites and our daily lives. It comes to tear down liberty and build up fanaticism, hypocrisy, and intolerance. It comes to confiscate by legislative decree, the property of many of our fellow citizens. It comes to send spies, detectives, and informers into our homes; to have us arrested and carried before courts and condemned to fines and imprisonments. It comes to dissipate the sunlight of happiness, peace and prosperity in which we are now living and to fill our land with alienations, estrangements and bitterness. It comes to bring us evil---only evil---and that continually. Let us rise in our might as one and overwhelm it with such indignation that we shall never hear of it again as long as grass grows and water runs.” B. Free Exercise of Religion and Due Process Claims The Prosecutor says, the defendant's free exercise of religion is not unconstitutionally restrained by the law against possession of marijuana, New York P.L. 221.05. The NYS Legislature has no constitutional authority to restrain the free exercise of my religion which includes the acts of cultivating, transferring and sharing my cannabis plants, because they have not shown how they serve a compelling state interest requiring them to do so. The Prosecutor says, "Freedom to believe is absolute, but freedom to act remains subject to regulation for the protection of society." Council v. Donovan, 40 Misc.2d 744, 750 (NY.Sup. 1963). "Rights are not safe guarded by the First Amendment when there is ...reasonable nondiscriminatory regulation by Governmental authority which has as its purpose the promotion of public good and safety." Reynolds v. US 145, 154 (US 1878); Davis v. Beason, 133 US 333 (US 1890); Cantwell v. State of Connecticut, 310 US 296 (US 1940) The State has presented no evidence that the government is protecting society by regulating my religious acts mentioned above. To the contrary the New York State Legislature has already declared that “scientific evidence clearly shows [there is] no significant harm or no harm at all from marijuana use". The 1972 National Commission on Marijuana and Drug Abuse, created by an act of Congress, concluded that cannabis use poses no significant threat to the health and safety in the United States. New York State's Temporary State Commission on Alcohol and Drug Abuse indicated that they knew there was a lack of proof that cannabis was dangerous. The stated purpose of the Marijuana Reform Act of 1977 indicates that it was "expressly not the intention of the Legislature to encourage or condone the recreational use of marijuana", as the sole justification for the perpetuation of the prohibition of cannabis. To encourage or discourage the private cultivation and use of an herb, whether viewed as recreational or otherwise, is not a legitimate reason for the government to regulate acts that the citizens value as part of their religious life and practice, and no pretence of being for the public good will legitimize such harsh sanctions. "The state cannot impose its own notion of morality, propriety or fashion on individuals when the public has no legitimate interest in the affairs of these individuals" State Supreme Court decision in Ravin v. State, No. 1156 (May 27, 1957). This is an unreasonable, discriminatory regulation by the State that only slightly pretends to be for the promotion of the public good. Public safety is not one of the New York State government's stated reasons for cannabis prohibition. People, like me, who find cannabis to be a useful and precious gift from God are threatened with arrest, fines and seizure of our property if we dare to cultivate and possess this herb, because the Legislature arbitrarily maintains an adverse position of not condoning my acts of enjoying the use of my private property and my right of self-determination. In Fuentes v. Shevin, 407 U.S. 67,81 (1972) the Court stated that the "prohibition against the depravation of property without due process of law reflects the high value, imbedded in our constitutional and political history, that we place on a person's right to enjoy what is his, free of governmental interference." The regulation prohibiting my use and cultivation of cannabis is discriminatory and unreasonable because it is imposed and enforced with no other reason than the Legislature's opinion that any and all cannabis consumption is “recreational drug use”. The deceptive establishment of cannabis prohibition as protecting public health, implied by its listing among controlled substances in the Public Health Law, pretends to serve to protect public health. This is an unequal and prejudicial targeting of people who prefer to use herbal remedies for medicine, relaxation, social stimulant, and religious sacrament while people are allowed to legally buy, sell, possess and consume highly addictive and deadly substances like alcohol, cigarettes, refined sugar, energy boosting chemicals, and a myriad variety of synthetic pharmaceuticals which have deadly side effects for various ailments like depression and headache. Ritalin is given to children even though it is known to be addictive and deadly and if there was ever a “gateway drug”, Ritalin is it. Cannabis consumption is targeted as not condoned and banned by a public health law without any proven threat to public health, despite the fact that millions of people in New York State value it as a part of their life. In Assemblyman Richard Gottfried's memorandum in support of the Marijuana Reform Act of 1977 he said, "...marijuana use has skyrocketed despite our present tough penalties." With such widespread use it would seem that significant evidence would have already been well known if there was a real public health concern. The Prosecutor says, "Additionally, smoking marijuana receives no explicit nor implicit protection under the Constitution. It is not protected under the Privileges and Immunities Clause (Article IV, Section 2) of the Constitution. People v. Moore, 167 Misc.2d 994, 1002 (NY.City.Crim.Ct. 1996). The Prosecutor here makes the mistake common among law enforcement professionals who read the Constitution as a list of specific freedoms granted by the government to the people, rather than its true nature as a directive prohibiting all sworn-in officials from invading upon the individual liberties of the citizens with oppressive legislation that does not serve to benefit the public. The Constitution guarantees the people protection against tyranny by ensuring that the elected representative government will not become opportunistic and impose regulations and restrictions on the people without such regulations being truly and obviously for the public good. “No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Terry v. Ohio, 392 U.S. 1, 9 (1968) Justice Harlan stated: “The full scope of the liberty guaranteed by the Due Process Clause cannot be found in, or limited by, the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking includes a freedom from all substantial arbitrary impositions and purposeless restraints…and which also recognizes, what a reasonable and sensitive judgment must, that certain interest require particularly careful scrutiny of state needs asserted to justify their abridgement.” Poe v. Ullman, 367, U.S. 497, 543 The benefit of a law should not be unknown or unrealistic when compared with well established facts and figures. In this respect, consuming cannabis, just as consuming tobacco or drinking alcohol, clearly qualifies as among the inalienable rights "not enumerated" (Ninth Amendment, the right to self determination) in the Constitution, as it does not pose any real and present danger to society and therefore does not fall within the sphere of governmental jurisdiction in the United States. The Constitution does not need to give explicit or implicit protection of "smoking marijuana" because the government has no explicit or implicit constitutional authority to regulate against a person's right of self-determination or the religious or medicinal use of a natural substance, the personal use of which has already proven to cause "no significant harm or no harm at all". That being said, I remind the court that this case does not specifically involve “smoking marijuana”, but rather the cultivation and possession of live cannabis plants for religious, medicinal, environmental and economical purposes. And, if a person who cultivates and owns a garden of herbs decides to consume those herbs it is of no legitimate concern of the government to interfere when there is no one harmed or complaining of damages. This kind of interference is an intrusion into the sanctity of my private and constitutionally protected domain. The Prosecutor says, "A similar claim was reviewed by the court in People v. Shepard, where the constitutionality of legislation restricting possession of marijuana was upheld: "The statute now before us represents the current and considered judgement of an elected Legislature acting on behalf of the people of this State.... Nothing would be more inappropriate than for us to prematurely remove marijuana from the Legislature's consideration by classifying its personal possession as a constitutionally protected right. The sphere within which we may properly declare a legislative act unconstitutional is extremely limited and clearly does not encompass this case." 50 N.Y.2d 640, 645-46 (N.Y. 1980) (Emphasis added). The New York State Legislature's current considered judgment is that it does not "encourage or condone the recreational use of marijuana" despite the fact that they admit that "scientific evidence clearly shows no significant harm - or no harm at all - from marijuana use." The legislators were not giving "honest service" as elected state representatives when they passed a law that would criminalize people who possess more than an ounce of an herbal substance which causes "no significant harm or no harm at all." Their arbitrary position not to condone its use was beneficial only to their political reputations and was gravely adverse to the public well-being. Assemblyman Gottfried said, in his Memorandum in Support of New York P.L 221, that despite harsh penalties marijuana use was skyrocketing, it was found to cause no significant harm, and yet he proposed and passed legislation to charge possession and cultivation offenders as criminals to be punished with prison sentences. The judgment that I am asking for in this case, to nullify and invalidate the Marijuana Reform Act of 1977 and the listing of cannabis marijuana as a Schedule 1 Controlled Substance in Sec. 33 of the Public Health Law, is immediately appropriate and necessary in order to protect the public well-being because the laws in question restrict personal freedoms without serving a compelling state interest that is supported by facts. The Legislature's consideration of the situation has already led to a dishonest and unconstitutional infringement on inalienable rights, without a reasonable justification, in violation of their oath of office, and they unlawfully authorized the seizure of people and private property without due process of law. Therefore the Legislature's judgment on this matter is rendered null and void. The court need not classify personal possession of cannabis as a specifically constitutionally protected right in order to grant the protection of my rights against the intrusion of these laws, because the rights not enumerated (9th Amendment) includes all such private rights. I am asking this Court to find that the Marijuana Reform Act of 1977 is itself an infringement against rights of individual liberty, because of its lack of reasonable purpose and its unconstitutional enforcement. This Court is not being asked to determine how I can live my private life, but rather whether or not the government has constitutional authority to regulate my private life by depriving me of my God given rights when I am posing no known or provable threat or harm to the well-being of the public. Judicial review is not limited when a constitutional issue is being weighed such as in this present case and controversy. In "actual controversy" ...The test to be applied ...is the familiar one, 'Basically, the question in each case is whether...there is a substantial controversy, between parties having adverse legal interests, sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Lake Carriers' Asn. v. MacMullan, 406 U.S. 498, 506 (1972) > 312 U.S. 270, 273. The Prosecutor says, Defendant's reliance on US v. Bauer, 75 F.3d 1366, superseded by, 84 F.3d 1549 (9th Cir. 1996), is of no avail. First, Defendant has failed to show that New York's marijuana laws "substantially burden the sincere exercise of [her] religion." Nesbeth v. U.S., 870 A2d 1193, 1196 (D.C. 2005). Unlike the defendants in Bauer, Defendant fails to describe or identify any religious group sufficiently stable and distinctive to be identified as one of the existing religions in this country." See Bauer, 84 F.3d at 1556 (defendants identified themselves as members of a recognized religion requiring the ceremonial use of marijuana - Rastafarians). Here, Defendant simply states that her religion is to "listen to God and do what he says." Defendant also does not identify a religious purpose for the need to possess and use marijuana. Instead, Defendant states her desire to use marijuana for non-religious purposes - e.g. recreationally, economically, and medically. Therefore, this case does not fall under the purview of the Religious Freedom Restoration Act ("RFRA") discussed in Bauer. The New York State prohibition of cannabis more than substantially burdens one of the sincere exercises of my religion which is to share the blessings of the cannabis hemp plant with my friends and family, the majority of which are my brethren in the Lord. I sincerely hold cannabis hemp to be one of the most valuable blessed plants on earth and when shared as a holy sacrament, like communion, it is passed around the circle the same way Jesus passed around the wine and the bread. This sharing is Holy because it is done with prayer and a love for my Creator and my brethren. Some of us call the herb "Lamb's bread". All those I gather with also consider this exercise holy because to commune with each other is to commune with God. Jesus said, "Wherever two or more of you are gathered together in my name there I am in the midst." This is my church; the body of Christ; believers who have all things common, sharing what they have. The book of Acts describes my beliefs perfectly. We are the tabernacle of God. The word “church” actually comes from the word kirk, a Greek word which means circle. My husband and I have lived this life of faith together in Jesus Christ since 1977 and raised seven children who hold dear the same beliefs as us along with many others we commune with. Cannabis is a blessing from God for healing and has been an intricate part of my walk and ministry for more than 30 years. Many born again Christian believers partake of the Holy herb. Many choose not to. It is a liberty given to us by God which he created and He is the only one we have to answer to. These are my beliefs and I cannot forsake them or waive my right to protect them because the state has shown no compelling reason for me to do so. Also the state has no authority to judge, or interfere with, the free exercise of my beliefs which are inalienable rights protected under the Constitution, whether the state "condones" them or not. US v. Bauer is an example of a case where religious freedom was protected in respect to a citizen's possession of marijuana, not a standard by which everyone who uses cannabis as part of their religion should be judged. It should be clear enough that the Constitution prohibits Congress from making laws respecting an establishment of religion or prohibiting the free exercise thereof. This applies to religion and religious matters in general, and is expressly protecting the people's right to choose and practice their own religion without being judged by the government or in the courts as to whether or not they should be allowed to live and practice their religion. My case involves my religion as one that holds the use of herbs as a blessing from God, but my challenging of the cannabis prohibition as an invasion of religious freedom means that a person's decision to use natural substances to improve their health and sense of well-being is a personal moral concern especially when it is viewed as a good thing by the consumer and is beyond the jurisdiction of government as long as no one else is harmed or endangered. As the case of United States v. Ballard, 322 U.S. 78, 64 S. Ct. 882, 88 L. Ed. 1148 (1944), demonstrates, "the Supreme Court must look to the sincerity of a person's beliefs to help decide if those beliefs constitute a religion that deserves constitutional protection." The Ballard case involved the conviction of organizers of the I Am movement on grounds that they defrauded people by falsely representing that their members had supernatural powers to heal people with incurable illnesses. The Supreme Court held that the jury, in determining the line between the free exercise of religion and the punishable offense of obtaining property under False Pretenses, should not decide whether the claims of the I Am members were actually true, only whether the members honestly believed them to be true, thus qualifying the group as a religion under the Supreme Court's broad definition. For this Court to judge me as not belonging to a religious group "sufficiently stable and distinctive to be identified as one of the existing religions in this country," would be blatantly prejudicial and unconstitutional, because the Constitution does not delegate authority to the government or the courts to question a person's free exercise of their religion based on their lack of membership in a well established religious group or a known religion. My religion is that I am a disciple of Jesus, Christianity, generally defined in the Gospel of Mathew, Chapters 5, 6 and 7. The right to free exercise is an aspect of a person's individual freedom and a person's religion is entirely within one's own sphere to decide if it is in fact his or her religion. It is an aspect of privacy in one’s own personal life. How I exercise my religion is not an issue that the government has a legitimate reason to question, when my activities are not proven to be in conflict with the general well-being of the public. The Supreme Court has deliberately avoided establishing an exact or a narrow definition of religion because freedom of religion is a dynamic guarantee that was written in a manner to ensure flexibility and responsiveness to the passage of time and the development of the United States. Thus, religion is not limited to traditional denominations. Indeed religion is, in by the very nature of the subject, a personal and private matter, and it is entirely up to the person to decide how public they wish to be about their beliefs or whether or not their personal beliefs should be identified with the official description of any religious organization. While the Constitution does not allow government to respect the establishment of religion, it does honor religious freedom as a sacred dominion of the individual in that it prohibits government from prohibiting the free exercise of a person's religion. This is not a protection of membership organizations or religious groups but of the people themselves, as individuals, from oppression. The Prosecutor's reliance on questioning the nature of my marijuana use as nonreligious, saying that I have not identified "a religious need to possess and use marijuana", is out of line for at least these three reasons. 1. The State has not yet shown a factual reason for arresting people and seizing their privately owned cannabis plants or harvested and dried herbs, so the State has no jurisdiction to question my intended use of the plant. 2. The court has no reason to question my statements of belief. 3. I chose to value, appreciate, and cultivate the cannabis plant, which God gave to me, for food, incense and healing oils. The resinous oil that is produced in the cannabis flowers contains the active ingredient of “marijuana” and is the most effective safe natural medicine for a wide variety of ailments, including cancer. Ingesting the concentrated oil from the flowers is proven to kill cancer cells. The seed of the cannabis plant is the most completely nutritious whole protein food and is abundantly prolific in the hemp plant. As mentioned in Genesis 2:15, God put man in the Garden of Eden “to dress it and to keep it”, and 1:29 “I have given you every herb bearing seed, which is upon the face of all the earth, and every tree in the which is the fruit of a tree yielding seed; to you it shall be for meat.” The Bible also says that I should do that which I know is good. I know that this plant is a safe effective medicine that people can grow in their own back yard and a natural resource for producing food, clothing and shelter, so it is an injustice to keep the people from this valuable way for them to improve their lives and their health. Mark 6:13 “And they cast out many devils, and anointed with oil many that were sick and healed them.” My carrying of the cannabis plant in Albany, at the State Capitol, was a specific act of love and charity, defending the poor and needy from oppression and pleading for the general well-being of the people, to the State Government, as the Bible tells me to. Proverbs 31:9 "Open thy mouth, judge righteously, and plead the cause of the poor and needy." Gandhi and Martin Luther King risked their lives to fulfill their moral conviction that they must stand against oppression. Rosa Parks risked prosecution in order to fulfill her moral conviction that she must stand against oppression, and I am doing the same today as is my religious conviction. Jesus said, "Blessed are ye when ye shall be persecuted for righteousness’ sake. Rejoice and be exceeding glad, for so persecuted they the prophets, which were before you." My beliefs are a private matter, but when my safety and security is threatened by the state government and police, I have a right to petition the government for a redress of grievances. And since the Legislature and the Governor's office has shrugged off the gravity of my plea, the challenging of the law itself by carrying the plant to the Capitol, as an act of faith, putting myself at the mercy of the police, to be judged in this court, has become my last resort. The Prosecutor says, Second, assuming this case falls under the purview of the RFRA, New York State has a reasonable interest in regulating possession and use of drugs for the public good and safety, and the marijuana laws are the least restrictive means to further this interest. In Bauer, the court stated that under the RFRA The government has the "obligation, first, to show that the application of the marijuana laws [are] in furtherance of a compelling governmental interest and, second, to show that the application of these laws [are] the least restrictive means of furthering this interest." Bauer, 84 F.3d at 1559. Under this standard, there is no constitutional basis for the dismissal of this case. I concede that New York State has a reasonable interest in regulating possession and use of drugs for the public good and safety, as the need applies to individual "drugs" relative to their proven effect on the public good and safety. But we must remember that the state has not shown a compelling government interest to prohibit cannabis, beyond a reasonable doubt, as is the requirement under strict scrutiny. Cannabis prohibition has never been proven to be or even alleged by the state to be necessary or in any way protecting the public good and safety in New York State. The Legislature simply states that they do not "encourage or condone the recreational use of marijuana." The state has no reasonable interest in regulating possession and use of cannabis, clearly acknowledged by Assemblyman Gottfried's statement in his Memorandum in support of the Marijuana Reform Act of 1977, "Scientific findings clearly show no significant harm or no harm at all from marijuana use." The Prosecutor says, The New York State Legislature has classified marijuana as a Schedule 1 Controlled Substance. This classification by the Legislature should not be dismissed. "The manufacture, use and possession of any controlled substance which affects the behavior, mood and judgment of persons is a legitimate area of concern over which the Legislature has the power to regulate." 93 Misc.2d 911, 914 (N.Y.Co.Ct. 1978). See also State v. Blazer, 954 P.2d 931, 939 (Wash. App. Div. 2 1998) stating: "so long as scientists disagree about the effects of marijuana, the [L]egislature is free to adopt the opinions of those scientists who view marijuana as harmful. We will not substitute our judgment for that of the [L]egislature where the statute in question bears a rational relationship to the legislative purpose." The classification of marijuana as a Schedule 1 Controlled Substance, having no medical value, a high likelihood of abuse and unable to be used safely, was established by fraud, adopting the same classification as the Federal Controlled Substances Act, which put marijuana temporarily on the Schedule 1 list, pending the findings of the National Commission on Marijuana and Drug Abuse of 1972 (Shafer Commission). The findings of the Shafer Commission stated that marijuana was not highly addictive and posed no serious threat to public health and safety or society in general. President Nixon and Congress ignored the results of the Commission and Governor Rockefeller listed marijuana and the whole cannabis plant on the Schedule 1 list, avoiding any consideration of how it differs from manufactured drugs that are highly toxic and highly addictive. Experts in The federal Government and the New York State government at the time that the New York Controlled Substances Act was passed stated in signed documents that they were not sure whether or not marijuana was a significantly dangerous drug warranting its listing on Schedule 1. In 1970, the committee reviewing the Controlled Substances Act requested Dr. Roger O. Egeberg’s advice on how marijuana should be regulated. In retrospect, one of the most far-reaching letters he ever wrote was this letter to Harley O. Staggers, Chairman of the House Committee on Interstate and Foreign Commerce, which led to marijuana being "temporarily" placed in Schedule I, the most tightly-controlled category of drugs: "Dear Mr. Chairman: In a prior communication, comments requested by your committee on the scientific aspects of the drug classification scheme incorporated in H.R. 18583 were provided. This communication is concerned with the proposed classification of marihuana. "It is presently classed in schedule I(C) along with its active constituents, the tetrahydrocannibinols and other psychotropic drugs. "Some question has been raised whether the use of the plant itself produces "severe psychological or physical dependence" as required by a schedule I or even schedule II criterion. Since there is still a considerable void in our knowledge of the plant and effects of the active drug contained in it, our recommendation is that marihuana be retained within schedule I at least until the completion of certain studies now underway to resolve the issue. If those studies make it appropriate for the Attorney General to change the placement of marihuana to a different schedule, he may do so in accordance with the authority provided under section 201 of the bill. . . "Sincerely yours, (signed) Roger O. Egeberg, M.D." In 1973 in Albany, the Temporary State Commission to Evaluate the Drug Laws report included many pages about the measurable destructive effects of alcohol and tobacco, but there was only a very brief and inconclusive mention of cannabis “marijuana” use as an issue. This further demonstrates that cannabis was clearly known to be nowhere near as problematic as alcohol and tobacco, which points to the obvious question as to why cannabis is listed among the most dangerous Controlled Substances while alcohol is not even on any of the scheduled listings. Page 72 and 73: "The central problem regarding information about drugs is that it is all controversial. For a number of years, opposing camps have debated the question of the harmfulness of marijuana. Most people do not quite believe that marijuana is not addicting; most people do not believe that marijuana is harmless, and most people do believe that marijuana is a stepping-stone to more serious forms of drug use. Others insist that marijuana is not addicting; that when it contains low concentrations of active ingredients, it is harmless; and that while marijuana experimentation does precede other drug use, so does alcohol experimentation. Moreover it is argued that most people who use marijuana ultimately lose interest and stop. They do not proceed to more dangerous drugs. The stepping stone theory demonstrates the fallacy known as post hoc, ergo propter hoc. That so many people subscribe to such a fallacy may be a comment on the efficacy of educational efforts relating to the structure of thinking." 13. There are, of course, prescriptive drugs which have much lower therapeutic ratios. Many of the drugs used to treat patients with cancer, glaucoma and multiple sclerosis are highly toxic. The therapeutic ratio of some of the drugs used in antineoplastic therapies, for example, are regarded as extremely toxic poisons with therapeutic ratios that may fall below 1:1.5. These drugs also have very low LD-50 ratios and can result in toxic, even lethal reactions, while being properly employed. In his ruling that marijuana should be removed from the Schedule 1 list to allow for medical use Judge Young explained the correct application of law. “There are those who, in all sincerity, argue that the transfer of Marijuana to Schedule II will "send a signal" that marijuana is "OK" generally for recreational use. This argument is specious. It presents no valid reason for refraining from taking an action required by law in light of the evidence.” But there has never been any evidence showing how the enforcement of cannabis prohibition laws in New York State, expressly intended to discourage recreational use, serves to protect the public well-being. These laws, which impose harsh sanctions on anyone found in possession of more than an ounce of marijuana or smoking in a public place, are based on a purely arbitrary, capricious and discriminatory assumption of moral superiority of the legislators over the millions of marijuana users in New York State. Despite the fact that cannabis prohibition laws have not even shown any sign of effectively discouraging use, the Legislature claims the authority to continue to threaten, intimidate and punish people who are otherwise not guilty of any crimes. Mr. Gottfried was correct in his declaration, in his memorandum in support of his own Marijuana Reform Act of 1977, that because of the prohibition, "Thousands of lives are scarred; thousands of hours of police and court time are wasted. The cost to those arrested and their families is staggering." But what he failed to justify was any reasonable basis for re-establishing the antiquated regime of applying criminal offenses and jail sentences to people who possess more than an ounce, when he himself explained that "scientific evidence clearly shows no significant harm or no harm at all from marijuana use." He did not have to explain his reasoning for perpetuating the prohibition because the legislators were already accustomed to thinking of “marijuana users” as criminals, with or without a reasonable basis. It is solely on their character assessment of the intentions of individuals who choose to cultivate or “use” cannabis that the Legislature bases their claim of authority to intervene with police power, not for public health. So it is deliberately discriminatory and arbitrary. Discouraging “recreational” use of a substance that causes "no significant harm" is not a legitimate governmental interest. In the decision of Ravin v. State, the Alaska State Supreme Court had this to say regarding marijuana prohibition, "The state cannot impose its own notion of morality, propriety or fashion on individuals when the public has no legitimate interest in the affairs of these individuals." No. 1156 (May 27, 1975) No such authority is delegated by the Constitution to the legislators to decide what is morally appropriate behavior among consenting adults in their private lives when they are causing no harm to anyone else. The New York State Legislature has, to date, never explicitly stated or implied in any of its related regulations that there is any known danger associated with marijuana use, but rather has labeled the herb with condescending and vague classifications such as “illicit drug”, not “condoned”, “recreational”, and “high likelihood of abuse”. On the other hand, Assemblyman Richard Gottfried, in his Memorandum in support of his proposed marijuana Reform Act of 1977 stated that "Scientific findings clearly show no significant harm or no harm at all from marijuana use." Indeed similar findings can be cited from numerous highly reputable sources, including the American Medical Association in the 1937 Congressional Hearings, The 1944 LaGuardia Committee Report, the 1972 National Commission on Marijuana and Drug Abuse (Shafer Commission), the National Institute of Mental Hygiene, and the Drug Enforcement Administration's Administrative Law Judge, Francis L. Young. In the Supreme Court of Alaska case of Ravin v. State, the court concluded, "...no adequate justification for the state's intrusion into the citizen's right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown. The privacy of the individual's home cannot be breached absent a persuasive showing of a close and substantial relationship of the intrusion to a legitimate governmental interest. Here, mere scientific doubts will not suffice. The state must demonstrate a need based on proof that the public health or welfare will in fact suffer if the controls are not applied." The unanimous court also said, "The state cannot impose its own morality propriety or fashion on individuals when the public has no legitimate interest in the affairs of these individuals." The New York Civil Liberties Union in 1977 supported the reduction of sentencing for possession of small amounts to a violation, but still contended that there was no reason to be jailing anyone for possession of marijuana. Their Legislative Memo is quoted as follows: “…the voluntary possession and use of marijuana entails purely private activity that is without any demonstrable harm to anyone and should not be the subject of any criminal sanctions of any kind. “In our view, government intrusion into constitutionally protected private behavior is only justified when that behavior is coercive to others. Consenting behavior between adults should be exempt from criminal prohibition. "We have searched the literature, the official and unofficial reports, studies, surveys, medical reports, and expert testimonies for evidence that marijuana is a risk to the public health. Contrary to popular belief, the most respected large-scale studies have produced no evidence that marijuana is lethal, causes genetic damage, immediate adverse physical or mental effects, long-term damage, such as psychosis or mental deterioration, addiction or progression to stronger drugs. "The most recent federally contracted study of marijuana smoking was conducted for the National Institute of mental Hygiene in Jamaica, B.W.I. where the consumption is said to be 10 to 25 times more than American Users. This report published in July 1975 (Ganja in Jamaica, distributed by MacFarland Publications of Scotch Plains, N.J.) failed to confirm any serious adverse effects ... but concludes that even after extensive medical study there is no current evidence that the use of marijuana is dangerous. "NYCLU believes that the Constitution, the public welfare, the economy and common sense require that New York repeal its criminal sanctions against marijuana." As the Alaska supreme court concluded, "the public has no legitimate interest in the affairs of these individuals", who possess marijuana for their own consumption, just as the public has no reason to be concerned with an individual's use of alcohol. There is not a public outcry or government agenda to restrict and control possession and use of alcohol by responsible adults because there is no logical reason for such an exhaustive invasion into the private lives of the people, even though alcohol is well known to be far more judgment-impairing, more toxic and more deadly than marijuana as a health and safety concern. The Legislature and for the most part the public is content to leave the responsibility to the individual to choose how much alcohol they will buy and consume and how they will behave while "under the influence". Only when other crimes are involved, such as reckless endangerment, disorderly conduct, harassment, influencing minors, destruction of private property or driving while intoxicated, does the alcohol drinker need to fear arrest, court fines or imprisonment. In the same context, if looked at by itself, cannabis does not in any way compare to alcohol as a health or safety problem and in fact statistically comes up as conspicuously safer than alcohol in every respect. So the issue of equal protection comes in when we look at how far the government will reach to invade the privacy of people found merely getting together with their friends for the spiritual or recreational use of cannabis, which carries criminal sanctions, on behalf of the public, while doing nothing of the sort to protect people from far more dangerous alcoholic substances. These laws that are meant to protect the well-being of the public inadvertently encourage people to choose the more dangerous substance for social stimulant and stress relief while threatening those who prefer to consume cannabis with arrest, fines imprisonment and confiscation of property. The penalties for unlawful cannabis possession and cultivation are not because cannabis is too dangerous for people to be allowed to have it, but rather because it was listed as a Schedule 1 Controlled Substance without any justifiable reason other than that the Legislature and Governor Rockefeller thought it wise to simply adopt the Federal Law which at the time falsely and arbitrarily listed “marijuana” "temporarily" on Schedule 1 list, pending further study of the effects of cannabis use. The Shafer Commission Report was the study, which reported that cannabis should be taken off the Schedule 1 list. Instead, President Nixon ignored the report, applied harsh sanctions to “drug” users and started the War on Drugs, which included cannabis. New York Governor Nelson Rockefeller followed suit with no concern to the damage about to be done to innocent New Yorkers and their families (See Marijuana Arrest Chart Pg 119). To this day there has not been any serious attempt made by either the Federal Government or the New York State Government to explain why cannabis use is treated with such strict regulation compared to alcohol use despite numerous appeals from nonprofit organizations, police and criminal justice officials and medical societies to re-examine the issue from a scientific perspective. “Our whole system of law is predicated on a general fundamental principal of equality of application of the law. ‘All men are equal before the law,’ ‘This is a government of laws and not of men,’ ‘No man is above the law,’ are all maxims showing the spirit in which legislatures, executives, and courts are expected to make, execute and apply laws. Truax v. Corrigan, 257 U.S. 312, 332 (1921) A person who is found with a pound of cannabis, or several live plants, poses no greater threat to society or the public health and welfare than a person who has a few cases of liquor in his car. Yet, the person with the liquor is protected by the laws from being arrested, while the person with cannabis is made a criminal by the laws. The person with the cannabis is in no way doing anything more dangerous than the person with the case of liquor, and yet the law protects and favors the liquor drinker over the cannabis consumer by far. Liquor is known to be a toxic substance which can cause death or cause a person to lose control of their behavior and endanger others while cannabis is known to be a safe healing herb that manifests a spirit of peace and camaraderie. The simple fact is that, because of fear of being labeled as a delinquent, most cannabis consumers will let few people know that they consume cannabis, while drinkers have no reason to fear the law because they can legally buy beer in stores and openly drink in bars with their friends. And there are no possible criminal sanctions against drinkers unless they drive while intoxicated. Such laws clearly discriminate against those who choose to consume cannabis with their friends and favor those who choose to consume alcohol. Clearly such laws offer no equal protection to the cannabis consumer or supplier. “The equal protection of the laws’ places all upon a footing of legal equality and gives the same protection to all for the preservation of life, liberty, and property, and the pursuit of happiness.” [83 U.S. 36, 127] Many people have wondered why such laws exist that appear to make no sense and are so unequal. Two of the most deadly substances consumed on earth are alcohol and tobacco and are perfectly legal while one of the safest most beneficial substances consumed on earth is cannabis and it’s illegal. Why? What would the motive be behind the state making such arbitrary decisions that are so obviously contrary to what is good for the public’s health and safety especially when it is known to be a multi-billion dollar business that is green, green, green? Could it be that the state regulates and taxes alcohol and tobacco and therefore revenues come in to the state through alcohol and tobacco licenses? Why would the government get rid of tax revenue? Now, when it comes to cannabis the state can’t figure out how to regulate and tax cannabis because it can be grown in one’s own backyard and they’ve been saying for years that it is a dangerous drug so how can they just legalize it now, and what about the cannabis hemp industry that has been kept illegal all these years? How do they explain or regulate or control that? The most common reason given to me by legislators and the public for not ending prohibition was not public health and safety, it was, “The state hasn’t figured out how to make money on it. When it does, then it will be legal.” How could they control it and make money on it if it became legal? How can they control something that can be grown in your own back yard? Well, they couldn’t. Not unless they figured out a way to keep it on Schedule 1 list while they legalized it. Like for medical use; because a Schedule 1 Controlled Substance can be used sometimes for a medicine. That’s it. Keep it as a Schedule 1 medicine that is strictly controlled like a pharmaceutical and the state will be the one who issues the licenses for the grow operations for the medicine. Now the state would finally have gained control of the most valuable natural healing herb on earth which God gave to all people, not the government, for their benefit. Such a move could make God very angry but it appears to be an excellent plan for a corrupt government at war with its own people. Let us go on. In 1973 in Albany, the Temporary State Commission to Evaluate the Drug Laws report included many pages about the measurable destructive effects of alcohol and tobacco, but there was only a very brief and inconclusive mention of cannabis use as an issue. This further demonstrates that marijuana was clearly known to be nowhere near as problematic as alcohol and tobacco, which points to the obvious question as to why cannabis is listed among the most dangerous Controlled Substances while alcohol is not even on any of the scheduled listings. Page 58 and 59 "A society that not only indulges the heavy drinker, but positively ennobles him, particularly in the mass media, is facing an insuperable obstacle when it seeks to induce an individual to abstain from other drug-taking behavior. Witnesses at every hearing conducted by the Commission expressed the view that this hypocritical treatment of alcohol use visa-vis the use of other drugs has resulted in a serious impairment of the credibility of those concerned about the entire spectrum of drug-taking." ALCOHOL AND CANNABIS PENALTIES ARBITRARILY AND UNEQUALLY APPLIED Is the possessor of cannabis being equally protected by public health laws, the same as the possessor of alcohol? Is one of the two substances more dangerous? Is one of the two consumers more dangerous? Is one judged as a criminal while the other is not? Why is that? Has the Legislature made a law against people whose only identification as a criminal is their possession of an herb that has never proven to be a threat to public health or well-being? Does the law serve a compelling governmental interest by targeting people who have or cultivate cannabis? Is this not arbitrary persecution of innocent people? Compare the penalties of Driving While Ability Impaired by Alcohol to the penalties for possession of cannabis “marijuana”: Drunk driving causes tens of thousands of accidents and deaths each year but possession, sale and use of cannabis has never caused one death. The alcohol laws of New York are among the most lenient of any state in the Atlantic Northeast of the United States, it‘s just illegal for children to use or possess it, but New York’s alcohol laws remain considerably more restrictive than those of Louisiana, Missouri, Nevada, Illinois, New Mexico, and Arizona. Let’s compare how violations of New York’s alcohol and cannabis laws are penalized . ALCOHOL First offense DWAI .06 BAC to .07 BAC, and/or other evidence of impairment by alcohol: Third Offense DWAI Within 10 years: DWI: Driving While Intoxicated; .08 BAC or higher, and/or other evidence of intoxication. First offense DWI or DWAI-Drugs (i.e., no prior DWI convictions within 10 years): Aggravated DWI: .18 BAC or higher. First Offense Aggravated DWI: CANNABIS (one ounce or more)
Fine Possession Incarceration 25 g to 2 oz* misdemeanor 3 months $500 2 to 8 oz class A misdemeanor 1 year and/or fine $1,000 8 to 16 oz (first felony) class E felony 1-4 years and/or fine, $5,000 8 to 16 oz (second felony) class E felony 3-4 years mandatory ½ jail sentence 16 oz to 10 lbs (first felony) class D felony 1 - 15 years and/or fine, $5,000 16 oz to 10 lbs (second felony) class D felony mandatory ½ jail sentence More than 10 lbs (first felony) class C felony 15 years and/or fine, $5,000 More than 10 lbs (second felony) class C felony mandatory ½ jail sentence Sale or Cultivation of Cannabis 2 oz or less gift class B misdemeanor 3 months and/or fine $500 24 g sale class A misdemeanor 1 year and/or fine $1,000 25 g to 4 oz (first felony) class E felony 1 - 4 years, $5,000 25 g to 4 oz (second felony) class E felony 3-4 years (mandatory ½ jail sentence) 4 to 16 oz (first felony) class D felony 1-7 years (probation if no prior felony) $5,000 16 oz to 10 lbs (first felony) class C felony 1-5 years and/or fine, $5,000 16 oz to 10 lbs (second felony) 4-7 years (mandatory ½ jail sentence) 10 lbs or more (first felony) class C felony 1-15 years and/or fine 10 lbs or more (second felony) 6-15 years (mandatory ½ jail sentence) Sale to a minor (first felony) class D felony 1-7 years, $5,000 Paraphernalia possession - misdemeanor 1 year, $1,000 (must be dirty paraphernalia) A person with a used pipe found in their pocket faces the same 1 year sentence as a drunk driver (Aggravated DWI) A person with cannabis plants growing in their house with a total weight of 4 oz. faces the same as a second offence (Ag. DWI) Mandatory jail time for the third offense of Aggravated DWI is only 10 days. Mandatory jail time for possession of 2 oz. of cannabis hemp is 1 year. Possession of 1 pound of cannabis is punishable anywhere from 1-15 years in prison for the first offense. There were 32,725 DWI arrests in New York State 2002. There were over 100,000 arrests for marijuana in New York in 2001. 72 years of prohibition and policing of cannabis and still no recorded cannabis related deaths. The situation is that regulations passed under the heading of a Public Health Law authorize police to single out and arrest certain people for possessing a home-grown herb that is known to be far less harmful than substances sold openly in stores and advertised on television. If it is not the actual danger of the substance that makes it illegal, then it is simply an arbitrary choice of the government to judge the users of the substance as undesirables and apply an unreasonable restriction on them for such use which the lawmakers deem necessary without justifying it with fact. People who have various logical and natural reasons to choose to use cannabis are taunted by a foolish and belligerently prejudicial law. “Prohibition goes beyond the bounds of reason in that it attempts to control a man’s appetite by legislation and makes a crime out of things that are not crimes…a prohibition law strikes a blow at the very principles upon which our government was founded.” – President Abraham Lincoln, December 8, 1840 If the law does not truly serve the interest of the public equally for all people when comparing people in similar situations and offenses, then it does not provide Equal Protection to all people. If one person consumes cannabis and another drinks alcohol the person consuming or selling cannabis should not be subjected to criminal laws, while the drinker or bar owner is not subjected to similar regulations. If cannabis consumption is not more dangerous than alcohol consumption, which it clearly is not, then the laws are favoring the drinker for no logical reason other than to maintain the social norms of society inherited from the previous generation's political tendencies and fashions, while the cannabis consumer, possessor or grower is a victim of an arbitrary prejudicial cultural persecution. The government cannot show, with a preponderance of evidence to prove beyond a reasonable doubt, that the cannabis prohibition in this state serves a compelling governmental interest, with narrowly tailored statutes, and by the least restrictive means necessary. Clearly there is ample reason to doubt that the state laws against cultivation and possession of cannabis are necessary for the protection of the public well-being. Therefore the charges against me should be dismissed and the criminal sanctions unequally and prejudicially imposed on me and all citizens of New York State by the New York Controlled Substances Act, in regards to marijuana, and New York P.L. 221 should be declared null and void because they are unconstitutional and, therefore, have no standing. I would further pray that the court would order the return of my valuable property which is in police custody that being the two Cannabis Indica plants, forthwith. TABLE OF CONTENTS LEGAL STANDING Public Notice as given to legislators and Governor Paterson ………………….2 Federal Crimes Against the People……………………………………………..3 Constitution of the United States……………………………………………….4 Constitution of the State of New York………………………………………….6 Oath of Office…………………………………………………………………..9 Letter to the Bar………………………………………………………………..10 Violation for possession of cannabis hemp plant………………………………11 First Motion for Dismissal filed July 6th………………………………………..12 Affidavit in Support of Motion to Dismiss………………………………..15a-15h EXHIBITS IN EVIDENCE CAMP Samples of Lobbying Activities C.A.M.P. Statement of Purpose…………………………………………..…….16 HIP was created to educate legislators and the governor about cannabis…...…..17 “Marijuana is Green” poster……………………………………………………..18 Hemp Fields poster…………………………………………………………..….19 Cornell Letter of Support addressed to C.A.M.P.’s P.R. Dir., Dunn Eggink…....20 Hemp Product Wheel…………………………………………………………….21 HIP stimulus plan for green hemp economy in New York State……………….....22 HIP product outline………………………………………………………………23 CAMP Outreach Letter Calling for Support to End Hemp Prohibition………......25 2 Letters to Governor Paterson…………………………………………………..26 Step 1, 2, 3 plan for restitution of constitutional violations…………………........28 Video of my plea to Governor Paterson for a redress of grievances………….....31 Letter to Governor’s Chief of Staff……………………………………………...32 Marijuana Legalization Movement according to C.A.M.P……………………......33 Letter to Senator Parker………………………………………………………….34 C.A.M.P. Medicinal Cannabis bill………………………….………………….....35 Senator Parker’s response on ending prohibition……………………….………..36 Flyers for an event by C.A.M.P. scheduled for the NYS Capitol…………….......37 EVIDENCE OF FRAUD Washington Free Press, “How Marijuana Became Illegal”……………………......38 “Billion Dollar Crop” ad in Popular Mechanics Magazine………….…………......40 “Billion Dollar Crop“ article about hemp in Popular Mechanics Feb 1938…..........41 Mechanical Engineering Feb 1937 article about the hemp industry growth…..........44 Excerpts from the Cannabis Conference 1937 plotting to defame cannabis…........46 PHOTO - First Arrest under Federal Marijuana Tax Act…………………….........47 Introduction to letters from hemp producers about to be wiped out by law…........48 Letters between Federal Narcotic Bureau and hemp producers……………….......49 Letter from the A.M.A. protesting Anslinger’s claim about cannabis………….......60 NYC Mayor LaGuardia’s report found marijuana was not dangerous………..........61 Pres. Nixon’s 1970 Commission reported cannabis was not dangerous……..........62 “Nixon Tapes” show roots of marijuana prohibition…………………………........63 3 New York State Medical marijuana bills and one Senate online printout…............64 Thomas Duane online introduction of the Medical Marijuana Bill…………….........65 The U.S. government still has cannabis hemp listed as a Schedule 1 Drug…...........66 By law, ONDCP can oppose any attempt to legalize use or, even lie…………........67 Legalization of Marijuana.com, “US Policy on Drugs” ………………………........68 Evidence Reveals Cannabis Is Far from Being a Schedule 1 Drug HEMP THC OIL Kills Cancer Cells poster……………………………………......69 Two articles: Oxford scientist’s studies, book, about aspirin vs. marijuana…..........70 “…Marijuana Components Can Inhibit Cancer Growth.”…………………….........72 “Germany: Cannabis Could Help Epileptics” source BBC News……………..........74 Hebrew U. “Cannabis can Strengthen Bones” …………………………………......75 Queen Mary’s School of London research: Cannabis destroys cancer……….........76 “Derivatives of Cannabis for Anti-cancer Treatment………………………….........78 “Marijuana Cuts Lung Cancer Tumor Growth in Half” ……………………….........80 “Marijuana and the Brain” Science News Feb 6, 199386………………………........87 U.S. GOV’T PATENT (1 of 11) on cannabis as medicine……………………........88 Clinical Uses of Marijuana………………………………………………………......90 Annual American Deaths Chart………………………………………………..........92 Facts About Hemp Products Americans Can Buy, but not grow Money Doesn’t Grow on Trees…………………………………………………......93 Cannabis Hemp: Most Valuable Plant on Earth………………………………...........94 Nature’s Forgotten Pharmaceutical…………………………………………….........95 Chi Hemp Industries Hemp Seed………………………………………………........97 Dietary Chart of Proteins – Hemp seed protein is the best……………………..........98 Canadian Industrial Hemp Pie Chart showing U.S. as No.1 importer……….............99 Study of Hebrew shows cannabis oil was used as anointing oil……………............100 Hemp clothing………………………………………………………………….......101 Hanes briefs made out of hemp – New product line…………………………..........102 Hemp bio-fuel runs this police car in Toronto, Canada……………………….........103 Evidence of Damage Due to the Arbitrary Nature of Cannabis Prohibition California Supreme Court– City must return seized medical marijuana….….............104 Marijuana Arrest Crusade Chart – Racial Bias and Police Policy in NYC…..............105 Marijuana Possession and Use by Whites, Blacks & Latinos Chart…………...........106 Possession Offenses in NYS - Chart on NORML website…………………….........107 List of offenses involving marijuana…………………………………………............108 Article Regarding Arrest of Abigail Storm for possession…………………..............109 Oregon Governor legalizing industrial hemp…………………………………............110 Matthew C. Mole “Industrial Hemp in Vermont”……………………………............111 CBS News Report about legalization of “pot” to balance budget……………...........112 “Legalization of Marijuana” US Policy on Drugs…………………………….............113 Dick Gottfried’s Memo in 1977 supporting Decriminalization..….....………..............115 Testimony of Harry Levine – Marijuana Arrest Crusade……………………..............116 Marijuana Possession Arrests in 3 Decades………………………………….............119
Decision on this Motion was set for October 16, 2009. UPDATE: The Decision is in and Abigail's Motion to Dismiss is denied. Decision and Order denying motion to dismiss is below.
Abigail's trial will be February 2, 2010 at 10 am, Albany City Court, Criminal Division, 1 Morton Street, Albany, NY.
We want to thank all those who have supported Abigail by attending the hearings. God bless you.
(Decision on Joe Barton's Motion to Dismiss came in. His right to argue his religious beliefs was recognized by Justice Deborah Schneer and will be argued before County Court Judge Williams Feb. 4, 2010. No date for trial is set as yet.) Joe could be sentenced to several years in prison for simply growing and using cannabis for religious and medicinal purposes.
Below is Abigail Storm's 1) Amended Motion to Dismiss, 2) Affidavit in Support of Motion, 3) Affirmation in Opposition to the Assistant District Attorney's response to her Motion and 4) Table of Contents for Evidence submitted. 5) Decision and Order for Pre-trial Hearing from Albany City Court Judge Rachel Kretser.
If you'd like to comment or ask a question please email us: [email protected]
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1) ABIGAIL'S AMENDED MOTION TO DISMISS
Albany City Court, County of Albany,
STATE OF NEW YORK
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-against- MOTION TO DISMISS
or under threat of slavery,
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PURPOSE
Dismissing the complaint against myself, Abigail Storm-Eggink, because, "According to New York State law it is illegal to have a 'marijuana' plant." However, the Supreme Law guarantees me the protection of my religious beliefs and it guarantees me my right to seek a redress when my rights are violated. The police, using their authority under color of New York State law to arrest me and take my plant, were in direct violation of my rights protected under the U.S. Constitution 1st Amendment and the New York State Constitution, Art 1 Sec 3.
a) Possession of Marijuana, a Class 1 Controlled Substance as defined in Section 3302 of the Public Health Law and Article 221.05 of the New York State Penal law.
"[The Constitution] is made for people of fundamentally differing views and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."
221.00 - Marihuana; definitions.
221.05 - Unlawful possession of marihuana.
221.10 - Criminal possession of marihuana in the fifth degree.
221.15 - Criminal possession of marihuana in the fourth degree.
221.20 - Criminal possession of marihuana in the third degree.
221.25 - Criminal possession of marihuana in the second degree.
221.30 - Criminal possession of marihuana in the first degree.
221.35 - Criminal sale of marihuana in the fifth degree.
221.40 - Criminal sale of marihuana in the fourth degree.
221.45 - Criminal sale of marihuana in the third degree.
221.50 - Criminal sale of marihuana in the second degree.
221.55 - Criminal sale of marihuana in the first degree.
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2. ABIGAIL'S AFFIDAVIT IN SUPPORT OF MOTION
Albany City Court, County of Albany ,
MOTION TO DISMISS
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3. ABIGAIL'S AFFIRMATION
Oct. 12th, 1937
To complicate the marijuana picture, however, there are additional controversies. Among the activist left, there are some who believe that heavy marijuana use can lead to passivity of those who should be at the forefront of fighting for social change; others believe that marijuana use represents the freedom of having one's own drug of choice; and of course, the alcohol comparison is argued both ways: why turn one problem into two; or why not, since different people are involved?
"To complicate the issue still further, the question of legalizing the use of marijuana has now become one of "decriminalization", which would result in legality without effective controls.
Page 76 "In the event that drug education is fraudulent or misleading, which much of it has been, credibility may be lost regarding many more items on the educational calendar than drugs.
The response of educators and others in the drug abuse prevention field to these findings, which are now widely known, has been to attempt a shift away from the international aspect of drug education, although the law presently requires such an approach. The present approach is verbalized as 'values clarification'; or more ambitiously, 'basic attitudinal and behavioral changes leading to the clarification of an individual's goals in life'.
Helping children clarify their own values and goals may be, particularly difficult when neither teachers nor society-at-large have clearly defined values and goals of their own."
As the weight of evidence that cannabis was virtually harmless continued to grow, the government was increasingly pressured to reform or repeal the marijuana prohibition. Never has cannabis consumption been shown to have a statistical link to violent crimes or robbery. Cannabis cultivation, consumption and possession are widely regarded as victimless crimes, yet the state authorizes police to arrest people and seize their private property if they are found to possess cannabis in 1977 Assemblyman Richard Gottfried introduced a bill that was passed by the Legislature, to decriminalize small amounts of cannabis in order to ease rising pressure from civil rights and citizens groups. However, the only stated purpose for continuing to arrest and penalize people for cannabis possession was because it was "expressly not the intention of the Legislature to encourage or condone recreational use of marijuana." The proof of the medical uses alone is enough to demand that cannabis be removed from the Schedule 1 listing. In light of the insurmountable evidence that the Schedule 1 listing of cannabis in the Public Health Law and the Marijuana Reform Act of 1977 are fraudulent and unconstitutional, the law has no standing and cannot be used to convict me of the charge of unlawful possession of marijuana.
The Prosecutor says, New York's marijuana laws are the least restrictive means to regulate the use and possession of marijuana. "It would be difficult to imagine the harm which would result if the criminal statutes against marijuana were nullified as to those who claim the right to possess and traffic in this drug for religious purposes." Id. at 940 (citing US v. Middletown, 690 F.2d 820 (11th Cir. 1982) (quoting Leary v. U.S. 383 F.2d 851 (5th Cir. 1967).
The Prosecutor claims that the current laws are the least restrictive means to regulate the use and possession of cannabis, but he overlooks the fact that the New York State government and the Albany District Attorney's Office have failed to show a compelling reason, based on findings of fact, why cannabis possession and use must be regulated. The Prosecutor quotes a court ruling in which classical hypothetical dangers of cannabis consumption are considered to be worthy of supporting an existing law enforcement regime without any consideration of the scientific findings and reliable demographics research reports that have witnessed to the benign nature of cannabis-induced euphoria. The ruling states "it would be difficult to imagine the harm which would result..." despite the fact that millions of people already use cannabis safely and responsibly. The result of nullifying the law based on it violating religious freedom would be less arrests for victimless offenses and less need for people, who value it as part of their lives, to seek illegal sources. Religious purposes are as respectable as medical or industrial, but, most important in this issue, is the lack of evidence of any potential harm imagined by those who feel compelled to control cannabis consumption among responsible adults in their own private lives. It is not "difficult to imagine", and in this case I am not seeking nullification as to those who possess the herb for religious purposes alone, but for all purposes deemed appropriate by the consumer, as long as they do not harm or endanger others, because the laws against its use in any form have been fraudulent and unconstitutional from their origin until the present day.
The Prosecutor says, Any carve out or other constitutional accommodation for certain religious practices, especially the type described here by Defendant, will encourage those that choose to use marijuana or desire to use it for non-religious purposes to enlist in those religions for the wrong reasons. See id. at 941 (describing individuals joining religions simply to invoke protection for drug use that would otherwise be unlawful). Such carve outs will "[e]ffectively - and significantly - [render] laws restricting the use of marijuana...meaningless." Id. Therefore, no reasonable or sensible means less restrictive than New York's marijuana laws exist to enforce and regulate the use of marijuana in New York. See id. ("court must apply the free exercise doctrines in a manner both sensible and realistic") (internal citation omitted)). Therefore, New York's marijuana laws do not violate the RFRA, and there is no constitutional basis to dismiss this case.
Quite contrary to the position taken by the Prosecutor, the cannabis prohibition laws were a "carve out" of fundamental standards of constitutional law and the non-violent offenders who have been arrested, penalized, robbed and separated from their families under the false pretenses of "serving the public good" need no special constitutional accommodation for their religious practices, as the Constitution has already ensured the protection of their personal freedoms and rights to safety and security. The prosecutor implies that the government should determine the right and wrong reasons for a person to use a substance that the person finds useful and beneficial. “The fundamental guarantees of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police power invoked. Nebbia v. New York, 291 U.S. 502, 546 (1934) The Prosecutor’s statement here is again an example of how the overbroad and opinionated basis of the cannabis prohibition has led some public servants to believe that the citizen is not to be allowed the freedom to decide how to maintain their own health and well being, as if the complex democratic institution of our state is better suited to decide what is the proper use of herbs for responsible adults in their private lives. The government is not questioning the right or wrong reasons for a person to drink alcohol or coffee, or smoke cigarettes or even give Ritalin to children. My mentioning of my religious beliefs regarding cannabis does not leave the door wide open for the government to question whether or not my use of cannabis is solely for religious purposes. The government still has yet to demonstrate a realistic and unquestionable reason for making and maintaining laws that restrict and deny me my right to freely cultivate, possess and consume cannabis for all my religious and non-religious purposes when the state clearly differs in motive regarding the obviously more dangerous drugs, well established as such by scientific evidence.
C. Equal Protection Claims
The Prosecutor says, A statute does not offend the Fourteenth Amendment unless it is "purely arbitrary and without any reasonable basis," and the burden is on the defendant to show that this is the case. Morey v. Doud, 354 U.S. 457 (U.S. 1957); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 60 (U.S. Ga. 1973); Tyson & Brothers v. Banton, 273 U.S. 418, 445 (U.S. 1927). Penal Law 221.05 has the clear purpose of regulating a substance in furtherance of the public health and welfare. Defendant has not shown any way that the law is indiscriminately applied or a violation of her equal protection rights. The mere fact that states have different laws with regards to possession of marijuana is irrelevant to the consideration of the Equal Protection Clause, which provides for equal protection of the law within the same jurisdiction. Therefore, the motion to dismiss should be denied.
As the prosecutor has correctly pointed out, a statute offends the Fourteenth Amendment when it is "purely arbitrary and without any reasonable basis". With strict scrutiny being applied the burden is on the state to prove a compelling government interest with a preponderance of evidence. However, it is no burden for me to show that the marijuana prohibition in New York State is purely arbitrary and without any reasonable basis, because the Legislature has already made it quite clear in their findings and purpose for the Marijuana Reform Act of 1977, New York P.L. 221. The cannabis prohibition enforced under Penal Law Art. 221 has as its stated purpose "expressly not to condone or encourage the recreational
use of marijuana..." not, as the Prosecutor claims, for the furtherance of public health and welfare. They couldn't claim such a noble cause because Assemblyman Richard N. Gottfried, who proposed the legislation, was well aware of the findings of the Shafer Commission and other reliable reports that marijuana was not a significant danger to public health or safety.
In a 1988 hearing on a petition to remove marijuana from the Schedule 1 list, the DEA Administrative Law Judge, Francis L. Young’s ruling emphasizes the benign nature of marijuana:
“The most obvious concern when dealing with drug safety is the possibility of lethal effects. Can the drug cause death? Nearly all medicines have toxic, potentially lethal effects. But marijuana is not such a substance. There is no record in the extensive medical literature describing a proven, documented cannabis-induced fatality. 11. A commonly used over-the-counter product like aspirin has a therapeutic ratio of around 1:20. Two aspirins are the recommended dose for adult patients. Twenty times this dose, forty aspirins, may cause a lethal reaction in some patients, and will almost certainly cause gross injury to the digestive system, including extensive internal bleeding.
12. The therapeutic ratio for prescribed drugs is commonly around 1:10 or lower. Valium, a commonly used prescriptive drug, may cause very serious biological damage if patients use ten times the recommended (therapeutic) dose.
14. By contrast, marijuana's therapeutic ratio, like its LD-50, is impossible to quantify because it is so high. In strict medical terms marijuana is far safer than many foods we commonly consume. For example, eating ten raw potatoes can result in a toxic response. By comparison, it is physically impossible to eat enough marijuana to induce death. Marijuana, in its natural form, is one of the safest therapeutically active substances known to man.”
Page 72 and 73: "The central problem regarding information about drugs is that it is all controversial. For a number of years, opposing camps have debated the question of the harmfulness of marijuana. Most people do not quite believe that marijuana is not addicting; most people do not believe that marijuana is harmless, and most people do believe that marijuana is a stepping-stone to more serious forms of drug use. Others insist that marijuana is not addicting; that when it contains low concentrations of active ingredients, it is harmless; and that while marijuana experimentation does precede other drug use, so does alcohol experimentation. Moreover it is argued that most people who use marijuana ultimately lose interest and stop. They do not proceed to more dangerous drugs. The stepping stone theory demonstrates the fallacy known as post hoc, ergo propter hoc. That so many people subscribe to such a fallacy may be a comment on the efficacy of educational efforts relating to the structure of thinking."
To complicate the marijuana picture, however, there are additional controversies. Among the activist left, there are some who believe that heavy marijuana use can lead to passivity of those who should be at the forefront of fighting for social change; others believe that marijuana use represents the freedom of having one's own drug of choice; and of course, the alcohol comparison is argued both ways: why turn one problem into two; or why not, since different people are involved?
"To complicate the issue still further, the question of legalizing the use of marijuana has now become one of "decriminalization", which would result in legality without effective controls.
Page 76 "In the event that drug education is fraudulent or misleading, which much of it has been, credibility may be lost regarding many more items on the educational calendar than drugs.
• A fine of no less than $300 and no more than $500.
• Possible jail time of up to 15 days.
• Loss of license for 90 days.
Second Offense DWAI Within 5 years:
• A fine of no less than $500 and no more than $750.
• Possible jail time of up to 30 days.
• Loss of license for at least 6 months.
• A fine of no less than $750 and no more than $1,500.
• Possible jail time of up to 180 days.
• Loss of license for 90 days if previous violation occurred over five years ago, and loss of license for at least 1 year if it occurred within five years.
• A fine of no less than $500 and no more than $1,000.
• Possible jail time of up to 1 year.
• Loss of license for at least 6 months.
Second Offense DWI or DWAI-Drugs Within 5 Years:
• A fine of no less than $1,000 and no more than $5,000.
• Mandatory jail time of at least 5 days or at least 30 days community service, or possible prison time of up to 4 years.
• Loss of license for at least 1 year.
Third Offense (Or More) DWI or DWAI-Drugs Within 5 Years:
• A fine of no less than $2,000 and no more than $10,000.
• Mandatory jail time of at least 10 days or at least 60 days community service, or possible prison time of up to 7 years.
• Loss of license for at least 1 year, ignition interlock device, and required alcohol evaluation.
• A fine of no less than $1,000 and no more than $2,500.
• Possible jail time of up to 1 year.
• Loss of license for at least 1 year.
Second Offense Aggravated DWI Within 5 years:
• A fine of no less than $1,000 and no more than $5,000.
• Mandatory jail time of at least 5 days or at least 30 days community service, or possible prison time of up to 4 years.
• Loss of license for at least 18 months.
Third Offense (Or More) Aggravated DWI Within 10 years:
• A fine of no less than $1,000 and no more than $5,000.
• Mandatory jail time of at least 10 days or at least 60 days community service, or possible prison time of up to 7 years.
• Loss of license for at least 18 months.
(Notice how sale and cultivation is grouped together in the more serious offense category)
5. DECISION AND ORDER FOR PRE-TRIAL HEARING
This is a link (PDF) to the Decision and Order from Judge Rachel Kretser which you can print or download.
NEW YORK MEDICAL MARIJUANA UPDATE
Let it be known that the medical marijuana bill passed the NYS Assembly in 2009, the third year in a row. This year the Democrat controlled Senate passed an identical bill through the Health committee and was in the Codes committee when the Senate was upset by the Republican takeover. The medical marijuana bill was left in limbo. Right before the Assembly left they changed the bill drastically. In the previous bill a patient or their caregiver could grow 12 plants per patient. Under the new bill the state will decide who grows the plants. This is a further attempt to defraud and deprive the citizens of their God given rights to grow their own safe medicine.
Now we know that the oil from boiled down flowers of the hemp plant with strong THC levels kills skin and internal cancers. It takes one pound of flowers to get two ounces of the oil. The present medical marijuana bill does not offer enough to the patient to rid them of cancer. It only allows enough for the patient to treat themselves after chemo-therapy. With the oil cancer can disappear within weeks or months. See "The Rick Simpson Story" or www.phoenixtears.ca Rick is a Canadian who has rediscovered that hemp oil extracted from buds cures cancer, diabetes, etc. Prepare for a shock. In the 1970's our government discovered it when Nixon formed the Shafer Commission to do a study on the effects of cannabis. Nixon's administration decided to suppress this important information so he could initiate his Drug War which began in 1970 and has continued to this day!
C.A.M.P. says enough is enough. It's time to stop the aggressive opposition to this valuable plant. No more excuses New York State!
