Police, prosecutors will discuss enforcement plans for July 1 event
Levin contends the use of marijuana in the church service is protected by RFRA, which limits government encroachment on religious freedoms.
Curry said he believes the new law is ill-advised and problematic. That said, he also stressed that RFRA is not "a legitimate defense to committing a crime."
Police can’t ignore violations
Hite said police can’t ignore Levin flaunting the law under the guise of religion.
That means everyone in attendance next week is subject to criminal charges, he said, even if they do not partake of the church’s sacrament.
Curry said observers could be charged with visiting a common nuisance. Those who smoke the drug could be charged with possession of marijuana. Both charges are class B misdemeanors, which carry a penalty of up to 180 days in jail and a $1,000 fine.
Curry and Hite said Friday they were announcing their plans in an effort to dissuade Levin and his followers from going through with wide-spread marijuana use at the service. Hite said his department would have police on the church property, including possibly inside the sanctuary itself.
"I think it’s important to know that we’re not trying to create a police state," Hite said. "I think reasonably intelligent people will stay away, quite frankly. But as with any other events we happen to have in our city, we’re prepared for it."
Curry listed six considerations he said he recently shared with Levin — and wants others who might attend the service to keep in mind.
In addition to making arrests for those who possess or are simply in the presence of marijuana that is being used, Curry said, police will also be looking for impaired drivers, those with open warrants and those who are at the service in violation of a probation order. Curry also cautioned that minors should not be present if marijuana is being used, adding that such a violation has "numerous implications."
Curry and Hite said police and prosecutors are duty bound to uphold Indiana’s drug laws and cannot ignore the event that has been widely promoted in the news and on social media. They also are disturbed that they have to expend valuable manpower on this event, when there are many other more pressing needs for law enforcement resources.
Curry added Levin’s church is a direct result of the state’s RFRA law, and renewed an earlier call for legislators to repeal the law which he sees as unneeded and the result of political posturing.
"We anticipated that (RFRA) could be asserted as a defense to criminal prosecution," he said. "As with any defense, our office will address the argument within the context of the case in which it is presented."
The prosecutor said he has met twice with Levin to discuss alternatives to making mass arrests at the service next week, such as making his point on a smaller scale involving just one or two people challenging the law.
"I understand completely that what (Levin) is doing is using RFRA as a vehicle to essentially advocate for what he’s advocated for all along, and that is the legalization of marijuana," Curry said. "But until he and others convince the legislature otherwise, then it’s a crime."
Curry also dismissed concerns that the attendees of next week’s Church of Cannabis service would be treated differently than others who are cited for marijuana possession – though he added that the city’s advance notice of the event did present a change in how they plan on enforcing the law.
"Individuals are cited for criminal offenses when they are observed, whether it’s at the Indy 500 or rock concerts," Curry said. "What is different here is that we’ve been given notice that this is going to occur. From our perspective, it would be entirely the wrong message that we would not react to that."
Hite said the church is not right for Indianapolis, adding he and his officers have talked to drug dealers who are "appalled" by the planned service next week.
"Those who deal drugs for a living have said to us, ‘Listen. We’re trying to get out of the game. You’re telling us to get out, chief,’" Hite explained. "How can we allow someone to willingly violate the law?"
Keeping the lawyers happy
Levin said he is unfazed by who might show up at the service Wednesday, including law enforcement officials
"I don’t have a problem with that," he said. "You want to come pray? Come pray. You better be on the guest list to get into the building, though, because we’ve already got this thing filled."
The church plans to have a tent to accommodate overflow from the relatively small church building. What Levin described as "ushers" — who sound more like security — will screen people entering the building. The church also will have legal representation on site for the inaugural service.
A woman at the church Friday, wearing a shirt with a peace symbol on it, scoffed at Curry’s suggestion for Levin to scale down whatever might trigger a legal battle.
"Bill doesn’t do anything on a small scale," she said. "I’ve known him for 35 years."
Levin confirmed Curry’s suggestion but characterized it as being asked "to fall on the sword and no one else do it."
"I believe in religious freedom and I will never tell my congregants what not to do," Levin said. "I will warn them of what might happen. If you’re on probation, they might nail you. If you’re there with a kid, they might get CPS on you. … This is civil disobedience in its finest form while we’re celebrating a beautiful birth of a new religion."
Levin appears to be doing as much as he can to protect the church legally. He has non-profit religious status certified by the Internal Revenue Service. He made sure the church building conforms to safety codes. He’s not allowing anyone under 21 into the sanctuary, where marijuana will be smoked at the end of the ceremony. And he is not selling or distributing the drug; its a bring-your-own event.
While Levin said he would prefer that officials leave him and church members alone, he’s not about to back down from a legal fight.
"I’d just as soon not do it. Am I afraid of it? No. Not at all. I’m sorry, I’m right," he said. "I will defend my beliefs as long as it takes and as far as it takes."
Any decision the state makes on religious laws — including whether the First Church of Cannabis is a legitimate religion — "they’re going to have to be very committed to, and that goes across the board," Levin said. "Because what’s good for one religion is good for all."
Legal experts wary
Whether Levin and his new church find protection under RFRA is a complicated and cloudy question, according to legal experts, who said it likely will be up to the state’s Supreme Court to decide.
At a forum on RFRA this week at the Indiana University Robert H. McKinney School of Law, three experts generally agreed Levin was likely to lose in his effort to use the law to protect followers’ marijuana use from prosecution.
Around the country over the last 25 years, most other attempts to use the federal RFRA to avoid drug charges have been unsuccessful — even though that law was enacted after the U.S. Supreme Court failed to uphold the religious freedom of a Native American to use peyote, an illegal drug, in a spiritual ritual.
Douglas A. Berman, a professor at the Ohio State University Moritz College of Law, was a little more optimistic.
"If and when you robustly protect religious freedoms, you have to be prepared that there will be people who claim religions that may not be what you had in mind," he explained.
He said most of the other unsuccessful test cases involved defendants who invoked RFRA after being arrested on drug charges.
"It is relatively rare," he said, "a defendant could have done the front-end work to show the drug use came after a religious commitment rather than you were using drugs and then you conveniently got a religious commitment on the back end."
Berman said the key to Levin having a chance to prevail in court involved "doing the things — and it sounds like he already is starting to — that makes this look much more like religiosity than an excuse" for drug use. Ministry actions, such as assisting families with children who have medical conditions and need marijuana to address those health problems, would help prove it is a religion, he said.
To win in court on a RFRA claim, Levin would need to overcome two hurdles, said Donald L Beschle, professor at the John Marshall Law School in Chicago.
First, he would need to convince the court that what they are doing is actually motivated by a religious belief.
But even if Levin can establish his church is entitled to some protections under RFRA, Beschle said, the state can still attempt to justify arresting church members for using marijuana. They key would be the state establishing it has a compelling public safety interest — and that the denial of a RFRA exemption is necessary to protect that interest.
The court could duck the religious question altogether, he said, and focus solely on the compelling interest argument.
"In a close case, the court may say for the sake of argument, ‘we will accept this as a religion,’ then move onto the next test (compelling interest)," he said.
But, he acknowledged, Levin is facing an uphill battle.
"I would not give it much of a chance of succeeding on a constitutional RFRA claim," he said. "I don’t think the court will get out ahead of the legislature on deciding there is no longer a compelling interest (for the state to prohibit marijuana use)."
Call Tim Evans at (317) 444-6204 and follow him on Twitter: @starwatchtim