The following report is from The Entheogen Law Reporter (TELR) by Richard Glen Boire An excellent source of legal information law and use of sacred plants and substances Subscriptions are $25 (4 issues) per year to: TELR PO Box 73481 Davis, CA 95617-3481 Or see the TELR website by clicking here- TELR

County Attorney in Arizona Threatens Raid on Home of Religious Peyote User

On Friday, October 13, 1995, agents of the Pinal County Sheriff's Department and police officers of the Town of Kearny, Arizona, raided the home of Leo and Raven Mercado. (See 10 TELR 95.) The agents were there because they had information that Cannabis plants would be found in the home. No Cannabis plants were found, but agents did discover several hundred peyote cacti which Mr. Mercado was cultivating for religious use by himself and Raven. Despite the Mercados' protests that the peyote was legal under Arizona's law that permits religious use of the cactus, the agents confiscated the plants, digging them out of their planters and tossing them into bags.

The Mercados were charged with possession of peyote, but the charges were subsequently dropped. Furthermore, the County Attorney at the time, Mr. Figueroa agreed to return all the confiscated peyote. Unfortunately, because of the rough treatment by the agents and the length of time that the peyote sat in bags in the custody of Pinal County, more than half the returned cacti were severely damaged or destroyed. Upon receiving the cacti, Mr. Mercado replanted those that remained viable. The Mercados then continued their religious practices, cultivating and using peyote.

On January 18 of this year, Mr. Mercado was stopped for a minor traffic violation. During this encounter, the officer seized Mr. Mercado's medicine bag which contains a single dried peyote button which, like many peyotists, Mr. Mercado carries as a constant reminder of his faith. Although he was not charged with unlawful possession of the button, the new County Attorney of Pinal County, Carter Olson, ordered police to keep Mercados medicine bag and peyote button.

In a letter dated January 30, 1997, which was hand delivered to Mr. Mercado, Carter Olson told Mr. Mercado that he would not authorize the return of the peyote button based on an Arizona law mandating the forfeiture of controlled substances, including peyote, whenever they come into the possession of law enforcement agents. Mr. Olson also informed Mr. Mercado that he did not agree with his predecessor's decision to return the peyote plants seized during the 1995 raid. In bold all-capital letters, the letter threatened:

. . . YOU ARE GIVEN FAIR NOTICE THAT ANY CONTINUED POSSESSION OF PEYOTE MUST BE AT YOUR OWN PERIL, AND THE STATE OF ARIZONA RESERVES THE RIGHT TO CHALLENGE YOUR POSSESSION OR SALE IN A CRIMINAL PROSECUTION.

Mr. Olson then "authorized" Mr. Mercado to deliver all the peyote plants in his possession to the Kearny Police Department by March 1, 1997, stating "[o]ne way or another, if your status is not clarified, we are likely to one day test your possession in court."

Mr. Mercado refused to turn over his peyote plants and has steadfastly demanded that his medicine bag and peyote button be returned without further delay. "I cannot morally or ethically submit to the sheriff's demand that I abandon my own central religious beliefs and practices," said Mercado. "I find it very hard to believe that more pressing and publicly beneficial civil or criminal matters are not deserving of the attention and resources of his office. Among these, the securing of perfect toleration of religious sentiment to every inhabitant of this state is a duty I pray will not be abridged or taken lightly."

The Mercados have retained the legal services of the Rutherford Institute, a non profit civil liberties organization specializing in the defense of religious liberty, to defend their fundamental right to peacefully and safely practice their religion without harassment by the government.

The Mercados' case is extremely important for all people whose religious practice involves the sincere use of an entheogen. Arizona is one of a handful of states which statutorily protect all people, regardless race or religious affiliation, who use peyote for religious purposes. The Arizona law clearly states:

"In a prosecution for violation of this section, it is a defense that the peyote is being used or is intended for use: 1. In connection with the bona fide practice or a religious belief, and 2. As an integral part of a religious exercise, and 3. In a manner not dangerous to public health, safety or morals." (A.R.S. sec. 13-3402.)

Additionally, federal law protects the Mercados under the Religious Freedom Restoration Act of 1993.

Under both federal and Arizona law it is irrelevant that Mr. Mercado is not of Native American descent or a member of the Native American Church. For 18 years he has followed the Peyote Road, participating in, sponsoring, and sometimes hosting Huichol or Native American Church peyote ceremonies. In 1996, he helped form The Peyote Foundation, a religious and conservatory organization. It is undisputed that he is a sincere religious user of peyote and that his only purpose in growing and possessing the sacred cactus is for spiritual purposes.

Carter Olson, the Pinal County Attorney responsible for the ongoing harassment of the Mercados, should realize that his own actions are far more threatening to the freedom and safety of Pinal County citizens, than those of the Mercados. I suggest that as part of the damages sought by the Mercados in their civil suit against the county, that they ask that, in addition to monetary damages, the court also order Mr. Olson to hand write one hundred times: "I promise to abide by federal and Arizona law and to respect and protect the religious freedom of all people." Evidently, Mr. Olson has forgotten that very significant part of his oath of office.

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