December 27, 2001

By Bobby Command, West Hawaii Today

West Hawaii Today  

Proposed marijuana enforcement regulations are described by some as adequate given existing laws, but others who advocate pot use for various purposes claim the draft rules infringe on religious freedom.

Suggested regulations governing "green harvest" operations, as well as medical and religious use of marijuana in Hawaii County, will be discussed during a 10 a.m. hearing Jan. 3, in the conference room at Kealakehe Police Station.

The draft rules are available at the County Council office in Kailua - Kona.

Prompted by a resolution co - sponsored by Councilmen Gary Safarik of Puna and Curtis Tyler of North Kona, the Police Department assembled rules to address increasing concern about marijuana eradication and enforcement policies.

Despite county and state laws to the contrary, federal laws are clear: Marijuana remains illegal. And neither county nor state law can supersede federal statutes.

Police Lt. Henry Tavares said the rules put into writing the current police practices. They were drafted with the input of county law officials, including county Prosecutor Jay T. Kimura, who Wednesday did not return two messages.

"These rules would provide guidance for investigating officers who come upon marijuana," Tavares said, "or who are participating in eradication operations."

Proposed eradication rules require, among other things, helicopters remain 1,000 feet above ground level, or 500 feet if probable cause exists. They also prohibit aerial herbicide spraying and require helicopters and personnel to be clearly marked "police."

Draft medical use rules place limits on the amount of marijuana one can possess and require patients to have a registry card from the Department of Public Safety. Rules concerning religious use say all arrests shall be based upon probable cause and courts shall decide the validity of a suspect's claims.

Tavares said eradication rules already are being followed, while supervisors answer questions by officers about medical and religious use on a case - by - case basis.

Safarik said the draft rules, which he supports, are the best the police could do given existing laws. He said the eradication rules have addressed residents' concerns and medical use rules are based on laws passed by the Legislature.

"But on the religious issue," Safarik said, "I believe the only people who can change things to the satisfaction of those who use marijuana as a sacrament are the Supreme Court of the United States."

Safarik said there is ample evidence marijuana provides relief for certain medical conditions. "But that is such a small segment of our population, and that's why people are certified by a doctor."

However, Safarik said to go any further on the religious rights issue would overstep the county's powers. "The police must following that law," he said. "I feel what has been drafted complies with the law and what we crafted as a resolution."

Jerry Rothstein of Kailua - Kona said the draft rules are opposite what the council mandate sought. "They are police - friendly, rather than user - friendly," he said.

Rothstein said the draft regulations do not fulfill condition seven on the council resolution, which calls for written rules about any part of marijuana use protected by state and federal constitutions.

"In both the U.S. and Hawaii Constitutions there is something called freedom of religion," Rothstein said. "When it says religious freedom, the presumption is, it's legitimate. But the first word in the rules is 'arrest.' "

Rothstein said his religion, "Ynited Cannabist Academy," meets all parameters of a legitimate religion as stated in a Hawaii Supreme Court case called State v. Blake. The requirements, Rothstein said, are the religion must be legitimate, the user sincere and the use of marijuana a required sacrament.

While Rothstein said he has smoked marijuana for 35 years, Ynited Cannabist Academy, which he said he formed three years ago, is sincere with all the components of a religion, including practices, prayers, teachings and declarations.

"Who's to say my religion is not legitimate, and who am I to say someone else's isn't," he said. "I don't want the cops to knock down my door, mess up my stuff and force me to go to court to prove I have the right to exercise my religion."

Rev. Dennis Shields of Kona said the council asked police to draft rules respecting constitutional rights of those who use marijuana for religious purposes in their own homes.

Instead, Shields said, proposed rules say the police would not recognize a suspect's claim of protection under the First Amendment, nor would they determine if the requirements of state v. Blake were satisfied. "The rules say they will immediately arrest you," he said.

Shields, who said he has been a member of the Religion of Jesus Church since 1973, said the police should deal with their own problems before infringing upon the constitutional rights of Big Islanders.

"I'm not alone in the community in recognizing a crisis of honor in our Police Department," Shields said. "The meeting will be held in the very building where $50,000 in evidence was stolen. There's Carvalho (promotion rigging), and down in Ka'u, a girl is claiming police were dealing ice.

"The police should get the corruption out of their own house before they take the medicine or sacrament out of mine," Shields said.

Safarik said the best situation would be vigorous enforcement of drug laws, compassion when necessary, and readily available drug rehabilitation programs.

"We have a tremendous drug problem on the Big Island, and it scares me," said Safarik, pointing out the recent heroin arrests. "The police are doing the best they can with the resources they have, but we need a more vigorous stance on the harder drugs like ice and heroin."