President Bush and a local man who deliberately got himself arrested for smoking marijuana were using a similar tactic possessing drugs on Sept. 5, 1989, to call attention to the illegal drug crisis, the man's attorney argued Friday in Douglas County District Court.
Arguing in favor of a motion to dismiss charges against Mark Creamer, 43, defense attorney Jerry Harper said both his client and Bush exercised their First Amendment freedom of speech rights the night Bush announced his drug policy to a national television audience.
Harper, former Douglas County district attorney, said Bush symbolized the drug problem during his speech by holding up a bag of crack cocaine obtained in a deal arranged by government employees.
After hearing Bush's address, Harper said, Creamer went to the Law Enforcement Center and lighted a marijuana cigarette while standing in front of a Lawrence police officer to protest Bush's policy.
"JUST AS THE president made his point by holding up crack cocaine, my client had marijuana," Harper said.
Although Bush "was able to go about his business" after his speech, the attorney said, Creamer was arrested and jailed. The attorney argued that Creamer's free speech right was violated.
Creamer is scheduled to stand trial Wednesday on a misdemeanor count of possessing marijuana.
Harper further argued that Creamer's case is similar to the Texas case that prompted last summer's U.S. Supreme Court decision on flag-burning. The court struck down a Texas statute that provided criminal penalties for burning a U.S. flag.
Harper said the current Kansas statute for possessing marijuana, like the Texas flag-burning statute, left Creamer with no "alternative channels" to protest it besides breaking it.
CREAMER TESTIFIED Friday that he did not believe the news media would listen to his views unless he staged the event. He said he was fearful of coming out in favor of marijuana legalization because he thought the police would place his name on some sort of blacklist.
Harper told Douglas County District Judge James Paddock that the goal of his motion was not to strike down Kansas marijuana laws.
Rather, he said: "In this instance, the law should give way. Mark Creamer harmed no one. He has moved the (legalization) dialogue . . . forward."
Arguing against the motion, Douglas County Dist. Atty. Jim Flory defined as "ludicrous" Harper's point about the similarities between the actions of Creamer and Bush.
"I'VE STOOD IN this courtroom and every courtroom in this judicial district and held up bags of cocaine," Flory said. "Just because I hold it up and make speeches and there may be a camera present doesn't mean that Mark Creamer can go out and smoke marijuana."
Flory argued that an alternative to smoking marijuana would have been for Creamer to take his views to the president, to his congressmen or even to the district attorney. When questioned by Flory, Creamer testified that he had not called any officials.
Flory said Creamer's protest was an act of conduct and not speech. He said there are no case decisions saying the conduct of using illegal drugs is protected by the First Amendment.
On the contrary, Flory argued, case law indicates that illegal drug use is not a protected act. In support of his argument, Flory cited a U.S. Supreme Court decision Tuesday saying there is no constitutional right to take the hallucinogenic drug peyote as a religious practice.
Paddock told the attorneys he would study the case and issue a ruling. The judge did not specify when he would make his decision on the motion.