UNITED STATES DISTRICT COURT MIDDLE DISTRICT ___________
UNITED STATES OF AMERICA
Case No. _________________
MOTION TO DISMISS
COMES NOW the defendant, by and through his undersigned
attorney and asks the Court to dismiss the indictment in this cause pursuant
to Federal Rule of Criminal Procedure 12 and gives as cause therefore the
LAWRENCE v. TEXAS
On June 26, 2003, the decision issued
in Lawrence v. Texas, 2003 U.S. LEXIS 5013,*;123 S. Ct. 2472; 156 L. Ed.
2d 508;71 U.S.L.W. 4574 (2003);
A sentence of violent imprisonment and the denial of any
motion for downward departure should be unconstitutional under Lawrence.
The motions above regarding the constitutionality of the charges,
jurisdiction, and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000)
etc., are also enhanced and relevant in light of the Lawrence decision.
The Defendant’s so-called criminal behavior was non-violent
private behavior among consenting adults in a motel room.
Each person has the right to do as he wishes so long as
he doesn’t use violence or theft against others. Each person
has the right to defend himself against violence and theft. The purpose
of government is to protect people and their property from violence and theft
--to do what people have the right to do themselves in self-defense.
When the government strays from its proper purpose it becomes the violent
violator of rights, the perpetrator of violence and theft. And that
is what the government did in this case to the defendant.
Government at all levels is slowly beginning to understand
fundamental concepts of liberty, albeit in very limited ways. On July
4, 2003, Superior Court Judge Richard Savell of Fairbanks Alaska dismissed
Scott A. Thomas' marijuana conviction, ruling that the Alaska Constitution
guarantees the right to possess marijuana for personal use in the home.
Next, there is the following opening paragraph in Lawrence
from Justice Kennedy’s majority opinion: “Liberty protects the person
from unwarranted government intrusions into a dwelling or other private places.
In our tradition the State is not omnipresent in the home. And there are
other spheres of our lives and existence, outside the home, where the State
should not be a dominant presence. Freedom extends beyond spatial bounds.
Liberty presumes an autonomy of self that includes freedom of thought, belief,
expression and certain intimate conduct.” (Lawrence, http://www.supremecourtus.gov/opinions/02pdf/02-102.pdf
As Scott McPherson said in a column at the “Future of
Freedom Foundation” http://www.fff.org/comment/com0307k.asp “An improvement
could certainly be made, specifically by adding “or anything else that does
not violate the rights of another person” at the end, but to say the least,
it ain’t a bad start. And note Justice Kennedy’s reference to the American
tradition of government, which places the individual on a plane above the
state and limits government’s domain over individual preferences. Many
of McPherson’s comments are repeated herein.
The Lawrence opinion continued, “It suffices for us to
acknowledge that adults may choose to enter upon this relationship in the
confines of their homes and their own private lives and still retain their
dignity as free persons.” (page 6) and “The State cannot demean their existence
or control their destiny by making their private ... conduct a crime. Their
right to liberty under the Due Process Clause gives them the full right to
engage in their conduct without intervention of the government. ‘It is a
promise of the Constitution that there is a realm of personal liberty which
the government may not enter.’ [the word “sexual” removed for emphasis] (at
The words make an excellent libertarian argument, lay
a brilliant philosophical foundation, and easily open the door for
greater future expansions of personal and economic freedom and the nullification
of the “intervention of the government” in the ability of free men and women
to “control their destiny.”
Attorney for Defendant