Despite a majority of Coloradans voting to legalize recreational marijuana last year, Denver Mayor Michael Hancock is working to not only prohibit use of the substance, but to recriminalize use of marijuana.
Earlier this month, Hancock and a few members of the Denver City Council presented a city ordinance that outlined a strict set of rules regarding the open consumption and possession of marijuana. One of the most controversial features of the measure is that it would prohibit smoking on private property if it is visible to the public, such as a front porch or in a car.
Additionally, if a neighbor reports smelling marijuana odor, even if it’s coming from private property, offenders could face a fine of $999 and up to a year in jail. The ordinance does not differentiate between recreational or medical use of marijuana, so a medical marijuana patient consuming their medicine at home could potentially be punished under the ordinance.
Events held in city parks and along the city’s 16th Street Mall, such as free joint handouts, would also be illegal under the ordinance. However the ordinance would not prevent marijuana supporters from holding the city’s famed 4/20 event. Consumption of marijuana in the park during the event, however, would not be allowed.
“Your activities should not pervade others’ peace and ability to enjoy,” Hancock said. “Marijuana is one of those elements that can be quite pervasive and invasive. I shouldn’t have to smell your activities from your backyard.”
According to the Denver Post, Hancock and a few City Council members have expressed concern that mass marijuana celebrations will deter tourists from visiting the city and will “offend families and others.”
Hancock said he was “outraged” when a group gave away hundreds of joints last month in order to demonstrate their opposition to a statewide marijuana tax. He said the police didn’t do anything out of fear that “mass enforcement of a petty offense would have resulted in a riot.”
“The public trusted the industry that this would be done in a responsible manner, and I think that was an in-your-face response,” Hancock said. “We need to be clear to folks that we aren’t going to tolerate it anymore.”
But many Denver residents are calling foul and arguing the ordinance would be a violation of their rights.
Mark Silverstein is the legal director for the American Civil Liberties Union of Colorado. He called the ordinance a “tremendous overreach, ill-advised, unnecessary and unconstitutional,” explaining that the ordinance would prohibit consumption in the privacy of a person’s living room if the windows are open or if the person can be seen from the street.
“It will inevitably prompt police and community confrontations,” he said. “Amendment 64 said to regulate marijuana like alcohol. This is not. No one risks a year in jail for drinking a beer in their fenced backyard. And as for the banning mere possession anywhere on the 16th Street Mall … I cannot believe Amendment 64 allows cities to make it a crime to carry a legal product in your pocket as you walk on a public sidewalk or public right of way.”
Silverstein added: “This proposed ordinance would also repeal all the language Denver voters added to the city code in 2007. The ordinance declares that enforcement of marijuana laws for possession of less than an ounce shall be the lowest law-enforcement priority — and the assistant city attorney said that in light of Amendment 64, this language is obsolete, and he proposes it be repealed.”
The Marijuana Policy Project (MPP), the nation’s largest marijuana policy organization, also expressed outrage at the proposed ordinance, which in a blog post the group said created “harsher penalties than before the passage of Amendment 64.”.
“We cannot allow Denver officials to approve this foolish proposal,” the blog post said. “The city should not be spending taxpayer dollars to arrest and prosecute citizens who are in compliance with state law. And since the measure is a clear violation of the Colorado Constitution, the city will end up spending even more taxpayer dollars defending it in court.”
In response to the claims from proponents of Amendment 64, Hancock released a statement saying the ordinance was introduced to better protect the public and residents’ quality of life.
He said the city is “working hard to balance the needs and wants of many in the community. This proposed ordinance clearly communicates what our residents and visitors are and are not allowed to do in public.”
But Mason Tvert, director of communications for the MPP and one of the author’s of Amendment 64, said Mayor Hancock was a hypocrite for promoting the use of alcohol while implementing stricter rules for marijuana, which he argued was a safer drug.
“The mayor can keep saying that this is respecting the wills of voters but this flies in the face of the voters, and it does so in an absolutely negligent way that’s gonna cost this city a lot of money if they move forward,” he said.
Denver Assistant City Attorney David Broadwell disagreed, saying that a city law banning the possession of marijuana in some places would hold up in court because Amendment 64 allows private property holders to prohibit the use and possession of marijuana. He reasoned that if private property holders can ban marijuana, the city should be able to ban the substance on land it owns.
Broadwell argued that unlike alcohol, the smell of marijuana is “in your face,” and said that a widescale public use of the drug may send the wrong message to children that it’s “a-okay” to use marijuana.
“Both are intoxicants, but the expectation is that marijuana would be used in a lower profile way than alcohol,” he said, adding that part of the Amendment 64 was that users were to maintain a low profile.
Councilman Chris Nevitt, who helped created the ordinance, agreed, saying the measure gives guidance to the city’s law enforcement.
“If you are smoking marijuana in a park, we will chase you off,” Nevitt said. “If thousands of people are making a statement one day a year, we have to think that through. That is in a different category than ordinary offenses.”
But many residents and some city councilmembers such as Paul Lopez expressed concern that a ban on marijuana in the city would refuel the war on drugs, which Lopez said was more of a war on minorities.
“This is what gives me the most heartburn, and why I am sitting in this chair. I do not like to see people arrested for low-level offenses, and we know who those people are,” he said.
Work in progress
This past Monday, the ordinance was taken up by the City Council but no decisions were made regarding whether or not to implement the measure as written, since many councilmembers expressed concern specifically with the ban on possession of marijuana.
“I am concerned about the private possession when it is in my purse, pocket or house,” said Councilwoman Jeanne Faatz. “As long as it doesn’t offend someone else, that should be off limits.”
Councilwoman Robin Kniech agreed and said that a possession ban could result in illegal search-and-seizure practices. “It’s a slope we don’t want to go down,” she said.
The ordinance was sent back to committee. Once it passes the committee, it will go to the council for a full vote. When that will be is not known.
If the ordinance does pass, Colorado won’t be the only state with limits on marijuana legalization. Washington state, which also legalized the use of recreational marijuana last November with the passage of I-502, made public consumption of marijuana a misdemeanor with a $103 fine.
Seattle City Attorney Pete Holmes said the provision banning public use of marijuana should have been expected by marijuana users, since carrying an open can of beer down the street can result in someone getting a ticket. “If those smoking marijuana don’t expect similar treatment, they are missing the point.”
A similar thing happened in California. Though the state legalized medical marijuana in 1996, the state’s supreme court ruled earlier this May that individual cities and towns had the the legal right to ban medical marijuana dispensaries.
As Mint Press News previously reported, the California Constitution allows cities to declare businesses a “public nuisance” and shut them down.
In their decision, the state’s supreme court justices wrote: “Nothing in the [Compassionate Use Act] or the [Medical Marijuana Program] expressly or impliedly limits the inherent authority of a local jurisdiction, by its own ordinances, to regulate the use of its land, including the authority to provide that facilities for the distribution of medical marijuana will not be permitted to operate within its borders.”