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Marijuana sniff-test proposal recriminalizes pot, invites lawsuits, critic says

Yesterday, the Denver City Council's Amendment 64 committee considered proposed marijuana ordinance amendments that include what critics have branded a "sniff test." The city makes its case via several new documents shared below -- including one that includes a photo of Moe from The Simpsons showing off his signature drink, the Flaming Moe, for reasons that aren't entirely clear but are certainly amusing. Still, ACLU of Colorado legal director Mark Silverstein sees nothing funny in the current draft of the ordinance, which he sees as objectionable on a slew of legal fronts.

The aforementioned documents include the draft amendments, which call for the removal of language making marijuana enforcement Denver's lowest enforcement priority; a legal options PowerPoint presentation (the Flaming Moe image is included in a section comparing pot laws to those pertaining to alcohol); and a fact sheet about the proposals. Here's an excerpt that spells out several of its major elements, most of which were outlined at the meeting by Assistant City Attorney David Broadwell:

David Broadwell speaking at an Amendment 64 committee meeting earlier this year.
David Broadwell speaking at an Amendment 64 committee meeting earlier this year.
Photo by Charles Trowbridge

• Similar to existing city laws that already limit alcohol possession in city parks, this ordinance will explicitly make it unlawful to possess, consume, use, display, transfer, distribute, sell, transport, or grow marijuana within any park, mountain park, parkway or recreational facility. That prohibition will also apply to the 16th Street Mall.

• While it has previously been unlawful to openly or publicly consume one ounce or less of marijuana, this ordinance clearly defines "openly " as occurring in a manner that is obvious through sight or smell to the public.

• The ordinance also clearly defines publicly to mean occurring or existing in a public place or in a location where members of the public can observe or perceive through sight or smell, including in vehicles.

• The ordinance repeals language enacted following a 2007 ballot measure that calls for arrest and prosecution for possession of marijuana to be the lowest law enforcement priority. Because Amendment 64 made possession of 1 ounce of marijuana or less legal for anyone 21 and over, this language is no longer necessary.

• The ordinance will allow the city to prohibit "pot giveaways" in city parks.

Silverstein, who attended and spoke at yesterday's meeting during a public-comments section, offers an even more succinct synopsis of the proposal: "Oh, that thing is crazy."

Mark Silverstein.
Mark Silverstein.

In his remarks to the committee, Silverstein says he essentially offered a "rebuttal to the presentation made by Assistant City Attorney Broadwell, who was explaining the legal rationale. And in my opinion, even if the proposed ordinance were judged to be consistent with Amendment 64, which I don't think it is, it's still a very, very bad idea -- a tremendous overreach that will inevitably result in unnecessary police and community confrontations."

As Silverstein notes, "Amendment 64 says it shall not be an offense anywhere in Colorado to possess, use, display or consume marijuana. But this ordinance recriminalizes the mere possession of marijuana in any park, in any parkway and anywhere on the 16th Street Mall. That means if you have a small amount in your pocket, you would once again be committing a crime under this proposed ordinance if you walked in any of those places," whether anyone saw the cannabis or not.

Continue for more about the sniff-test proposal, including the current draft and more.

Additionally, Silverstein acknowledges, "Amendment 64 says that nothing in the measure will permit openly and publicly consuming marijuana -- so another part of the ordinance attempts to jump into that opening. It criminalizes open and public consumption, but it defines open and public consumption in such a way that the long arm of the law now reaches into the privacy of your home and the privacy of your backyard if consumption can be seen or smelled from a public space or a neighboring property. And that's the real overreach."

Another photo of Mark Silverstein.
Another photo of Mark Silverstein.

It's not the only one, from Silverstein's perspective.

"This proposed ordinance would also repeal all the language Denver voters added to the city code in 2007," Silverstein points out. "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 problem, Silverstein feels, is that "in this same package, the proposal recriminalizes the mere possession of marijuana in parks, parkways and the 16th Street Mall. So to recriminalize possession and repeal the language that calls it the lowest priority sends a message to law enforcement that this is once again a priority."

If the current draft passes, would the ordinance invite lawsuits? It's certainly possible, Silverstein believes: "To the extent that the ordinance purports to criminalize what Amendment 64 makes legal, there's a conflict between the ordinance and the state constitution. And that could be the basis for a legal challenge."

What about the sniff-test part of the amendments, which could be seen as transforming private actions made legal by Amendment 64 into criminal acts?

"As you know, governments have been willing to make it a crime to do things that are done in the privacy of your home," Silverstein allows. "So most of the legal challenges have to do with the procedures and tactics for enforcing that prohibition. But one of the things people thought after Amendment 64 as that it ended the era when police could say they smelled marijuana and use that as an excuse to break into your house and enforce the law in your living room. And this proposal brings us back to those days. If police can smell marijuana from the outside of your home, they then would have evidence that you're openly and publicly consuming marijuana in violation of this proposed ordinance."

During his time at yesterday's meeting, Silverstein couldn't tell with any level of certitude which way assorted councilmembers were leaning in regard to the amendments. However, he says "I certainly hope the council has the good sense to reject this unreasonable, overreaching measure."

Continue to see the current draft of the amendments to Denver's marijuana ordinance, plus a PowerPoint presentation and a fact sheet.

Proposed Amendments to City Marijuana Ordinances

Denver City Council Marijuana Legal and Policy Options

Marijuana Possession and Consumption Fact Sheet

More from our Marijuana archive: "Marijuana activists decry 'sniff test' proposal, possible year in jail for home pot smoking."


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