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:
• 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."

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.

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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts

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