Albuquerque Journal

City pot law may be ready for the ashtray

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Maybe the Santa Fe City Council can give itself an ‘A’ for effort with its ordinance that decriminal­izes possession of small amounts of marijuana. But the ordinance continues to be largely a nonfactor in how Santa Fe officially treats pot possessors and it eventually could land Santa Fe in legal hot water.

Records from the police continue to show that almost all of the people cited for possessing an ounce or less of pot in Santa Fe this year continue to be charged with a misdemeano­r criminal offense.

A spreadshee­t provided by the SFPD appears to indicate that, for 2016, only two people have been given city-approved, non-criminal, civil pot possession tickets — similar to a parking ticket — that don’t put a criminal charge on the violator’s record and carry just a $25 fine.

Councilors who voted for decriminal­ization two years ago continue to fret about why officers won’t quit charging or citing people for criminal marijuana possession violations under state law, rather than handing out the friendlier city tickets.

But the whole legal setup is fraught with problems and has been from the beginning.

The city attorney has made it clear, over and over, that no one — not the City Council, not the police chief, not the city manager — can instruct, order or coerce officers into writing only city tickets instead of charging under the state criminal statute for pot possession. If the city leadership told officers not to file criminal charges for having marijuana, Santa Fe would be illegally usurping state authority. The $25 tickets are just supposed to be a discretion­ary, additional “option” for police charged with enforcing the law, the city attorney asserts.

The latest effort to win over the hearts and minds of Santa Fe cops is being called “training,” apparently with some kind of PowerPoint presentati­on that will tell them what they certainly already know — that a criminal pot charge goes to court and on to an individual’s record and, even when dismissed, has potential longterm impacts that could affect job and educationa­l opportunit­ies, at least in a future where schools or employers still worry about a misdemeano­r pot possession charge.

The framework of having a city ordinance that does one thing while state law calls for another thing is a setup for bias and discrimina­tory behavior. Officer A may give someone with a joint a $25 civil citation, while Officer B files a criminal charge for the same amount; or Officer C might give one person a city ticket for a bit of weed and then criminally charge another pot-possessor whom the officer encounters 10 minutes later.

There are at least a couple of kinds of lawsuits waiting to happen.

Someone criminally charged with pot possession is going to claim discrimina­tion when his case is compared to that of the kid across town who only got a ticket. Or an officer who continues to cite violators under state criminal law will allege that he or she was targeted for disciplina­ry action for unrelated behavior or was passed over for promotion because the officer wouldn’t adopt the City Council’s lenient stance on pot.

It’s clear that Santa Fe cops aren’t making it a priority to crack down on people holding little amounts of marijuana. There have been about 60 charges this year, most in cases where other kinds of violations are alleged. In another 25 cases, officers used another option and decided not to make an arrest or issue any citation for possession. Instead, they confiscate­d the pot and turned it over to an evidence custodian for destructio­n.

Expanded use in the police department of this option three could be the simplest and most cost-effective way around the legal trap the city has created.

The decriminal­ization measure the council passed in 2014 remains an almost exclusivel­y symbolic effort. There’s probably no going back at this point. But absent some kind of mandated mass brain transplant program that has all officers treating all minor pot possession cases the same, it hardly seems worth the risk and worry.

 ?? ERMINDO ARMINO/ASSOCIATED PRESS ?? A Santa Fe ordinance decriminal­izes possession of small amounts of marijuana, but officers continue to charge offenders under a state criminal statute.
ERMINDO ARMINO/ASSOCIATED PRESS A Santa Fe ordinance decriminal­izes possession of small amounts of marijuana, but officers continue to charge offenders under a state criminal statute.

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