Santa Fe broke new ground for New Mexico last month when it decriminalized possession of small amounts of marijuana, making the violation a mere civil nuisance violation under city ordinances.
But just because Santa Fe has decriminalized having an ounce or less of pot in the city code doesn’t necessarily mean people caught with a joint won’t get criminal charges on their record and face the possibility of jail time.
That, apparently, will be left to individual police officers.
As the city’s police leadership and legal staff have made clear since the council adopted municipal pot decriminalization on a 5-4 vote Aug. 27, officers can still charge under state law if they want to.
And possession of an ounce or less of marijuana under state statute is still a criminal petty misdemeanor, punishable by up to 15 days in jail, as well as fines up to $100.
Some drug reform advocates and defense attorneys say that’s a problem.
“The danger is in the police chief allowing police officers to make their own decisions as to where they will be filing charges against adults who have small amounts of marijuana,” said Steven Farber, a Santa Fe attorney who defends drug offenders. “I’m concerned because I believe it can lead to arbitrary, retaliatory and discriminatory decisions on the part of the police officer.”
Say, for instance, two people were found to be in possession of four grams of pot under identical circumstances by the same officer. But one of them is previously known to the officer and, for whatever reason, that officer doesn’t like him.
Maybe they dated the same girl in high school. Maybe the offender is wearing a Raiders jersey and the officer is a Broncos fan.
While, in theory, the two people should be treated exactly the same under the law, the police officer for any of the above or for less frivolous reasons may choose to cite one person under the city ordinance and the other with a crime under the state statute.
Police Chief Eric Garcia says the charge could depend on the violator’s attitude – whether someone found with pot is cooperative or is combative with a police officer or has committed another offense.
“If they have someone who is cooperating, someone who says, ‘You’re right, officer. I’m sorry, I shouldn’t have been doing it,’ then the officer instead of arresting that person could cite them with a $25 fine,” the penalty under the new city law, Garcia said.
The difference between the state charge and a city citation is significant. Under the new ordinance, marijuana possession cases will be handled administratively. Administrative procedures under review call for a first-time offender to be ordered to pay the $25 fine within 15 days, with a $50 penalty assessed if it is not paid within that time.
Offenders can challenge the fine by requesting a due process hearing before a hearing officer. In any case, the offense is not any more severe than a parking ticket and won’t stick on the offender’s record.
But if sent to Magistrate Court on a misdemeanor count, that criminal charge remains on a person’s record, even if they beat the rap.
“The danger in allowing these charges to be filed in Magistrate Court is that they will stigmatize the arrested individuals with criminal records,” Farber said. “What happens most times is they get fined, but you’ve got a criminal record that always stays there.”
Marijuana advocates say the stigma of a pot charge on one’s record may cause someone to lose a job or keep them from getting hired. It can also cause problems for obtaining a student loan or scholarship or a on housing application.
“That’s a charge that can really be damaging to someone’s life,” said Jason Flores-Williams, another Santa Fe attorney who defends drug offenders.
He agrees with Farber that giving officers discretion presents problems.
“By doing that, you’re putting all the social biases back into play,” he said, suggesting that a white kid out of Santa Fe Prep could be treated differently than a brown kid from the city’s south side. “That’s not a decision we want to be random, arbitrary or subject to social bias. That’s a decision we want done in accordance with the law.”
Chief: Up to officers
Chief Garcia said his officers will abide by the law. But which law they enforce will be left up to them.
“There’s always a large scope of perceptions and opinions; we’re going to get that no matter what,” he said when asked about the potential for officers to make “arbitrary” decisions. “The important thing is I want officers to be able to take advantage of the program. It gives them another tool to have in their toolbox.”
Garcia said he had confidence that, based on their training and experience in the field, his officers, “will be able to determine which direction to go.” To assist them, officers will eventually be given a “cheat sheet, to help them decide how to treat a case.”
While officers will have discretion, the chief said he wouldn’t want to see an abundance of cases referred to Magistrate Court. “In my opinion, that would take away from the intent of what city councilors want to do,” he said.
Defense lawyer Mark Donatelli agrees on that point. He said the City Council didn’t vote to give officers “another tool” to handle pot possession. “They’ve always had the option to dump it (marijuana) on the ground and tell people to go on their way,” Donatelli added.
“Clearly, the whole battleground and the discussion at the council was on whether to decriminalize,” he said. “That was their intent and the chief should carry out the intent of the legislative body. It wasn’t just to give the police an option.”
Donatelli said that for officers to file a criminal pot possession charge in Magistrate Court would “be circumventing the intent of the City Council.”
Working out details
As a city that operates under “home rule authority,” Santa Fe can set its own law “not inconsistent with state law.” Another way to put it, and how City Attorney Kelley Brennan phrased it in an opinion she prepared for the City Council, the city “can’t prohibit what is permitted or permit what is prohibited.”
For that reason, Brennan determined that the new ordinance is not inconsistent with state law because it does not legalize possession of marijuana. “It does not permit the use or possession of marijuana or prohibit an existing law enforcement practice,” she wrote.
The intent of the ordinance “is not to legalize, but to decriminalize,” her memo states. (An amendment headed to the City Council now would clarify that possession of an ounce or less of pot remains “unlawful” under city code.)
The city decriminalization ordinance also does not conflict with a state statute that says municipal drug law penalties “must be the same” as those in the state Criminal Substances Act, Brennan maintained. That act also says state penalties are “in addition to any civil or administrative penalty otherwise provided by law.”
There’s no conflict, Brennan concluded, because state law penalties remain and can be imposed “in addition to a civil penalty imposed by the City.”
Brennan also considered whether permitting a police officer to choose between citing a person under a civil or criminal offense violated equal protection requirements and concluded that it doesn’t. She wrote that officers are expected to exercise their judgment on a daily basis. They have discretion to decide whether to take any action at all and what response is most appropriate to the circumstances, Brennan said.
“We know that officers exercise their discretion in the field all the time,” said Alfred Walker, assistant city attorney, this week. “Usually, we appreciate that in a case where we’re stopped for speeding and are let off with a warning. It’s a similar situation here. Officers can charge in Magistrate Court, administratively, or decide to do neither.”
Attorney Farber reviewed the administrative procedures that are still being tweaked and found them to be mostly favorable. “The administrative regulations are a very good start for having an effective and fair ordinance, particularly in emphasizing the enforcement and prosecution is the city’s lowest law enforcement priority,” he said. “But a lot more could be done to protect against arbitrary decisions by officers.”
Farber says the mayor should direct, or the City Council should pass a resolution, requiring marijuana possession cases be handled administratively.
Walker’s not so sure about that. “I don’t think the mayor or the city council or police chief can direct police officers which laws to enforce and which not to enforce. They can certainly set procedures and policies, though,” he said.
Emily Kaltenbach of the pro-decriminalization Drug Policy Alliance acknowledged that, by law, officers have discretion.
“We would hope that our police department would follow the city ordinance that is the will of city officials, as well as the will as people,” she said, noting that the ordinance calls for such cases to be handled as the lowest law enforcement priority. “So we anticipate they would follow the new law that was council passed last month.”
City Councilor Bill Dimas, a former police officer and magistrate judge, is on the other side.
Marijuana possession “is criminal any way you look at it, so how do you decriminalize something that’s still criminal?” he said. “I don’t see how one city can decriminalize something that’s illegal in the state.
“I just hope police officers use common sense in using discretion,” Dimas added. “I hope our officers remember that (marijuana) is still illegal in this state.”