Pubdate: Fri, 26 Sep 2014
Source: Albuquerque Journal (NM)
Copyright: 2014 Albuquerque Journal
Contact:  http://www.abqjournal.com/
Details: http://www.mapinc.org/media/10
Author: T. S. Last, Journal North

POT POSSESSION IN SANTA FE

Is Officer Discretion Too Big a Part of Equation?

Police Officers Can Choose to File Under the New City Code or the 
Existing State Law

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 FloresWilliams, 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.

Two views

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."
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MAP posted-by: Jay Bergstrom