DENVER MARIJUANA BUST HEADED TO COURT

Mile High City's First Post I-100 Case Could Set Precedent

The people spoke, but law enforcement didn't listen. On Nov. 17, a day
after Denver's Alcohol/Marijuana Equalization Initiative 100 went into
effect-establishing a city ordinance that made the possession of less
than one ounce of pot legal for people over the age of 21-Denver
police made their first post I-100 pot bust under state law.

Eric Footer, a 39-year-old real estate consultant, was pulled over by
city police and cited under state law for possessing less than an
ounce of cannabis. Footer allowed the cops to search his car, even
though he knew he had a small amount of marijuana in his possession
because he thought Denver voters had made it legal to possess a small
amount. While most people would simply pay the fine, Footer contacted
Safer Alternative For Enjoyable Recreation (SAFER), the organization
that got the initiative on the ballot to begin with, and asked them
for help in fighting the charges.

"He doesn't want to have to see anyone else go through this, given
that it's such a waste of time and money," says Mason Tvert, director
of SAFER.

His court date is set for Jan. 18, and the ensuing legal battle could
be the landmark case for I-100. While Footer's legal team prepares for
court, reefer advocates are upset with the attitude of local lawmakers
and law enforcement and feel they're ignoring the will of the people.
The pot proponents feel the Denver City Council should be held
responsible, and point to a similar marijuana initiative that passed
in Seattle two years ago that has been deemed a success, even by those
who originally opposed it.

Seeing Green

Marijuana advocates say it's important to fight Footer's case because
the will of voters is not being upheld. Tvert is upset that local
lawmakers and law enforcement are being so audacious, ignoring and
discounting it the way they have. In a recent article, John W.
Burbach, lieutenant commander of the Denver Police Department, told
the Boulder Weekly he thought Denver voters didn't even know what they
were voting on.

Two years ago, a similar initiative passed in Seattle, reducing
personal use marijuana busts to the lowest possible police priority,
even lower than jaywalking. While law enforcement didn't like that
initiative either, at least one member of the Seattle City Council
did, and he supported it and helped make sure it was instituted
properly, sitting on an oversight board created by initiative supporters.

"I think it's a tremendous waste of time to have officers arresting
people for marijuana usage, particularly because it's a well-ranking
recreational drug," says Nick Licata, Seattle city councilman. "We
have far more serious problems in the city to use our police for.
There are major heroin addicts out there, major meth addicts and
cocaine addicts who need treatment, who unfortunately are too often
involved in petty crimes and often property crimes, and so our
attention must be more focused on fighting crime and dealing with harm
reduction in these more serious drug problems. Marijuana is not a
problem, at least to the extent that these others are."

Two years after passing the voter-initiated proposal, Seattle has seen
great success. According to the Seattle Post-Intelligencer, minor
marijuana offenses dropped from 500 in 1994 to only 59 in 2004. To the
surprise of those who opposed the initiative, there has been no rash
of crimes and no evidence of increased pot smoking since the
initiative passed, the Seattle Post-Intelligencer said.

But where Seattle had at least one lawmaker on its side, Denver voters
seem to have been left high and dry.

The Denver City Council was widely reported to dislike the initiative
from the start. District 6 City Councilman Charlie Brown called the
proposal a "goofy initiative," and Jeanne Robb, Capitol Hill's
District 10 city councilwoman claimed smoking three marijuana joints
was equal to smoking three packs of cigarettes a day, and also said
marijuana kills brain cells. According to sources at the subcommittee
meeting, Robb was merely repeating things she'd heard there.

"If you look at the polling numbers of who voted favorably on I-100,
Capitol Hill is the home base of support for marijuana reform, and
Jeanne Robb was against this from the beginning and made ridiculous
statements about marijuana being a gateway drug and sort of all these
ideas that have been debunked time and time again," says Brian
Vicente, a lawyer on Footer's legal team and director of Sensible
Colorado, a drug-reform advocacy group. "I think people like that
should be held accountable by their voters who obviously feel strongly
about this issue."

Unfortunately for Robb and Brown, their districts disagreed with them
at election time. Brown's District 6 voted 4,200 to 3,330 in favor of
the initiative, carrying more than 55 percent. Robb's District 10
voted 5,820 to 2,572 in favor of the proposal, a whopping 69 percent
approval-the most for any district. By comparison, Robb herself only
managed to garner 5,261 votes when she won her city council seat in
2003, only 47 percent of the votes. That came in an election that had
a turnout of 10,986 in her district, as opposed to the 8,392 this year.

"She did not look into this issue. She did not ask questions," says
Tvert. "She was not interested in what we had to say, despite the fact
that we informed her that most of her constituents signed this
petition to put this on the ballot, and I would not be surprised,
although I'm not going to say this is going to happen, but if this was
something that was brought to the public's attention the next time she
tries to get re-elected."

Seattle's Licata feels the Denver City Council should be doing more
for their voters.

"I think they should try to adhere to the spirit of the initiative
that passed," Licata says.

Robb and Brown did not return phone calls as of press
time.

Legal Eagles

Scoring a victory in the Footer case is extremely important for both
sides in order to set the legal precedent for the cases likely to follow.

"We hope to ultimately win his case and have it dismissed and to send
a real message to the Denver police and the Denver DAs," says Vicente.
"They need to respect the will of the Denver voters and start charging
people under the city code, as opposed to the state law because they
have that option right now of choosing which law to charge people under."

Both Tvert and Vicente maintain that Denver police could simply choose
not to cite people, or barring that, the district attorney could
choose not to prosecute offenders.

"They get to choose who they prosecute and under what laws," says
Tvert. "So, even if a person is cited, the prosecutor has the right to
say, 'Well, Denver has a law saying this, so we're dropping the case.'
The idea being if that does happen, the police will stop citing people
to cut down on wasteful citations."

Footer's legal team has presented three possible defenses they might
argue, all of which have been maligned by the prosecution and the
mainstream press. One possible approach is the Mistake of Law defense.
Since I-100 was a widely publicized new law, they could argue that
Footer made a reasonable mistake, assuming an initiative voted in by
the people was actually a law.

Another possible defense could be that Denver is a home rule city and
has the right to institute its own laws. However, lawmakers say laws
can only be strengthened, not weakened, as they say the case is here.
But, Vicente sees it as an issue of safety.

"Home rule municipalities such as Denver traditionally have been given
a lot of deference in terms of governing safety issues," Vicente says.
"And ultimately we feel the people of Denver, the 57,000 people that
voted in favor of this law, were ultimately voting as sort of a
backlash against the culture of alcohol and all the problems it causes."

Drawing on the juxtaposition of alcohol and marijuana is the last of
the three possible defenses, called a "choice of evils" defense.

Win or lose, Vicente and Tvert say they will continue to fight for
reform to see that the will of the voters is upheld, and one of the
first ways they may go about it could be to push to amend the
citations that Denver police use. Currently, only the state law
appears on the ticket, and marijuana advocates say police cite state
law only as a matter of convenience since police have to write out the
city citation by hand.

"We'd like to see an additional box added which would be a warning,"
Tvert says. "Which means if people are stopped and they have less than
an ounce of marijuana and they're over 21 years old, the police would
say to them, 'Here's the deal. We understand the voters passed this
and therefore, you're not going to be cited. But you should understand
there is a state law and because there's a state law we're just going
to give you a warning,' and that would be it."

Tvert says if this were to happen, there would be a record of
warnings, and if someone were to leave Denver, it would show they were
aware that pot was illegal elsewhere in the state.

The Denver police and city attorney's office did not respond to
inquiries as of press time. Mayor Hickenlooper would not comment on
ongoing litigation.