POT DEFENDANT PROMISES FIGHT OVER CITATION

Denver pot-bust defendant Eric Footer had to negotiate five
backpedaling TV cameramen as he strode into the courthouse Thursday
to obtain a Jan. 18 court date where he vows to fight a local
citation issued under state law.

That was the easy part.

Now, his three-lawyer defense team has to successfully argue that the
39-year-old real estate consultant justifiably believed he could
possess a tiny amount of marijuana because Denver voters passed
Initiative 100 on Nov. 1.

Ostensibly, at least, the initiative made it legal under city law for
adults 21 or older to possess 1 ounce or less of the drug.

"With the passage of I-100, Mr. Footer made the good faith,
reasonable assumption that the possession of small quantities of
marijuana by responsible adults was now legal in Denver," said Brian
Vicente, an attorney who heads the marijuana advocacy group, Sensible
Colorado, and is a member of Footer's defense team.

But legal experts are skeptical that Footer can defeat the position
of Denver authorities, who maintain that state law trumps the local ordinance.

Officials from the city attorney's office say they have no choice but
to continue prosecuting violators under the state possession law - as
about 95 percent of minor marijuana busts have long been handled.

Denver defense attorney Scott Robinson said it sounded as if Footer's
team was engaging in "pretrial wishful thinking."

A confident Vicente, however, laid out these potential defense tactics:

The "mistake of law" defense. Under Colorado law, a person who
reasonably misunderstands a state law because he genuinely believes
he's shielded by passage of I-100 can be found not guilty.

Home-rule cities, such as Denver, have historically been granted
"great deference by courts in governing matters of local concern such
as safety matters."

Employing a "choice of evils" defense, attorneys may argue that
Footer was justified in smoking marijuana as an "emergency measure"
to treat a painful back condition and avoid the "private injury"
risked by using alcohol, "a far more dangerous substance than marijuana."

Robinson, who writes a legal analysis column for the News, said, "I
laud them for being creative, but also I have to note there's a
degree of naivete involved if they think they're really going to win
on any of those defenses."

Robinson wasn't the only expert not persuaded.

Under state law, the "choice of evils defense talks about when it is
necessary as an emergency measure to avoid an imminent public or
private injury," said former prosecutor Karen Steinhauser, an adjunct
professor at the University of Denver's Sturm College of Law. "This
is not going to apply, (that) it was better to get high on marijuana
rather than . . . on alcohol."

As for the "mistake of law" defense, Robinson said: "The old saw that
ignorance of the law is no excuse still cuts pretty well."

Robinson also sides with the city attorney's argument that while
Denver can invoke its home-rule autonomy to enforce ordinances that
are tougher than state law, such as the city's pit bull ban, Denver
can't substitute laws weaker than the state's.

Simply put, Robinson said, "You can't water down the state law with a
local ordinance."

Both Steinhauser and Robison agreed with I-100 supporters that Denver
police and prosecutors could use "prosecutorial discretion" and
choose not to arrest or prosecute people caught with a bit of marijuana.

But Robinson warned that if city leaders issued a policy against
prosecuting pot possession, Denver could risk losing federal
crime-fighting funds.