The Big Doobie

We've all been told that the laws of the State of Colorado force the Denver Police and Prosecutors to continue to arrest and prosecute the possession of less than an ounce of marijuana within the City of Denver because State law trumps City ordinance.

Not so.

The Colorado Constitution, Article XX Home Rule Cities and Towns, Section 6, says:

The statutes of the state of Colorado, so far as applicable, shall continue to apply to such cities and towns, except insofar as superseded by the charters of such cities and towns or by ordinance passed pursuant to such charter.

Of course I'm not an attorney, but this sounds to me like Denver's ordinances take precedence over Colorado laws. But then what about that gun carry situation - didn't Colorado law supersede Denver ordinance? Can we get a little clarification here from some of Colorado's fine legal bloggers?

And from SAFER:

New marijuana initiative has teeth
Wednesday, 08 August 2007

Denver voters will once again weigh in on how the city handles marijuana, and this time they will consider a new ordinance designating private adult possession the city’s lowest law enforcement priority.

The measure comes at a time when pot arrests are at an all-time high in the state capital, despite voters’ approval of a 2005 initiative calling on the city to end them entirely.

Denver police and other city officials argued then that they must continue enforcing the state marijuana law, and it is unsurprising that they have dusted off those very same talking points for 2007.

But this assertion is just as bogus now as it was two years ago.

Officials have yet to provide any concrete justification for their need to be subservient to the state here, and they fail to discuss what — if any — repercussions there would be if the city ignores the state pot law.

Unfortunately, much of the mainstream press in Denver opted to take these officials at their word, rather than asking them such tough questions concerning intergovernmental relations.

The Rocky Mountain News, for example, ran an editorial claiming that this latest initiative will make no difference in the city if passed (“Pot vote, Round 2/Possession will remain illegal, no matter what the result”). This came on the heels of a Denver Post story bearing the headline, “Denver cops say they can’t ignore state pot law.” But according to the Denver city attorney’s office, the issue is not so clear cut.

As Assistant City Attorney David Broadwell put it in the Post story: “This is an entirely new beast, and I don’t know what it means. There’s not a single law on the books like this.” But there are virtually identical laws that are on the books in other major cities — a fact omitted in the Rocky editorial.

Seattle voters adopted a “lowest law enforcement priority” measure in 2003, and it has resulted in a dramatic decline in marijuana arrests and prosecutions.

Even Seattle City Attorney Tom Carr, who originally opposed the initiative, has admitted that implementation of the policy has been safe and effective.

Moreover, neither Carr nor the home-rule city of Seattle ever doubted its ability to implement such a policy. So, why does Denver?

The Mile High City also enjoys home-rule status, having been granted the right to self-governance under Article XX of the Colorado Constitution.

Along with enumerating Denver’s abilities to “define,” “regulate” and “alter” the powers of the local police, Section 6 explicitly states:

“[The city's charter] and ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict therewith.”

Herein lies Denver officials’ dilemma. They say they are sworn to uphold state laws, thus they supposedly cannot implement the proposed city ordinance and ignore the state pot law. But the state constitution says that such city ordinances “shall supersede” conflicting state laws. The result: In order for Denver police to abide by the state constitution, they must implement the ordinance.

Denver officials have tried to account for this inconvenient truth by arguing that the city only gets to flex its home-rule muscle when it comes to local laws that are stricter than state laws.

But this fails to take into account the fact that Denver police do often ignore stricter state laws.

For example, a Sept. 11, 2006, article in the Rocky carried the following headline: “Denver ignores DUI law: City not enforcing state’s photo, fingerprint rule for those caught driving drunk.” If Denver can take it easy on people who get drunk and drive, why can’t we take it easy on adults who simply possess a small amount of a drug that is safer than alcohol?

It is time Denver city officials admit that their hands are tied only by themselves. And if voters approve the “lowest law enforcement priority” initiative, it must be implemented.