PushMe- Pull You

City Sends Mixed Messages About Pot Initiative

by Nick Welsh

Meeting behind closed doors last week, the Santa Barbara City Council voted 4-3 to simultaneously implement Measure P, the pot initiative approved by two-thirds of city voters in November, and to challenge its constitutionality in court. Because of this, Santa Barbara will be the first city in California to challenge the legality of a spate of statewide measures designed to undermine public and legal support for the war on drugs. This seemingly contradictory vote came as a compromise following a lively discussion between councilmembers and City Attorney Steve Wiley. Many of the councilmembers present expressed keen appreciation for the strong popular support — 66 percent — received by Measure P, which requires the Police Department to declare enforcement of laws on marijuana possession for personal use its lowest priority. But Wiley — who enjoys good relations with the City Council — eventually prevailed, arguing that provisions of the measure are unconstitutional because they intrude upon police officers’ ability to enforce the law. As a result, Wiley will find himself filing a motion for declaratory relief — asking a Superior Court judge to rule on Measure P’s constitutionality — at about the same time the mayor and city councilmembers begin appointing a new committee required by Measure P to ensure that city police are complying with the new measure.

“There’s a considerable body of case law in California that limits what kind of legislative acts are subject to initiative and what kind of day-to-day concerns can be addressed in those,” said Wiley. For example, he said an initiative launched seven years ago by Streets Are Us challenging proposed lane changes and striping along a portion of Cabrillo Boulevard was determined to be unconstitutional by the courts. Wiley acknowledged that police officers inevitably make many discretionary calls doing their duty but argued that those judgments should be reserved for the officers and their superiors, not voters. “What if there was an initiative that told the police they had to check people’s immigration status and make them prove it?” he asked. “That’s not a far-fetched scenario, but it’s one that we would oppose.”

Supporters of Measure P bristle at these arguments. “If the city attorney suggested Measure P was unconstitutional, then clearly he’s in the wrong profession. He should be in Hollywood, writing fantasy,” said Dr. Dave Bearman, a proponent of Measure P, strong advocate for the legalization of marijuana, and physician who prescribes medicinal marijuana. “We’re not saying don’t enforce the law; we’re saying make it a low priority. And elected officials prioritize implementation of the law all the time. Is he saying that’s not constitutional?”

As a practical matter, Police Chief Cam Sanchez claims that marijuana possession is rarely criminally prosecuted and that offenders are given citations instead. Measure P supporters counter that such infractions remain on a person’s record nonetheless and can cause far more grief than Sanchez acknowledges. They also point out that Oakland voters approved a far more lenient measure than Santa Barbara’s Measure P (which does not include sale for personal use, as Oakland’s does) two years ago, and that city officials there filed no constitutional challenges. Likewise, the San Francisco City Council just approved a similar measure this November with the active participation of its city attorney.

Given Wiley’s objections, a majority of councilmembers felt they’d be derelict not to allow him to challenge the measure. But Councilmember Brian Barnwell — who endorsed Wiley’s argument on narrow legal grounds — said he and Schneider plan to introduce a council resolution in the next two weeks declaring enforcement of pot possession laws the council’s lowest priority. Such an action, Barnwell explained, might embrace the sentiment behind Measure P while sidestepping the legal vulnerabilities Wiley said exist.

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