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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