SANTA CRUZ MARIJUANA BALLOT MEASURE COULD FACE LEGAL CHALLENEGES

A Santa Cruz police officer would be forced to crack down on littering
before arresting someone for selling pot to an adult in a private
parking lot if a ballot measure to make marijuana crimes the lowest
priority for police becomes law.

The littering scenario was cited in a letter from City Attorney John
Barisone to the City Council this month that warns of possible legal
tangles the city could face if an ordinance is adopted that eases up
on adult marijuana offenses.

Santa Cruz voters will vote on the marijuana ordinance Nov. 7, if the
City Council decides Tuesday to put the measure on the ballot, which
it is expected to do.

Proponents say the measure will give police more time and resources to
fight serious crimes, like the recent surge in violence in the Beach
Flats and on the Westside. The measure is not meant to allow "potheads
to smoke on every corner," supporter Andrea Tischler said.

Barisone's letter points out that state law -- in which marijuana is
considered an illegal drug except in some medical cases -- would
override the proposed city ordinance, and police officers are sworn to
enforce all state and federal laws.

Police officers could also run into problems with the proposed
cannabis ordinance when subpoenaed by the county District Attorney's
Office to testify in criminal prosecutions of adult marijuana
offenses. According to Barisone, officers would be in violation of the
ordinance if they testified in marijuana cases; however, disobeying a
district attorney's subpoena would conflict with state law.

The ordinance also prohibits police officers from cooperating with
state and federal agents investigating marijuana crimes. But Barisone
said the state attorney general is authorized to appoint local
officers to assist with regional criminal marijuana-related operations
- - a violation of the proposed city ordinance.

"This would put an undue burden on officers for simply doing what
they're sworn to do," police spokesman Zach Friend said. "The usage of
marijuana is prolific throughout the city, but someone taken to jail
for having marijuana is rare."

Police records show 254 citations in 2005 for possession or use of
marijuana in amounts less than an ounce, though Friend said "the vast
majority" of those cases resulted in the person being released at the
scene.

Not everyone agrees the proposed ordinance would be a
problem.

Gerald Uelmen, a law professor at Santa Clara University, said the
measure is legal.

"Every community can say where they want their police resources
allocated," Uelmen said. "I don't read it as police should close their
eyes to marijuana. All they're saying is they don't want their police
department to allocate a lot of resources to it."

Exceptions in the proposed marijuana initiative include minors, sale
or use on public property and driving under the influence.

Similar ballot measures are being considered in Santa Monica and Santa
Barbara.

Barisone's letter is a "conservative interpretation" of the measure,
said proponent Craig Reinarman, a sociology professor at UC Santa Cruz.

If the council chooses not to put the marijuana question on the
ballot, proponents could sue the city.

"Marijuana is already the lowest priority in Santa Cruz," Councilman
Mike Rotkin said. "We either have to adopt the measure or put it on
the ballot, otherwise they could take us to court."