CITY MUST ENFORCE STATE POT LAW

Picking Among Statutes Not A Wise Option

The decision by Denver voters to legalize the possession of a small
amount of marijuana is more symbolic than real: Only 36 adults were
charged last year under the now-defunct city ordinance prohibiting possession.

Meanwhile, 1,565 were charged under the state law, which remains intact.

But Mason Tvert, the executive director of the group that put the
initiative on the ballot, insists Denver authorities should respect
voter wishes and stop charging anyone under the state law, too.

"Right now," he told one reporter, "there are city officials denying
the will of voters who put them in office, and I think that's disturbing."

We understand Tvert's frustration, but the matter is not as simple as
he makes it out to be. Yes, prosecution of even the state marijuana
charges in Denver is left almost exclusively to city attorneys, who
for such cases are deputized as special DAs. The regular district
attorneys are too busy pursuing more serious crimes. In theory, the
mayor could order Denver attorneys simply to stop pursuing such cases.

But it would be unwise for him to do so, for three reasons.

By far the most important reason is that cities can't - or at least
shouldn't - pick and choose among state laws to enforce. Those
statutes are supposed to apply equally to all citizens.

When states like Colorado passed laws legalizing the use of marijuana
for medical purposes in defiance of federal law, they at least had
constitutional arguments in their corner involving the commerce
clause and federal regulatory reach. Denver has no similar arguments
on which to base an intention to ignore state law.

Secondly, a pot charge is often a supplemental charge - an add-on to
other charges such as trespass, public nuisance, etc. Law enforcement
always likes to have as many arrows in its quiver as possible; if the
perp gets off on one charge, perhaps he can be nailed with another.

Finally, the vote to legalize pot possession was so unexpected that
Denver citizens never engaged in a serious debate about its
consequences. Most of the pre-election controversy had to do with
whether the campaign's billboards were fair.

Were Denver voters even aware they couldn't legalize pot, that a
state law would remain in place? Does a majority even now really want
their mayor to defy state authorities and declare he won't enforce
Colorado law in the state capital?

We don't know the answer to those questions, and neither does Tvert
and his group. The Denver anti-pot ordinance is dead. Long live the
state statute.