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Buzzby

Man Says He'll Fight Marijuana Bust
Voter-approved law legalizing pot crux of Denver case
Alan Gathright | Rocky Mountain News | 12/01/2005

Real estate consultant Eric Footer was so convinced Denver voters had legalized adult marijuana possession in the Nov. 1 election that he allowed police to search his car when they pulled him over for an unrelated incident.

An officer promptly found Footer's pot-filled vitamin bottle. But this was the day after the city's voter-approved Initiative 100 became certified, ostensibly changing local law to allow adults 21 or older to possess 1 ounce or less of the weed.

Footer, 39, described himself as confused and angered when he was cited two weeks ago for having the pot and a pipe.

" 'It's still illegal to possess marijuana in the city of Denver,' " said Footer, repeating the cop's admonishment. "And he said it with real conviction, like I should've known that."

As Denver police, prosecutors and city leaders loudly maintained before and after nearly 54 percent of voters approved I-100 at the ballot box, authorities are continuing to prosecute marijuana possession cases under state law, just as they've long done with 95 percent of local pot busts.

Now, Footer, backed by marijuana advocacy groups, vows to become the first defendant to legally challenge Denver's refusal to adhere to the legalization measure.

Accusing local officials of "thumbing their nose" at the will of the voters, Footer said he'll go to the Denver courthouse today, refuse to pay the $200 of state fines and demand his day in court. A clerk will then routinely set his arraignment for next month, according to court officials.

"I was just angry and confused. I didn't understand how the (voter- passed) law could be in effect and not be enforced," Footer said, during a Wednesday interview at a Denver coffeehouse attended by marijuana advocates. "It doesn't make sense. It either is or it isn't the law."

Footer's Nov. 17 marijuana violation - coming one day after officials certified the election results - sets up a legal collision between Denver's dueling marijuana laws.

On the one hand, there's the new Alcohol-Marijuana Equal-ization Initiative. On the other, state law.

It reignites a smoldering debate between the measure's sponsors and elected city leaders and law enforcement officials who strongly opposed the pot initiative and accused its supporters of misleading voters with signs proclaiming: "Make Denver SAFER."

I-100's sponsor, Safer Alternative for Enjoyable Recreation (SAFER), drew international coverage for making Denver the largest U.S. city to seemingly legalize marijuana possession by arguing that it was a safer alternative to alcohol, which pot boosters blame for fueling violent crime, deadly auto wrecks and addiction.

Footer is turning for legal support to SAFER and another statewide marijuana advocacy group, Sensible Colorado, which backed a losing November ballot measure in Telluride to make adult pot possession the town marshal's lowest priority.

"This is about forcing the Denver police and the Denver DA to enforce this law and respect the will of the voters," said Brian Vicente, an attorney who heads Sensible Colorado. "Based on the passage of I-100, Mr. Footer made a reasonable assumption that adult marijuana possession was protected in Denver . . . that law enforcement and the DA would follow the will of the people.

"This is a city ordinance now; it's not theoretical."

But Assistant City Attorney Vince DiCroce said Denver is enforcing marijuana violations as it always has.

"The state law is still in effect and cases will be prosecuted now, just like they were before (I-100), under the state statute," said DiCroce, director of the city attorney's Prosecution and Code Enforcement Section, which is likely to prosecute pot cases. "We're going to just continue to do what we've done."

Footer's is among the first of what will likely be a steady parade of pot busts in the new I-100 era.

In the two weeks after the Nov. 1 election - but before I-100 votes were certified - Denver police filed 51 marijuana possession cases under the state law, which is the only box officers can check for pot possession in their ticket books.

Those tickets were written to users of all ages.

Since the measure took effect, police have filed at least a dozen cases for simple possession under state law to those over 21 who would have been protected by I-100.

Footer, who's been dividing his time between Denver and Miami for the past year, said he uses marijuana only to ease the pain of three enlarged spinal discs on the advice of his doctor. Footer said he turned to marijuana because his family has a history of addiction and he wanted to avoid using prescription painkillers.

Footer's trouble began on a Thursday afternoon when he had a dispute with a motorist whom he accused of nearly running over his foot. He pounded on the car as it pulled off.

Then Footer climbed into a car he had borrowed from a friend and drove off. Suddenly, he said, he was surrounded by three patrol cars and about five officers.

Footer said police didn't find anything while patting him down.

But when police asked if he had a problem with their searching his car, Footer said, " 'No, go ahead.' "

"I was under the impression that it was legal to possess (marijuana). If I had known it was not, I wouldn't have had it in the car or even on my person. I would have just left it at home," he said.

SAFER Executive Director Mason Tvert said the group's legal team will challenge why Footer is being prosecuted for "making a rational, safer choice to possess a small amount of marijuana rather than alcohol. He believed he had the legal right to do so.

"I'd like to keep a tally of how many city dollars and resources are being put toward . . . this crazed criminal (Footer), for simply possessing a tiny amount of marijuana," Tvert said. "We had three police cars, five to six police officers, he's going to have to go to court . . . and take the judge's time, the prosecutors time. It's ridiculous."


Pot citations after Nov. 1

51 marijuana possession cases were filed by Denver police under the state law in the two weeks after the Nov. 1 election - but before Initiative 100's votes were certified. Those tickets were written to users of all ages.

12 cases, at least, have been filed by police for simple possession under state law to those over 21 who would have been protected by I-100 since the measure took effect.

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MrIMStoned

I bet he is going to lose. He was charged under state law, where marijuana is illegal. Then again, if he's arguing that the local Denver police should not enforce state law, then I don't know.

__________________
"In the end the Party would announce that two and two made five, and you would have to believe it. It was inevitable that they should make that claim sooner or later: the logic of their position demanded it. Not merely the validity of experience, but the very existence of external reality, was tacitly denied by their philosophy. The heresy of heresies was common sense. And what was terrifying was not that they would kill you for thinking otherwise, but that they might be right. For, after all, how do we know that two and two make four? Or that the force of gravity works? Or that the past is unchangeable? If both the past and the external world exist only in the mind, and if the mind itself is controllable what then?"

Lit_Match

He may lose, but this will be argued by his defence as a violation of the constitution. The majority of voters can not and should not ever be ignored because the higher ups believe they know better. Honestly what is expected of voters other than to vote? Do they have to vote in favor of a new law and then picket outside of city hall just to show that they are infact real people?

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Donation links to NORML (The National Organization for the Reform of Marijuana Laws) | MPP (Marijuana Policy Project)

IbeToken

Is it possible this case could proceed to move up to the Supreme Court? I find it hard to believe that the man convicted of his erroneous crime would consider subsiding to the wishes of the lower courts and risk losing his public stature. I say we support this man, he is a leader in the fight for marijuana. A general of a man!

oneluv4boognish

Maybe someone could clue me in here....i am aware of the whole "letting it go if it's under an ounce" law in Denver....but what about having a pipe on you....isn't that still just as illegal as before? (considering it's resinated with cannabis) They didn't amend their paraphernalia law with that I-100...did they?

 

killer12382

What do you mean he got arrested? If you'd listen to the moderators here you would KNOW that the Denver cops aren't to arrest anybody anymore for minor pot possession.

Buzzby

If you had actually listened to the moderators you would have heard a range of opinions. If you had listened to this moderator you would have heard someone saying that we'll just have to see how it falls out. We didn't know then how the law was going to be enforced and we still don't. This court challenge is the beginning of the process of seeing how it will fall out.

vladimir

i wonder whether this case will make it to the supreme court, and if, how they would decide it...i would think that it's a pretty easy case in state law superceding a city ordinance, much like the supreme court ruled earlier that federal drug laws trump medical marijuana laws in those states that legalized it.
even though it is a shame to voters, it seems a very well set idea that federal law trumpes state law trumps city law, besides in cases where the feds overstepped their constitutional rights...which i still think they did with the med marijuana thing, but whatever.

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If a drug (or technique or process) were ever to be discovered which would consistently produce a plus four experience in all human beings, it is conceivable that it would signal the ultimate evolution, and perhaps the end of, the human experiment.

Buzzby

Actually, Raich v. Gonzales tells us that federal laws can be enforced even when they are in opposition to state laws. There is no requirement that state or local courts and law enforcement agencies enforce those federal laws. That's why nothing has changed for medical marijuana patients.

If state and local cops aren't required to enforce federal marijuana laws, perhaps there's an argument that Denver city cops aren't required to enforce state laws.

vladimir

but it does give them the ability (or choice) to enforce whichever set of laws they wish to...