The Santa Fe Police Department wants to clear the haze on city and state marijuana laws.
Because of concerns by a city councilor, the department plans to give officers a refresher on a municipal law that makes possession of small amounts of marijuana the lowest law enforcement priority in the city. Officers are also scheduled to receive formal training on the state’s medical marijuana laws.
Medical cannabis hasn’t been a hot topic in Santa Fe. But enforcement of the city’s law for possession of marijuana has sparked controversy.
In 2014, the City Council approved an ordinance that decriminalized possession of one ounce or less of marijuana and marijuana paraphernalia, making it a civil infraction punishable by a $25 fine.
But city police have continued to cite people under the state criminal statute on marijuana, which carries stiffer penalties. Under state law, the first offense for possession of an ounce or less of marijuana is a petty misdemeanor punishable by up to 15 days in jail and a $100 fine. For a second offense, the penalty escalates to a misdemeanor and up to a year in jail and a $1,000 fine.
These differences led City Councilor Joseph Maestas to tell police Chief Patrick Gallagher that officers should apply the city ordinance over state law. In turn, Gallagher promised to provide his officers more training.
“As per your recommendation, I have directed that additional training on the ordinance be provided for all officers,” Gallagher wrote in an email to Maestas earlier this month. “This will take place over the next several months as staffing levels permit.”
Police spokesman Greg Gurulé said Tuesday the department plans a “formal training” Tuesday and the first week of December on the state’s medical marijuana laws and on the city’s ordinance for possession of an ounce or less. Officers already have received a refresher on marijuana laws.
“The department has been going through training during roll call,” Gurulé said in an email. “The process is explained on when citations should or shouldn’t be given. It’s ongoing.”
Gallagher, who is out of town until Nov. 30, was unavailable for comment last week. But Maestas said Gallagher had sent him “a brief lesson plan” for the additional training on the city’s ordinance. Maestas said it doesn’t go far enough.
“I’ve asked that he add another element to the lesson plan for the training and that is informing them on the impact, particularly on young people, of an arrest or conviction in terms of getting public housing or public financial aid in college,” Maestas said. “I want them to be sensitive to the impacts of having an arrest and or a conviction record.”
The police department has always maintained that officers have discretion to issue citations under either municipal or state law, a point that City Attorney Kelly Brennanmade in a legal opinion two years ago.
“Police officers may still charge offenders under state law, but are afforded an additional opportunity to cite offenders for a civil infraction,” Brennan wrote in the legal brief. “In effect, the language adds another tool to a police officer’s toolbox.”
The legal opinion stated that “a minimum level of training and orientation” guides decision-making on officer discretion, a point of contention for Maestas.
“Officers come and go,” he said. “I really felt like we still have a gap in providing the necessary orientation and training on a regular basis to the officers on enforcing the law.”
In an email to Brennan earlier this month, Maestas said the city faces “legal risk exposure” by not providing our officers with a minimum level of training and orientation to ensure proper exercise of discretion.
“I’m not comfortable where things stand and remain highly troubled over the prosecution of primarily people of color that will be forever plagued by their criminal record for an offense that can be a civil infraction,” Maestas wrote, referring to a story in the Santa Fe Reporter that lawyers who work in Magistrate Court say most of those arrested are people of color. The story also said the claim was difficult to verify since police reports and booking sheets were inconsistent in reporting race.
In response to Maestas, Brennan said she was unaware of statistics “indicating disparities in enforcement that suggest discriminatory practices” or “that people of color have been targeted in any way in enforcement.”
“Obviously, if there are any indications of these prohibited practices, we will need to address them through training,” she wrote. “I note, however, that these concerns apply to all enforcement, not just enforcement of the ordinance and state statutes regulating marijuana. I will follow up with the chief on the matter.”
In an interview, Maestas said there could be “incredible bias” when officers decide which law to follow when they issue citations, but the City Attorney’s Office has said that the city can’t mandate officers to follow the city ordinance. That’s why training is so important, Maestas said.
“Some of the officers are pretty hardcore, throw the book at them,” he said. “I think that any new officers that come in to serve on the force, they need to be indoctrinated and be aware of the city civil ordinance. They need to be trained.”
A police analysis of cases involving possession of small amounts of marijuana from January through Oct. 25 found that police have issued 62 citations. The analysis also found that many of the people who received citations have had repeated run-ins with police, dozens of interactions in some instances, and that few of the cases involved only a simple marijuana possession offense.
“These factors make it clear that this is not a black-and-white issue, as many of those cited had numerous prior contacts with law enforcement and/or their particular situation involved more than just simple marijuana possession,” Gallagher wrote in the email to Maestas.
Maestas said officers don’t always track incidents where they find someone in possession of a small amount of marijuana and then confiscate and destroy the drug. But in Gallagher’s email to Maestas, the chief said that procedure has changed.
“We have established a method to track instances whereupon officers seize and destroy marijuana without any criminal or civil action against the person in possession,” Gallagher wrote. “As of October 1, this has happened 25 times so far this year alone.”
Contact Daniel J. Chacón at 986-3089 or email@example.com. Follow him on Twitter @danieljchacon.