While Aurora police have the right idea about how best to accommodate recreational marijuana use at home, they’re wrong about how future complaints might be handled — and city officials need to make that clear.
This week, a city council ad hoc committee studying issues surrounding the use and potential sale of recreational marijuana discussed how the city will deal with tokers who partake in smoking pot outside their home but on their own outdoor property.
Denver city lawmakers raised a statewide stink last month when they proposed making it illegal to smoke pot on a front porch, backyard or a patio. The idea behind the proposal was that public consumption of marijuana, and the telltale smell produced by smoking it, can be offensive to those forced to watch or smell neighbors partake. It was a silly idea that was seriously dismissed after public backlash. But the flap raised a good question: Should the city weigh in on consuming pot anywhere on private property?
No.
This issue comes with the state’s uncharted territory, Aurora. When state voters clamored to pass Amendment 64, they didn’t just decriminalize the use of marijuana, they legalized it. While Denver lawmakers were mostly pitching for laughs with their ill-conceived front-porch ban, they were flirting with a lawsuit, too. There’s little doubt that the constitutional change created by Amendment 64 would persuade courts to see how there can be nothing criminal about using marijuana anywhere on private property. The law is specific there.
It’s the same for drinking beer, booze and wine, as well as smoking cigarettes or even listening to potentially offensive music, such as “A Chipmunk Christmas.” Using marijuana on private property is legal because the state and city do not say that it’s not.
Aurora police pretty much agree with that, and they made it clear they don’t want to go where Denver is trying to get away from, but they told city lawmakers this week that they’ll handle any complaints on a case-by-case basis and make a determination if there’s been a violation of law.
“If someone is (smoking) marijuana on their front yard, there’s a question of open consumption, especially if we’re getting complaints from someone in the community about that behavior … I want to — under what we put forward here — to reserve the option to pursue that as a violation, and we’ll see where that works out in court,” Aurora Police Chief Dan Oates told the city panel this week.
It won’t work out in court, and it shouldn’t. There is no state law against public consumption on private property. To make it illegal, city lawmakers would have to fish for some kind of obscenity or indecency measure, a seriously bad idea. What’s possible is a disturbing the peace violation, not from just smoking a joint or a pipe, but by having a dozen people puffing on a nuclear hookah that chokes out the neighborhood. The same things that prompt cops to write tickets for being drunk, not just drinking, are the same things that, as the law stands, will allow cops to control behavior that really can be regulated. You might not like watching your neighbor drink pink squirrels on his porch, but it’s not illegal. When he starts throwing them at you, a crime has been committed.
Like cigarette smoking, it can be annoying and obnoxious that the lady on the condo balcony next door smokes all night long in the summer, but it’s a matter for the civil courts to decide whether her offending Salems warrant legal intervention. Police accuse citizens of infractions. Courts decide if that accusation warrants charges and then decide convictions.
The city must either make it clear that using marijuana outdoors on private property is legal, a bad idea, or remain silent on the matter. That means police can accuse someone of disturbing the peace when they’re holding a noisy concert on their front porch at midnight, but not for smoking a joint before the music starts.