Legal Limbo for Pot Users? By SUZANNE LA BARRE

Friday March 31, 2006

On March 15, Berkeley police seized 120 pounds of dried marijuana, more than 5,000 plants, $120,000 cash and several weapons from a growing outfit headquartered at 809 Allston Way in West Berkeley. 

Seven people were apprehended in connection with the operation. It was the largest pot bust in the department’s recent history. 

But was it legal? 

A skim through Sec. 12.24 of the Berkeley Municipal Code would yield a resounding no. 

In 1979, Berkeley voters passed the Berkeley Marijuana Initiative II (BMI II), an ordinance that makes the possession, cultivation, sale and transportation of marijuana the police department’s lowest priority. The law is on the books today.  

BMI II calls on the Berkeley City Council to ensure that officers do not issue citations, make arrests or expend public funds on pot crimes. The ordinance further stipulates that all marijuana law enforcement activities must be reported to the City Council and the Police Review Commission on a semi-annual basis. 

A reader raised the legal conundrum in the March 24 issue of the Berkeley Daily Planet.  

“The recent pot bust in Berkeley was not merely a massive waste of police resources—it violated city law,” said Attorney Martin Putnam in a letter to the editor. 

Putnam is the parent of one of the suspects arrested March 15, and he may have spoken too soon. 

That’s because before BMI II, there was BMI I. Voters passed the first initiative in April of 1973, forbidding police from making arrests for pot crimes unless cleared by the City Council. The California Attorney General promptly challenged the law. Four months later, in Younger v. Berkeley City Council, an Alameda County Superior Court dealt initiative activists the death knell: The city must allow Berkeley police to enforce marijuana laws. 

In his ruling, Judge Lionel Wilson struck down the ordinance for modifying laws governing a police officer’s right to make arrests, preempting state marijuana laws and violating city code that gives the City Manager discretion over police personnel—not the City Council.  

The city has interpreted the decision as a permanent entity. In 1980, a defendant arrested for possession of less than an ounce of marijuana filed for a case dismissal, citing BMI II. A municipal court judge roundly rejected the motion, upholding the precedent that state marijuana and arrest laws preempt local law. Deputy City Attorney Matt Orebic said he has not heard of any other legal challenges to the 1973 verdict. 

That’s not to say the ordinance is unbending, though. Following passage of Proposition 215 in 1996, which allows for the use and cultivation of medicinal marijuana with a doctor’s recommendation, Berkeley established guidelines allowing patients to use, possess and cultivate a small amount of marijuana for “personal medical purposes.”  

As a result, the city interprets Wilson’s ruling as applying only to unlawful marijuana. But 5,000 plants and 120 pounds of pot grown are still game for seizure, as is an eighth from a non-medical street dealer on Telegraph Avenue. 

So if the ordinance doesn’t carry any weight, why keep it around?  

For one thing, Orebic said, there aren’t any procedures in place for getting rid of it. 

“There are sometimes old laws on the books that have been banged around by the courts and just sit there,” he said. “Just because a court rules something unenforceable, it doesn’t require the legislature to take it off the books.” 

Dale Gieringer, coordinator of the California chapter of the National Organization for the Reform of Marijuana Laws (NORML) guesses it’s a political piece.  

“It’s not a legally enforceable kind of thing, it’s politically enforceable,” he said, pointing out that one facet of the law that remains intact is a requirement to report the activities of police officers apropos marijuana law enforcement. The upshot is that when there is a spike in pot-related arrests, as was the case several years ago following a crackdown on Telegraph Avenue, Gieringer said, people know about it and raise hell accordingly.  

The marijuana ordinance also pays lip service to what Berkeley’s pot policy would look like if not bound by other local, state and federal laws.  

“These lowest priority ordinances in my opinion don’t have any teeth,” said Bill Panzer, an Oakland-based criminal defense lawyer specializing in pot crimes. “But it is a policy point. It shows what the people believe. Now it’d be nice if the police took into account where the people are at.”