Under Denver Proposal, Pot Smokers Could Go to Jail for Consuming a Legal Product on Their Own Property


Jacob Sullum

The Denver City Council is considering an ordinance that would make it illegal to consume marijuana when other people can see or smell it. According to The Denver Post, "offenders could face a fine of $999 and up to a year in jail"—a pretty steep penalty for offending people' sensibilities by consuming a legal product. "Your activities should not pervade others' peace and ability to enjoy," Mayor Michael Hancock tells the Post. "Marijuana is one of those elements that can be quite pervasive and invasive. I shouldn't have to smell your activities from your backyard." By the same logic, shouldn't it be illegal to grill steaks or smoke a cigar on your patio? Mark Silverstein, legal director for American Civil Liberties Union of Colorado, calls the ordinance a "tremendous overreach, ill-advised, unnecessary and unconstitutional."

Amendment 64, Colorado's marijuana legalization initiative, says "nothing in this section shall permit consumption that is conducted openly and publicly." But the proposed ordinance's definition of "openly and publicly" is much broader than voters probably imagined:

The term "openly" means occurring or existing in a manner that is unconcealed, undisguised, or obvious, and is observable or perceptible through sight or smell to the public or to persons or neighboring properties.

The term "publicly" means: (a) occurring or existing in a public space as defined by C.R.S. 18-1-901, or (b) occurring or existing in a place or location to which members of the public have access, or (c) occurring or existing in a place, location or in such a manner that members of the public or persons on neighboring properties may observe or perceive it by sight or smell, including but not limited to vehicles on public streets or highways.

The statutory definition of "public place" cited by the ordinance is "a place to which the public or a substantial number of the public has access," so the ordinance's first and second definitions of "publicly" are the same. Furthermore, the ordinance's definition of "openly" is essentially the same as its third definition of "publicly," so it collapses the two conditions specified by Amendment 64 into one. If someone can smell you smoking a joint in your fenced backyard, according to the ordinance, you are consuming marijuana both openly and publicly. If you use a low-odor vaporizer to consume marijuana in an isolated part of a public park, by contrast, the act is "public" but not "open"; it would still be illegal, however, because another part of the ordinance bans marijuana consumption (or possession) in a public park or "other recreational facility." What if you smoke pot in a cannabis club where entry is limited to members? In that case, consumption is "open" (since other people can see you) but arguably not "public" (since the place is not open to the general public). And if you consume a marijuana edible, the act presumably is "open" only if other people know what's in your brownie. 

Rob Corry, a Denver attorney and longtime marijuana activist, argues that the phrase "openly and publicly" in Amendment 64 imposes two distinct conditions: To be prohibited, marijuana use must be "open" (visible to passers-by) and "public" (occurring on public property). Smoking pot while walking down a crowded sidewalk would be the paradigmatic example. But according to Corry's reading of the law, smoking pot in a deserted area of a public park would be public without being open, while smoking pot on your front porch or on the patio of a restaurant would be open without being public. Denver's ordinance, by contrast, equates "open" with "public"; if people can see or smell pot smoking, that makes it illegal, even if you're doing it on your own property. At the same time, the ordinance leaves open the possibility of private clubs where people could pay to consume marijuana (but not purchase it, since state law prohibits on-premise consumption in pot stores) in a social setting where food and drinks are available. The upshot could be that people are free to consume marijuana in businesses catering to pot smokers but not on their own porches, patios, and balconies.