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.  

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  1. By the same logic, shouldn’t it be illegal to grill steaks or smoke a cigar on your patio?

    I seem to recall ordinances existing that do exactly that.

    1. Well this is everybody’s air


      1. No, but if I’m an adjoining property owner, it’s my air. What gives you the right to be polluting my air with what I find to be obnoxious fumes?

        Admiteddly it shouldn’t be a crime, but it should be a civil tort.

        1. What gives you the right to be polluting my air with what I find to be obnoxious fumes?

          What if you aren’t a “reasonable person”?
          What you think is obnoxious is irrelevant.

          1. “Domus mea, praecepta mea”

            It’s my land, you need my permission to start dumping your waste onto it, regardless of how unreasonable I’m being with regard to obtaining that permission.

            1. Throwing a hissy fit over an imperceptible amount of smoke makes about as much sense as taking them to court for exhaling on your property.

        2. Yes, a civil tort – given how common the occurrence is it most likely would have developed a huge list of precedents, precedents that would say ‘its not enough of an imposition to cause significant harm, certainly not enough to be worth taking to court so stop bothering the court with this shit’.

          Kinda like way the courts treat it currently.

        3. What gives you the right to be polluting my air with what I find to be obnoxious fumes?

          An ironic point to bring up for a dragon.

        4. Stormy-

          Let’s take the “middleman” out of the equation.

          If you fart in an elevator I’m riding with you- you will give me $999.00, or I kick your ass and lock you in a “Warty-jail” for a year.

        5. Your indoor plumbing isn’t vented?

          No wonder you’re such an idiot.

  2. The Denver City Council is considering an ordinance that would make it illegal to consume marijuana when other people can see or smell it

    Oh, I’m sorry, you thought by legalizing it, these people would just go away? Marijuana: the “assault rifle” of the drug world.

    1. I’ve actually been surprised at how little of this type of obnoxious attempt to re-criminalize has been happening in Washington, though I imagine we’ll be seeing more once sales start to get implemented.

    2. Yep, and those “Overton Window” fans keep trying to tell us we need to give in to the whims of the general public to one day get liberty.

      It is not the general public that is usually standing in the way of liberty, it is the scoundrels who seek and obtain office.

    3. Here they are, your Denver City Council!

      Dist 1 – Susan Shepherd
      Dist 2 – Jeanne Faatz
      Dist 3 – Paul D. L?pez
      Dist 4 – Peggy Lehmann
      Dist 5 – Mary Beth Susman
      Dist 6 – Charlie Brown
      Dist 7 – Chris Nevitt
      Dist 8 – Albus Brooks
      Dist 9 – Judy Montero
      Dist 10 – Jeanne Robb
      Dist 11 – Chris Herndon
      At-Large – Debbie Ortega
      At-Large – Robin Kniech

      They’re all up for re-election in 2015, so track how they vote, and if you don’t like it throw some cash at the inevitable raft of sensible future Denver City Councilians who would like nothing more than to take their job.

      1. Dist 6 – Charlie Brown

        I always knew he was wishy-washy!

        1. “Why is everybody always picking on me?”

          Because you’re a statist, you statist fuck!

          1. In all fairness, he might end up being the only one who doesn’t vote for it.

  3. Huh, wonder what party Mike Hancock hails from.



    Anyone else as shocked as I am?

    1. Anyone else as shocked as I am?

      You mean that a statist is acting like a statist? I’m in total shock here.

      1. Statists gonna state…

        1. Potatoes gonna potate.

          1. Alligators gonna alligate.

            1. Deaf people gonna defecate.

  4. The new law said to treat it like alcohol. How does this differ from open container and public drunkenness laws? Oh, well except for the part about being on your own property and stuff. Never mind.

    1. To your garden-variety Democrat, every human problem requires a law. And these are the jackholes which keep harping on “community”.

      1. legislation != law

      2. every human problem requires a law

        And if there ain’t any problems, we’re going to make some, but then we’ll fix em right away. And also, we’ll fix the problems that fixing the problems created, and….

      3. They don’t stop at problems.

        1. “Politics is the art of looking for trouble, finding it whether it exists or not, diagnosing it incorrectly, and applying the wrong remedy.”

          –Ernest Benn

          1. Then asking for more money and applying even more of the wrong remedy when it doesn’t work.

    1. Thanks for that. I normally listen to music by uptight white guys, so that was a welcome change.

  5. “I shouldn’t have to smell your activities from your backyard.”

    The very reason Episiarch has had to move so often.

    1. For that, there oughtta be a lore.

    2. It is so hard to mask the smell of burning human flesh. Believe me, I’ve tried everything.

    3. It’s not his fault all his food has to rot before he can digest it.

    4. I was sitting at the dining room table with my wife yesterday afternoon, and she asked me if I smelled smoke. The patio doors were open but I didn’t smell anything, so I walked out onto the deck and then I did smell cigarette smoke. I reminded her that our neighbor sometimes sits out on his deck and smokes and the wind was blowing a little from that direction.

      Funny, I don’t like the smell of cigarette smoke, but the thought never entered my mind that I wished there was a law so that I could rat him out to the cops for smoking on his own property. Gawd, I fucking hate statist pricks.

      1. I like the smell of fresh tobacco smoke. It’s stale tobacco that stinks. In my opinion as a non-militant ex-smoker.

      2. B-b-but… CHILLRENZ could have been exposed to his second hand smoke! Why do hate TEH CHILLRENZ!!!!

        1. That’ll toughen up the little brats. Give em a shot of whisky, a dirt bike and a rifle and tell them get out of the fucking house for a while.

  6. I think there is a statist gene and that those who have it, really cannot control their instinct to try to control the behavior of everyone else. It obsesses them.

    I went to high shcool with this kid who would carry around a notebook in the halls, at sports events, or anywhere else that high school kids were gathered, and if he saw someone doing anything that might be against school rules, he would write it down and report it to the school principle. No one asked him to be doing this, but he apparently had an uncontrollable need to be some type of glorified hall monitor. Needless to say, he was not very popular and even got beaten up a couple of times because of it. But that never deterred him.

    He went to law school because he wanted to be a prosecutor. I actually worked with him a couple years later, for a few months in a company where both of us had taken a summer job. He hadn’t changed at all, a total fucking dick, obsessing about being some type of prosecutor or judge so he could get power over people and fuck with them. Why can’t people like this just go extinct already and leave the rest of us the fuck alone?

    1. I think there is a statist gene and that those who have it, really cannot control their instinct to try to control the behavior of everyone else. It obsesses them.

      The never-ending desire to tell people what to do is a mental illness. At least in the DSM-Paul it is.

    2. I don’t think it’s so much a gene (nature) as it is personality forming experiences (nuture). This guy, and those like him, are obsessed with controlling other people probably because they were controlled/bullied themselves in their lives, whether by classmates or parents or whoever, and they decide early on, and quite strongly, that they do not like being on the receiving end. Which many people do, and leave it at that. But they also take it a step further: they want to be the controller, probably because they are also insecure and need the power and the proof of that power to not feel like losers.

    3. “Political tags ? such as royalist, communist, democrat, populist, fascist, liberal, conservative, and so forth ? are never basic criteria. The human race divides politically into those who want people to be controlled and those who have no such desire. The former are idealists acting from highest motives for the greatest good of the greatest number. The latter are surly curmudgeons, suspicious and lacking in altruism. But they are more comfortable neighbors than the other sort.”

      –Robert A. Heinlein

      1. Beat me to it.

  7. “Marijuana is one of those elements that can be quite pervasive and invasive.”

    And fucking *nitrogen* — don’t even get me started!

    By the same logic, shouldn’t it be illegal to grill steaks or smoke a cigar on your patio?

    By the same logic, shouldn’t it be illegal to use suntan lotion or work up a funky sweat on your patio?

    And what if I am offended by that T-shirt I see you wearing on your patio?

  8. “I shouldn’t have to smell your activities from your backyard.”

    What the fuck is he doing in my backyard anyway!?!?!

  9. I can always buy a bigger backyard.

  10. Most Colorado voters were aiming for regulating marijuana much like alcohol. So the general assumption was that marijuana use would be treated like alcohol use.

    So I think the general intent was something like an open container law. That was certainly the general perception among most people I spoke to during the campaign.

  11. The ordinance as written would also seem to negate the warrant requirement to search people’s homes, since it effectively declares all places to be open and public.

  12. I just want to once again point out, for being a statist paradise Washington (my home state) has been pretty damn reasonable since 502 passed. It’s one thing both sides have been rather mellow about. It doesn’t hurt that it’s a lot more accepted in this state by and large though.

    By and large it’s on track and if the lack of real bumps is any indication I think the real worry for the state will continue to be the Feds.

  13. Amazes me that the “powers that be” make it so much more difficult than it should be. They expend a lot of energy trying to make it not work when they could used that energy to gain from it.

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