Denver Post Condemns Suburban Pot Ban, Calling It Unconstitutional

Last October The Denver Post editorialized against Amendment 64, saying it was "the wrong way to legalize marijuana." Last week the paper editorialized in defense of Amendment 64 (which won by 10 percentage points in November), condemning an attempt by Greenwood Village, a Denver suburb, to abridge rights that are now protected by the state constitution. As I reported last month, the Greenwood Village City Council responded to Amendment 64 with an ordinance that purports to ban possession of marijuana and "marijuana accessories" on public property, including streets and sidewalks. Among other things, the ordinance makes it illegal for residents of Greenwood Village to transport seeds, seedlings, or growing equipment (including equipment mandated by another ordinance), even though Amendment 64 allows people to cultivate up to six plants at home. The ordinance also bars residents from taking homegrown marijuana elsewhere, even though Amendment 64 allows people to possess and share up to an ounce at a time. Looking ahead to next year, when state-licensed recreational pot shops are supposed to start opening, Greenwood Village's ordinance would prohibit residents of the town from buying marijuana in Denver and bringing it home. As the Post notes, the ordinance even bars people who live in other cities from driving through Greenwood Village with marijuana they are allowed to possess under state law. Such meddling is plainly unconstitutional, the Post concludes:

Amendment 64 clearly legalizes "possessing, using, displaying, purchasing, or transporting marijuana accessories or one ounce or less of marijuana"…In Colorado, people transport items mostly over a street or sidewalk. Often there's no other option….

Are city officials under the impression that a constitutional amendment can be edited by local communities even after it has passed? If not, how do they expect the amendment's reference to "transporting" marijuana to be honored if they've effectively outlawed that activity within their locale?

Greenwood Village officials justify their ordinance on another provision in the amendment allowing an entity that "occupies, owns or controls a property" to prohibit "the possession, consumption, use, display, transfer, distribution, sale, transportation or growing of marijuana on or in that property."

Since the town owns the streets and sidewalks, the reasoning goes, it can ban marijuana from them.

But the idea that streets are the city's property in the same operational sense as other facilities flies in the face of common understanding and practice….

If the city's interpretation were correct, it would mean that any local jurisdiction could effectively render Amendment 64 meaningless within its borders. If marijuana can't be transported, after all, then Amendment 64 grants the right to possess and use marijuana only to those who grow it under the new rules — except that no one will be able to grow it, either, if they can't get the seeds or seedlings to their home in the first place.

Jerry Presley, who opposed Amendment 64 but nevertheless was one of two city council members to vote against the ordinance, told the Post "any common-sense reading of Amendment 64 would say that the people, when they voted for it, did not believe the transport of marijuana on city streets should be illegal." Brian Vicente, co-director of the Yes on 64 campaign, said the city is inviting "inevitable, costly litigation." Rob Corry, a Denver attorney and marijuana reform activist, tells me he'd be happy to take the case. "That will fall if it's challenged," he says. While residents of Greenwood Village, where most of the population voted against Amendment 64, may be reluctant to come out of the closet as pot smokers, motorists driving through the town with small amounts of marijuana should have fewer reservations. "When that ticket is issued," Corry says, "if that case comes across my desk, then there's an easy constitutional challenge to the ordinance."