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Wednesday, May 1,2013

Pot petition

Bernero "inclined" to support City Charter amendment to legalize less than an ounce of marijuana on private property in Lansing. Legal questions abound.

by Andy Balaskovitz
Should it be legal to possess up to an ounce of marijuana on private property in Lansing if you’re over 21? City voters may get a chance to answer that question at the polls in November.

The Coalition for a Safer Lansing is gathering signatures to place on November ballots a City Charter amendment allowing for “the use, possession or transfer of less than 1 ounce of marijuana, on private property, by a person who has attained the age of 21 years,” according to ballot language on the group’s website. 

“Primarily we realize cannabis prohibition is a failure — it’s not working,” coalition Chairman Jeffrey Hank said last week on “City Pulse on the Air.” 

“If you are an adult, on your own property, we believe police should leave you alone and focus on real crime, real victims, and thereby free up police resources to focus on serious crimes and all the problems associated with cannabis prohibition.”

The ballot initiative approach would circumvent the need for City Council approval. The group needs about 4,200 valid signatures by late August. Hank expects to get the needed amount in the next month and a half.

Lansing Mayor Virg Bernero is “not surprised” a legalization bid has surfaced here. “I would think it would pass,” he said. While he wants to study Hank’s proposal more, Bernero said he’s “inclined” to support it. Just last week, Bernero said he has asked the city attorney to look into the lesser step of decriminalization.

If legalization were approved, Lansing would join Detroit and Flint in allowing up to an ounce of marijuana on private property, which 65 percent of Detroit voters and 57 percent of Flint voters supported in November’s election. Grand Rapids voters amended their City Charter in November to decriminalize marijuana, making possession punishable by fine. Also in November, Ypsilanti voters amended their City Charter to make marijuana possession for those 21 and older the lowest law enforcement priority.

Whereas legalization frees one from any penalties associated with marijuana, decriminalization moves possession from a misdemeanor to a civil infraction and a fine, which usually starts at $25 for a first offense.

At the same time as those Michigan cities, voters out west in Colorado and Washington said yes to legalizing cannabis statewide. Last week, state Rep. Jeff Irwin, D-Ann Arbor, introduced a bill that would decriminalize cannabis statewide. To be sure, marijuana changes are afoot.

 “We think this is a trend nationwide. It’s time for a change — people realize that — and we want to be on the forefront of that change here in the capital city,” Hank said.

But with new trends come legal questions.

For example, just because Lansing could legalize cannabis on private property, doesn’t mean you’re free from prosecution. Local law enforcement is still empowered to enforce state law, Ingham County Prosecutor Stuart Dunnings III said.

“I guess it’s just a matter of a police chief who’s going to enforce it,” he said. “The police have a choice. They can either say, ‘OK, we have a city ordinance that says this is not a crime and do nothing.’ Or they can say, ‘This is still a violation of state law that we will enforce.’”

A decriminalization City Charter amendment that passed in Grand Rapids in November is before a Kent County circuit judge. The county prosecutor there says it conflicts with state law. A court order stopping the amendment was lifted in January, and the city will reportedly start applying the new ordinance today as it awaits a legal decision.

Kalamazoo City Attorney Clyde Robinson says the central problem with new marijuana laws at the local level is that cities “can’t permit its citizens to do something that state law otherwise prohibits. I think it creates a legal question right off the bat.”

To “knowingly or intentionally possess” cannabis — if you’re not a registered medical marijuana patient — is a misdemeanor in Michigan, punishable by up to a year in jail or a fine of not more than $2,000, or both. Manufacturing or delivering pot is a felony, with varying penalties based on weight involved. The lowest penalty — for less than five kilograms — is up to four years in jail or a fine of not more than $20,000, or both. One kilogram is more than 35 ounces.

Robinson said Kalamazoo has eased marijuana penalties by making it a 93-day misdemeanor or up to a $100 fine.

Hank said the group’s “intent” is to legalize cannabis on all private property, whether it’s your own or on someone else’s if you have permission. “This isn’t meant so people can use or smoke in public parks or on the street,” he said.

But let’s say you bring your own supply to a friend’s house: Is it legal to drive with it there? And would you be able to cultivate your own product? Hank says the ballot language is simple and that such questions would have to be determined later by the courts or through new legislation.

“It’s symbolic to law enforcement that the people of Lansing want to be able to do these kinds of things and want the police officers to be able to focus on real crimes, and we want to free up their resources to do so,” Hank said. “How this would be interpreted by the courts is anyone’s guess.”

Hank is working with Tim Beck, an activist in Detroit who was behind the nearly identical proposal that passed there in November. Hank said the Lansing language is “almost exactly” what passed in Detroit, but it adds the word “transfer” to “allow two consenting adults to transfer marijuana between themselves and not face prosecution, which in this case would be felony drug charges.” Transfer would include the sale, he said.

Beck said Detroit “refuses to make any statement” about whether it will make a formal policy of enforcing local law or charging people under state law, which would then have to be prosecuted in circuit court. While Detroit is staying mum, the city of Flint has been open about charging people under state law, Beck said — “the equivalent of an ‘F-you’” to voters.

Still, Beck says the key to avoiding litigation is allowing local police to be able to make that decision.

If anything, these local cannabis changes are symbolic. More so here, Hank said, because it’s the capital city — even though it’s behind several Michigan cities.

“It’s only right that Lansing is in this fight as well to change the laws,” Hank said. “We should be a model for this. We think we should be leading the way and if our local politicians aren’t going to do it, then we’re going to do it.”

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