25 August 2008

Giving Officers Contradictary Duties

Previously on CrimLaw:
2) Should the Denver Chief of Police be fired for enforcing the laws he's sworn to enforce?
-----
Comment:
well that Denver comment is certainly pure sound-byte spin. are you saying the citizens of a city should have no say in the order of priorities for law enforcement?
Okay, here's the oath a Denver police officer takes:
I do solemnly swear by the ever-loving God that I will support the Laws and Constitution of the United States and of the State of Colorado, and the Charter and Ordinances of the City and County of Denver; and that I will faithfully perform the duties of the office of Police Officer of the City and County of Denver, to which I have been appointed.
And here's the State's statute making marihuana illegal:

18-18-406. Offenses relating to marihuana and marihuana concentrate.

(1) Any person who possesses not more than one ounce of marihuana commits a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not more than one hundred dollars.

(2) Whenever a person is arrested or detained for a violation of subsection (1) of this section, the arresting or detaining officer shall prepare a written notice or summons for such person to appear in court. The written notice or summons shall contain the name and address of such arrested or detained person, the date, time, and place where such person shall appear, and a place for the signature of such person indicating the person's written promise to appear on the date and at the time and place indicated on the notice or summons. One copy of said notice or summons shall be given to the person arrested or detained, one copy shall be sent to the court where the arrested or detained person is to appear, and such other copies as may be required by the law enforcement agency employing the arresting or detaining officer shall be sent to the places designated by such law enforcement agency. The date specified in the notice or summons to appear shall be at least five days after such arrest or detention unless the person arrested or detained demands an earlier hearing. The place specified in the notice or summons to appear shall be before a judge having jurisdiction of such class 2 petty offense within the county in which the class 2 petty offense charged is alleged to have been committed. The arrested or detained person, in order to secure release from arrest or detention, shall promise in writing to appear in court by signing the notice or summons prepared by the arresting or detaining officer. Any person who does not honor such written promise to appear commits a class 3 misdemeanor.

(3) (a) (I) Any person who openly and publicly displays, consumes, or uses not more than one ounce of marihuana commits a class 2 petty offense and, upon conviction thereof, shall be punished, at a minimum, by a fine of not less than one hundred dollars or, at a maximum, by a fine of not more than one hundred dollars and, notwithstanding the provisions of section 18-1.3-503, by fifteen days in the county jail.

(II) Open and public display, consumption, or use of more than one ounce of marihuana or any amount of marihuana concentrate shall be deemed possession thereof, and violations shall be punished as provided for in subsection (4) of this section.

(b) Except as is otherwise provided for in paragraph (a) of this subsection (3), consumption or use of marihuana or marihuana concentrate shall be deemed possession thereof, and violations shall be punished as provided for in subsections (1), (2), and (4) of this section.

(4) (a) Any person who possesses more than one ounce of marihuana but less than eight ounces of marihuana commits:

(I) A class 1 misdemeanor; or

(II) A class 5 felony, if the violation is committed subsequent to a prior conviction in this or any other state, the United States, or any territory subject to the jurisdiction of the United States of a violation to which this subsection (4) applies or would apply if convicted in this state.

(b) Any person who possesses eight ounces or more of marihuana or any amount of marihuana concentrate commits:

(I) A class 5 felony; or

(II) A class 4 felony, if the violation is committed subsequent to a prior conviction in this or any other state, the United States, or any territory subject to the jurisdiction of the United States of a violation to which this subsection (4) applies or would apply if convicted in this state.

(5) Transferring or dispensing not more than one ounce of marihuana from one person to another for no consideration shall be deemed possession and not dispensing or sale thereof.

(6) The court may utilize treatment, probation, and deferred prosecution or deferred sentencing for any person who violates subsection (4) of this section.

(7) (a) Any provision of this article to the contrary notwithstanding, any person eighteen years of age or older who transfers or dispenses more than one ounce of marihuana for consideration to any person under eighteen years of age but at least fifteen years of age or any amount of marihuana concentrate, with or without consideration, to another person under eighteen years of age commits a class 4 felony and, in addition to the punishment prescribed in section 18-1.3-401, shall be punished by a fine of not more than five thousand dollars. For offenses committed on or after July 1, 1985, the fine shall be in an amount within the presumptive range set out in section 18-1.3-401 (1) (a) (III).

(b) Any person eighteen years of age or older who transfers or dispenses any amount of marihuana, with or without consideration, to any person under the age of fifteen years commits a class 4 felony and, in addition to the punishment provided in section 18-1.3-401, shall be punished by a fine of not more than five thousand dollars. For offenses committed on or after July 1, 1985, the fine shall be in an amount within the presumptive range set out in section 18-1.3-401 (1) (a) (III).

(c) Any person commits a class 3 felony, if the violation is committed subsequent to a prior conviction in this or any other state, the United States, or any territory subject to the jurisdiction of the United States of a violation to which this subsection (7) applies or would apply if convicted in this state, and, in addition to the punishment provided in section 18-1.3-401, the court shall sentence the defendant to the department of corrections for at least the minimum term in the presumptive range. For offenses committed on or after July 1, 1985, the fine shall be in an amount within the presumptive range set out in section 18-1.3-401 (1) (a) (III).

(8) (a) (I) No person knowingly shall cultivate, grow, produce, process, or manufacture any marihuana or marihuana concentrate or knowingly allow to be cultivated, grown, produced, processed, or manufactured on land owned, occupied, or controlled by him any marihuana or marihuana concentrate except as authorized pursuant to part 3 of article 22 of title 12, C.R.S.

(II) Any person who violates the provisions of subparagraph (I) of this paragraph (a) commits:

(A) A class 4 felony; or

(B) A class 3 felony, if the violation is committed subsequent to a prior conviction in this or any other state, the United States, or any territory subject to the jurisdiction of the United States of a violation to which this subsection (8) applies or would apply if convicted in this state.

(b) (I) Except as is otherwise provided in subsection (7) of this section and except as authorized by part 3 of article 22 of title 12, C.R.S., or by part 2 or 3 of this article, it is unlawful for any person knowingly to manufacture, dispense, sell, distribute, or possess with intent to manufacture, dispense, sell, or distribute marihuana or marihuana concentrate; or attempt, induce, attempt to induce, or conspire with one or more other persons, to manufacture, dispense, sell, distribute, or possess with intent to manufacture, dispense, sell, or distribute marihuana or marihuana concentrate.

(II) As used in subparagraph (I) of this paragraph (b), "dispense" does not include labeling, as defined in section 12-22-102 (16), C.R.S.

(III) Any person who violates any of the provisions of subparagraph (I) of this paragraph (b) commits:

(A) A class 4 felony; or

(B) A class 3 felony, if the violation is committed subsequent to any prior conviction in this or any other state, the United States, or any territory subject to the jurisdiction of the United States of a violation to which this subsection (8) applies or would apply if convicted in this state.

(9) (Deleted by amendment, L. 2003, p. 1428, § 12, effective April 29, 2003.)

(10) The provisions of this section shall not apply to any person who possesses, uses, prescribes, dispenses, or administers any drug classified under group C guidelines of the national cancer institute, as amended, approved by the federal food and drug administration.

(11) The provisions of this section shall not apply to any person who possesses, uses, prescribes, dispenses, or administers dronabinol (synthetic) in sesame oil and encapsulated in a soft gelatin capsule in a federal food and drug administration approved drug product, pursuant to part 3 of article 22 of title 12, C.R.S.

(12) In addition to any other penalty imposed by this section, upon each conviction, entry of plea of guilty or nolo contendere, or receipt of a deferred sentence for a nonfelony violation of this section or adjudication as a delinquent for an act that would constitute a nonfelony violation of this section if committed by an adult, any driver's permit or minor driver's license held by the offender shall be suspended as provided in section 42-2-127.3, C.R.S.


Good gracious, that is a huge statute; Virginia's anti-marijuana statute is all of a single paragraph.

Anyway, you have officers which swear an oath to federal, State and local laws. In case there's any confusion here, federal trumps State and State trumps local. Even if Colorado has walked away from the Dillon Rule (IDK), the fact that the State has set out a law makes that the law of the entire State. It does not matter if
"[i]n Denver, voters . . . voted to legalize personal possession of marijuana" and "voted in majority numbers for a failed statewide legalization initiative."
The law of the State remains the law of the entire State and the responsibility of police to enforce.

Now, as to this:
"[Denver voters] voted to make marijuana enforcement police's lowest priority."
Really? Do you think that police are salivating at the mere thought of enforcing simple possession of marijuana violations? Most every marijuana possession I've seen comes out of something else. These "lower enforcement" ordinances probably aren't legal and whether they are or not, they are basically just propaganda.

2 comments:

Windypundit said...

The officer's oath notwithstanding, police have a lot of discretion to ignore low-priority lawbreaking, and they do it all the time. If they enforced every single law, they wouldn't be able to drive more than a few hundred feet before stopping to write tickets or arrest people.

Like you, I suspect the "lowest enforcement priority" ordinance is legally meaningless. But so what? Doing a good job as Denver Chief of Police depends on a lot more than just not violating the oath or breaking the law. There are lots of ways his bosses could be dissatisfied with his performance, and they have the power to fire him for any reason.

Couldn't your boss fire you for not doing your job to his satisfaction, even if you don't violate your oath or commit any crimes?

joelr said...

Prioritization -- ugly word -- happens in all sorts of jobs all of the time, oath or no oath.

Who gets to decide if the employee's priorities are what the employer wants to pay for if it's not the boss? As I understand it, the Denver Police Chief is a city employee who holds a position at the pleasure of his employers; he wasn't elected for life by the Denver College of Secular Cardinals, after all.

So: yeah. If the folks who vote in Denver, either directly or through their elected representatives, want the guy out, he should go. If he feels that setting priorities in accord with his employers' preferences is in violation of his oath -- or if it becomes, in his sole opinion, a violation of his oath -- he should quit.