It was inevitable.
Last month, Eric Footer, a real estate consultant, was pulled over for a traffic stop by Denver police. Soon enough, cops searched Footer’s car and discovered a small amount of marijuana in his “vitamin bottle.”
When ticketed for possession, Footer became indignant. Hadn’t Denver just passed a law that made possession of less than an of ounce marijuana legal?
Well, no.
When Denver passed I-100 – the toothless pot initiative – Mason Tvert, director of Safer Alternative for Enjoyable Recreation (SAFER) and mastermind behind the campaign, should have warned voters that it was a feel-good exercise with no real-world impact.
Sure, prosecutors and the mayor should recognize the futility of citing citizens for small possession of marijuana, but no one expects them to defy state law. To do so is nothing more than wishful thinking.
And while there are a whole host of persuasive reasons to legalize personal marijuana use – property and privacy issues … you’ve heard them from me before – the preposterous nature of SAFER’s campaign (Geez, if my wife had only smoked that joint instead of drinking Merlot, I’d still have my two front teeth) should have been more than enough to delegitimize its efforts.
Brian Vicente, executive director of Sensible Colorado, a group that advocates for “effective drug policy” – policy, which loosely translates to “Duuuude, who’s got the Bugs Bunny bong?” – is one of Footer’s lawyers.
Vicente’s cause is worthy. But instead of busying himself fighting for a free Colorado, he and the rest of Footer’s legal team are now compelled to search for technicalities to help Footer avoid a $100 fine – not to mention, hand SAFER another hollow victory.
On Jan. 18, Footer will be arraigned and, according to his lawyers, will formally plead not guilty. Footer’s team will utilize a number of defenses, among them the “mistake of law” defense.
“He really, in good faith, made the reasonable assumption that with the passage, the very public passage, of I-100, that adult personal possession of small quantities of marijuana is now legal in Denver,” explains Vicente.
The argument goes like this: If a person has reasonably misunderstood the law and “was relying (on) an ordinance binding in the state, such as I-100 of the Denver city code, for guidance as to how to act,” as Vicente puts it, then he has made a good-faith mistake and should not be found in violation of any law.
OK. I’ll buy that reasoning.
But it’s when you hear the “choice of evil” defense that you have to begin genuinely doubting Footer’s seriousness.
“… Mr. Footer … was having this documented back pain or release of stress, and in order to cope with that pain and cope with those issues he chose to use marijuana and break that law, instead of choosing to use alcohol which would put more of a private injury on his own person, given the history of alcoholism in his family.”
No offense, but you’d have to be flying high on some California Redbud to swallow that line.
What is the point, anyway? How does getting Footer off on a technicality move the debate on legalization forward?
“I think it would help encourage people to fight these laws and stand up for the will of the Denver voters, and to force the Denver police and Denver DA to respect the will of the voters,” Vicente answers.
Supporters of I-100 will continue to claim that the government is thumbing its nose at the will of the people – and it very often does – but the fact is the Denver DA, whether you like it or not, is following the law. State law.
But let’s say Footer beats the rap. Real estate consulting, needless to say, is stressful work. Alcoholism beckons at every corner. Listen, the guy needs pot.
He’s ignorant of the law? Who isn’t?
But how exactly would Footer’s triumph uphold the “will of the people”? Wouldn’t it simply uphold the will of one ditzy potential alcoholic?
David Harsanyi’s column appears Monday and Thursday. He can be reached at 303-820-1255 or dharsanyi@denverpost.com.
