Austin City Council approves limiting marijuana possession enforcement

Austin

AUSTIN (KXAN) — On Thursday, Austin City Council approved a resolution that would limit the enforcement of marijuana laws in Austin.

The resolution needed six votes to pass and did 9-0 on Thursday. Council member Jimmy Flannigan and Mayor Steve Adler were absent.

Four co-sponsors — Mayor Pro Tem Delia Garza and Council Members Greg Casar, Natasha Harper-Madison and Jimmy Flannigan — introduced the resolution earlier this month. The measure would not decriminalize small amounts of marijuana, but it would de-prioritize enforcement.

The resolution’s language reads that police should work to “eliminate, to the furthest extent allowable under state law and as long as there is no immediate threat to a person’s safety…the use of arrest or enforcement action” in marijuana possession cases.

How this actually plays out on the streets is to be determined.

“We will look at our policies in regards to the resolution that just passed to determine what if any changes we need to make,” said Austin Police Chief Brian Manley.

APD generally abides by a ‘cite and release’ policy. The department issued 432 citations for marijuana possession in 2019.

This is expected to be another step back.

Manley never said he was opposed to Thursday’s council action, but reiterated that his main concern was public safety.

“There is no legal or safe place people can go to acquire it,” he said. “So if we take any action, that increases the likelihood that people will use marijuana, which will create an increasing supply, which increases the drug trafficking.”

‘Your debt’s never paid’

Supporters of the resolution say a marijuana arrest, even a minor one, has lasting consequences long after the case is resolved.

Jennifer Pumphrey. (KXAN Photo/Todd Bailey)

Jennifer Pumphrey, now an activist with the group Grassroots Leadership, was arrested when she was 19 for having a small amount of marijuana. She spent six weeks in jail and years learning about the lingering effects of the charge.

“In our system, your debt’s never paid,” she said. “It is a life sentence of struggling over one thing, over another, whether it’s finding housing, finding employment, or trying to build up your credit good enough to where you can buy a home. It is never-ending.”

The money spent on enforcing low-level offenses, she believes, could be better spent elsewhere: “We need rehabilitative programs, we need preventative programs, we need help for single parents, we need help for kids before they fall into those traps.”

A response to state law change

The measure comes in response to a bill the Texas legislature passed in 2019 to legalize hemp. Under that law, the cannabis plant is considered legal hemp if THC levels are below a certain threshold, but it’s considered illegal marijuana if it contains too much THC.

Prosecutors around the state have stopped taking many low-level marijuana cases to court because they can’t prove how much THC is in the plant. KXAN found the Travis County Attorney filed just four misdemeanor pot charges in the second half of 2019, compared to more than 1,000 in the first half of the year before lawmakers passed made hemp legal.

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The resolution calls for the Austin Police Department to limit arrests and citations for low-level pot offenses like possession of personal-use amounts when the police chief knows prosecutors won’t take the charge to court or pursue a lab test to determine the concentration of THC.

It would also prevent the city from buying equipment or developing tests to test the amount of THC (the substance in weed that gets users high), and would stop any city personnel from recruiting an outside agency to perform those tests.

Felony cases involving trafficking or a violent crime would still be prosecuted.

‘Low-level’ vs. ‘misdemeanor’

Pool’s amended version also alters the wording from “low-level” to “misdemeanor” offenses. She says the change is intended to provide officers and prosecutors more of a legal framework for understanding which offenses to charge and which to ignore.

But Emily Gerrick, an attorney with the Fair Defense Project, said at a news conference earlier this week the line between misdemeanor and felony amounts of weed can be blurry.

The distinction typically comes down to the weight of the weed in question. With something like a pot brownie, though, “it’s going to be the entire weight of the brownie, and not the weight of the substance that’s in it,” she said.

That’s why the resolution’s authors use “low-level” offenses in the language, allowing officers to determine whether the substance is for personal use or for distribution, no matter the weight.

Policing concerns

Regardless of the wording, not everyone on council is behind the resolution.

Council Member Paige Ellis told KXAN Wednesday she had not made up her mind, saying her office was still trying to answer a couple questions.

“I think it’s a really interesting concept,” Ellis said, adding she’s concerned about “how that works with our police department and what effects it’s going to have on our ability to let our police officers keep us safe.”

The Greater Austin Crime Commission expressed similar concerns in an email to supporters earlier this week. “Law enforcement leaders have voiced concerns about the resolution, including increased violence associated with drug trafficking,” the letter from the group’s president reads.

The note also highlights supporters’ arguments, that marijuana prosecutions disproportionately affect minority communities and arresting people for offenses that won’t go to court is a waste of resources.

Police Chief Brian Manley has not expressed support or opposition publicly, though he tweeted on Wednesday in response to a question: “The City Council does not have the authority to direct APD not to enforce a state law.”

Gov. Greg Abbott’s office did not respond to requests for comment on the possible policy shift, but he’s been critical in the past of prosecutors who decline to bring marijuana charges to trial, saying they can use other types of evidence to make their case.

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