Fresno City Council members should revisit Lee Brand’s marijuana ordinance. They’re missing a good opportunity to debate the challenges of maintaining public order in a world that prizes personal expression above good manners.
Brand is the City Council member representing District 6 in northeast Fresno. Woodward Park in on the edge of his district.
Brand on Sept. 11 pitched a new ordinance to his colleagues. For brevity’s sake, let’s call it the Civility Bill.
The Civility Bill would give selected city officials another tool in the regulation of controlled substances on city-owned property. Heroin is one such controlled substance. For the most part, though, the bill was aimed at marijuana.
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Brand told the council that a lot of people at a Woodward Park event this summer were smoking marijuana. No one in a position of public authority told the smokers to stop, Brand said. A number of constituents complained about the city’s indifference to what they viewed as a public nuisance, Brand said.
Brand’s four-page bill, written with the help of the City Attorney’s Office, was simple. Police officers would have authority to issue criminal citations to anyone abusing controlled substances on city property. Nothing new there. But the bill also would authorize the Parks Department director and the Planning Department director (or their designees) to issue administrative citations to marijuana smokers. Three such citations in a year and you could be banned from, say, city parks or the Convention Center for the ensuing year.
The bill didn’t go into detail on how this “administrative citation” process would work. Perhaps there was no need to. An administrative citation in this context clearly was a step or two below a criminal citation. An administrative citation seemed to be something like a sharp governmental slap on the wrists -- pay a small fine (perhaps), get a brief lecture (extinguish that joint, please), carry on with life.
In this sense, Brand’s bill made me think of the council’s recent flirtation with code-enforcement reform. As you may recall, the council this summer thought about empowering any Fresnan to file an administrative complaint against a neighbor allegedly violating public nuisance law. The idea has been put on hold.
The Civility Bill was all about using a softer version of the law to enforce a minimum level of propriety in the public square.
The Civility Bill on Sept. 11 was a disaster for Brand. Council Members Oliver Baines, Paul Caprioglio, Clint Olivier and (to a lesser degree) Sal Quintero blasted the proposal. Their beef: The Civility Bill isn’t necessary. There are plenty of laws already on the books to keep people from smoking marijuana in the Convention Center parking lot or at a Roeding Park picnic bench.
Brand tried without success to carry the day. Saying he saw the handwriting on the wall, Brand had the Civility Bill tabled. It’s all but dead.
But as I watched things unfold, I couldn’t help thinking there was something fundamentally dishonest about the line of reasoning employed by the Civility Bill’s council critics.
The council critics said (or implied) that the Civility Bill isn't necessary because Fresno police officers can handle every situation through their power to make arrests. The “arrest” power -- it rolled off the council members’ tongues.
It dawned on me: I don’t really understand the concept of the “arrest” power. I don’t understand how it is exercised. I don’t understand how it fits into a democratic society where everything is driven by two contradictory ideals -- pluralism and consensus.
And even though Baines is a former Fresno police officer and Caprioglio is a practicing attorney, I wondered if Brand’s critics on the dais were equally ignorant of the workings of the "arrest power" concept on our community.
I asked Fresno County Sheriff Margaret Mims on Sept. 23 to talk about “arrests.”
“There are three different levels of contact with law enforcement officers based on statutory authority and legal precedent,” Mims said in her downtown office.
“There might be a contact. A peace officer says to you, ‘We’re looking for this bad guy. Which way did he go?’ You’re not in custody, you’re not detained. You’re free to go. It’s a consensual contact between citizen and law enforcement.
“Then there’s the situation where you’re detained. You’re not free to go, but it’s less than an arrest. You might be getting a citation. You’re detained until that citation is finished, then you’re allowed to go on your way.
“And then you have an arrest.”
It was here that Mims brought in the U.S. Constitution’s Fourth Amendment. This is what the Amendment says: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Sheriff's point: The concept of "arrest" is a serious part of our nation’s long experiment in self-rule.
An arrest, Mims said, is “the seizure of a person.” She explained the difference between a citizen’s arrest and an arrest by a law enforcement officer. She said there’s a world of difference between an arrest and a booking. A peace officer might arrest John Doe for allegedly breaking the law, cite him, tell him to show up in court on a certain day, then send Doe on his way. Or a peace officer might arrest Doe and book him into the county jail.
“We have to use discretion because of our limited space” at the jail, Mims said. “We have only 3,291 beds. We want to make sure we have room for the people that we really need to be holding in jail.”
Mims then spoke of the art of law enforcement. Law enforcement officers must use judgment when doing their job, she said.
“It all falls into the spirit of the law and the letter of the law,” Mims said. “If a peace officer were to enforce every single violation they saw, they wouldn’t be working crime patterns, they wouldn’t be responding to emergency calls for service. You use discretion every single day. Most of it is common sense. It’s hard to teach common sense.”
The Sheriff reviewed the changing and (to a layman like me) often confusing laws on marijuana. Bottom line: The state of California now views someone smoking a joint and possessing a small amount of marijuana as a simple infraction.
“Nobody, a citizen or a law enforcement officer, can arrest somebody for smoking a joint,” Mims said. “They don’t have the authority for that.”
Mims finished with another look at the concept of “arrest” in America.
“An arrest means your movement is limited,” the Sheriff said. “You stop someone from leaving your presence. You’re not free to leave. It’s an awesome and intimidating power that law enforcement officers have when they raise their right hand and swear that oath. It is a huge responsibility. We have that power to detain somebody and take freedom away from them. We don’t take it lightly.”
The America of 2014 has a different attitude toward marijuana than the American of 1954. It’s sufficient here to make several points.
A general acceptance of marijuana is here to stay. There will always be families that frown on marijuana, seeing its use (especially as a form of recreation or a method of coping with life's normal stresses) by family members as terribly unwise and harmful. But such families will learn -- make that "are learning" -- to keep their thoughts to themselves. Modern society increasingly views the use of marijuana anywhere and by just about anyone as one more individual "right" to be given and protected by the State. Woe to anyone in a democracy of unrestrained majority rule who gets branded as an enemy of anything defined as an individual right. You will be seen as trying to marginalize a group of victims.
But for a bit longer, it's still tolerable for, say, a family with young children to quietly suggest to City Hall that they don't like public parks full of marijuana smoke.
What is City Hall to do with such a suggestion until the culture's needle swings to a total acceptance of marijuana smoke?
Police Chief Jerry Dyer's 717 sworn officers aren't going to sweep through the parks arresting marijuana smokers. That's just absurd, and Fresno City Council members who recommended as much on Sept. 11 knew it. That's why I say Brand's critics were dishonest. They simply wanted a soundbite that would quickly bury Brand's disturbing point of view.
I think Brand knew this would be the reception when he began working on his Civility Act. He knew marijuana smokers would wrap themselves in the flag and mortality (yes -- "mortality"). He knew society's view of marijuana is changing. He knew the public square will be harmed if civility and common sense disappear. He knew it will be devastating to the police department's civic stature if politicians demand that Fresno police make widespread and persistent use of their "arrest power" on marijuana smokers. He knew the 2035 general plan with its dreams of high-density living involving people of all income levels is doomed if Fresno fails to come up with a consensus on proper public behavior.
So, Brand (in my opinion) decided he'd do two things with his Civility Act.
First, he would be modest in his goals. All he really wants is for the guy smoking the joint at a city park or the Convention Center parking lot to put it out.
In an ideal world, there would be no need for City Hall to use its law-making authority to get that. John Doe is smoking a joint at Woodward Park. Jane Jones says, "John, put that out or go home." John Doe immediately does one or the other.
Those days are long gone.
Brand's Civility Act would have given city officials an additional tool, a modest tool, to reinforce in John Doe the value of restraint. John Doe is smoking a joint in the Ted C. Wills Community Center parking lot. A Parks Department employee, given authority by City Hall to issue administrative citations to people smoking marijuana on city property, says, "John, put it out or go home." John says no. The employee says, "I'm not kidding, John." John says no. The employee writes up the administration citation.
Any number of things might happen. John might not stick around to accept the citation. John might take the citation, then throw it away. The citation may lead to nothing more than a brief hearing and a word of advice from someone in authority. But one thing is certain -- the message would go out that a prudent City Hall was serious about enforcing common standards of behavior on its own property.
Again, let me emphasize that I think Brand's intent here was to have the city act in a way that would be both prudent and firm.
The second thing Brand wanted from his Civility Act was an honest debate with his council colleagues.
Maybe his council colleagues think it's best to accelerate the arrival of a Fresno where people can smoke all the marijuana they want, wherever they want.
Maybe his council colleagues truly believe Chief Dyer's officers should arrest and book that guy smoking a joint at Roeding Park.
Maybe his council colleagues think old-fashioned notions of public decorum are harmful to the Fresno they want for their grandchildren.
Maybe his council colleagues think City Hall should get out of the business of public order.
Maybe his council colleagues think there's not much marijuana in Fresno.
Maybe his council colleagues have their own ideas.
Brand didn't get the honest debate he wanted. It's not too late.