Tuesday, August 24, 2010

They Are Smoking Something At City Hall

Monday evening, The Richardson City Council voted to ban the possession and use of synthetic cannabinoids such as K-2 and products containing the substance salvia divinorum. The vote came after a long (for Richardson) deliberation by council members that went round in circles on some basics of the new ordinance without ever getting to the bottom of the issue. I'm as much in favor of open and transparent government as the next person, but last night's experience makes me wonder which causes more loss of confidence in government, the suspicion of corruption surrounding secret meetings or incompetence on display at public meetings.

After the jump, the debate over K-2.

The proposed Richardson ordinance that the city council was deliberating can be summarized by these two sections:

Sec. 13-167. It shall be unlawful for any person to use, possess, purchase, barter, give, publicly display, sell or offer for sale any illegal smoking product.

Sec. 13-168. It shall be unlawful for any person to use or possess with intent to use an ingestion device to inject, inhale or otherwise introduce into the human body an illegal smoking product.

Several members of the council expressed a desire to keep pipes used for smoking tobacco from being caught up in this ordinance. Council members were unanimous that the intent of the law is to ban K-2, not pipes. They emphasized the point that mere possession of a pipe is not a violation of the ordinance, that intent to smoke K-2 is a necessary condition to make it illegal. The following exchange between council member Bob Macy and Richardson Assistant Police Chief Bryan Silvester was typical:

Bob Macy: "If you've got a device and you don't have any K-2, then you really don't have any intent."
Unidentified person: "Exactly."
Chief Bryan Sylvester: "Then you have no violation."

(By the way, it wasn't explained why a police officer and not the city attorney was the expert being consulted on the legal implications of the specific wording of a proposed ordinance. The council members definitely could have used some legal advice.)

Council member Amir Omar, who of all the council members most understood the problem with the ordinance, kept coming back to a basic issue. If the intent is to ban K-2, and if pipes are banned only if there is intent to use them with K-2, and if intent is demonstrated only by the presence of K-2, then why does the ordinance need to include pipes in it at all? The answer only Omar ever figured out is that it doesn't need to. So one of the premises must be false. Chief Bryan Sylvester hinted at which one when discussing current practice with enforcing marijuana laws:

"We come across people on the street that have these devices that have been used for smoking marijuana and it's discernible and so there is the ability to take enforcement action relative to that event because they're demonstrating the proclivity to abusing that drug and that substance."

Try to reconcile that with the earlier statement that if you don't have any K-2, then you have no violation. This time, marijuana doesn't have to be present for police to take enforcement action. If there's a pipe present and if the police officer claims that it's "discernible" that the pipe has been used for smoking marijuana, he can take enforcement action. The ordinance gives no guidance on what evidence is needed to discern intent. The council members talked themselves into believing that physical presence of K-2 is necessary to prove intent, but the ordinance itself doesn't say so. Chief Silvester's example from enforcement of the marijuana ban suggests that there's a lot more latitude than what the council members thought was the case.

In the end, the council members did adopt some kind of amendment that supposedly clarifies the intent of the K-2 ordinance. But if asked to restate what the amendment was that they just passed, I doubt if any council candidate could say. Bob Macy moved that the ordinance be amended to include John Murphy's statement that "possession of equipment alone does not instigate a violation." John Murphy quickly seconded, on condition he could expand the amendment to allow the sale of smoking devices in retail stores. Steve Mitchell's discussion to the motion added still another clause. Mark Solomon asked for a restatement of what they were voting on and City Manager Bill Keffler tried to construct something from his fragmentary notes. Then the council unanimously passed something, but they won't know exactly what until the minute-taker tells them. It's not a sure bet that it changes the original implication that if you're in possession of a pipe, even without any K-2, you could still get arrested if the police officer discerns some how, some way, your intent to smoke K-2 with it.

(By the way, judging by how this motion and amendments were handled, the council could really use a parliamentarian as well as an attorney.)

You can watch the whole debate yourself here (watch Item A and Item 7A). I dare you to do so without at least once shaking your head in wonderment and/or frustration.

In any case, Richardson now has a K-2 ban. As one observer noted, I feel safer already.

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