City Ordinance Would Legalize Marijuana in Portland, Maine...Kinda

I found one of these on my door this weekend

A proposed city ordinance is on the November 5, 2013 ballot in Portland Maine. It claims to legalize possession of up to 2.5 ounces of marijuana within the city, but can it? Maine statutes still make possession a civil violation, and marijuana is still illegal under federal law. Here's some explanation of the current state of Maine's law, what the ordinance says and what it might actually do if it passes.

The Current State of Maine Marijuana Law

Today, Maine's Title 22 §2383 prohibits possession of marijuana except as permitted by Maine's medical marijuana law. Here's the relevant text from 2383:

A person may not possess marijuana. 

(A) A person who possesses a usable amount of marijuana commits a civil violation for which a fine of not less than $350 and not more than $600 must be adjudged for possession of up to 1 1/4 ounces of marijuana and a fine of not less than $700 and not more than $1,000 must be adjudged for possession of over 1 1/4 ounces to 2 1/2 ounces of marijuana, none of which may be suspended.

So while it's not a crime to possess marijuana, it still gets you in trouble and the police charge a ton of these offenses. Similarly, possession of a pipe or even rolling papers can get you cited for "use of drug paraphernalia." 17-A §1111 sets a mandatory fine of $300 for that civil infraction.

Drug Trafficking is definitely a crime under state Maine state law and selling marijuana will get you charged with trafficking in schedule Z drugs. That's a misdemeanor punishable by up to 364 days in jail. We have recently seen that the Federal government can prosecute marijuana trafficking too and the sentences there can get truly horrific. So while Maine is a marijuana decriminalization state, it's not a complete safe haven for users and sellers.

The Language of the Portland Marijuana Ordinance

You can view a sample of Portland's 11/5/13 city ballot here. The summary language from question 1 is excerpted below:

This ordinance legalizes the recreational use of marijuana by adults 21 years of age or older.

• It allows adults 21 years of age or older to legally possess up to 2.5 ounces of marijuana and paraphernalia.
• It also allows adults 21 years of age or older to engage in activities for the purpose of ascertaining the possession of marijuana and paraphernalia.
• It prohibits recreational use activities in public spaces, school grounds, and on transportation infrastructure.
• It prohibits adults under 21 and minors from engaging in recreational use activities.
• Landlords and property owners may restrict the smoking of marijuana on their property by posting “No Smoking” signs near the entrances.
• It requires the Mayor to report annually on the implementation and enforcement of the ordinance; allows city officers and employees to cooperate with federal drug enforcement authorities as required by law; and makes the City’s disciplinary procedures for officers and employees the exclusive remedy for a violation of the ordinance.
• Finally, it resolves to support taxation and regulation of marijuana by the State of Maine and Federal Government.

What Would the Proposed Ordinance Do?

The ordinance purports to allow possession of marijuana and to take away the civil sanction for possessing up to 2.5 ounces and would eliminate the civil liability for possessing drug paraphernalia. The language also allows adults "to engage in activities for the purpose of ascertaining the possession of marijuana and paraphernalia," but it would not legalize the sale of marijuana, so there will still be no legal way to get the stuff.

The reality is that a Portland city ordinance legalizing marijuana will do nothing of the sort. That's because of preemption: the legal doctrine providing that, when a lesser government's laws conflict with those of the broader jurisdiction, they are overtaken by the broader law. So if it passes, the Portland ordinance would be preempted by the State and Federal laws which the city is powerless to change; the city can't bar the State or feds from prosecuting people who violate their laws.

Still, the ordinance may have a significant practical impact. The Portland Police might well decline to enforce the State marijuana prohibition within the city, and there is something of a message sent when the State's largest city rebels against the law of the land. Similar local ordinances were the first steps towards Statewide legalization in Colorado and Washington. The Marijuana Policy Project helped draft the ordinance language and also worked legalization efforts in those states.

These efforts have not changed the Federal laws, but have changed the Federal policy on enforcement. As U.S. Attorney General Eric Holder announced in his August 29, 2013 memo, marijuana enforcement should not generally be a high priority for federal prosecutors. Also, the department of justice does not plan a legal challenge against states that have legalized marijuana.

It's pretty clear that a major change is coming and it's great to see Maine on the cutting edge of this issue. So get out and vote on 11/5/13. I will be there, voting for "legalization," whatever that means.