Portland's Marijuana Ordinance: FAQs & the Mythical Marijuana Arrest

Reports of my legalization
have been greatly exaggerated

On November 5, 2013 Portland voters overwhelmingly passed a city ordinance purporting to legalize possession use of up to 2.5 ounces of marijuana within the city. A lot of people have questions about how the Portland marijuana ordinance changes things and so, the city has posted some frequently asked questions to its website. Of course, the article is entitled "untitled document" and it's posted at a URL made up of meaningless words and numbers so there's pretty much no chance that anyone searching for the information will actually find it. To remedy that I've provided some of the highlights with a bit of my own information and commentary mixed in.

When does the ordinance take effect and how long will it be in force?

The ordinance will take effect December 6, 2013, 30 days after it was passed. A Portland city ordinance can't be repealed until its been in effect for five years so it'll be on the books for at least that long.

I'm planning to get, like, super baked on Pearl Harbor Day. Is that gonna be a problem?

Well, yeah that's got the potential to be a problem. Like I said in my earlier post about the marijuana ordinance and it's potential impact, no city ordinance can legalize something that is illegal under State or Federal law. That's because lesser jurisdiction's laws are overridden by the broader laws of the land. While A city might pass ordinances that are more restrictive than state laws, they can't use an ordinance to exempt their jurisdiction from the broader state law. As the FAQ on the city site puts it:

4. Why is it important to know that state laws in most instances preempt/overrule local laws?
Preemption is a legal doctrine that means that a state law displaces or overrules a local (city or town) ordinance, law or regulation that is in the same subject area and is in conflict with the state law. Because Maine already has state laws governing the use, possession and sale of marijuana, those laws overrule the new city ordinance.

How will this ordinance impact the way law enforcement treats marijuana?

Things don't look like they are going to change at all. Here is what the city has to say on that in their FAQ post:

5. How will Portland Police Officers Comply with the New Ordinance?
Portland Police officers are sworn to uphold the law. Those laws include federal, state and local laws. The passage of this ordinance will not affect the police department’s enforcement of state law. Officers will continue to use their discretion and judgment in a manner that will ensure that their enforcement authority is exercised in a fair and judicious manner.

The Bangor Daily News found that the Portland Police don't plan to make any changes and neither do prosecutors:

“This doesn’t change anything for us in terms of enforcement,” [Portland Police Chief Michael Sauschuck] said. “But the actual statistics show this is a low priority for us.” Maine Attorney General Janet Mills on Wednesday reinforced Sauschuck’s position that state law takes precedence over a local ordinance in determining enforcement strategy. “While the people of Portland are free to express their views on marijuana or other topics of social importance, the marijuana ordinance of course does not override state or federal laws regulating the use, possession, furnishing and sale of marijuana,”... “In this regard, we view the referendum as somewhat advisory in nature.”

Great, police will keep filling Maine's jails with marijuana users?

Well, no. While a lot of people think that marijuana possession will get you arrested in Maine, that's just not true. The police could never arrest anyone for possessing two in a half ounces of marijuana or less since possession of those amounts has been a civil violation in Maine for a long time. Civil violations are not crimes, the worst sentence that you can get is a fine. A lot of people who should know better don't get that. Shenna Bellows, who is running for one of Maine's U.S. Senate seats tweeted thusly the night the ordinance passed:

Excitement at Brian Boru Portland. Time to stop locking people up for marijuana. #legalize #mepolitics
— Shenna Bellows (@shennabellows) November 6, 2013

I agree with this general sentiment and in many states, this would make sense. But the tweet suggested that legalization in Maine would accomplish something that it couldn't. I responded and accidentally discovered a source of some of this confusion:

@LukeRioux just tweeted link to ACLU report looking at DOJ data on marijuana arrests in Maine. Portland important first step.
— Shenna Bellows (@shennabellows) November 6, 2013

Shenna was the director of the ACLU of Maine for 8 years and the link she tweeted was to this report detailing the disproportionate impact of marijuana enforcement on black and brown Americans. It's a good report that makes a good point and it looks pretty scary since it lists 2,842 arrests for marijuana possession in Maine. From my own experience, I knew that this was simply not possible, so what went wrong?

The Report uses Data from the FBI Uniform Crime Reporting Program. That program tracks arrests for various crimes nationwide. So what counts as an arrest? Well, the first line on the site hosting the report data says this:

The FBI’s Uniform Crime Reporting (UCR) Program counts one arrest for each separate instance in which a person is arrested, cited, or summoned for an offense.

So while almost nobody gets arrested for marijuana in Maine, the FBI counts every civil marijuana ticket as an arrest. That and the report based on the data is why the Bangor Daily News ran a story headlined: ACLU: Black people in Maine twice as likely to be arrested for marijuana.

Look, I am all for legalization. I voted for the ordinance on 11/5/13 and was glad to see it pass. I like the ACLU and Shenna Bellows too, she would make a great senator. There are lots of good reasons to legalize marijuana and, even though no one goes to jail, it still costs a ton of money to enforce the law and prosecute these violations. I hope the legitimate reasons will carry the day, but the idea that there are thousands of people sitting in Maine jails for marijuana possession is simply nonsense. Legalization advocates had better get the facts straight or their valid arguments will be tarnished by this red herring.