Anxiety in Massachusetts over softer marijuana law

Massachusetts voters made history by approving a sweeping marijuana decriminalization law on Election Day, but campaign debates are reigniting as communities start to enforce the new rule.

The large margin of victory for the ballot initiative – 65 percent of voters approved the law – is already inspiring similar legislative efforts in other New England states, prompting close attention nationwide to the effects of a less stringent marijuana law.

Massachusetts is not the first state to decriminalize marijuana possession – 12 others have done so. But it is the first since the 1970s to eliminate criminal penalties for possession of small amounts of the drug, even for repeat offenders.

One major concern of some police officials: While marijuana remains an illegal substance, full decriminalization, as is the case in Massachusetts, removes officers’ powers of arrest, which means police can’t compel offenders to identify themselves.

“If someone is sitting on the front steps of City Hall smoking a bone, you can’t do much if they tell you they’re Donald Duck,” says Terence Reardon, chief of police in Revere, a city of 55,000.

Such complaints are overstated, say decriminalization advocates.

“People have tried to claim that [the identification issue] is a loose end, but in fact it’s no different than every other civil citation in Massachusetts, like jaywalking or in some communities drinking in public,” says Bruce Mirken, communications director for the Marijuana Policy Project, a national marijuana decriminalization advocacy group that helped coordinate the Massachusetts referendum campaign. “Miraculously, it’s a problem with marijuana.”

The new Massachusetts law specifically allows communities to draft their own public consumption ordinances, and dozens are considering doing so. The state attorney general’s office prepared a model bylaw that would levy an additional $300 fine, the state maximum, on people caught using pot in public.

via Anxiety in Massachusetts over softer marijuana law | csmonitor.com.

The last time one of these officials brought up the “Donald Duck” defense, I noted a Supreme Court case called Hiibel v. Nevada, that I think ruins that argument.  According to this 2004 CNN report:

The Supreme Court has again given police greater power to stop and question suspects, ruling Monday that a Nevada cowboy could not refuse to give his name to officers who tried to question him along a roadside.

He was arrested after he told a deputy that he didn’t have to reveal his name or show an ID during an encounter on a rural road in 2000. Hiibel was prosecuted, based on his silence and fined $250. The Nevada Supreme Court sided with police on a 4-3 vote.

In its ruling announced Monday, the justices upheld Hiibel’s misdemeanor conviction. Writing for the majority, Justice Anthony Kennedy said, “Asking questions is an essential part of police investigation. In the ordinary sense a police officer is free to ask a person for identification without implicating the Fourth Amendment.”

According to an AP report, justices were told that 20 states have similar laws to the Nevada statute upheld by the high court: Alabama, Arkansas, California, Delaware, Florida, Georgia, Illinois, Kansas, Louisiana, Massachusetts, Montana, Nebraska, New Hampshire, New Mexico, New York, North Dakota, Rhode Island, Utah, Vermont and Wisconsin.

Here at NORML we forwarded this on to some Massachusetts attorneys who told us they couldn’t find case law that said citizens must show ID, nor any case law that police may require ID.  I don’t know what law the AP report was referring to, but based on Justice Kennedy writing “a police officer is free to ask a person for identification” I think that police have some power to compel that identification.  Otherwise, as Bruce Mirken notes, how would parking tickets or jaywalking tickets ever work?

When I get a better answer to this question – do I have to show ID to police when being given a civil infraction? – I’ll post it.