On Tuesday afternoon (Sept. 3), Austin Police Department Assistant Chief Troy Gay had the displeasure of being the guy who had to tell everyone in a room packed with citizens, community leaders, and members of City Council's Judicial Committee exactly what they didn't want to hear: "Marijuana is still illegal under both state and federal law."
The veteran cop plainly and courteously laid out the department's stance: "APD has not increased our enforcement efforts, but we continue to cite-and-release and/or arrest as deemed necessary." The discussion of an item first outlined two weeks ago by Mayor Pro Tem Delia Garza and Council Member Greg Casar waded deeply into the muddy waters of discretionary enforcement for misdemeanor pot charges.
Since July 3, when Travis County Attorney David Escamilla and District Attorney Margaret Moore announced that they'd reject all possession charges until law enforcement agencies could use accredited testing to discern whether confiscated cannabis is illicit marijuana or newly legal hemp, APD has continued to cite offenders and – to some degree – make arrests. Casar takes issue with that practice. "It doesn't make any sense to me to arrest someone [if] they're not going to get prosecuted," he told the Chronicle last week, emphasizing that arrests can result in serious life complications – interrupted income, getting your vehicle impounded, and potentially losing your job.
Several citizen speakers at Tuesday's meeting brought up how these impacts are not spread equally among Austin's cannabis users. "When APD makes these arrests, who are they arresting? What does the data show?" asked Annette Price, statewide director for Grassroots Leadership's Texas Advocates for Justice. "The data shows that the majority of these arrests are still people of color."
The Chronicle has filed an open records request to determine the number of possession arrests made by APD since July 3, specifying the ethnicity and age of each person arrested. Casar says he's been made aware of several cases involving minority residents, and defense attorney Jessica Burns told us she represented a 25-year-old African American male who was pulled over twice for having expired registration in recent weeks and was first cited for having a THC oil pen, then arrested for a minuscule 0.01 ounces of marijuana. She says the case was tossed out by prosecutors the next day.
Nick Hudson of ACLU Texas advised the committee against both continued arrests and investing in testing equipment allowing APD to differentiate weed from hemp based on THC concentration. "We shouldn't use our valuable resources to double down on a failed war on marijuana that targets communities of color," he said. "More than one-third of the people who were arrested for marijuana possession by APD in 2017 were black, despite the fact that about 8% of the people in our city are black, while study after study shows similar marijuana usage rates amongst different ethnic groups."
Austin police officers continue to have discretion on whether to arrest or cite-and-release for nonviolent misdemeanor offenses. A quarterly report authored by Police Chief Brian Manley and delivered to Council in May showed that APD made 57% fewer custodial arrests in the first quarter of 2019 than a year earlier, when Council adopted Freedom Cities policies that established more specific guidelines for discretionary arrests. However, statistics posted by Casar on his Medium page show much higher discretionary arrest rates for African Americans than white or Latinx Austinites. "The unfortunate truth is that it's been disproportionately the African American community that gets arrested for possession of marijuana," Casar told the Chronicle.
Despite the seeming futility of arresting people for what even in Texas is barely a crime anymore, Gay aimed to highlight what APD sees as the risks involved. "We believe that if there are no enforcement efforts, this would increase consumption, which would increase demand, and increase supply. This could potentially increase violent offenses, home invasions, and robberies." He added that so far in 2019, seven of the city's 18 murders have involved drug deals.
CM Jimmy Flannigan, chair of the Judicial Committee, later remarked that it wasn't clear marijuana had anything do with those homicides. Garza pressed Gay on whether they involved felony or misdemeanor amounts of pot, which he was not prepared to answer at the time.
If there was any levity at Tuesday's meeting, it came from committee members trying to pronounce "liquid chromatography mass spectrometry," the process used to test THC content in cannabis. Gay told the committee it'll take another six to 12 months to establish the equipment, protocol, and procedures for this testing – which Hudson and others feel is a waste of resources. Latreese Cooke, executive director and founder of the MELJ Justice Center, which provides services for previously incarcerated individuals and their families, explained: "For people who've been incarcerated or even people who have not, the stress of having a warrant over your head can lead to a new offense, which APD loves to give, for evading arrest. People ... have a sense of paranoia that puts them in harm's way of committing a new offense. I understand APD's position, but many people who are in professional positions smoke weed on a regular and consistent basis. They're not violent and I don't feel like black men, who are very much targeted for this particular crime, are either. These warrants should be abolished, and people should be allowed to start with a clean slate."
Before the meeting, Casar expressed concern that APD acquiring new THC testing equipment would "trigger a process of rearresting and going back and charging old cases," which Gay didn't deny is a possibility, noting the statute of limitations for possession charges is two years. Casar said he'd like to see Escamilla clear pending marijuana cases, and questions how THC testing compares to other budgetary concerns for the city. "Right now we're right in the middle of the city budget, talking to folks about how to truly address homelessness in the community. We're running out of money in our domestic violence prevention fund," he said. "Dedicating our police resources to testing doesn't make sense to me, but that is currently the path that the police department is on."
On Tuesday, Garza – who herself may enter the race to succeed the retiring Escamilla, whose term ends next year – echoed Casar's argument. "It's concerning that we have our police officers enforcing something and writing probable cause affidavits for an issue that many states have decriminalized and reversed their policies on what was considered a crime," she told Gay. "I hope that if data comes to us that this is not creating any more violent crimes, then we can revisit this." Gay pointed out APD will need the same equipment to test evidence for felony marijuana cases that will continue to be prosecuted; in case he was actively shopping, Cree Crawford of Ionization Lab used his speaking time to hawk his product as an affordable option for APD, eliciting groans from the audience.
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