APD Finally Agrees to Cease Low-Level Pot Busts

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Austin Police Department officers will no longer issue citations or make arrests in most low-level possession of marijuana cases, according to a memo from police Chief Brian Manley. The announcement fulfills a mandate set by City Council more than six months ago and marks a 180-degree turn by Manley, who told reporters Jan. 24 – less than 24 hours after the unanimous Council vote – "Direction given to officers has been, we have not changed our enforcement protocols today."

This defiant stance has gone by the wayside now, as has much of Manley's support at City Hall. "APD will no longer cite or arrest individuals" for Class A or B PoM offenses, he writes, "unless there is an immediate threat to a person's safety, or doing so as part of the investigation of a high priority, felony-level narcotics case or the investigation of a violent felony."

The phrase "high priority" doesn't have a legal definition, but it does appear to be a response to Council's direction to end marijuana enforcement not just for misdemeanor possession (less than 2 ounces) but also for larger amounts unless there's a link to alleged drug trafficking or violent felonies. The Council resolution also covers possession of edibles and vape pens, which remain felonies under state statute.

Council made this move in January amid the continued fallout of the 2019 legislation that legalized non-narcotic hemp – defined by a low concentration of tetrahydrocannabinol (THC). This meant that even the most routine PoM cases would require expensive lab tests that most law enforcement agencies cannot conduct or afford. In response, Travis County prosecutors announced such cases would not (at least for now) be brought to court. Council sought to build on this de facto decriminalization by ending APD enforcement and its negative (and racially disparate) repercussions for harmless low-level use. That's when Manley balked.

The Jan. 23 resolution also prohibited the use of city resources to conduct PoM labtesting, a provision Manley agreed to comply with in May. That likely means anyone who was arrested or ticketed by APD since the hemp law took effect (June 10, 2019) need not worry about being prosecuted in the future should testing become more widely available. The statute of limitations on misdemeanor PoM charges is two years.

In 2017, 32% of people arrested for PoM offenses were Black, although they account for only 8% of Austinites. Similarly, Latinx Austinites accounted for 43% of arrests but only about 34% of the city's population. APD data for 2020 shows similar disparities in arrests made for Class A, B, and C misdemeanors that are eligible for citation, many of which are PoM offenses.

Council Member Greg Casar, who introduced the Jan. 23 resolution, applauded Man­ley's belated change of heart. "Today, Aus­tin has finally ended all arrests and tickets for personal marijuana possession," he wrote in a statement. "When people organize for racial justice, they can make real change." APD reports on its discretionary arrests quarterly: That data shows 17 PoM arrests (as opposed to citations, which are much more common) in Q2 (April-June) 2019 when the hemp law took effect, then eight in Q3 and nine in Q4. In Q1 2020, when Casar's resolution was adopted, there were just three; data for Q2, which ended June 30, will be released in August.

As the pot news broke, Council's Public Safety Committee was meeting to discuss policy changes outlined in a June 11 Coun­cil resolution on how police use certain types of force. Committee Chair Jimmy Flannigan billed the meeting as a workshop where CMs would mostly just listen as four police officers and four community experts talked through some of the challenges in implementing the resolution – including an outright prohibition of tear gas, and a mandate that officers only use lethal force after "all reasonable alternatives have been exhausted."

The point of the workshop, Flannigan told us, is to allow less polarizing figures in the police debate – i.e., not activists like Chris Harris and not warrior cops like Ken Casaday – to have a civil discussion and help find common ground for changes to policing in Austin. Though the workshop – the first of several Flannigan has planned – was both calm and productive, one example shows the wide gap to be bridged between reformers and officers.

The June 11 resolution banned tear gas after it was deployed against peaceful protesters blocking I-35 the prior weekend. Officers at the PSC meeting said that was really the safest option to clear the highway; to physically push people away could have led to more violence. Rahki Agrawal with MEASURE countered that tear gas has been shown to have long-term health effects that are more damaging than just the initial irritation. Thomas Villareal, vice president of the Austin Police Assoc­ia­tion, acknowledged that risk, but said in some circumstances, such as when a suspect is armed and barricaded in a building, tear gas may still be the best option. "We're not just going to leave people in this crisis situation where we believe they are going to hurt themselves or other people," Villareal said. "We might as a community say, 'OK, we would rather break down your mucus membrane then be forced into a lethal force situation.'"

The next PSC workshop today (Thursday, July 9) focuses on alternatives to police response that will be necessary if Council aims to reduce the APD budget by $100 million. Much focus will likely be on mental health crisis response – calls where police practices and training can often make situations more dangerous. Some CMs are interested in a program called Crisis Assistance Helping Out on the Streets (CAHOOTS) out of Eugene, Ore., that is gaining national attention. It's much like our local version, the Mobile Crisis Outreach Team, which is staffed by Integral Care, the county's local mental health authority.

Other ideas for non-policing are also being considered – for example, Austin Code Department, the enforcers when 311 is called on rule-breakers, which is escalating as people continue to ignore or flout COVID-19 health protocols (wear your mask). "It's not about the citation," Flan­ni­gan told us. "It's about compliance. If we think about that more, and you start thinking about it bigger, what we're really trying to do is to get people to do the right thing."