"Alaska citizens have the right to possess less than four ounces of marijuana in their home for personal use." -- Alaska Court of Appeals, Noy v. State, August 29, 2003
The Alaska Court of Appeals ruled August 29 that Alaska residents may possess up to four ounces of marijuana in their own homes without any criminal or civil penalty. The ruling, which cites a 1975 Alaska Supreme Court finding that the Alaska constitution's privacy provisions protect the personal possession and use of marijuana in the home, once again makes Alaska the only state in the country with legal marijuana in the home. (After the 1975 Ravin v. Alaska decision, the Alaska legislature eventually removed criminal penalties for possession of less than four ounces, but a 1990 voter initiative cheerlead by then drug czar William Bennett recriminalized simple pot possession. It has taken until now for the appeals courts to rule on a case that challenged the constitutionality of the 1990 vote.)
While sources in the Alaska Attorney General's office told DRCNet the state would appeal the ruling, as of last Friday the Court of Appeals' decision is the law of the land. But Alaska law enforcement, starting with the attorney general's office, doesn't seem to get it. Law enforcement spokesmen asked by DRCNet how they were reacting to the decision responded with a mixture of confusion and determination to keep on arresting domestic pot smokers and possessors.
For police in Anchorage, the state's largest city, it's business as usual. "We are still enforcing the law the way we were before this," said Anchorage Police Department public affairs officer Ron McGee. "As far as that goes, there has been no change," he told DRCNet. "And it's still illegal under federal law," he added.
Greg Wilkinson, spokesman for the Alaska Bureau of Alcohol and Drug Enforcement, told DRCNet bureau representatives were meeting with other state law enforcement officials this week to try to figure out how to respond. "We are approaching this from two angles," he said. "One feeling is that is will be business as usual. The other was that it will not." Busting personal users in their homes is not a high priority, he said, adding that the bureau's focus was on large-scale commercial operations, but that agents who encountered personal marijuana may still act. "The feeling is that we may end up just confiscating the marijuana now," he said. He could not explain on what basis police would seize people's legal property.
And Alaska Chief Assistant Attorney General Dean Guaneli was reading from the same script. "When police come into a home, whether on a domestic violence call or something else, and see marijuana, we are not in a position to tell them to turn their back on it," he told DRCNet. "We are telling the police it is not legal to possess. We will continue to do as we have done, we will file charges and leave it up to the courts."
When Guaneli was asked his position squared with the Court of Appeals' unanimous and unequivocal ruling -- "Alaska citizens have the right to possess less than four ounces of marijuana in their home for personal use" -- he in turn asked, "What does that mean? If tomorrow a new medical study showed marijuana has the same addictive properties for long-term users as cocaine or heroin, does that mean the state is prevented from prosecuting those cases? We've think if we have the chance to go into court, we can show that the reasons for making marijuana possession a crime are important enough to override our constitutional right to privacy," Guaneli argued. "It is not quite right to say this ruling makes it completely legal. If we can go in right, we can get the court to change this."
Unsurprisingly, Fairbanks defense attorney Bill Satterberg, who successfully argued the ground-breaking case as well as other related cases (http://www.drcnet.org/wol/295.shtml#alaskaruling), begged to differ with Guaneli's interpretation of the ruling. "Is the possession of less than four ounces of marijuana in your own home legal in Alaska?" he asked. "The answer is, under state law, yes; under federal law, no," he told DRCNet. "We are moving into an area where a state constitution grants greater freedom than the US Constitution." As a practical matter, Satterberg added, federal prosecutions for simple marijuana possession are highly unusual.
But if state and local law enforcement is going to argue that it can make marijuana possession arrests because of federal law, they could be in for some tough sledding, he suggested. "If state law enforcement officers attempt to override state constitutional guarantees to prosecute federal laws, they will be treading on dangerous ground," Satterberg said. "The police need to get some good legal advice. These officers are sworn to uphold the law, and what I'm hearing them say is they're not going to. If the police are saying they are not going to follow state law, I find that incredible."
While Satterberg deemed himself incredulous at the prospect of police recalcitrance, Allan St. Pierre of the National Organization for the Reform of Marijuana Laws (http://www.norml.org) was less shocked. "It is not surprising," he told DRCNet. "Certainly, in California and other states, there have been pockets of police that are resistant to living with new marijuana laws."
But police in Alaska have not been abiding by the law since 1990, when a voter initiative recriminalized simple possession in the home, St. Pierre argued. "The 1975 Alaska Supreme Court ruling legalizing personal use of small amounts of marijuana in one's home has been the law of the land, despite the unconstitutional initiative. Since that ruling had never been revisited or overruled, the onus was on Alaska law enforcement to enforce the Supreme Court decision. If the police were to obey the law of the land, they would not have been arresting people for the use of marijuana in their homes. That has always been our position, and this ruling only reinforces our interpretation."
As of last Friday, Alaska has the most liberal marijuana possession laws in the United States. The Alaska Supreme Court would have to overturn its own 1975 decision in Ravin v. Alaska to undo the Court of Appeals decision, and there is little indication it will do so, despite Chief Assistant Attorney General Guaneli's fervent hope that it will find differences between the marijuana of 1975 and the marijuana of today so great as to override the privacy protections the Supreme Court cited.
Visit http://www.touchngo.com/ap/html/ap-1897.htm to read the Alaska Court of Appeals opinion online.