The southern Utah town of Big Water (pop. 326), hard by the Arizona state line on US Highway 89, doesn't make the news too often. It doesn't have much of a crime problem. But when a sleepy town council, prodded by a libertarian-leaning member, passed an ordinance mandating a $10 fine for possession of less than an ounce of marijuana, it got both media attention and a sudden, unwelcome police presence. Now, under pressure, the council is ready to reverse itself.
Town councilman and Big Water mayor-elect Willie Marshall told DRCNet he introduced the measure because "it was the right thing to do. Current marijuana laws in the state of Utah are cruel and unusual." He added, "there is nothing to stop prosecutors from imposing maximum penalties, and they can and do take your drivers license away for walking down the street with a seed in your pocket."
Under Utah law, possession of less than one ounce of marijuana is punishable by up to six months in jail and a $1,000 fine, as well as a six-month drivers license suspension. Under state law, paraphernalia possession nets the same maximum six months and $1,000. The Big Water ordinance makes paraphernalia violations a five dollar fine.
"Our ordinance made justice affordable for everybody," said Marshall. "Let the punishment fit the crime."
Seems like a perfectly mainstream argument, but it didn't sit too well with Kane County law enforcement, the Utah Highway Patrol, and Officer Nathan Giles, who took personal umbrage at the action. Kane County Attorney Eric Lind sent a letter to the town council warning that the measure violated state law. The state Attorney General's told the Tribune it had been asked for and had granted "advice and research," but that the matter was one for Kane County officials.
"The ordinance clearly tries to minimize or abolish the penalties prescribed by the legislature, and that obviously is a concern," Lind told the Salt Lake Tribune.
Marshall was unconvinced. "The prosecutor thinks the ordinance is unconstitutional, that it limits prosecutorial discretion, but this ordinance merely tells prosecutors we think they should offer this plea agreement," he said. "County prosecutors aren't forced to abide by our town ordinance."
At least one member of local law enforcement had no time for haggling over constitutional niceties. Utah Highway Patrol Officer Nathan Giles blew up at local officials, Marshall said, in an account whose broad contours were confirmed by regional Highway Patrol spokesman Lt. Lynn McAfee. "Once the police heard about this, they hit the ceiling, the Kane County sheriff and the Highway Patrol were just enraged," said Marshall. "They do a lot of intimidating people into letting them search their cars. But Officer Nathan Giles was especially bent out of shape. He came in and yelled at the town clerk. 'Who's the dope-smoking son of a bitch who wrote this ordinance?' Giles yelled. And then he made threats. 'All hell is going to break loose in Big Water,' he told her," Marshall said.
But Giles wasn't done. "Then he went over to the water board office, where one of the council members works, while on-duty and in uniform and started arguing with her," Marshall said, "telling her the ordinance was unconstitutional, that we had to repeal it, that the Highway Patrol could just stop writing tickets in our town, basically threatening to cut off a source of town funding. Not that we're a speed trap," Marshall quickly added. "Giles was very threatening and his behavior was very inappropriate."
Lt. McAfee had a slightly different version of events. "What happened," he told DRCNet, "was that Giles was turning in his tickets and got into a conversation with the clerk and he gave his position that the ordinance was unconstitutional -- he was expressing his opinion, not the position of the Utah Highway Patrol." As for Giles' second encounter, "Again, he had his own opinion," said McAfee. "I've told him if he wants to discuss this he needs to refer people to his supervisor, and he should just shut his mouth and do his job." And as for Giles issuing threats, McAfee said only, "I hope he would use better judgment than that."
The Utah Highway Patrol may want to rein in an embarrassingly unruly Officer Giles, but it also found time to show the good people of Big Water what real police attention can mean. On December 7, two weeks after the ordinance was passed, the town was hit with an "enforcement blitz" by Highway Patrol and Kane County Sheriff's officers. "They were ticketing everyone for anything," said Marshall. "They had a half dozen Highway Patrol cars out there pulling people over for no seat belt, failure to signal, anything they could think of."
"We did do a blitz in that area," Lt. McAfee confirmed. "It lasted for six hours, but we were only in town for 15 minutes. Enforcement was concentrated on US 89."
Neither McAfee nor Utah Highway Patrol officials contacted by the Salt Lake Tribune would concede that the special attention was related to the ordinance. "We have targeted many areas of the state," Col. Earl Morris told the Tribune. "Big Water got it for a day, and they can expect we will be down there again. Our job is to enforce the law. If they want to call it coincidence, they can. We don't go after people in a vindictive manner," Morris said, adding the enforcement blitz had been planned "weeks ago."
"Yeah, two weeks ago," retorted Marshall. "This town is based on summer tourism, and they're doing special enforcement in the winter when nothing's going on? Not vindictive? We had one officer tell a school teacher he was ticketing for no seatbelt on her way to work that this was happening because Big Water has a drug problem," Marshall snorted. "Well, they didn't find any drugs, but they sure wrote a lot of tickets."
As town council members began to complain that they hadn't understood what they passed, even Marshall now concedes that the ordinance faces a grim future. "It will be repealed on Tuesday, I'm almost certain," he said. "This is a small town, and they can come in here and terrorize us. I'm going to vote for repeal, in part because the county attorney is threatening to sue us, but primarily to stop the police harassment. I hope for no more hassles with the Highway Patrol," he said.
"I don't smoke pot," Marshall said. "I did this for principle, not self-interest. But I used to work with the police. I know they can set you up if they want to. I don't really want to throw myself in front of a steamroller."