By a sliver of a margin, Denver voted in May to make enforcement of laws prohibiting magic mushrooms, or psilocybin, law enforcement’s lowest priority and prohibited the use of public resources in enforcing the laws against them. Now it’s up to the Denver district attorney, city attorney and Denver Police Department to figure out its practical implementation. While the ballot initiative itself was short, some of its key terms will likely need legal interpretation for putting the initiative into practice.
First, an important clarification: De-prioritizing enforcement of a law is not the same thing as decriminalization.
Decriminalization can take a few different forms: Lawmakers can reduce something to a civil infraction so it doesn’t carry criminal penalties. They can also cut an offense out of statute so it isn’t defined anymore. By contrast, moving enforcement of laws against psilocybin to the bottom of law enforcement’s priority list doesn’t actually change its legal status.
“That’s the nuance that I don’t know the general public gets, the difference between those two things,” said Marley Bordovsky, the director of prosecution and code enforcement in the Denver city attorney’s office.
Mason Tvert, a partner at Vicente Sederberg public affairs affiliate VS Strategies, said decriminalizing psilocybin would be tricky because before Initiative 301, he doesn’t believe there was a city ordinance addressing the substance that mirrored state law. Vicente Sederberg played a role in drafting Initiative 301.
“I spend a good deal of my life trying to interpret the differences between these things,” he said. “Even legalization is sometimes referred to as decriminalization.” Tvert used a low-level speeding violation as an analogy of something that’s clearly illegal but not a priority for law enforcement. While going 5 miles over the speed limit on a highway is illegal, a police officer has discretion to choose not to bother pulling someone over.
A spokesperson for the city attorney’s office said psilocybin charges are in the hands of the district attorney. Only petty offenses under municipal code would be in the purview of the city attorney, he said. Bordovsky said the city attorney’s office has a role in 301’s implementation because the office advises the Denver Police Department.
Bardovsky said defining personal use and possession in the context of psilocybin mushrooms could have some legal gray areas.
“We’re trying to make sure we’re not giving them conflicting advice” against how the district attorney’s office advises law enforcement, she said. “Right now, it’s not one agency trying to figure it out. It’s three, maybe four” with the Department of Health getting involved to interpret the definition of personal use.
The familiarity of some types of controlled substances to law enforcement makes it feasible to make charging decisions based on the amount a person is possessing. But because cases involving psilocybin mushrooms aren’t as common as other types of substances, Bordovsky said making charging decisions based on weight alone will likely be difficult for psilocybin mushrooms.
“If you have 28 grams of cocaine in a Ziploc bag in your car, just on that weight alone, you’re under suspicion of being a dealer,” she said.
“We don’t have similar knowledge with mushrooms, because we just don’t see them very much, so we’re not as familiar.”
House Bill 1263 downgraded personal possession charges for controlled substances from felonies to misdemeanors. The law defines personal possession as having fewer than four grams.
But it clarifies evidence of illegal uses beyond personal use can also be considered in making charging decisions. Bordovsky said that type of evidence could include a person having mushrooms divided up into packets or a receipt book.
Marijuana Enforcement a Model
Denver de-prioritized enforcement of marijuana laws in 2007. Tvert said Initiative 301 used that initiative as a model.
But unlike the 2007 initiative, 301 includes a prohibition on the city using public funds to enforce penalties related to laws against psilocybin. Bordovsky said it’s not totally clear what using public funds to enforce laws against psilocybin will be interpreted to mean.
“If I pull over Joe Schmo with a bucket full of what we think are mushrooms in his trunk, we want to test the bucket to find out what it is. Are we enforcing the criminal possession for personal use, or are we not?” Bordovsky said. “Are we just doing investigation? Where does that lead us, and where does it stop?”
She said the Denver Police Department has expressed nervousness over figuring out where Initiative 301 has drawn the line that crosses into using public money to enforce psilocybin laws.
The marijuana initiative also left lingering questions about the definition of public consumption. A high-profile trial involving charges against the Church of Cannabis for public consumption ended in mistrial in 2018.
“We’ve had to litigate that concept for the last five years in almost every single public consumption case that we’ve had,” Bordovsky said.
This past legislative session, lawmakers passed House Bill 1230 to allow social consumption venues for marijuana. Similar statewide attempts previously failed several years in a row.
Citizen-Introduced Vs. Legislative
Bordovsky said she believes it’s likely interpretation of 301 will happen through litigation of individual psilocybin cases.
It’s rare for the city attorney to issue guidance of citizen-initiative ordinances, she said.
“That to me seems odd,” Tvert said. “By definition, a city initiative is the equivalent of an act of the City Council.”
As with other statutes, courts will look at the wording of the law rather than the drafters’ intent in interpreting its nuances.
Bordovsky said her office does look to legislative intent for guidance on interpreting statutes but rarely presents it as an argument in court.
Intent versus practical impact of the law’s actual wording seemingly sunk Initiative 300, the initiative intended to overturn Denver’s camping ban defeated by more than 80% to 20% in May’s city elections.
Proponents of 300 intended it to codify people’s right to live in public spaces, but myriad concerns lingered over unintended consequences of the initiative’s broad wording, such as dampening homeless outreach efforts from contacting people living on the streets.
“[Intent] just doesn’t go very far with a judge,” Bordovsky said. “They want to interpret the language.”
—Julia Cardi