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Elgin’s council members reviewed the status of Ballot Initiative 2022-08-04 this past week, clarifying the legality and impact of the ordinance set to eliminate low-level marijuana enforcement.
The ord inance was passed Nov. 2022 with a 70% approval rating, but some councilmembers and residents were seeking answers as to why arrests are still being made.
The situation demonstrates confusion that can arise from the initiative petition and referendum process, according to City Manager Thomas Mattis.
“It’s been a staple of local government forever, that citizens should be provided an opportunity, theoretically, to bring any law forward that they want to propose to the city council. But there’s nowhere in that process, that before it goes to the voters, we talk about whether or not what’s being proposed is even legal, and that’s what we’re missing in this process,” said Mattis.
The proposed ordinance is not legally enforceable because it conflicts with state and federal law, and petitioners rejected an opportunity to discuss a compromise with the council prior to the petition being placed on the ballot, according to the city manager.
“I think anytime you have a situation where 70% of the voters say anything, that’s noteworthy. But again, this notion that 70% of the people voted somehow automatically makes it a law is just not true,” added Mattis. “It makes the whole ordinance a moot point now, because it’s not legal now and it never was legal.”
Despite the legality of the ordinance, Chief of Police Chris Noble took to the podium to explain how his department handles marijuana-related cases.
“I think what’s important to distinguish tonight is arrests made solely for small amounts of marijuana, and arrests for possession of marijuana that are tied to higher charges, and that distinction becomes very apparent,” said Noble.
Data pulled from police records show that arrests solely for low-level possession charges have not been enforced, and are not a priority of the Elgin Police Department, according to the chief.
“Before the ordinance was passed, we operated certainly within the spirit of what that request or ordinance wanted to achieve, and we continue to do so today,” added Noble. “We’re doing what we always said we would do, and we continue to do it, operate within the spirit of the ordinance even though it is an illegal ordinance.”
In the year prior to the ordinance, Nov. 2021-22, there was one case for possession of marijuana out of 943 reports, and of the 322 arrests in Elgin there were none made solely for possession, according to the department.
Noble clarified that there were arrests made, but the ones cited were tied to higher charges.
The vast majority of encounters with marijuana are traffic related, and when police do arrest someone for additional charges and charge them with possession, marijuana is often an element of the crime itself, such as DWI, according to the chief.
“We cannot simply destroy that evidence, we cannot allow the person who possesses it to destroy that. We have to take it and turn it in as evidence because it is contraband. Contraband is anything that is inherently illegal to possess,” said Noble. “Somebody that is under arrest for another charge, who is already in handcuffs, we cannot unhandcuff them and allow them to destroy something, particularly when it is a part of the crime.”
Of the 477 arrests made in the year following the ordinance, two were solely for possession, and those had extenuating circumstances, according to Noble. One was a warrant arrest where the individual smuggled marijuana into the jail cell and a separate charge was filed, and the second was a welfare check initiated on someone idling in a business parking lot around 1 a.m., but further details couldn’t be shared because the case is still pending in court.
Technically this is an increase of 200% following the ordinance, but that is “death by small numbers,” he said.
The police do have discretion when there are no other charges at hand, in which case they allow the person in possession to destroy the marijuana.
Low-level possession is a class B misdemeanor, there is no ticket, and about 88% of encounters conclude with the individual destroying the substance, according to Noble.
The department made it clear that they will not seek out people smoking marijuana unless there is another legitimate reason.
“The bottom line is this isn’t an issue to be addressed at the city level, it has to be addressed at the state level,” said Mattis. “[Elgin Police Department] is not making arrests solely for low-level marijuana possession, clearly supported by the numbers and facts.”
Noble would welcome a change at the state legislature level, as marijuana charges take officers away from other, more important duties, he said.
