The Kent City Council agreed to repeal the city’s code for possession of drug paraphernalia because it conflicts with the new state law that decriminalizes the possession of drugs and paraphernalia for personal use.
City Attorney Pat Fitzpatrick explained the reasons for dropping the ordinance at the council’s Sept. 7 Operations and Public Safety Committee meeting. The council, which will officially approve to repeal the law on Sept. 21, has returned to committee meetings for specific topics rather than one large Committee of the Whole meeting that covered all topics.
A state Supreme Court ruling in February (on State vs. Blake) found the state statute unconstitutional that a person can be found guilty of possession without proof that the defendant knew they possessed the substance. There was no requirement to prove criminal intent, which the court ruled is a violation of due process.
The Legislature then passed ESB 5476 earlier this year that included an element of knowing they possessed the drugs, which made a stricter city of Kent code invalid because city laws cannot be stricter than state laws.
The new state law, which the city now follows, makes possession of drug paraphernalia a misdemeanor only when a person possesses it with the intent to produce and distribute controlled substances.
“Before the new bill, it was illegal to possess a syringe,” Fitzpatrick said to the council. “Now it’s not illegal to do that or to have a crack pipe. It’s now legal to possess. It’s illegal to sell, but not to have in possession.”
Fitzpatrick said city prosecutors had charged for decades under the city’s code for possession of drug paraphernalia.
Other changes under the new state law requires police officers to offer drug referral program options to people they find in possession of small amounts of controlled substances, including heroin, methamphetamine and cocaine. If the person refuses a deferral, the officer can arrest them.
Otherwise, a person gets at least two deferrals in the city before an arrest can be made.
“It they want to defer, we fill out a form and give them a list of places to go for treatment,” Fitzpatrick said. “And we take a copy for police records.”
Fitzpatrick said the city hasn’t had any deferral cases since the new law went on the books in late July.
“But if you get two deferrals under the statute, the third offense an officer can call records, if there are two prior deferrals, it’s up to an officer’s discretion about whether to arrest,” he said. “(If they arrest) We review the case and decide whether to file charges.”
The Legislature approved the changes in an effort to get people using drugs into treatment rather than tossing them in jail.
Man with pipe walks away
Police Chief Rafael Padilla told the council it’s illegal to consume drugs in public but the deferral rule can be a challenge.
He shared a recent personal experience while he was in uniform and saw a man near Willis Street and Central Avenue South who appeared to be smoking a meth pipe. Padilla said he attempted to contact the man, but the man stuck the pipe in his pocket and walked away.
“I cannot book him in jail due to the law for deferral,” Padilla said. “So I have to make a choice if I should use force to contain the person, but with the (state Legislature’s police reform) system saying don’t take physical actions in those situations, I let him walk away and not use force.”
Padilla said hopefully officers will get people to cooperate and do referrals, but he said so far they didn’t have any such cases since the new law started on July 25.
Councilmember Bill Boyce asked Padilla if he would have tried to stop the man if he got into a car, possibly under the influence of drugs, and might have caused a major crash.
”At that point it’s more justifiable to use force,” Padilla said. “But this person was on foot and didn’t want to talk to me.”