Philly’s Pot Policy: A Recipe for Lawsuits?

Philly’s new District Attorney, in cooperation with two justices on the State Supreme Court, is making noise today by announcing that individuals who are arrested holding a small amount of marijuana will not be charged with a crime:

“Under a policy to take effect later this month, prosecutors will charge such cases as summary offenses rather than as misdemeanors. People arrested with up to 30 grams of the drug – slightly more than an ounce – may have to pay a fine but face no risk of a criminal record.”

The stated reason: reduce court congestion.  Philadelphia police had made around 3000 pot arrests annually, around 5% of the caseload in criminal court.  Said DA Williams, “We can’t declare a war on drugs by going after the kid who’s smoking a joint on 55th Street. We have to go after the large traffickers.”

This strategy, if implemented, would put the city at odds with its neighbor to the north, which has increasing used arrests for pot possession as a mechanism of social control.  But it is unclear that the important actors in the criminal justice system – the cops -are on board:

“We’re not going stop locking people up,” Lt. Frank Vanore, a police spokesman, said Friday. He said marijuana possession remained illegal.

“We’re going to stop people for it. . . . Our officers are trained to do that,” Vanore said. “Whether or not they make it through the charging process, that’s up to the D.A. We can’t control that. Until they legalize it, we’re not going to stop.”

So here’s the question for you criminal justice buffs.  Assuming that the DA implements his no-charge policy later this month. The police department decides to continue to make arrests on crimes that the DA won’t bring, on the theory that those arrests will result in lawful searches that might turn up evidence of more serious crimes.  Statisticians will find that those pretextual arrests disproportionately are made against young, African-American, men.  Is there a viable 1983 claim against the cops?

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2 Responses

  1. Well I would certainly hope that a DA’s unilateral decision not to prosecute a still-established crime would not be enough to convert a non-1983 claim into a viable one…but who can project the thought process of some PA judge seeking the accolades of grievance mongers everywhere.

  2. Howard Wasserman says:

    I doubt it. What would be the right at issue? Equal Protection? Is disparate impact, even statistically significantly disproportionate impact enough to show intentional discrimination? Fourth Amendment? Police work on a probable cause standard (or less, if it’s a Terry or auto situation); the validity of the police decision is never tied to any ultimate prosecution (otherwise, an arrestee would have Fourth Amendment claims whenever the DA chooses not to prosecute).

    I’m not a crim pro guy, so maybe I’m missing something.