Drug possession is illegal again, so far only in Marysville

After the state Supreme Court ruled a state statute unconstitutional, Marysville made its own law.

MARYSVILLE — Drug possession is illegal once again, at least in Marysville.

The City Council voted on Monday to adopt an ordinance that makes it a gross misdemeanor to possess a controlled substance without a prescription.

The council passed the ordinance because there currently is no state law regarding simple drug possession. In February, five state Supreme Court justices ruled the state statute was unconstitutional because it didn’t require prosecutors to prove someone knowingly, intentionally possessed drugs.

As a result, local authorities can no longer arrest someone on a felony charge solely because the person has a few grams of heroin, meth, cocaine or other illicit drugs — unless there is suspicion that the individual intended to deliver the drugs, according to the Snohomish County Prosecutor’s Office.

The decision left attorneys and law enforcement officers scrambling to deal with the fallout. The Legislature could create a new law, but that appears unlikely during the session that is underway through April 25. Two bills have been introduced into the state Senate’s Law and Justice Committee. Both say that a person must knowingly possess drugs to be considered a felony. And one adds that unknowing possession would be a civil infraction with a fine up to $3,000.

At least one Snohomish County leader is exploring whether the county could establish an ordinance similar to the one passed in Marysville.

County Councilman Nate Nehring said he’s waiting for further information from staff about whether it’s an option for the County Council and what the process would entail.

Nehring is still holding out hope that the Legislature will do something this spring to make drug possession against the law.

“There needs to be something done,” Nehring said. He still doesn’t know whether a county-level law “is the best route.”

South of Olympia, Lewis County officials said they are working on their own law, according to The Chronicle in Centralia.

Marysville’s solution is to specify that it’s illegal for a person to “knowingly” possesses a drug and have “intent to use it.”

It reads: “It is unlawful for any person to knowingly possess a controlled substance or to possess a controlled substance with intent to use it, unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by chapter 69.50 RCW.”

RCW stands for the Revised Code of Washington — that is, state law.

Marysville city attorney Jon Walker told the council that the tweak in language could present new challenges for prosecutors.

“The jury is going to have to be convinced the person knew they possessed the controlled substance,” he said.

Under the former state law, possession of a controlled substance was a felony punishable by up to five years in prison and a hefty fine. If the state does end up passing a new law, Walker said, he would recommend that the council repeal the city ordinance. As it stands, in Marysville a conviction could bring up to 364 days in jail and a fine of up to $5,000.

“The lack of criminal penalties for the possession of controlled substances without a prescription had the potential for an immediate, direct, and negative impact on the health, safety, and welfare of the City’s residents and businesses,” council President Kamille Norton said in a written statement. “It was critical for us to act to close this loophole and provide the necessary tools for our Police officers.”

A city news release cited Marysville’s work to find alternatives to criminal enforcement by teaming police officers with social workers and through the municipal court’s Mental Health Alternatives Program. Marysville Police Chief Erik Scairpon noted the social worker program has helped more than 100 people seek sobriety and has helped find housing for more than 200 people.

Scairpon argued the absence of criminal penalties reduced the effectiveness of those initiatives, contending that there would be no incentive to seek help through the programs without the existence of a criminal penalty.

At Monday’s council meeting, Scairpon recounted a story that he first told over the weekend on Q13’s “The Divide” with Brandi Kruse. After the state Supreme Court decision, he and a police sergeant approached a woman smoking methamphetamine on State Avenue, next to the railroad tracks. She reportedly told them something to the effect of, “Well, this is legal now, I can do this.” She refused resources, Scairpon said, and she seemed emboldened by the court’s ruling.

“It really puts us at a difficult place,” Scairpon said, “where it starts to erode at the tools that we use to help keep our community safe.”

In a statement, Mayor Jon Nehring commended the City Council’s swift action in passing the ordinance, which council members saw for the first time on Friday.

“In Marysville we lead with compassion when it comes to cases involving substance abuse,” said Jon Nehring, who is Nate Nehring’s father. “It is critical to also have consequences available for our police officers and court to hold people accountable for their criminal actions against a community member or business.”

Herald reporter Rachel Riley contributed to this report.

Zachariah Bryan: 425-339-3431;zbryan@heraldnet.com. Twitter: @zachariahtb.

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