Nearly two years after Denver police busted the founders of the International Church of Cannabis for public pot consumption, one of the leaders finally may have his day in court.
Steve Berke, who co-founded the church in April 2017, is set to appear Tuesday in a Denver courtroom, where he is fighting a misdemeanor charge of open and public consumption of marijuana.
The maximum penalty in the municipal case is $300. But marijuana experts are watching to see how Berke’s case might address a tricky question that has been confusing Denver pot smokers since legalization five years ago: What is considered “open and public” marijuana consumption?
This case has been dragged out through a series of scheduling conflicts, a change in counsel and a mistrial last year, in which city prosecutors were unable to seat a jury.
The prolonged dispute stems from an April 20, 2017, undercover operation by Denver police during the church’s private, invitation-only 4/20 celebration, during which many of the 200-plus attendees smoked marijuana in designated consumption areas.
Police issued citations to Berke along with Lee Molloy and Briley Hale, the Church of Cannabis’ other co-founders. The three defendants each face a misdemeanor charge of open and public consumption of marijuana and violating the Colorado Clean Indoor Act.
The church claims marijuana as its primary sacrament and hosts services once a week. Members of the church are known as Elevationists, and they use the “sacred flower to reveal the best version of self, discover a creative voice and enrich their community with the fruits of that creativity,” according to the church’s website.
In March 2018, a judge declared a mistrial after prosecutors were unable to seat a six-person jury for the case. Four potential jurors openly questioned city attorney Rebekah Watada’s theory of the case. One questioned why tax dollars should be spent on prosecuting minor cases like this, while another asked why seven police detectives were on the witness list for a misdemeanor marijuana charge.
“This is a colossal waste of time and money,” Berke told The Denver Post on Friday. “I’m surprised the city is still spending taxpayer money to prosecute us (because) of how embarrassing it was last time.”
The city offered him a deal this week, Berke said, where he could plead to the civil infraction and receive a deferred judgment with community service. He turned it down.
“I look forward to being vindicated,” he said, adding that he never even consumed marijuana on the day in question because he was hosting the event. After the mistrial, Berke added marijuana attorney Rob Corry to his defense team.
The city attorney’s office could not immediately be reached for comment.
Berke said he’s strongly considering a lawsuit against the city, citing his loss in business since the police raid. The 114-year-old church, which sits on South Logan Street in the West Washington Park neighborhood, hosts weddings and private events.
“Because we had this hanging cloud of suspicion, it has negatively impacted our ability to bring in donations and to run our business,” he said. “People aren’t booking with us.”
The issue of public consumption of marijuana has been a dicey one for both the city and its weed-smoking citizens and visitors. There are few legal places to consume marijuana, outside of private homes. And there is no definition of what constitutes public vs. private in the state’s laws.
In June, Denver police raided several marijuana party buses, slapping criminal charges on dozens of customers and employees who were consuming cannabis while riding between dispensaries. At least one of the affected tour companies, My 420 Tours, continues to operate.
In another instance nearly five years ago, the city warned the Colorado Symphony Orchestra that it could not hold a public fundraiser with a bring-your-own marijuana component because it would go against public consumption regulations. The orchestra instead changed it to a private, invitation-only event.
“There’s no definition of ‘public’”, Councilmember Kendra Black told The Denver Post in September. “The city decided … that buses are public, but the bus companies are saying, ‘No, they’re private.’ ”
Sam Kamin, the Vicente Sederberg Professor of Marijuana Law and Policy at the University of Denver, said the regulations need clarification.
“This has been the stickiest policy bit since Amendment 64 was passed more than six years ago,” he said.
Until the rules are more clearly defined, Kamin said, the city will continue to prosecute cases such as Berke’s.
“What it highlights for me is that we need a better way to do this,” Kamin said. “(The city) doesn’t want to keep bringing in these cases. I think they feel compelled to do this. If there were a better way to get together and consume marijuana, this wouldn’t be happening.
“Even if they get a conviction on this,” Kamin said, “it’s not gonna solve the problem.”