K2 Possession Is Not a Crime, So Why Is the NYPD Still Arresting People for It?

Last year, when Mayor Bill de Blasio announced a new effort to combat K2 — the concoction of often mysterious chemicals and plant matter designed to mimic the effects of marijuana — he promised that his administration wouldn’t target users of the substance, whom he described as “hostages” of a toxic drug.

“Some of the people who use this drug are amongst the most vulnerable in our city, and often include those who are dealing with mental health issues already,” he said in an October 2015 press conference. K2 — which can cause health problems ranging from paranoia and anxiety attacks to hallucinations and seizures — has prompted justifiable concern among public health officials. The drug, whose name is a reference to the second tallest mountain on earth, has been the subject of increased attention in the past two years as reports of emergency room visits exploded statewide. According to state health officials, there were 1,900 hospital visits related to the drug in a four-month span in 2015 — a tenfold increase over the same timeframe in 2014. And this past July, a mass overdose in Bed-Stuy brought K2 into the headlines again, when at least 33 people fell ill after smoking what authorities said was a particularly strong batch.

Responding to what appeared to be a rising crisis, the legislation de Blasio eventually ushered through the City Council made the manufacture and sale of K2 a misdemeanor. But it contained no penalties for possession, a radical departure from drug enforcement norms: After fifty years of a failed drug war, it has become painfully clear that penalizing drug users doesn’t stem addiction, it just compounds misery. “As with so many of our drug laws, I think the effort to use law enforcement as a tool is not that effective,” says Bill Gibney, a litigation director in the criminal practice division of the Legal Aid Society, the city’s largest public defender organization. “Far more effective is to treat it as so many other communities do, as a medical problem.”

In at least two boroughs, though, de Blasio’s message doesn’t seem to have trickled down to the cops on the beat. According to Legal Aid, at least 166 of its clients have been arrested for possession of K2 in Manhattan and Brooklyn over the past year. They’ve been charged not under local laws, but under an obscure state health code statute that bans possession of K2 and other “synthetic cannabinoids,” put in place by Governor Andrew Cuomo in 2015. Gibney said a review of those cases suggests the bulk were arrests for simple possession (the state statute also contains a prohibition on sale). Those numbers are relatively small, but given that Legal Aid represents only a fraction of criminal defendants in New York City, the true figure is likely significantly higher.

In fact, users who spoke to the Voice describe the practice of ticketing K2 users as routine in some parts of town. A regular K2 user in Brooklyn, whom we’ll call Dave, told the Voice he’d been ticketed in East Harlem, one of the areas in the city that he describes as a magnet for users because of the easy availability of the drug from corner stores and street dealers who sell K2 joints for as little as a dollar each. Dave said he’d been told by police that using the drug openly would be treated with “zero tolerance.” (In July, a Pix 11 reporter included an offhand account of the practice: “Pix 11 News watched police confiscate a bag of K2 from a man near Broadway. He was issued a summons, and he walked away.”)

Yet the NYPD flatly denies that it’s making arrests, even when confronted with the data from Legal Aid. A department spokesperson told the Voice in no uncertain terms that “there are no summons [sic] for smoking K2,” noting that “it is legal to possess and smoke.” Pressed repeatedly on the question, and informed of the state health code statute that clearly does prohibit K2 possession, the spokesperson answered that “there is no law related to the possession of synthetic marijuana in New York State.” Further attempts to clarify the issue were met with silence.

A spokesman for the mayor’s office agreed to look into the Voice‘s questions about K2 arrests, but subsequently stopped returning emails.

Robert Gangi, director of the Police Reform Organizing Project, pointed to marijuana arrests as a parallel to the apparent K2 arrests happening in the city. While the de Blasio administration has trumpeted its plans to reduce marijuana arrests, PROP, among others, has documented a 30 percent increase in 2016 compared to the same period last year. If officers on the beat aren’t carrying out the mayor’s policies, Gangi said, that’s the fault of the administration.

“It’s a failure of leadership if they don’t know what the police are doing,” Gangi said. “And if they’re deliberately distorting the truth, then they’re lying to the public.”