Casbah, Inc. v. Thone

• Decision Date: 26 September 1980
• Docket Number: Civ. No. 80-0-271.
• Citation: 512 F. Supp. 474
• Parties: The CASBAH, INC.; the Disco-Counter, Inc.; Jeffrey Ferber, d/b/a H. & D. Sales; Gregory Hasselhorst, d/b/a Euphoria; Eric Listou, d/b/a Joint Venture Novelty Shop; Pipe Dream, Inc.; and Dennis Robinson, d/b/a The Joynt, Plaintiffs, v. Charles THONE, Governor of the State of Nebraska; Paul Douglas, Attorney General for the State of Nebraska; Elmer Kohmepsher, Colonel in Charge of the Nebraska State Patrol; and Donald L. Knowles, County Attorney for Douglas County, Nebraska, Defendants.
• Court: U.S. District Court — District of Nebraska

512 F. Supp. 474

The CASBAH, INC.; the Disco-Counter, Inc.; Jeffrey Ferber, d/b/a H. & D. Sales; Gregory Hasselhorst, d/b/a Euphoria; Eric Listou, d/b/a Joint Venture Novelty Shop; Pipe Dream, Inc.; and Dennis Robinson, d/b/a The Joynt, Plaintiffs, v. Charles THONE, Governor of the State of Nebraska; Paul Douglas, Attorney General for the State of Nebraska; Elmer Kohmepsher, Colonel in Charge of the Nebraska State Patrol; and Donald L. Knowles, County Attorney for Douglas County, Nebraska, Defendants.

Civ. No. 80-0-271.

United States District Court, D. Nebraska.

September 26, 1980.

COPYRIGHT MATERIAL OMITTED

Donald B. Fiedler, Omaha, Neb., for plaintiffs.

Steven E. Achelphol, Omaha, Neb., Patrick O'Brien, Asst. Atty. Gen., Lincoln, Neb., Henry Wendt, Asst. County Atty., Omaha, Neb., for defendants.

MEMORANDUM

RICHARD E. ROBINSON, Senior District Judge.

In this action, the plaintiffs challenge the constitutionality of L.B.991, a Nebraska statute regulating the use, distribution and advertisement of "drug paraphernalia." In their verified complaint, the plaintiffs seek declaratory and injunctive relief. The Court has jurisdiction under 28 U.S.C. §§ 1331, 1343, 2201 and 2202.¹ This Memorandum constitutes the Court's findings of fact and conclusions of law.

On April 23, 1980 this Court, pursuant to an agreement of counsel, entered an Order Filing # 6 temporarily restraining the enforcement of L.B.991 pending a final determination on the merits. Commencing on September 4, 1980, plaintiffs' application for a preliminary and permanent injunction was tried to the Court. See Rule 65(a)(2) Fed.R.Civ.Pro. For the reasons set out below, the Court finds that L.B.991 is constitutional as it is construed in this Memorandum.

I

The plaintiffs in this action are wholesale distributors and retail merchants who sell various gift and novelty items including what are euphemistically referred to as accessories.² The defendants include Charles Thone, the Governor for Nebraska, Elmer Kohmepsher, of the Nebraska State Patrol, Paul Douglas, the Nebraska Attorney General, and Donald Knowles, the Douglas County Attorney.

L.B.991 was passed by the Nebraska Unicameral on April 18, 1980 and signed into law five days later by Governor Thone. The Bill amends various sections of the Nebraska Criminal Code³ and provides in pertinent part as follows:

Section 1. As used in this act, unless the context otherwise requires, drug paraphernalia shall mean all equipment, products, and materials of any kind which are used, intended for use, or designed for use, in manufacturing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this act or the Uniform Controlled Substances Act. It shall include, but not be limited to, the following:

(1) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose, and lactose, used, intended for use, or designed for use in cutting controlled substances;

(2) Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana;

(3) Hypodermic syringes, needles, and other objects used, intended for use, and designed for use in parenterally injecting controlled substances into the human body; and

(4) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, which shall include but not be limited to the following:

(a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;

(b) Water pipes;

(c) Carburetion tubes and devices;

(d) Smoking and carburetion masks;

(e) Roach clips, meaning objects used to hold burning material, such as a marijuana cigarette, which has become too small or too short to be held in the hand;

(f) Miniature cocaine spoons, and cocaine vials;

(g) Chamber pipes;

(h) Carburetor pipes;

(i) Electric pipes;

(j) Air-driven pipes;

(k) Chillums;

(l) Bongs; and

(m) Ice pipes or chillers.

Section 2. In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other logically relevant factors, the following:

(1) Statements by an owner or by anyone in control of the object concerning its use;

(2) Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance;

(3) The proximity of the object, in time and space, to a direct violation of this act;

(4) The proximity of the object to any controlled substance;

(5) The existence of any residue of a controlled substance on the object;

(6) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to any person whom he or she knows, or should reasonably know, intends to use the object to facilitate a violation of this act. The innocence of an owner, or of anyone in control of the object, as to a direct violation of this act shall not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;

(7) Instructions, oral or written, provided with the object concerning its use;

(8) Descriptive materials accompanying the object which explain or depict its use;

(9) National and local advertising concerning its use;

(10) The manner in which the object is displayed for sale;

(11) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

(12) Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise;

(13) The existence and scope of any legitimate use for the object in the community; and

(14) Expert testimony concerning its use.

Section 3. (1) It shall be unlawful for any person to use, or to possess with intent to use, drug paraphernalia to manufacture, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this act.

(2) Any person who violates this section shall be guilty of an infraction.

Section 4. (1) It shall be unlawful for any person to deliver, possess, with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to manufacture, inject, ingest, inhale, or otherwise be used to introduce into the human body a controlled substance in violation of this act.

(2) Any person who violates this section shall be guilty of a Class II misdemeanor.

Section 5. Any person eighteen years of age or older who violates section 4 of this act by delivering drug paraphernalia to a person under eighteen years of age who is at least three years his or her junior shall be guilty of a Class I misdemeanor.

Section 6. (1) It shall be unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia.

(2) Any person who violates this section shall be guilty of a Class III misdemeanor.

Section 7 of L.B.991 amends § 28-431 of the Nebraska Revised Statutes in that it adds drug paraphernalia to the list of items subject to civil forfeiture. The relevant portion of Section 7 provides:

That section 28-431, ... be amended to read as follows: 28-431. (1) The following shall be seized without a warrant by an officer of the Division of Drug Control or by any peace officer, and the same shall be subject to forfeiture: (a) All controlled substances which have been manufactured, distributed, dispensed, acquired, or possessed in violation of the provisions of this article; ... (f) all drug paraphernalia defined in section 1 of this act.

Section 10 of L.B.991 is a severability provision:

If any section in this act or any part of any section shall be declared invalid or unconstitutional, such declaration shall not affect the validity or constitutionality of the remaining portions thereof.

L.B.991 is similar to legislation passed in other jurisdictions aimed at regulating or prohibiting the sale of items used to ingest controlled substances.⁴ Without exception, these laws are intended to aid in the struggle against drug abuse, particularly among young people.⁵ Testimony concerning the extent of the drug problem was presented at the public hearings on L.B.991. An adolescent psychiatrist employed by the Nebraska Psychiatric Institute testified that "as many as one out of nine of our high school students are using marijuana daily."⁶ He pointed out that there are severe emotional and physical ailments associated with chronic marijuana use. Observing that certain devices used to smoke marijuana make it possible to bring concentrated marijuana smoke into the body, the psychiatrist noted that daily marijuana use with these devices was extremely damaging to the lungs and promoted respiratory ailments including bronchitis, emphysema and cancer.⁷

There is no doubt that the State of Nebraska in protecting the health and welfare of its citizens may legitimately enact legislation intended to curtail illicit drug use. Robinson v. California, 370 U.S. 660, 664, 82 S.Ct. 1417, 1419, 8 L.Ed.2d 758 (1962). If it is properly drawn, legislation dealing with the acute problem of drug abuse may prohibit the sale of "drug related devices." Geiger v. City of Eagan, 618 F.2d 26, 28 (8th Cir. 1980).

II

Despite its laudable purpose, legislation banning drug paraphernalia must pass constitutional muster. Elsewhere, lawmakers have rushed to pass laws banning paraphernalia and in the process have trampled upon a host of rights protected...