651 F.2d 551 (8th Cir. 1981), 80-1925, Casbah, Inc. v. Thone

Docket Nº:80-1925, 80-2033.
Citation:651 F.2d 551
Party Name:The CASBAH, INC.; The Disc Counter, Inc.; and Jeff Ferber, d/b/a H & D Sales; Greg Hasselhorst, d/b/a Euphoria; Eric Listou, d/b/a Joint Venture Novelty Shop, Pipe Dream, Inc.; Dennis Robinson, d/b/a The Joynt, Appellants, v. Charles THONE, Governor for the State of Nebraska; Paul Douglas, Attorney General for the State of Nebraska; Elmer Kohmepshe
Case Date:June 08, 1981
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 551

651 F.2d 551 (8th Cir. 1981)

The CASBAH, INC.; The Disc Counter, Inc.; and Jeff Ferber,

d/b/a H & D Sales; Greg Hasselhorst, d/b/a Euphoria; Eric

Listou, d/b/a Joint Venture Novelty Shop, Pipe Dream, Inc.;

Dennis Robinson, d/b/a The Joynt, Appellants,

v.

Charles THONE, Governor for the State of Nebraska; Paul

Douglas, Attorney General for the State of Nebraska; Elmer

Kohmepsher, Colonel in Charge of the Nebraska State Patrol;

Donald L. Knowles, County Attorney for Douglas County,

Nebraska, Appellees.

The CASBAH, INC.; The Disc Counter, Inc.; and Jeff Ferber,

d/b/a H & D Sales; Greg Hasselhorst, d/b/a Euphoria; Eric

Listou, d/b/a Joint Venture Novelty Shop, Pipe Dream, Inc.;

Dennis Robinson, d/b/a The Joynt, Appellees,

v.

Charles THONE, Governor for the State of Nebraska; Paul

Douglas, Attorney General for the State of Nebraska; Elmer

Kohmepsher, Colonel in Charge of the Nebraska State Patrol;

Donald L. Knowles, County Attorney for Douglas County,

Nebraska, Appellants.

Nos. 80-1925, 80-2033.

United States Court of Appeals, Eighth Circuit

June 8, 1981

Submitted Nov. 14, 1980.

Rehearing and Rehearing En Banc Denied July 9, 1981.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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

Marion Yoder, Nebraska Civil Liberties Union, Lincoln, Neb., for amicus curiae.

Paul L. Douglas, Atty. Gen., Patrick T. O'Brien, Asst. Atty. Gen. (argued), Lincoln, Neb., Henry L. Wendt, Deputy Douglas County Atty., Arthur D. O'Leary, Steven E. Achelpohl, of Dwyer, O'Leary & Martin, P. C., Omaha, Neb., for appellees and cross-appellants.

Before HENLEY, Circuit Judge, BENNETT, [*] Court of Claims Judge, and McMILLIAN, Circuit Judge.

HENLEY, Circuit Judge.

This action is before the court on an appeal and cross-appeal involving the constitutionality

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of a recently enacted Nebraska statute, Legislative Bill 991, 1980 Neb.Laws ("LB 991"), 1 which prohibits the use, sale and manufacture of "drug paraphernalia." Plaintiffs, appellants here, are wholesale distributors and retail merchants. Defendants, appellees here, include Charles Thone, the Governor of Nebraska; Paul Douglas, Attorney General for the State of Nebraska; Elmer Kohmetscher (alternately identified as Elmer Kohmepsher) of the Nebraska State Patrol; and Donald L. Knowles, County Attorney for Douglas County, Nebraska.

The district court 2 sustained the constitutionality of the statute after severing certain phrases and construing the meaning of other language. With due respect for the district court's thoughtful opinion, we reverse those portions of the court's ruling severing phrases as unconstitutional and hold LB 991 constitutional as against the challenges we are called upon to consider and determine.

I

  1. Proceedings Below.

    Appellants on April 23, 1980 filed their action in district court, seeking declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201, 2202 on the grounds that LB 991 abridges fundamental constitutional rights protected by the first, fourth, fifth and fourteenth amendments to the United States Constitution. Pursuant to an agreement of counsel, the district court on the same date entered an order temporarily restraining the enforcement of LB 991 pending a final determination on the merits. On September 4, 1980 the court held a consolidated hearing on the application for preliminary and permanent injunctions, with the result that by lengthy memorandum filed September 26, 1980 the court found the statute constitutional as construed. Pursuant to this memorandum opinion, the court's temporary restraining order was dissolved. This court granted appellants' application for stay of judgment pending appeal.

  2. LB 991.

    LB 991 is based on the Model Drug Paraphernalia Act (Model Act) drafted by the Drug Enforcement Administration (DEA) of the United States Department of Justice. In a Prefatory Note to the Model Act, the DEA acknowledged that the Model Act was drafted with the aim of overcoming constitutional infirmities that have rendered other drug paraphernalia laws subject to constitutional attack. 3 In the present appeal, we are essentially asked to decide whether this effort has been successful. 4

    The structure of LB 991 is somewhat complex and deserves summary here. Sections 1 and 2 are definitional. In Section 1, drug paraphernalia is defined as "all equipment, products, and materials of any kind which are used, intended for use, or designed for use" in manufacturing or ingesting controlled substances. A lengthy list of

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    examples follows, with each example restating the requirement that the named object be "used, intended for use, or designed for use" in drug-related activities. The list of examples concludes with the catchall category of "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," followed by another list of thirteen exemplary items such as pipes of various types, miniature cocaine spoons, and roach clips. Although the enumeration of specific items is similar to that found in statutes which have been held unconstitutional, 5 LB 991 is significantly different in coupling the named items to the mental element of intent.

    Section 2 of LB 991 names fourteen factors which "a court or other authority shall consider, in addition to all other logically relevant factors," in determining whether an object is drug paraphernalia.

    Section 3 defines the substantive criminal offense of using, or possessing with intent to use, drug paraphernalia.

    Section 4 defines the substantive criminal offense of delivery, possession with intent to deliver, or manufacture with intent to deliver drug paraphernalia, when the deliverer, possessor or manufacturer knows or reasonably should know that the drug paraphernalia will be used with controlled substances.

    Section 5 makes delivery of drug paraphernalia to a minor a special offense.

    Section 6 makes criminal the placing of any written advertisement when one knows or reasonably should know that the purpose of the advertisement is to promote the sale of objects designed or intended for use as drug paraphernalia.

    Finally, LB 991 contains a civil forfeiture section and a severability section.

    The district court, in an as-yet unpublished opinion, The Casbah, Inc. v. Thone, 512 F.Supp. 474 (D.Neb.1980), held the statute to be constitutional after severing subsection (11) of Section 2, which requires courts and law enforcement officials to consider whether a person is a "legitimate supplier" of like items. Also severed as unconstitutionally vague was the provision in Sections 4 and 6 for prosecution where the defendant "reasonably should know" the effects of his actions.

  3. Issues on Appeal.

    Appellants raise four issues on appeal. First, they contend that the district court erred in failing to review the Nebraska statute under a strict scrutiny standard of review. Second, they contend that the district court usurped the legislature's function by substantially rewriting the statute. Appellants' third contention is that the statute as written is impermissibly vague and overbroad. Finally, appellants contend that the district court erred in finding that the statute does not violate fourth amendment rights against unreasonable searches and seizures.

    The Nebraska Civil Liberties Union appears as amicus curiae for the limited purpose of arguing that Sections 6 and 7 of the statute, pertaining to advertising and civil forfeiture of written materials, offend the first amendment.

    Appellees by cross-appeal allege that the district court erred in holding the "legitimate supplier" provision of Section 2(11) unconstitutionally vague, and in holding the "reasonably should know" standard in Sections 4 and 6 unconstitutionally vague.

    We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291. The parties have raised no challenge on jurisdictional grounds and have not asked us to abstain. 6 Hunt v. Roth, 648 F.2d 1148 (8th Cir. 1981).

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  4. Standard of Review.

    In dealing with the merits of appellants' constitutional challenge, we have considered the standard of review to be applied. Appellants contend that a standard of strict scrutiny applies because LB 991 implicates first amendment rights and "a right to privacy under the fourth amendment."

    We omit for the moment the matter of first amendment rights, reserving this issue for Section V, infra. Appellants' argument regarding the right to privacy is wholly without merit. It is true that the fourth amendment embraces the right to be free from unreasonable governmental intrusions into traditionally private areas, Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); United States v. Houle, 603 F.2d 1297, 1300-01 (8th Cir. 1979) (and citations therein). Here, however, for reasons indicated in Section IV, infra, neither fourth amendment rights nor privacy rights are implicated in LB 991. LB 991 on its face creates no classifications and applies equally to everyone. Where no suspect classifications are involved and no fundamental rights, the question under equal protection analysis is whether the legislation is reasonably related to a legitimate state purpose. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976); Mid-Atlantic Accessories Trade Association v. Maryland, supra, 500 F.Supp. at 849. Similarly, we apply here the rational basis standard of review.

    II

    Two considerations are basic to our decision on the merits. The first is our belief that we are empowered to articulate the meaning of the drug paraphernalia statute in a manner which supports a finding of constitutionality. The second is our...

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