Hejira Corp. v. MacFarlane
| Citation | 660 F.2d 1356 |
| Decision Date | 01 June 1981 |
| Docket Number | No. 80-2062,80-2062 |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
| Parties | HEJIRA CORPORATION, d/b/a Budget Records & Tapes, Inc., et al., Plaintiffs- Appellees, v. J. D. MacFARLANE, in his official capacity only as Attorney General, State of Colorado, et al., Defendants-Appellants. |
David K. Rees, Asst. Atty. Gen., Denver, Colo. , for defendants-appellants.
Arthur M. Schwartz, Arthur M. Schwartz, P. C., Denver, Colo. (Bradley J. Reich, Arthur M. Schwartz, P. C., Denver, Colo., with him on the brief), for plaintiffs-appellees.
Before SETH, McWILLIAMS and DOYLE, Circuit Judges.
This declaratory action was instituted by a number of dealers in drug paraphernalia. They sought a judgment declaring the Colorado Drug Paraphernalia Act invalid in violation of the Constitution of the United States.
House Bill No. 1190 became law on or about July 1, 1980. Five days before this date (when House Bill No. 1190 was to become effective) the plaintiffs, all of whom are dealers in drug paraphernalia, brought suit in the United States District Court for the District of Colorado, naming as defendants the Attorney General of the State of Colorado and certain district attorneys, sheriffs and police chiefs. The plaintiffs sought declaratory relief which would declare House Bill No. 1190 unconstitutional, and sought, in addition, injunctive relief which would restrain the enforcement of the Colorado Drug Paraphernalia Act.
On September 5, 1980, the trial court held that the definition of "drug paraphernalia," which was contained in the Act, was unconstitutionally vague, and based upon that conclusion the court granted the plaintiffs' request for injunctive relief. The court rejected the plaintiffs' other constitutional attacks. The defendants filed their notice of appeal within the time allowed under the law.
It is impossible to determine the validity of the Colorado Drug Paraphernalia Act by reference to any particular provision thereof, or anything less than the total Act. Hence, the text of this Act is appended to this opinion. Because various sections will be considered we shall describe these provisions.
The legislative provision which is contained in Section 12-22-501 finds and declares that the possession, sale, manufacture, delivery or advertisement of drug paraphernalia results in the legitimization and encouragement of the illegal use of controlled substances by making the drug culture more visible and enticing, and that the ready availability of drug paraphernalia tends to promote, suggest, or increase the public acceptability of the illegal use of controlled substances. It is further stated that the purposes of part 5 of the Act are to promote the public peace, health, safety and welfare by prohibiting possession, sale, manufacture, and delivery or advertisement of drug paraphernalia, and to deter the use of controlled substances by controlling the drug paraphernalia associated with their use.
Section 502 of the Act defines a controlled substance as being a narcotic drug, the same as defined in Section 301, or dangerous drug, as defined in Section 403, and also defines drug paraphernalia as any machine, instrument, tool, equipment or device which is primarily adapted, designed and intended for one or more of the following: to introduce into the human body any controlled substance under circumstances in violation of the laws of this state; to enhance the effect on the human body of any controlled substance under circumstances in violation of the laws of this state; to conceal any quantity of any controlled substance under circumstances in violation of the laws of this state; to test the strength, effectiveness or purity of any controlled substance under circumstances in violation of the laws of this state. The section sets forth eleven factors which the court may consider, in addition to other relevant factors, in determining whether an object is drug paraphernalia. Included are:
(1) statements by an owner or by anyone in control of the object concerning its use;
(2) the proximity of the object to controlled substances;
(3) existence of any residue of any controlled substances on the object;
(4) direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons who he knows intend to use the object to facilitate a violation of part 5.
(5) instructions, oral or written, provided with the object concerning its use (6) descriptive materials accompanying the object which explain or depict its use;
(7) national or local advertising concerning its use;
(8) the manner in which the object is displayed for sale;
(9) whether the owner or anyone in control of the object is a supplier of like or related items in the community for legal purposes, such as the distributor or dealer of tobacco products;
(10) existence and scope of legal uses for the object in the community;
(11) expert testimony concerning its use.
Finally, that section directs that in the event a case is brought pursuant to part 5 and is tried before a jury, the court shall hold an evidentiary hearing on issues raised pursuant to this section, such hearings to be conducted in camera.
Section 504 describes how one commits a violation of the statutory mandate of anti-possession of drug paraphernalia: One violates this section if he possesses drug paraphernalia and intends to use it under circumstances in violation of the laws of this state.
Section 505 proscribes the manufacture, sale or delivery of drug paraphernalia, and states that any person who sells or delivers, possesses with intent to sell or deliver, or manufactures with intent to sell or deliver, equipment, products or materials intending that such equipment, products or materials will be used as drug paraphernalia, commits a class 2 misdemeanor, and is subject to punishment as provided in Section 18-1-106.
Section 506 sets forth the penalty for advertisement of drug paraphernalia. This section provides that one who places an advertisement in a newspaper, magazine, handbill or other publication, and who (in doing so) intends to promote the sale in this state of equipment, products or materials designed and intended for use as drug paraphernalia commits a class 2 misdemeanor, and becomes subject to punishment as provided in Section 18-1-106.
To summarize:
Section 501 of the Act covers the legislative declaration concerning control of drug paraphernalia;
Section 502 defines drug paraphernalia;
Section 503 lists eleven factors which the court may consider in determining whether an object is drug paraphernalia;
Section 504 makes it an offense to possess drug paraphernalia with the intention to use it in violation of the laws of this state;
Section 505 makes it an offense to manufacture, sell or deliver drug paraphernalia with the intent that the items be used as drug paraphernalia; and,
Section 506 proscribes advertisement of items designed and intended for use as drug paraphernalia.
The trial court ruled, first of all, that the plaintiffs herein, merchants for the most part, did not have standing to represent the users or purchasers of the items here in question. The court also ruled, however, that the statute is unconstitutionally vague in at least two respects. The standard "primarily adapted, designed and intended" was held not to be an adequate one. The court also concluded that the eleven standards set forth for use by the court did not provide either notice to possible violators, nor to police officers and other enforcement officers, what factors were to be considered in ascertaining whether there had been a violation of the statute.
Generally, these are the points which this court must consider in a determination of whether the trial court erred in its conclusions.
The points advanced by the Attorney General are set forth in a summary of the argument, which in effect declares:
The Colorado Drug Paraphernalia statute is not vague.
It provides defendants with fair warning of forbidden conduct and contains sufficient standards to guard against arbitrary or discriminatory enforcement. Moreover, as all the crimes defined in the statute contain specific intent as an element, the statute cannot be termed vague.
Do the plaintiffs have standing?
The trial court's ruling was that while the plaintiffs have standing, that is, a stake in the outcome sufficient to challenge the Act in their capacities as potential sellers and advertisers of drug paraphernalia, they lacked standing to assert the rights of third parties, that is, the rights of purchasers or possessors of drug paraphernalia. It is true that plaintiffs lack standing to raise issues which are the private rights of potential purchasers and possessors of drug paraphernalia, and which deal with conditions and situations not properly before the court, such as whether the Act may violate the privacy of potential possessors of drug paraphernalia. See Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). It is not to be denied, however, that the plaintiffs may raise the rights of potential purchasers and possessors of drug paraphernalia insofar as those rights are interrelated with the rights of the plaintiffs, and thus involve questions which are properly before the court. Plaintiffs have standing to dispute the constitutionality of the entire Colorado Drug Paraphernalia Act when attacking the validity of the Act on its face.
The case of Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), rehearing denied, 429 U.S. 1124, 97 S.Ct. 1161, 51 L.Ed.2d 574 (1977), is about as similar as a precedent could be. In Craig the question to be...
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