682 F.2d 672 (7th Cir. 1982), 80-2518, Record Head Corp. v. Sachen

Docket Nº:80-2518.
Citation:682 F.2d 672
Party Name:RECORD HEAD CORPORATION, Plaintiff-Appellee, v. Michael SACHEN, et al., Defendants-Appellants.
Case Date:July 07, 1982
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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682 F.2d 672 (7th Cir. 1982)

RECORD HEAD CORPORATION, Plaintiff-Appellee,

v.

Michael SACHEN, et al., Defendants-Appellants.

No. 80-2518.

United States Court of Appeals, Seventh Circuit

July 7, 1982

Argued June 8, 1981.

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Curt R. Meitz, West Allis, Wis., for defendants-appellants.

Paul E. Sicula, Milwaukee, Wis., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, PELL, Circuit Judge, and EAST, Senior District Judge. [*]

CUMMINGS, Chief Judge.

In this action for declaratory and injunctive relief Record Head Corporation challenged as facially unconstitutional a West Allis, Wisconsin, drug paraphernalia ordinance. Judge Evans found the statute unconstitutional on vagueness and equal protection grounds; he therefore enjoined its application. The defendants, who are West Allis' attorney, police chief, and aldermen, appealed. We heard oral argument on June 8, 1981, but postponed decision until the Supreme Court decided Village of Hoffman Estates v. Flipside, --- U.S. ----, 102 S.Ct.

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1186, 71 L.Ed.2d 362 (1982). There the Supreme Court reversed this Court's determination (639 F.2d 373 (7th Cir. 1980)) that the Hoffman Estates, Illinois, drug paraphernalia ordinance, cast in terms of a licensing statute, was unconstitutionally vague. The parties in the instant litigation have, at this Court's request, filed additional memoranda discussing the effect of Hoffman Estates on this case. We now affirm the judgment of the district court, 498 F.Supp. 88, in part, reverse in part, and remand for further proceedings.

Drug paraphernalia statutes come in three basic varieties: licensing statutes, statutes focusing on drug paraphernalia and minors, and blanket prohibitions on sales. Hoffman Estates involved the first type; this case deals with the second, and its companion case, Levas and Levas d/b/a Levas T-Shirts v. Village of Antioch, No. 80-1675, --- F.2d ----, also decided today, deals with the third. It is clear that the opinion in Hoffman Estates establishes a method-though it does not necessarily dictate a result-for judging the facial constitutionality of all such ordinances. 1

The first question to ask is whether the ordinance, construed to give full effect to any ambiguities, reaches "a substantial amount of constitutionally protected conduct." --- U.S. at ----, n.6, 102 S.Ct. at 1191, n.6. Typically, the only constitutional right even tangentially involved is freedom of speech. It is important to distinguish between commercial and noncommercial speech, however, because the overbreadth doctrine, which allows the challenger to assert the free-speech rights of others, does not apply to commercial speech. Id. at ----, 102 S.Ct. at 1192, citing Central Hudson Gas & Electric Co. v. Public Service Comm'n, 447 U.S. 557, 565, n.8, 100 S.Ct. 2343, 2351, n.8, 65 L.Ed.2d 341.

Next, is the law "impermissibly vague in all its applications?" Id. at ----, 102 S.Ct. at 1192. A vague statute is constitutionally objectionable for two reasons: it fails to provide the public with fair notice of the line between lawful and unlawful conduct; and it allows fundamentally legislative decisions to be made on a subjective basis at the point of enforcement rather than enactment. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222. The tests for vagueness are not capable of mechanistic application. For example, economic regulation may be less precise than other forms of legislation because the entities affected by it are more apt to know what lines are drawn and more able to clarify uncertainties through inquiry or administrative proceedings. --- U.S. at ---- - ----, 102 S.Ct. at 1192. Civil legislation can be vaguer than criminal laws because "the consequences of imprecision are qualitatively less severe." Id. at ----, 102 S.Ct. at 1193. An intent requirement may mitigate vagueness problems, especially where the statutory defects involve notice more than arbitrary enforcement. Id. Finally vagueness is tested by more exacting standards when constitutionally protected rights are threatened-in such circumstances vagueness and overbreadth analysis are cognate.

Hoffman Estates also suggests that claims of due process problems (other than vagueness) or equal protection violations are not likely to succeed in a pre-enforcement challenge. In general, unless there is a fundamental right or suspect classification-or a pattern of enforcement that belies the apparent absence of either-legislation passes muster if it survives the relatively relaxed scrutiny of the "rational basis" test. No fundamental rights or suspect classifications are implicated by the

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terms of drug paraphernalia legislation, and the actual pattern of enforcement does not become relevant until there is a challenge to the legislation as applied. Id. at ----, n.9, 102 S.Ct. at 1192 n.9; ----, n.21, 102 S.Ct. at 1196, n.21. Nor is the specter of Fourth Amendment problems likely to influence the outcome of a facial challenge: until there is some concrete threat, there is no way of telling how serious the problems may be. Id. at ----, n.22, 102 S.Ct. at 1192, n.22.

We turn now to the task of analyzing the West Allis ordinance by using the techniques the Supreme Court applied in Hoffman Estates.

I. The West Allis and Hoffman Estates Ordinances Compared

The West Allis ordinance (reprinted in the Appendix) is drafted as a criminal statute, 2 which bans sales, offers to sell, dispensing, gifts, and displays of drug-related "instruments." 3 The ban is absolute on premises within 1,000 feet of a school; otherwise drug paraphernalia may be purveyed only in parts of premises which are not open to view by minors or to which minors are not admitted unless accompanied by a parent or guardian. Violation of the ordinance results in fines of $500 to $1,000 and costs of prosecution; a violator who cannot pay must serve a term not to exceed 90 days in the county jail.

The Hoffman Estates ordinance (set out in the Appendix to the Supreme Court's decision, --- U.S. at ----, 102 S.Ct. at 1194) imposes a flat ban on sales of drug paraphernalia to minors, 4 but its main thrust is to require that retailers who sell "any items, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal cannabis or drugs, as defined by Illinois Revised Statutes," obtain a license, at a cost of $150 annually, and keep detailed records of purchasers' identities. The penalty provision, applicable both to sales to minors and to failure to have the required license or keep proper records, calls for $10 to $500 fines, and each unlicensed day is a separate violation.

II. The Ordinance and Freedom of Speech

The district judge did not rest his decision in this case on possible interference with freedom of speech, and Hoffman Estates makes clear that such a basis for decision could not stand. Nothing in either ordinance directly infringes the plaintiffs' noncommercial speech-actual or symbolic-or chills the noncommercial speech rights of others. The Hoffman Estates ordinance did regulate the placement of certain literature and labeled items in shop displays, but the Supreme Court treated the regulation as having no impact on noncommercial speech. --- U.S. at ----, 102 S.Ct. at 1192. The West Allis ordinance has no such provision. The West Allis ordinance does use advertising-national, local, and by the person or business against whom enforcement is sought-as an indication of

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whether a particular "instrument" is "designed for use or intended for use" with drugs. 5 But advertising is commercial speech: Record Head Corporation alleges no interference with its own advertising and cannot prevail on a theory that other advertisers may be chilled. Id. at ----, 102 S.Ct. at 1192.

III. The Rigor of the Vagueness Test

As the Supreme Court has cautioned, the tests for vagueness are not mechanical exercises. A criminal ordinance like West Allis' is more closely examined than a civil one, because criminal penalties are more severe. The Supreme Court apparently viewed the Hoffman Estates ordinance as at least quasi-criminal, --- U.S. at ----, n.16, 102 S.Ct. at 1194, n.16. Vagueness is less tolerable in an ordinance of general applicability-West Allis' reaches noncommercial transactions by individuals as well as retail sales-than in economic regulation, which is directed at people who are assumed to have some expertise and some ability to demand clarification. 6 The Supreme Court clearly treated the Hoffman Estates ordinance as pure business regulation. Id. at ----, 102 S.Ct. at 1193. Impingement on a protected constitutional right will trigger greater scrutiny, but neither the West Allis nor the Hoffman Estates ordinance implicates freedom of speech, and no other constitutionally protected conduct is even arguably involved. The net result of this catalog is that, as criminal legislation not restricted to economic or business activity, the West Allis ordinance deserves a somewhat more searching examination than the Hoffman Estates provisions required.

IV. The Vagueness Test Applied

The difficulty that has plagued draftsmen of drug paraphernalia ordinances is how to control traffic in drug-related equipment without also proscribing wholly innocent conduct. Mirrors, spoons, pipes, and cigarette papers are all multiple-purpose items. A statute that has no ambiguities will reach only the most obvious items of drug paraphernalia, while a statute that casts a broader net may be too vague. Here both the paradigm Hoffman Estates ordinance, and the West Allis ordinance that we must measure by the Supreme Court's yardstick, have sought to limit vagueness problems by easing the sanctions imposed (Hoffman Estates' licensing fee) or limiting the scope...

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