Brache v. Westchester County, No. 1496

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore KAUFMAN and NEWMAN; NEWMAN
Citation658 F.2d 47
PartiesRobert BRACHE and Edna Franza, Plaintiffs-Appellees, v. COUNTY OF WESTCHESTER, Alfred Delbello, Kenneth Hale, Samuel S. Yasgur, Thomas Delaney, Jerome Herlihy and Terrence Shames, Defendants, County of Westchester, Alfred Delbello, Kenneth Hale, Samuel S. Yasgur, and Thomas Delaney, Defendants-Appellants. ocket 81-7211.
Docket NumberNo. 1496,D
Decision Date16 October 1981

Page 47

658 F.2d 47
Robert BRACHE and Edna Franza, Plaintiffs-Appellees,
v.
COUNTY OF WESTCHESTER, Alfred Delbello, Kenneth Hale, Samuel
S. Yasgur, Thomas Delaney, Jerome Herlihy and
Terrence Shames, Defendants,
County of Westchester, Alfred Delbello, Kenneth Hale, Samuel
S. Yasgur, and Thomas Delaney, Defendants-Appellants.
No. 1496, Docket 81-7211.
United States Court of Appeals,
Second Circuit.
Argued June 3, 1981.
Decided Aug. 18, 1981.
Rehearing and Rehearing En Banc Denied Oct. 16, 1981.

Page 48

Jane Bilus Gould, Senior Asst. County Atty., White Plains, N.Y. (Samuel S. Yasgur, Westchester County Atty., Jonathan Lovett, Deputy County Atty., White Plains, N.Y., on brief), for defendants-appellants.

Richard Ware Levitt, New York City (Gerald B. Lefcourt, New York City, on brief), for plaintiffs-appellees.

Before KAUFMAN and NEWMAN, Circuit Judges, and GAGLIARDI, * District Judge.

NEWMAN, Circuit Judge:

In recent years several states and units of local government have enacted legislation to prohibit the sale of items used in connection with marijuana, cocaine, and other controlled substances. Many of the laws have encountered pre-enforcement challenges by merchants who claimed that the laws' definitions of "drug paraphernalia" were impermissibly vague in violation of the Due Process Clause of the Fourteenth Amendment. 1 Such challenges present troublesome issues on the merits and difficult threshold issues concerning standing and the appropriateness of equitable relief.

Page 49

This appeal involves a pre-enforcement challenge by two merchants to the constitutionality of Westchester County's drug paraphernalia ordinance. The District Court for the Southern District of New York (Charles S. Haight, Jr., Judge) declared the ordinance void for vagueness and permanently enjoined its enforcement. Brache v. County of Westchester, 507 F.Supp. 566 (S.D.N.Y.1981). We conclude that since the ordinance may constitutionally be applied to prohibit the plaintiffs' sale of certain items clearly within the ordinance's definition of "drug paraphernalia," the District Court should have refrained from adjudicating the validity of the ordinance as it may apply to their sale of other items. We therefore reverse.

I.

In May 1980, the Westchester County Board of Legislators amended the County's Consumer Protection Code to include a new Article IX entitled "Sale and Display of Drug Accessories." The ordinance makes it a misdemeanor for "any merchant or other person to knowingly sell, offer for sale, or display any cocaine spoon, marijuana pipe, hashish pipe, or any other drug-related paraphernalia." The ordinance defines "drug paraphernalia" as "all equipment, products and materials of any kind which are used, intended for use, or desi(gn)ed for use in ... growing, ... preparing, testing, ... (or) ingesting ... a controlled substance," including, but not limited to, more than a dozen specified items ranging from drug test kits to "ice pipes or chillers." 2

Plaintiffs Brache and Franza each own and operate a store in Westchester County. Each store includes a "smoking accessories" section stocked with some items that have no use other than to test or ingest controlled substances (e. g., "marijuana test kits," "free-base cocaine kits," and "toke-o-matic 20 bong hitters"), as well as other items that could be used for either lawful or unlawful purposes (e. g., pipes, spoons, and rolling papers). Shortly before the Westchester ordinance was to take effect, the plaintiffs brought this suit for declaratory and injunctive relief under 42 U.S.C. § 1983 (1976) against the County and the County officials responsible for enforcing the ordinance. The plaintiffs alleged that the ordinance is unconstitutionally vague on its face in that it fails to give fair notice of what constitutes "drug paraphernalia." To establish the existence of a live controversy with the defendants sufficient to satisfy the jurisdictional prerequisites of Article III of the Constitution, Brache alleged that he had been advised by local law enforcement officials that he would have to close his "smoking accessories" section once the ordinance went into effect, and Franza alleged that persons she recognized as plainclothes investigators had visited her "smoking accessories" section and asked questions about the uses of various items. Franza also alleged that her store had been named in the local press as being on the County's list of stores selling items that the ordinance would prohibit.

Upon receipt of the plaintiffs' papers, the District Court entered a temporary restraining order enjoining enforcement of the ordinance pending an evidentiary hearing on the plaintiffs' motion for a preliminary injunction. 3 At the hearing, which was consolidated with a trial on the merits, the plaintiffs admitted that at least some of the items they were selling could be used only for preparing, testing, or ingesting drugs and that these single-use items were plainly within the ordinance's definition of "drug paraphernalia." 4 On the basis of

Page 50

this testimony and other evidence, the District Court found that "both plaintiffs were knowingly selling certain items that unquestionably constituted 'drug paraphernalia' to drug users" and that "the Westchester ordinance would put them on notice, in respect of at least those items, that this was illegal." 507 F.Supp. at 573.

At that point both the defendants and the District Court encountered difficulty with the concepts of a challenge to a law on its face and a challenge to a law as applied. The defendants moved to dismiss the complaint, contending that since the ordinance could lawfully be applied to the plaintiffs' sale of single-use items, the plaintiffs lacked standing to challenge the validity of the ordinance "on its face." Id. The defendants relied on the rule that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960). The District Court responded that the validity of the ordinance as applied could not be determined for lack of a sufficient record concerning the defendants' "actual practices of enforcement" of the ordinance, and that a facial challenge was therefore appropriate. 507 F.Supp. at 573-74. By "facial challenge" the defendants and the Court appear to have meant a challenge to the ordinance as applied to all the plaintiffs' multi-use items, i. e., items that could be used either in connection with drugs or for lawful activities such as tobacco smoking. 5 Proceeding to engage in what it described as "facial analysis," the District Court examined the validity of the ordinance in light of "the full range of commercial activity that the ordinance forbids," and concluded that the ordinance provides an inadequate basis for either a retailer or a law enforcer to determine which multi-use items fall within its coverage. Id. at 574-81, 94 S.Ct. at 1247-1251. The Court declared the ordinance "impermissibly vague" and permanently enjoined its enforcement. Id. at 581, 94 S.Ct. at 1251.

II.

Analysis of the standing issues posed by the plaintiffs' pre-enforcement challenge will be clarified by first considering the difference between facial and as-applied challenges when raised as defenses to a criminal prosecution. A statute is unconstitutionally vague on its face only when it cannot validly be applied to any conduct. United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 319, 46 L.Ed.2d 228 (1975); Parker v. Levy, 417 U.S. 733, 755, 94 S.Ct. 2547, 2561, 41 L.Ed.2d 439 (1974); Smith v. Goguen, 415 U.S. 566, 583, 94 S.Ct. 1242, 1251, 39 L.Ed.2d 605 (1974) (White, J., concurring in the judgment, with whom Burger, C.J., and Blackmun and Rehnquist, JJ., concurred in rejecting vagueness challenge); United States v. Vuitch, 402 U.S. 62, 74, 91 S.Ct. 1294, 1300, 28 L.Ed.2d 601 (1971) (White, J., concurring); Coates v. City of Cincinnati, 402 U.S. 611, 617, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214 (1971) (White, J., dissenting). Facial vagueness occurs when a

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statute is expressed in terms of such generality that "no standard of conduct is specified at all." Coates v. City of Cincinnati, supra, 402 U.S. at 614, 91 S.Ct. at 1688. "Such a provision simply has no core." Smith v. Goguen, supra, 415 U.S. at 578, 94 S.Ct. at 1249 (emphasis in original). On the other hand, if a statute has a core meaning that can reasonably be understood, then it may validly be applied to conduct within the core meaning, and the possibility of such a valid application necessarily means that the statute is not vague on its face. Moreover, under the traditional rule of standing expressed in Raines v. United States, supra, a defendant to whom a statute may validly be applied may not avoid conviction by contending that the statute would be unconstitutional if applied to other persons or other situations. See United States v. Powell, supra; United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 597-98, 9 L.Ed.2d 561 (1963); Williams v. United States, 341 U.S. 97, 100-02, 71 S.Ct. 576, 578-79, 95 L.Ed. 774 (1951); Robinson v. United States, 324 U.S. 282, 285-86, 65 S.Ct. 666, 668, 89 L.Ed. 944 (1945); United States v. Wurzbach, 280 U.S. 396, 399, 50 S.Ct. 167, 169, 74 L.Ed. 508 (1930).

With these principles in mind, we turn to the context of pre-enforcement challenges, in which this case arises. To maintain a pre-enforcement challenge a plaintiff must demonstrate a genuine threat that the allegedly unconstitutional law is about to be enforced against him. Steffel v. Thompson, 415 U.S. 452, 458-59, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974); O'Shea v. Littleton, 414 U.S. 488, 493-99, 94 S.Ct. 669, 674-677, 38 L.Ed.2d 674 (1974); Boyle v....

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49 practice notes
  • Expressions Hair Design v. Schneiderman, Nos. 13–4533
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 29, 2015
    ...the possibility of such a valid application necessarily means that the statute is not vague on its face." Brache v. Westchester County, 658 F.2d 47, 51 (2d Cir.1981) ; see also Cunney v. Bd. of Trs. of Vill. of Grand View, 660 F.3d 612, 623 (2d Cir.2011).Here, Section 518 plainly has a "cor......
  • Cunney v. Bd. of Trs. of Grand View, No. 08–CV–9507 KMK.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 29, 2014
    ...Rock of Ages Corp. v. Sec'y of Labor, 170 F.3d 148, 156 (2d Cir.1999) (civil and criminal liability); Brache v. Westchester Cnty., 658 F.2d 47, 51 (2d Cir.1981) (criminal liability). But here, Plaintiff has not alleged that the vague ordinance implicated a similar liberty interest, and he h......
  • Jones v. Schneiderman, No. 11 Civ. 8215(KMW)(GWG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 30, 2013
    ...‘until a broader use of the [Ban] is actually initiated.’ ” Richmond Boro, 97 F.3d at 686 (quoting Brache v. Cnty. of Westchester, 658 F.2d 47, 52 (2d Cir.1981); citing Hoffman Estates, 455 U.S. at 503–04, 102 S.Ct. 1186). Accordingly, the Court dismisses Plaintiffs' facial vagueness challe......
  • Coalition of New Jersey Sportsmen, Inc. v. Whitman, No. Civ.A. 96-3037(JHR).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 31, 1999
    ...would otherwise be facially valid is not without precedent. See Richmond Boro Gun Club, 97 F.3d at 686; Brache v. County of Westchester, 658 F.2d 47, 52 (2d Cir.1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1643, 71 L.Ed.2d 874 (1982). Moreover, this conclusion is based upon principles of j......
  • Request a trial to view additional results
49 cases
  • Expressions Hair Design v. Schneiderman, Nos. 13–4533
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 29, 2015
    ...the possibility of such a valid application necessarily means that the statute is not vague on its face." Brache v. Westchester County, 658 F.2d 47, 51 (2d Cir.1981) ; see also Cunney v. Bd. of Trs. of Vill. of Grand View, 660 F.3d 612, 623 (2d Cir.2011).Here, Section 518 plainly has a "cor......
  • Cunney v. Bd. of Trs. of Grand View, No. 08–CV–9507 KMK.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 29, 2014
    ...Rock of Ages Corp. v. Sec'y of Labor, 170 F.3d 148, 156 (2d Cir.1999) (civil and criminal liability); Brache v. Westchester Cnty., 658 F.2d 47, 51 (2d Cir.1981) (criminal liability). But here, Plaintiff has not alleged that the vague ordinance implicated a similar liberty interest, and he h......
  • Jones v. Schneiderman, No. 11 Civ. 8215(KMW)(GWG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 30, 2013
    ...‘until a broader use of the [Ban] is actually initiated.’ ” Richmond Boro, 97 F.3d at 686 (quoting Brache v. Cnty. of Westchester, 658 F.2d 47, 52 (2d Cir.1981); citing Hoffman Estates, 455 U.S. at 503–04, 102 S.Ct. 1186). Accordingly, the Court dismisses Plaintiffs' facial vagueness challe......
  • Coalition of New Jersey Sportsmen, Inc. v. Whitman, No. Civ.A. 96-3037(JHR).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 31, 1999
    ...would otherwise be facially valid is not without precedent. See Richmond Boro Gun Club, 97 F.3d at 686; Brache v. County of Westchester, 658 F.2d 47, 52 (2d Cir.1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1643, 71 L.Ed.2d 874 (1982). Moreover, this conclusion is based upon principles of j......
  • Request a trial to view additional results

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