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 |
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.
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.
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:
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).
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...
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