Casbah, Inc. v. Thone, Nos. 80-1925

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore HENLEY; HENLEY; Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know w
Citation651 F.2d 551
PartiesThe 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.
Docket Number80-2033,Nos. 80-1925
Decision Date09 July 1981

Page 551

651 F.2d 551
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.
Submitted Nov. 14, 1980.
Decided June 8, 1981.
Rehearing and Rehearing En Banc Denied July 9, 1981.

Page 554

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

Page 555

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

A. 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.

B. 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

Page 556

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.

C. 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).

Page 557

D. 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 conclusion that the element of intent saves the Nebraska statute from unconstitutional vagueness. On each matter, after careful consideration, we reach a different conclusion from that of the Sixth Circuit, the only other...

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68 practice notes
  • Brache v. Westchester County, No. 1496
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 16, 1981
    ...the United States District Court for the Southern District of New York, sitting by designation. 1 See, e. g., The Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir. 1981); Hejira Corp. v. MacFarlane, 660 F.2d 1356, (10th Cir. 1981); The Flipside, Hoffman Estates, Inc. v. Village of Hoffman Estat......
  • US v. Schneiderman, No. 90 Cr. 0656 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 29, 1991
    ...have withstood multiple challenges. See, e.g., Levas & Levas v. Village of Antioch, 684 F.2d 446 (7th Cir.1982); Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir.1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 Additionally, the Supreme Court upheld an ordinance requiring busi......
  • New England Accessories Trade Ass'n v. Tierney, Civ. 81-0360 P.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • December 7, 1981
    ...that the relevant intent can only be that of the person charged with having violated the statute. Accord, The Casbah, Inc. v. Thone, 651 F.2d 551, 559 (8th Cir. 1981); Hejira Corp. v. J.D. MacFarlane, 660 F.2d 1356 at 1367 (10th Cir. 1981); Record Revolution No. 6, Inc. v. City of Parma, 63......
  • State v. Huntley
    • United States
    • Supreme Judicial Court of Maine (US)
    • March 6, 1984
    ...Hollywood, 673 F.2d 1213, 1219 (11th Cir.1982); Hejira Corp. v. MacFarlane, 660 F.2d 1356, 1366-67 (10th Cir.1981); Casbah, Inc. v. Thone, 651 F.2d 551, 559 (8th Cir.1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982); Record Revolution No. 6, Inc. v. City of Parma, 63......
  • Request a trial to view additional results
68 cases
  • Brache v. Westchester County, No. 1496
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 16, 1981
    ...the United States District Court for the Southern District of New York, sitting by designation. 1 See, e. g., The Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir. 1981); Hejira Corp. v. MacFarlane, 660 F.2d 1356, (10th Cir. 1981); The Flipside, Hoffman Estates, Inc. v. Village of Hoffman Estat......
  • US v. Schneiderman, No. 90 Cr. 0656 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 29, 1991
    ...have withstood multiple challenges. See, e.g., Levas & Levas v. Village of Antioch, 684 F.2d 446 (7th Cir.1982); Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir.1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 Additionally, the Supreme Court upheld an ordinance requiring busi......
  • New England Accessories Trade Ass'n v. Tierney, Civ. 81-0360 P.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • December 7, 1981
    ...that the relevant intent can only be that of the person charged with having violated the statute. Accord, The Casbah, Inc. v. Thone, 651 F.2d 551, 559 (8th Cir. 1981); Hejira Corp. v. J.D. MacFarlane, 660 F.2d 1356 at 1367 (10th Cir. 1981); Record Revolution No. 6, Inc. v. City of Parma, 63......
  • State v. Huntley
    • United States
    • Supreme Judicial Court of Maine (US)
    • March 6, 1984
    ...Hollywood, 673 F.2d 1213, 1219 (11th Cir.1982); Hejira Corp. v. MacFarlane, 660 F.2d 1356, 1366-67 (10th Cir.1981); Casbah, Inc. v. Thone, 651 F.2d 551, 559 (8th Cir.1981), cert. denied, 455 U.S. 1005, 102 S.Ct. 1642, 71 L.Ed.2d 874 (1982); Record Revolution No. 6, Inc. v. City of Parma, 63......
  • Request a trial to view additional results

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