Garner v. White, II

• Decision Date: 25 January 1984
• Docket Number: No. 82-1864,No. II,II,82-1864
• Citation: 726 F.2d 1274
• Parties: Jack GARNER, d/b/a Discount Records and Peaches Records and Tapes; Cedric Neel and Jane Neel, d/b/a The Dream Merchant; Hannah Dampier, d/b/a The Hot Springy Dingy; Steve Miller, d/b/a The Turquoise Cove; The Record Rack, Inc., Pat Bristol, d/b/a The Funky Candle; Dale Hulsey, d/b/a The Funky Candle; Joe Frawley, d/b/a Armadillia's Hand; Jerry Hearn; Carroll Dee Bland; Adams Apple Distribution Co., and Music City Incense, Inc., Appellants, v. Frank WHITE, In His Official Capacity As Governor of The State of Arkansas; Steve Clark, In His Official Capacity As Attorney General of the State of Arkansas; Wilbur C. "Dub" Bentley, In His Official Capacity As Prosecuting Attorney, Sixth Judicial District; Kim Smith, In His Official Capacity As Prosecuting Attorney, Fourth Judicial District; Walter Wright, In His Official Capacity As Prosecuting Attorney, Eleventh Judicial District; Ron Fields, In His Capacity As Prosecuting Attorney, Twelfth Judicial District, All In The State of Arkansas, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1274

726 F.2d 1274

Jack GARNER, d/b/a Discount Records and Peaches Records and Tapes; Cedric Neel and Jane Neel, d/b/a The Dream Merchant Hannah Dampier, d/b/a The Hot Springy Dingy; Steve Miller d/b/a The Turquoise Cove; The Record Rack, Inc., Pat Bristol, d/b/a The Funky Candle; Dale Hulsey, d/b/a The Funky Candle No. II; Joe Frawley, d/b/a Armadillia's Hand Jerry Hearn; Carroll Dee Bland; Adams Apple Distribution Co., and Music City Incense, Inc., Appellants, v. Frank WHITE, In His Official Capacity As Governor of The State of Arkansas; Steve Clark, In His Official Capacity As Attorney General of the State of Arkansas; Wilbur C. "Dub" Bentley, In His Official Capacity As Prosecuting Attorney Sixth Judicial District; Kim Smith, In His Official Capacity As Prosecuting Attorney, Fourth Judicial District; Walter Wright, In His Official Capacity As Prosecuting Attorney, Eleventh Judicial District; Ron Fields, In His Capacity As Prosecuting Attorney, Twelfth Judicial District, All In The State of Arkansas, Appellees.

No. 82-1864.

United States Court of Appeals, Eighth Circuit.

Submitted April 15, 1983.

Decided Jan. 25, 1984.

R. David Lewis, argued, A. Wayne Davis, Little Rock, Ark., for appellants.

Steve Clark, Atty. Gen., Mary B. Stallcup, Asst. Atty. Gen., Little Rock, Ark., for appellees.

Before McMILLIAN and JOHN R. GIBSON, Circuit Judges, and WANGELIN, District Judge. ^*

JOHN R. GIBSON, Circuit Judge.

The issue before us is the constitutionality of two Arkansas drug paraphernalia statutes.

In February, 1981, Arkansas enacted Act 78 which criminalized the possession, use, sale and manufacture of drug paraphernalia. Ark.Stat.Ann. Secs. 82-2601(y), 2619(c), 2629(i) (1981). Retailers selling smoking devices and other objects potentially embraced by Act 78 brought a pre-enforcement facial challenge principally alleging that the Act was unconstitutionally vague and overbroad. The district court ¹ granted a preliminary injunction in anticipation of this court's decision in The 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 (1982), a case presenting a similar challenge to Nebraska's drug paraphernalia statute. In June, 1981, a second Arkansas statute, Act 946, became effective. Ark.Stat.Ann. Sec. 82-2644 (1981). It established criminal penalties for operating a drug paraphernalia business. Appellants filed an amended complaint alleging that Act 946 was also vague and overbroad. The district court expanded the preliminary injunction to include Act 946. Following our decision upholding the constitutionality of the Nebraska statute in The Casbah, supra, and the similar result reached by the Supreme Court with respect to a village drug paraphernalia ordinance in Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), the district court granted the defendants' motion for summary judgment and dissolved the preliminary injunction. On appeal, appellants reassert their claim that both Acts are unconstitutionally vague and overbroad. We affirm the district court's decision.

I.

Before examining the specific provisions of Acts 78 and 946, we outline the guiding principles of the overbreadth and vagueness doctrines.

The overbreadth doctrine permits litigants to challenge a law's facial validity on the ground that it unconstitutionally restricts the first amendment rights of third parties not before the court. Schaumburg v. Citizens for Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). The justification for this exception to the "traditional rules governing constitutional adjudication" is a "judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 610-12, 93 S.Ct. 2908, 2914-16, 37 L.Ed.2d 830 (1973). The applicability of the overbreadth doctrine depends in part on whether commercial or noncommercial speech is involved. A statute is unconstitutionally overbroad only if it reaches a "substantial amount" of noncommercial speech. Flipside, 455 U.S. at 494, 102 S.Ct. at 1191. The overbreadth doctrine is inapplicable to commercial speech--speech which does "no more than propose a commercial transaction," Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 385, 93 S.Ct. 2553, 2558, 37 L.Ed.2d 669 (1973), or that "relate[s] solely to the economic interests of the speaker and its audience," Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 561, 100 S.Ct. 2343, 2349, 65 L.Ed.2d 341 (1980). The overbreadth doctrine does not extend to commercial speech because the profit motive is thought to be sufficiently compelling to enable such speech to withstand the chilling effect of an overbroad statute. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771 n. 24, 96 S.Ct. 1817, 1830 n. 24, 48 L.Ed.2d 346 (1976).

A law is void for vagueness if it lacks "ascertainable standards of guilt," Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948), such that "men of common intelligence must necessarily guess at its meaning and differ as to its application," Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Vague laws offend due process because they violate the two essential values of fair warning and nondiscriminatory enforcement:

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 what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972) (footnotes omitted). A person whose actions are clearly proscribed by a statute cannot assert its potential vagueness as applied to other persons or circumstances unless the law restricts constitutionally protected conduct. ² Flipside, 455 U.S. at 495, 102 S.Ct. at 1192; United States v. Kirk, 534 F.2d 1262 (8th Cir.1976), cert. denied, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977) (citing United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975)). The law must be such that "no standard of conduct is specified at all," Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971) (emphasis added), and is therefore "impermissibly vague in all of its applications," Flipside, 455 U.S. at 497, 102 S.Ct. at 1193.

In a vagueness challenge, both the degree of clarity required and the relative importance of fair warning and discriminatory enforcement depend on the nature of the law in question. Laws regulating business behavior are held to a lesser standard of definiteness because businesses "can be expected to consult relevant legislation in advance of action." Flipside, 455 U.S. at 498, 102 S.Ct. at 1193 (footnote omitted). Consequently, the prospect of discriminatory enforcement of such a law is especially speculative in a pre-enforcement challenge, and therefore "the principle inquiry is whether the law affords fair warning of what is proscribed." Id. at 503, 102 S.Ct. at 1196. Greater specificity is required of laws imposing criminal penalties and those infringing on constitutionally protected rights. Id. at 498-99, 102 S.Ct. at 1193-94. In addition, a mens rea element may mitigate vagueness by insuring that those acting in good faith are not swept within a law's broad or ambiguous language. Id.; Boyce Motor Lines v. United States, 342 U.S. 337, 342, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952).

These principles must be applied to Acts 78 and 946 to determine the required degree of specificity. Both Acts regulate business behavior and impose criminal sanctions and, as determined in section II, infra, neither implicates constitutionally protected conduct. The Flipside ordinance was similarly situated; it applied to retail drug paraphernalia businesses and, although violations were punishable with civil fines, was labeled "quasi-criminal" due to the stigma of being branded a drug paraphernalia seller. Flipside, 455 U.S. at 499 & n. 16, 102 S.Ct. at 1194 & n. 16. One crucial difference, however, is that violations of Acts 78 and 946 are felonies punishable by imprisonment. ³ For this reason, we conclude that both Acts must satisfy a stricter test of specificity than that applied in Flipside. At the same time, we recognize that regardless of the severity of a law's criminal sanctions, a law regulating business behavior which does not restrict constitutionally protected conduct is not void for vagueness if it is sufficiently clear as applied to the conduct of the complaining party. Id. at 500, 102 S.Ct. at 1194.

II.

Act 78 ⁴ defines drug paraphernalia as "all equipment, products and materials of any kind which are used, intended for use, or designed for use" with controlled substances. Following this definition is a list of twelve examples. The last example in the list is the all-inclusive "objects used, intended for use, or designed for use" with marijuana, hashish or cocaine, followed by thirteen examples of such objects. The Act then lists fourteen relevant factors which should be considered in determining whether an object is drug paraphernalia. A violation of Act 78 occurs when a person (1) uses drug paraphernalia with controlled substances or (2) possesses drug paraphernalia with the...