Gasser v. Morgan, CV 80-G-0714-S.

• Decision Date: 10 September 1980
• Docket Number: No. CV 80-G-0714-S.,CV 80-G-0714-S.
• Parties: John GASSER, Individually and John Gasser d/b/a Mede, Inc. and Black Doggs, Plaintiff, v. Earl C. MORGAN, Individually and in his official capacity as District Attorney of the Tenth Judicial Circuit of Alabama; Charles A. Graddick, Individually and in his official capacity as Attorney General of the State of Alabama; and Fob James, Individually and in his official capacity as Governor of the State of Alabama, Defendants.
• Court: U.S. District Court — Northern District of Alabama

498 F. Supp. 1154

John GASSER, Individually and John Gasser d/b/a Mede, Inc. and Black Doggs, Plaintiff, v. Earl C. MORGAN, Individually and in his official capacity as District Attorney of the Tenth Judicial Circuit of Alabama; Charles A. Graddick, Individually and in his official capacity as Attorney General of the State of Alabama; and Fob James, Individually and in his official capacity as Governor of the State of Alabama, Defendants.

No. CV 80-G-0714-S.

United States District Court, N. D. Alabama, S. D.

September 10, 1980.

COPYRIGHT MATERIAL OMITTED

Judith S. Crittenden, Clark, James & Crittenden, Thomas B. Leonard, III, Civil Liberties Union of Alabama, Birmingham, Ala., for plaintiff.

Robert G. Cahill, Deputy Dist. Atty., Birmingham, Ala., for defendant Earl C. Morgan.

Rosa G. Hamlett, Asst. Atty. Gen., Montgomery, Ala., for defendants Graddick and James.

MEMORANDUM OPINION

GUIN, District Judge.

This case came on to be heard on the application for a preliminary injunction by the plaintiff, John Gasser, individually and John Gasser d/b/a Mede, Inc., and Black Doggs, and cross-motions for summary judgment by plaintiff and defendants. The court is of the opinion that Section 20-2-75 of the Code of Alabama 1975, as amended on May 23, 1980, is constitutional as interpreted by the court except the provisions making constructive knowledge criminal. Therefore, for the reasons stated herein, defendants' motion for summary judgment is granted except as to the constructive knowledge provisions, and plaintiff's motion for summary judgment is denied except that it is granted as to the constructive knowledge provisions. The application for injunction is denied except as to the constructive knowledge provisions. As to those provisions, a final injunction is granted.

The issue is the constitutionality of the Alabama drug paraphernalia statute, Section 20-2-75. The statute reads as follows:

Section 1. Section 20-2-75 of the Code of Alabama 1975, is hereby amended to read as follows:

"(1) `Drug related object' means any instrument, device, or object which is designed, produced or marketed as useful primarily for one or more of the following purposes:

"(A) To inject, ingest, inhale, or otherwise introduce into the human body marijuana or a controlled substance;

"(B) To enhance the effect on the human body of marijuana or a controlled substance;

"(C) To test the strength, effectiveness, or purity of marijuana or a controlled substance;

"(D) To process or prepare for introduction into the human body marijuana or a controlled substance;

"(E) To conceal any quantity of marijuana or a controlled substance;

"(F) To contain or hold marijuana or a controlled substance while it is being introduced into the human body.

"(2) It shall be unlawful for any person or corporation, knowing the drug related nature of the object, to sell, lend, rent, lease, give, exchange, or otherwise distribute to any person any drug related object. It shall also be unlawful for any person or corporation, knowing the drug related nature of the object, to display for sale, or possess with the intent to distribute, any drug related object. Unless stated within the body of the advertisement or notice that the object that is advertised or about which information is disseminated is not available for distribution of any sort in Alabama, it shall be unlawful for any person or corporation, knowing the drug related nature of the object, to distribute or disseminate in any manner to any person any advertisement of any kind or notice of any kind which gives information, directly or indirectly, on where, or how, or from whom, or by what means any drug related object may be obtained or made. `Knowing' as used herein means either actual or constructive knowledge of the drug related nature of the object, and a person or corporation has constructive knowledge of the drug related nature of the object if he or it has knowledge of facts which would put a reasonable and prudent person on notice of the drug related nature of the object.

"(3) It shall be unlawful for any person or corporation, other than a licensed pharmacist or practitioner licensed to dispense legend drugs, to sell, lend, rent, lease, give, exchange, or otherwise distribute to any person a hypodermic syringe or needle designed or marketed primarily for human use. It shall be an affirmative defense that the hypodermic syringe or needle was marketed for a legitimate medical purpose.

"(4) It shall be an affirmative defense that the person to whom the drug related object or advertisement or notice was distributed had a prescription from a licensed medical practitioner or psychiatrist for marijuana or the controlled substance for which the object is primarily intended to be used. It is also an affirmative defense that the drug related object was designed or marketed as useful primarily for veterinary or agricultural purposes.

"(5) For a first offense, any person or corporation which shall violate any provision of this section shall be guilty of a Class A misdemeanor. For a second offense, the defendant shall be guilty of a Class C Felony.

"(6) All instruments, devices, and objects which are distributed or possessed in violation of this section are hereby declared to be contraband and subject to forfeiture as provided for in Section 20-2-93 of the Code of Alabama 1975."

Section 2. The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.

Section 3. All laws or parts of laws which conflict with this act are hereby repealed.

Section 4. This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.

Prior to the filing of this action, plaintiff had been informed by vice and narcotics officers as well as defendant District Attorney Earl C. Morgan that plaintiff was selling articles they considered to be drug related within the meaning of Section 20-2-75, and plaintiff had been provided with a copy of the section by the officers.

Plaintiff contends that the Alabama drug paraphernalia statute is unconstitutional in that the language defining "drug related object" in Section 1 of the Alabama statute is overbroad and vague, and thus offends the due process clause of the fourteenth amendment. He further contends that the due process clause is violated because the statute does not satisfy the rational relationship test (since the statute arguably applies to innocent items and because it encourages selective enforcement), that the statute is overbroad and infringes upon speech protected by the first amendment, that the statute violates the rights of privacy guaranteed by the first and ninth amendments (since it affects the development and expression of one's interests, intellect, personality, and tastes), that the statute interferes with interstate commerce, and that it violates the equal protection clause of the fourteenth amendment.

Defendants cite well-recognized definitions of the words of the statute and argue that the statute gives adequate notice, since the Supreme Court has stated that absolute clarity is not required and that a requirement (express or implied) of specific intent or guilty knowledge can save an otherwise vague statute. Lastly, defendants contend that a merchant or supplier need not himself intend to use property illegally. His "guilty knowledge" of the illegal use his buyers will make of his merchandise is sufficient. Defendants cite United States v. Ragland, 306 F.2d 732 (4th Cir. 1962) and United States v. 2265 One-Gallon Paraffined Tin Cans, 260 F.2d 105 (5th Cir. 1958) in support of this last contention.

The cases cited by the plaintiff do not recognize the duty of the court to interpret the statute in a constitutional way. Courts may imply specific intent into a statute if such a construction is necessary to save it. Plaintiff's contentions will not stand, since this court does construe the statute as requiring specific intent.

Vagueness

This court will first discuss the vagueness issue. This is the contention argued the most forcefully.

Laws enacted by the legislature carry with them a presumption of constitutionality. Such a presumption may be rebutted by a finding that a law is so vague or overbroad that it provides no notice to reasonable citizens of common understanding and intelligence that an act is illegal. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). However, absolute precision in drafting laws is not demanded. Indeed, the Supreme Court has said:

A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation. But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.

Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330-31, 96 L.Ed. 367, 371 (1952) (citations omitted). The test of constitutionality is not precision in language but the existence of reasonable notice; that is, an "ascertainable standard of guilt." Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948). Furthermore, vagueness may be cured by an interpretation given to a statute by a court. United States v. Cooper Corporation, 312 U.S. 600, 61 S.Ct. 742, 85 L.Ed. 1071 (1941); Screws v. United States, 325 U.S. 91, 65...