Geiger v. City of Eagan, No. 79-1831

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore HEANEY and HENLEY, Circuit Judges, and SCHATZ; HEANEY; 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 intellig
Citation618 F.2d 26
PartiesRobin GEIGER, Individually and d/b/a Mak'n Magic, Appellant, v. CITY OF EAGAN; Leo Murphy, Mayor of the City of Eagan; Mark Parranto, Councilman for the City of Eagan; Tom Egan, Councilman for the City of Eagan; Jim Smith, Councilman for the City of Eagan; Ted Wachter, Councilman for the City of Eagan; Martin DesLauriers, Chief of Police for the City of Eagan, Appellees.
Docket NumberNo. 79-1831
Decision Date19 March 1980

Page 26

618 F.2d 26
Robin GEIGER, Individually and d/b/a Mak'n Magic, Appellant,
v.
CITY OF EAGAN; Leo Murphy, Mayor of the City of Eagan; Mark
Parranto, Councilman for the City of Eagan; Tom Egan,
Councilman for the City of Eagan; Jim Smith, Councilman for
the City of Eagan; Ted Wachter, Councilman for the City of
Eagan; Martin DesLauriers, Chief of Police for the City of
Eagan, Appellees.
No. 79-1831.
United States Court of Appeals,
Eighth Circuit.
Submitted Dec. 7, 1979.
Decided March 19, 1980.

Page 27

Michael L. Pritzker, Stroup, Goldstein, Jacobs, Jenkins & Pritzker, Chicago, Ill., for appellant; Gregory L. Rothnem, Thomas L. Steffens and Thomas B. Olson, Minneapolis, Minn., on brief.

Paul Hauge and Bradley Smith, Eagan, Minn., for appellees; Paul H. Hauge & Associates, P. A., Eagan, Minn., on brief.

David G. Johnson, MCLU Volunteer Atty., Prior Lake, Minn., and Linda Ojala, MCLU Legal Counsel, Minneapolis, Minn., amicus curiae.

Before HEANEY and HENLEY, Circuit Judges, and SCHATZ, District Judge. *

HEANEY, Circuit Judge.

This is an appeal from an order of the United States District Court for the District of Minnesota denying Robin Geiger's motion for a preliminary injunction. Geiger, owner of "Mak'n Magic," a store selling, among other things, pipes and smoking accessories, challenges the City of Eagan's Ordinance No. 71 entitled "An Ordinance Prohibiting the Sale, Transfer and Possession of Drug-Related Devices."

The challenged ordinance prohibits the "possession, sale, transfer or display for sale or transfer" of a "drug-related device," as defined by the ordinance. Violation of the ordinance is a misdemeanor punishable by a fine of up to $500.00, imprisonment up to ninety days, or both.

Geiger commenced the action on July 18, 1979, one day after the initial version of the ordinance was adopted by the Eagan City Council. 1 On July 20, 1979, the district court entered an order temporarily restraining enforcement of the ordinance pending a hearing on a motion for a preliminary injunction. On August 29, 1979, the district court denied the request for preliminary injunctive relief after oral argument and submission of memoranda and affidavits but without an evidentiary hearing. Thereafter, Geiger's attorney took depositions of Geiger, Eagan's mayor and two Eagan police officers in order to demonstrate the ambiguity of the definition of "drug-related devices." The deponents disagreed whether some of the objects shown to them were permitted by the ordinance. Geiger then requested a rehearing based on the depositions. Rehearing was denied, but an order enjoining enforcement of the challenged ordinance pending an expedited appeal to this Court was granted.

In denying Geiger's request for a preliminary injunction, the district court considered both of the tests discussed by this Court in Fennell v. Butler, 570 F.2d 263 (8th Cir. 1978). It held that under either test, the request for injunctive relief should be denied. 2 We disagree. In our view, Geiger has met the standards for the issuance of injunctive relief under either test articulated in Fennell.

Page 28

We consider the ordinance unconstitutionally vague on its face. 3 The City of Eagan clearly has the power through a properly drawn ordinance to discourage the availability of drugs and the acceptance of drug use by prohibiting the sale of drug-related devices. 4 This is not such an ordinance.

The doctrine of vagueness is embodied in the due process clauses of the Fifth and Fourteenth Amendments. Due process incorporates notions of fair notice or warning. Smith v. Goguen, 415 U.S. 566, 572, 94 S.Ct. 1242, 1246, 39 L.Ed.2d 605 (1974). As the Supreme Court said in Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926):

(A) statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.

Furthermore, when a criminal statute is involved,

(n)o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.

Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939).

Due process has two requirements: that laws provide notice to the ordinary person of what is prohibited and that they provide standards to law enforcement officials to prevent arbitrary and discriminatory enforcement.

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...

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33 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
    ...U.S. ----, 101 S.Ct. 2998, 69 L.Ed.2d 384 (1981); High Ol' Times, Inc. v. Busbee, 621 F.2d 135 (5th Cir. 1980); Geiger v. City of Eagan, 618 F.2d 26 (8th Cir. 2 The full text of the ordinance is set forth in the District Court's opinion. 507 F.Supp. at 567-70. 3 The life of the temporary re......
  • Casbah, Inc. v. Thone, Nos. 80-1925
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 9, 1981
    ...District Judge for the District of Nebraska. 3 See, e. g., statutes which have been held unconstitutional in Geiger v. City of Eagan, 618 F.2d 26 (8th Cir. 1980); Record Head Corp. v. Sachen, 498 F.Supp. 88 (E.D.Wis.1980); Magnani v. City of Ames, Ia., 493 F.Supp. 1003 (S.D.Ia.1980); Music ......
  • Franza v. Carey, No. 80 Civ. 4311 (JMC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 17, 1981
    ...the availability of drugs and the acceptance of drug use by prohibiting the sale of drug-related devices." Geiger v. City of Eagan, 618 F.2d 26, 28 (8th Cir. 1980); accord, Brache v. County of Westchester, supra, 507 F.Supp. at 581; New England Accessories Trade Ass'n v. Browne, 502 F.Supp.......
  • Kansas Retail Trade Co-op. v. Stephan, Civ. No. 81-1265.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • September 18, 1981
    ...in most settings are harmless and quite legal, such as mirrors, spoons, smoking pipes and clips. See, e. g., Geiger v. City of Eagan, 618 F.2d 26 (8th Cir. 1980); Record Head Corp. v. Sachen, 498 F.Supp. 88 (E.D.Wis.1980); Magnani v. City of Ames, Iowa, 493 F.Supp. 1003 (S.D. Iowa 1980); Mu......
  • Request a trial to view additional results
33 cases
  • Brache v. Westchester County, No. 1496
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 16, 1981
    ...U.S. ----, 101 S.Ct. 2998, 69 L.Ed.2d 384 (1981); High Ol' Times, Inc. v. Busbee, 621 F.2d 135 (5th Cir. 1980); Geiger v. City of Eagan, 618 F.2d 26 (8th Cir. 2 The full text of the ordinance is set forth in the District Court's opinion. 507 F.Supp. at 567-70. 3 The life of the temporary re......
  • Casbah, Inc. v. Thone, Nos. 80-1925
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 9, 1981
    ...District Judge for the District of Nebraska. 3 See, e. g., statutes which have been held unconstitutional in Geiger v. City of Eagan, 618 F.2d 26 (8th Cir. 1980); Record Head Corp. v. Sachen, 498 F.Supp. 88 (E.D.Wis.1980); Magnani v. City of Ames, Ia., 493 F.Supp. 1003 (S.D.Ia.1980); Music ......
  • Franza v. Carey, No. 80 Civ. 4311 (JMC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 17, 1981
    ...the availability of drugs and the acceptance of drug use by prohibiting the sale of drug-related devices." Geiger v. City of Eagan, 618 F.2d 26, 28 (8th Cir. 1980); accord, Brache v. County of Westchester, supra, 507 F.Supp. at 581; New England Accessories Trade Ass'n v. Browne, 502 F.Supp.......
  • Kansas Retail Trade Co-op. v. Stephan, Civ. No. 81-1265.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • September 18, 1981
    ...in most settings are harmless and quite legal, such as mirrors, spoons, smoking pipes and clips. See, e. g., Geiger v. City of Eagan, 618 F.2d 26 (8th Cir. 1980); Record Head Corp. v. Sachen, 498 F.Supp. 88 (E.D.Wis.1980); Magnani v. City of Ames, Iowa, 493 F.Supp. 1003 (S.D. Iowa 1980); Mu......
  • Request a trial to view additional results

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