Kansas Retail Trade Co-op. v. Stephan, Civ. No. 81-1265.

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Writing for the CourtRobert Stephan, Atty. Gen., Kansas Judicial Center, Topeka, Kan., for State of Kansas
Citation522 F. Supp. 632
PartiesKANSAS RETAIL TRADE COOPERATIVE; Jeffrey Rotter; Menagerie, Inc.; Mother Earth, Inc.; Donald Flesher; Argus, Inc.; Robert Miller; Capers Corner, Inc.; Ben Asner; Sgt. Peppers Parlour, Inc.; Bob Mitchell; Ken Williamson; American Highway, Inc.; Adrian Eakin; Anthony J. Cardarella; Steve Flack; Rocky Nickles; House of Sight & Sound, Ltd.; Tom Headlee; Jerry French; and Tom Dunn, Plaintiffs, v. Robert P. STEPHAN; Clark Owens; Michael J. Malone; Nick A. Tomasic; Dennis W. Moore; James R. Modrall; William R. Lorson; Gene M. Olander; Robert Socolossky; Richard E. Lamunyon; Richard R. Stanwix; Allan P. Meyers; Myron E. Scafe; Dwaine Kelsch; John Woody; Fred Howard, III; Alvin D. Johnson; John Carlin; and Joseph G. Shalinsky, Defendants.
Decision Date18 September 1981
Docket NumberCiv. No. 81-1265.

522 F. Supp. 632

KANSAS RETAIL TRADE COOPERATIVE; Jeffrey Rotter; Menagerie, Inc.; Mother Earth, Inc.; Donald Flesher; Argus, Inc.; Robert Miller; Capers Corner, Inc.; Ben Asner; Sgt. Peppers Parlour, Inc.; Bob Mitchell; Ken Williamson; American Highway, Inc.; Adrian Eakin; Anthony J. Cardarella; Steve Flack; Rocky Nickles; House of Sight & Sound, Ltd.; Tom Headlee; Jerry French; and Tom Dunn, Plaintiffs,
v.
Robert P. STEPHAN; Clark Owens; Michael J. Malone; Nick A. Tomasic; Dennis W. Moore; James R. Modrall; William R. Lorson; Gene M. Olander; Robert Socolossky; Richard E. Lamunyon; Richard R. Stanwix; Allan P. Meyers; Myron E. Scafe; Dwaine Kelsch; John Woody; Fred Howard, III; Alvin D. Johnson; John Carlin; and Joseph G. Shalinsky, Defendants.

Civ. No. 81-1265.

United States District Court, D. Kansas.

September 18, 1981.


522 F. Supp. 633
COPYRIGHT MATERIAL OMITTED
522 F. Supp. 634
James M. Smith, Denver, Colo., for plaintiffs

Robert Stephan, Atty. Gen., Kansas Judicial Center, Topeka, Kan., for State of Kansas.

MEMORANDUM AND ORDER

KELLY, District Judge.

The plaintiffs in this action pray for an order declaring facially unconstitutional Senate Substitute for House Bill No. 2020 (H.B. 2020), which imposes criminal penalties for the manufacture, sale or possession of certain items characterized as drug paraphernalia and simulated controlled substances. Federal jurisdiction for this action is based on 28 U.S.C. § 1343(3) & (4), in that plaintiffs claim under 42 U.S.C. § 1983 that the defendants' actions will violate their rights under the color of state law. The plaintiffs contend jurisdiction is also founded on 28 U.S.C. § 1331. The plaintiffs are composed of a merchants' cooperative, seven corporations, thirteen individuals, and a partnership. In their complaint they have named the Kansas Attorney General and the chiefs of police and the district and county attorneys where the plaintiffs do business. After oral argument on June 25, 1981, the Court denied the plaintiffs' request for a temporary restraining order. Seven days later, on July 2, the parties again appeared on the plaintiffs' request for a preliminary injunction. At this time the parties offered evidence, including testimony by the owners and managers of businesses possibly affected by H.B. 2020 and respective exhibits of possible "drug paraphernalia." At the close of the hearing the Court took the matter under advisement and requested additional legal briefs from the parties. After reviewing legal arguments and the most recent cases regarding this controversial matter, the Court again denies the plaintiffs' request for injunctive relief except for Section Five of H.B. 2020 involving advertising.

I. Background

At the heart of this case is the constitutional validity of the recent effort of the Kansas Legislature to control and diminish the use of illicit drugs by outlawing items used to ingest and process them and also publications encouraging their use. The Legislature's efforts culminated in the passage of H.B. 2020 which was signed by Governor John Carlin on April 17, 1981, and made effective on July 1, 1981. H.B. 2020 is almost identical to the Model State Drug Paraphernalia Act (Model Act) drafted by the U.S. Justice Department's Drug Enforcement

522 F. Supp. 635
Administration. Prior to the Model Act several state and local governments had adopted laws banning drug paraphernalia but most suffered from constitutional infirmities due to the difficulty in outlawing items which 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); Music Stop, Inc. v. City of Ferndale, 488 F.Supp. 390 (E.D.Mich.1980); Knoedler v. Roxbury Township, 485 F.Supp. 990 (D.N.J.1980). The Kansas Supreme Court recently upheld a municipal ordinance which prohibited the sale or display of items identified with the drug culture on premises open to minors. Cardarella v. City of Overland Park, 228 Kan. 698, 620 P.2d 1122 (1980)

Since the Model Act was drafted it has been adopted in various forms by several political units and challenges to it have generated three circuit court opinions, including the Tenth Circuit's decision in Hejira Corp. v. MacFarlane, 660 F.2d 1356, (10th Cir. 1981). In addition, there are several district court opinions construing Model Act and these cases also will be discussed.

The Kansas version of the Model Act, H.B. 2020, contains nine sections. Section One defines the key terms of the legislation and the most important one is "drug paraphernalia" itself. Subsection (c) defines drug paraphernalia as "all equipment, products and materials of any kind which are used or intended for use in `growing, processing or ingesting' into the human body a controlled substance in violation of the uniform controlled substances act." Subsection (c) goes on to state that "Drug paraphernalia shall include, but is not limited to," twelve groups of objects which could be used for cultivating, processing or ingesting a controlled substance. The last such group, Subsection (c)(12), is composed of a detailed list of devices for smoking and ingesting marijuana and cocaine.

Section Two of the Kansas Act, which is identical to the DEA's Model Act, sets out fourteen factors which "a court or other authority shall consider, in addition to all other logically relevant factors," in determining whether an item is drug paraphernalia.

Sections Three and Four of the Kansas Act are also identical to the Model Act. Section Three makes it a Class A misdemeanor to use or process to use any simulated controlled substance or drug paraphernalia. Section Four makes it a Class A misdemeanor to "deliver, possess with intent to deliver, manufacture with intent to deliver or cause to be delivered" within Kansas any simulated controlled substance or drug paraphernalia knowing "or under circumstances where one reasonably should know" that it will be used as drug paraphernalia with a controlled substance. However, delivery of drug paraphernalia in this state to a person under the age of eighteen is a Class E felony.

Section Five of the Kansas Act makes it a Class A misdemeanor to advertise the sale of drug paraphernalia within this state when the person placing the advertisement knows, or reasonably should know, that the item for sale is drug paraphernalia. Section Five is similar, though not identical, to the Model Act.

Section Six of the Kansas Act is not included in the Model Act. It makes illegal the delivery in this state of simulated controlled substances. Subsection (b) lists certain factors which would raise a presumption that a reasonable person would believe the material is a controlled substance.

Section Seven of H.B. 2020 provides the mechanism for seizure and civil forfeiture of all drug paraphernalia and simulated controlled substances. Finally, Section Eight allows the severability of unconstitutional sections of the Act so that valid portions can remain effective. The entire Kansas Act, H.B. 2020, is appended to this memorandum opinion for reference.

II. Plaintiffs' Contentions

In arguing H.B. 2020 is unconstitutional in its entirety, the plaintiffs make the following contentions:

522 F. Supp. 636

1. The plaintiffs contend the Kansas Act is so vague regarding what is drug paraphernalia that a person of common intelligence would not have fair notice of the criminal activity proscribed.

2. The plaintiffs also contend the Kansas Act's specific intent requirement in the definition of drug paraphernalia does not save the Act from unconstitutional vagueness.

3. The plaintiffs contend that an intent requirement based upon what "one reasonably should know" violates the Fifth Amendment due process clause in that it would allow prosecution based on either the intent of a third party or on a civil negligence theory.

4. In addition, the plaintiffs claim the Kansas Act also violates the Fourteenth Amendment in that it is too vague to guide law enforcement officers called upon to decide whether the Act has been violated.

5. The fourteen factors set out in Section Two of H.B. 2020, which are to be considered by the courts and other authorities in deciding whether an item is drug paraphernalia, are vague and overbroad and consequently would encourage arbitrary and discriminatory enforcement.

6. Section One, Subsection (12) creates a mandatory presumption that an item is drug paraphernalia without an intent requirement by stating that "`Drug paraphernalia' shall include ... objects used or intended for use in ingesting ... marijuana ... into the human body, such as: (A) Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens ...." The plaintiffs argue the "shall include" language creates a per se violation of the Kansas Act and therefore violates the Fifth Amendment due process requirement.

7. Lastly, the plaintiffs contend the criminal prohibition against advertising drug paraphernalia violates the First Amendment in that Section Five of the Kansas Act is geographically overbroad and unconstitutionally vague.

III. Preliminary Issues

Certain basic issues have been raised in almost all of the reported drug paraphernalia cases and have been resolved in the same manner. Moreover, the Tenth Circuit's decision in Hejira Corp. v. MacFarlane, 660 F.2d 1356, (10th Cir. 1981) is controlling here. The first such issue is whether the plaintiffs have standing to challenge in federal court the constitutionality of H.B. 2020.

The Court notes at the outset that the defendants do not claim the plaintiffs lack standing. In discussing the standing of the plaintiff "head shop" owners to raise constitutional objections to the Colorado drug paraphernalia law, the Tenth Circuit resolved this issue without difficulty:

The
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8 practice notes
  • U.S. v. Saffo, No. 99-6276
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 18, 2000
    ...should know" or similar standards had been upheld. See Stephan, 695 F.2d at 1346; see also Kansas Retail Trade Coop. v. Stephan, 522 F. Supp. 632, 639 (D. Kan. 1981), aff'd in part, rev'd in part, 695 F.2d 1343 (10th Cir. 1982) (relying on the fact that such standards have been upheld when ......
  • Moody v. Board of County Com'rs, No. 56774
    • United States
    • United States State Supreme Court of Kansas
    • April 5, 1985
    ...may raise the rights of interrelated persons when attacking the validity of an act on its face. Kansas Retail Trade Co-op v. Stephan, 522 F.Supp. 632, 636 (D.Kan.1981). In addition, there need not be an actual criminal prosecution underway for the case or controversy requirement to be met s......
  • State v. Dunn, Nos. 54902
    • United States
    • United States State Supreme Court of Kansas
    • April 29, 1983
    ...air-driven pipes; "(K) chillums; "(L) bongs; and "(M) ice pipes or chillers." [233 Kan. 414] In Kansas Retail Trade Co-op. v. Stephan, 522 F.Supp. 632, 639 (D.Kan.1981), aff'd in part, rev'd in part 695 F.2d 1343 (10th Cir.1982), it was held that in order to obtain a conviction under the st......
  • State v. Hughes, No. 63442
    • United States
    • United States State Supreme Court of Kansas
    • May 25, 1990
    ...such could be done without affecting the enforcement of the other provisions of the statute. See Kansas Retail Trade Co-op v. Stephan, 522 F.Supp. 632, 643 (D.Kan.1981), aff'd in part rev'd in part, 695 F.2d 1343 (10th Cir.1982). This procedure was proper under the severance clause of K.S.A......
  • Request a trial to view additional results
8 cases
  • U.S. v. Saffo, No. 99-6276
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • September 18, 2000
    ...should know" or similar standards had been upheld. See Stephan, 695 F.2d at 1346; see also Kansas Retail Trade Coop. v. Stephan, 522 F. Supp. 632, 639 (D. Kan. 1981), aff'd in part, rev'd in part, 695 F.2d 1343 (10th Cir. 1982) (relying on the fact that such standards have been upheld when ......
  • Moody v. Board of County Com'rs, No. 56774
    • United States
    • United States State Supreme Court of Kansas
    • April 5, 1985
    ...may raise the rights of interrelated persons when attacking the validity of an act on its face. Kansas Retail Trade Co-op v. Stephan, 522 F.Supp. 632, 636 (D.Kan.1981). In addition, there need not be an actual criminal prosecution underway for the case or controversy requirement to be met s......
  • State v. Dunn, Nos. 54902
    • United States
    • United States State Supreme Court of Kansas
    • April 29, 1983
    ...air-driven pipes; "(K) chillums; "(L) bongs; and "(M) ice pipes or chillers." [233 Kan. 414] In Kansas Retail Trade Co-op. v. Stephan, 522 F.Supp. 632, 639 (D.Kan.1981), aff'd in part, rev'd in part 695 F.2d 1343 (10th Cir.1982), it was held that in order to obtain a conviction under the st......
  • State v. Hughes, No. 63442
    • United States
    • United States State Supreme Court of Kansas
    • May 25, 1990
    ...such could be done without affecting the enforcement of the other provisions of the statute. See Kansas Retail Trade Co-op v. Stephan, 522 F.Supp. 632, 643 (D.Kan.1981), aff'd in part rev'd in part, 695 F.2d 1343 (10th Cir.1982). This procedure was proper under the severance clause of K.S.A......
  • Request a trial to view additional results

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