Kansas Retail Trade Co-op. v. Stephan, 81-2162

• Decision Date: 15 December 1982
• Docket Number: No. 81-2162,81-2162
• Citation: 695 F.2d 1343
• Parties: KANSAS RETAIL TRADE COOPERATIVE, et al., Appellants, v. Robert T. STEPHAN, et al., Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1343

695 F.2d 1343

KANSAS RETAIL TRADE COOPERATIVE, et al., Appellants, v. Robert T. STEPHAN, et al., Appellees.

No. 81-2162.

United States Court of Appeals Tenth Circuit.

Dec. 15, 1982.

James M. Smith, Denver, Colo., for appellants.

James E. Flory, Deputy Atty. Gen., Topeka, Kan. and Neil R. Shortlidge, First Asst. City Atty., Overland Park, Kan. (Robert T. Stephan, Atty. Gen. of Kansas, Topeka, Kan., and Phillip L. Harris, City Atty. and James L. Robinson, Asst. City Atty., Overland Park, Kan., with them on the brief), for appellees.

Before SETH, Chief Judge, and HOLLOWAY and DOYLE, Circuit Judges.

DOYLE, Circuit Judge.

This is a drug paraphernalia case between the plaintiffs, a trade cooperative of manufacturers, distributors and retailers of merchandise which is mainly drug paraphernalia. The law in Kansas is very nearly identical to the Model Act. The statute, H.B. 2020, regulates and controls the use and distribution of this drug paraphernalia. Named as defendants herein are the Kansas Attorney General, State's Attorney and the Chief of Police in each county in which a Kansas plaintiff is located.

The questions deal with the constitutionality of the statute. The law was to have become effective July 1, 1981. The Act prohibits the possession, use, manufacture or delivery of products classified as "drug paraphernalia." The violation of the statute constitutes a Class A misdemeanor, and the plaintiffs seek to have the statute declared facially unconstitutional. The products involved are pipes, clothing, objects d'art, jewelry, spoons and things of that kind. Because of the statute plaintiffs contend they are unable to sell merchandise upon which their business depends. They claim lost income in significant amounts, and that they have lost employees and customers.

The Act referred to is H.B. 2020. It defines the key terms including drug paraphernalia which is defined 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) of Section One defines drug paraphernalia as including, without limiting to, twelve groups of objects.

Section Two has a total of fourteen elements which are to be considered in making a determination as to whether or not an item is drug paraphernalia.

Sections Three and Four are identical to the Model Act. Section Three makes it a Class A misdemeanor to use or possess any simulated controlled substance or drug paraphernalia. Section Four makes it the same grade of crime 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.

Section Five makes it a crime to advertise the sale of drug paraphernalia within the state when the person placing the ad knows, or reasonably should know, that the item for sale is drug paraphernalia.

Section Six is not included in the Model Act. It makes it illegal to deliver simulated controlled substances.

Section Seven provides the mechanism for seizure and civil forfeiture of all drug paraphernalia and simulated controlled substances. Section Eight provides for the severability of unconstitutional sections of the Act.

The opinion of the trial court, 522 F.Supp. 632, upheld the entire Drug Paraphernalia Act, except for Section Five, having to do with advertising. It held that this was overbroad because it prohibits advertising in Kansas the sale of objects which are legal in other states. The court distinguished the Colorado Act which only prohibited advertisements promoting the sale of drug paraphernalia in Colorado. This was severed from the remainder of the Kansas Act so that these remaining sections will continue to be in effect.

We first consider the contention that the statute is vague and overbroad. The contention is that the definition of drug paraphernalia in the Act is so vague and overbroad that an ordinary person would not have fair notice of the criminal activity proscribed, and on that basis it should be held unconstitutional. Their further argument is that the specific intent requirement of the Act does not save the Act from unconstitutional vagueness.

The language in the Colorado Statute discussed in Hejira Corp. v. MacFarlane, 660 F.2d 1356 (10th Cir.1981), as compared to the language in the Kansas statute, adopted the reasoning that such language would always require proof of a possessor's or seller's intent. H.B. 2020 makes it necessary, in order to have a conviction, that a person possess, sell or manufacture an item with the intent that the item be drug paraphernalia. Since the person must actually intend that an item be drug paraphernalia he has notice of his criminal act and due process is satisfied.

We are of the opinion that our decision in Hejira is dispositive of the present issue. The Kansas statute has eliminated the "designed for use" definition and merely says "used or intended for use". In Hejira we held that "in view of the fact that the definition of drug paraphernalia in the Colorado Drug Paraphernalia Act requires intent on the part of a violator, be he possessor or seller, * * * the statute is not unconstitutionally vague on its face with regard to the issue of subjective intent." 660 F.2d at 1367.

In Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., --- U.S. ----, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), it was held by the Supreme Court that unless the enactment implicates constitutionally protected conduct, it can only be invalidated if it is impermissibly vague in all of its applications. Id. 102 S.Ct. at 1191 and 1193. The language of the Court also was that, "the Court has recognized that a scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed." Id. 102 S.Ct. at 1193.

In recent days other courts have upheld state drug paraphernalia laws which have been challenged for vagueness. In Levas and Levas v. Village of Antioch, Ill., 684 F.2d 446 (7th Cir.1982), it was recognized that intent ameliorates the vagueness aspect when the intent feature plays a part. See also, The Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir.1981); Tobacco Accessories v. Treen, 681 F.2d 378 (5th Cir.1982); Florida Businessmen, v. City of Hollywood, 673 F.2d 1213 (11th Cir.1982) and New England Accessories Trade Association, Inc. v. Tierney, 691 F.2d 35 (1st Cir.1982).

A drug paraphernalia law has been found to be unconstitutional in only one circuit, Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916, 934-936 (6th Cir.1980) vacated and remanded, --- U.S. ----, 102 S.Ct. 2227, 72 L.Ed.2d 840 (1982). The position of the Sixth Circuit in that case was that scienter coupled with the definition of drug paraphernalia would obviate the vagueness problem, but the designed for use language was vague, overbroad and unseverable. We have already noted the Supreme Court reversed and remanded the case to be reconsidered in light of Hoffman Estates, supra, which held the designed for use standard to be sufficiently clear to cover at least some of the items the plaintiff sold.

The intent factor is contended to be invalid as it is contained in Section 4(a) which prohibits the delivery or manufacture of drug paraphernalia "knowing or under circumstances where one reasonably should know" that the item will be used to ingest, process or cultivate illicit drugs. The appellants contend that it would permit a person to be prosecuted based on the unknown intent of a third party. Since a seller or manufacturer cannot know what the ultimate recipient intends to do with an item, a seller or manufacturer cannot know whether his act is criminal. The Colorado statute had no similar language, so Hejira does not dispose of the question. The trial court interpreted Kansas H.B. 2020 to require that a prosecutor prove (1) that the defendant seller or manufacturer intended the item to be drug paraphernalia, and (2) that the defendant knew, or acted under circumstances where one reasonably should know, that the ultimate buyer would use the item as drug paraphernalia. Moreover, other criminal statutes with the "reasonably should know" standard have been upheld.

Other recent cases have addressed this question and are in accord with the trial court. New England Accessories Trade Association, Inc. v. Tierney, supra. There the court rejected an attack on the "reasonably should know" standard because "in view of the definitional section--which, as interpreted, renders an item in a seller's hands drug paraphernalia only if the seller intends it to be used with scheduled drugs--constructive knowledge of the buyer's purpose alone is not enough for conviction." At pages 36-37. In Casbah, Inc. v. Thone, supra, at 56, the court said that "seller must already have intended that the item be sold for drug use before his knowledge of its use by a buyer comes into play. * * * In these circumstances it is not unconstitutionally improper that the seller be required to open his eyes to the...