New England Accessories Trade Ass'n v. Tierney, Civ. 81-0360 P.

CourtUnited States District Courts. 1st Circuit. United States District Court (Maine)
Writing for the CourtGIGNOUX
Citation528 F. Supp. 404
PartiesNEW ENGLAND ACCESSORIES TRADE ASSOCIATION, et al., Plaintiffs, v. James E. TIERNEY, in his capacity as Attorney General for the State of Maine, et al., Defendants.
Decision Date07 December 1981
Docket NumberCiv. 81-0360 P.

528 F. Supp. 404

NEW ENGLAND ACCESSORIES TRADE ASSOCIATION, et al., Plaintiffs,
v.
James E. TIERNEY, in his capacity as Attorney General for the State of Maine, et al., Defendants.

Civ. 81-0360 P.

United States District Court, D. Maine.

December 7, 1981.


528 F. Supp. 405

Richard S. Emerson, Jr., Portland, Me., James M. Smith, Denver, Colo., for plaintiffs.

528 F. Supp. 406

James W. Brannigan, Jr., Rufus E. Brown, Deputy Attys. Gen., William R. Stokes, Asst. Atty. Gen., Augusta, Me., Robert E. Miller, City Sol., Bangor, Me., for defendants.

MEMORANDUM OF OPINION AND ORDER OF THE COURT

GIGNOUX, Chief Judge.

This civil rights action pursuant to 42 U.S.C. § 1983 involves a challenge to the constitutionality of the so-called Maine Drug Paraphernalia Act, 17-A M.R.S.A. § 1111-A, as originally enacted and subsequently amended.1 Plaintiffs seek a declaratory judgment that the statute violates their constitutional rights, and an injunction restraining its enforcement. Jurisdiction is founded on 28 U.S.C. §§ 1331 and 1343(3) and (4).

Plaintiffs are a trade association whose members sell and deliver goods which allegedly may be proscribed by the Maine statute, and two distributors and four retailers of such goods. Defendants are the Attorney General and the Commissioner of Public Safety of the State of Maine; the District Attorneys of Cumberland, Penobscot and Androscoggin Counties, Maine; and the Chiefs of Police of the Cities of Portland, Bangor and Lewiston, Maine.

Trial on the merits has been advanced and consolidated with the hearing of the application for preliminary relief pursuant to Fed.R.Civ.P. 65(a)(2). An evidentiary hearing has been held, and the issues have been comprehensively briefed and argued by counsel.2 The following opinion contains the Court's findings of fact and conclusions of law as required by Fed.R. Civ.P. 52(a).3

I

The Maine Drug Paraphernalia Act

The Maine Drug Paraphernalia Act is patterned closely after the Model Drug Paraphernalia Act, which was drafted by the Drug Enforcement Administration of the United States Department of Justice to serve as a model for state and local legislation. The model act is controversial, and has been the subject of litigation throughout the country.4

528 F. Supp. 407

The present Maine Act, a copy of which is appended to this opinion, contains nine sections. The first three sections define "drug paraphernalia." Section 1 defines "drug paraphernalia" as "all equipment, products and materials of any kind which are used or intended for use" in connection with a scheduled drug.5 This general definition is followed by a long list of examples of items, Section 1(A)-(K), which, when so used or intended for such use, may constitute drug paraphernalia. Section 2 of the statute specifically exempts from the definition of drug paraphernalia hypodermic apparatus. Section 3(A)-(N) sets forth 14 factors which "a court or other authority should consider, in addition to all other logical relevant factors," in "determining whether an object is drug paraphernalia."

Following the definition of "drug paraphernalia," the remaining six sections of the Act define the substantive criminal offenses and sanctions. Section 4 makes it unlawful for any person to "use, or to possess with intent to use," drug paraphernalia. Section 5 makes it unlawful for any person to "traffick in or furnish drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used" in connection with a scheduled drug. Section 6 makes it unlawful for any person to "place in any newspaper, magazine, handbill or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects intended for use as drug paraphernalia." Sections 7 and 8 prescribe the civil and criminal penalties for violations of the statute. Section 9 empowers the State to confiscate as contraband any drug paraphernalia possessed in violation of the statute.

II

Plaintiffs attack the constitutionality of the Maine statute on three principal grounds. They contend: (1) that the statute is impermissibly vague and overbroad, in violation of the Due Process Clause of the Fourteenth Amendment; (2) that Section 1(A)-(K) of the Act creates a mandatory presumption that the examples listed therein are drug paraphernalia, in violation of the Due Process Clause; (3) that Section 6 of the Act infringes their free speech rights, in violation of the First Amendment. Since the issues thus presented have been exhaustively discussed in the numerous cases considering the constitutionality of the model act, this Court's discussion will not be extended. Concurring with the reasoning of those cases which have upheld the act's constitutionality, the Court concludes that plaintiffs' constitutional challenges must be rejected.

A.

Vagueness and Overbreadth

Plaintiffs' primary contention is that, on its face, the Maine statute is unconstitutionally vague and overbroad.

528 F. Supp. 408

In Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972), the Supreme Court articulated the basis for the vagueness doctrine:

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. 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 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. (Footnotes omitted).

A statute, therefore, must provide (1) fair notice of what is forbidden and (2) clear standards for enforcement. Id.

With a single exception, the Court concludes that the challenged language in the Maine statute is not impermissibly vague.

1. "Intended for Use"

Section 1 of the statute defines "drug paraphernalia" as anything that is "used or intended for use" in producing or consuming a scheduled drug in violation of Maine's controlled substance laws.6 Plaintiffs raise two separate vagueness challenges to the phrase "intended for use." First, they argue that the phrase is impermissibly vague because the statute fails to indicate whose intent is relevant; it might, for example, permit the prosecution of an innocent seller of a multi-use item if the buyer intends to use that item with a controlled substance.7 This Court cannot accept plaintiffs' interpretation of the statutory language. A fair reading of the Act as a whole indicates that the relevant intent can only be that of the person charged with having violated the statute. Accord, The Casbah, Inc. v. Thone, 651 F.2d 551, 559 (8th Cir. 1981); Hejira Corp. v. J.D. MacFarlane, 660 F.2d 1356 at 1367 (10th Cir. 1981); Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916, 928-29 (6th Cir. 1980), vacated and remanded, 451 U.S. 1013, 101 S.Ct. 2998, 69 L.Ed.2d 384 (1981); New England Accessories Trade Association v. City of Nashua, Civ. No. 80-350-D (D.N.H. Dec. 8, 1980); New England Accessories Trade Association v. Browne, 502 F.Supp. 1245, 1251 (D.Conn.1980); Tobacco Accessories and Novelty Craftsmen Merchants Association v. Treen, 501 F.Supp. 168, 169-70 (E.D.La. 1980); Mid-Atlantic Accessories Trade Association v. Maryland, 500 F.Supp. 834, 844 (D.Md.1980); Delaware Accessories Trade Association v. Gebelein, 497 F.Supp. 289, 291-93 (D.Del.1980). But see Weiler v. Carpenter, 507 F.Supp. 837, 842-43 (D.N.M. 1981); General Stores, Inc. v. City of Albuquerque, No. 81-0027-M Civil, slip op. at 4 (D.N.M. Mar. 23, 1981); The Town Tobacconist v. Degnan, No. C-2198-80, slip op. at 6 (N.J.Super.Ct., Middlesex Co. Mar. 12, 1981); Indiana Chapter (NORML) v. Sendak, No. TH 75-142-C, slip op. at 14-15 (S.D.Ind. Feb. 4, 1980).

Plaintiffs' second contention is that the concept of "intent" is itself ambiguous; it might signify either mere awareness of a likelihood of the result, or a conscious desire for that result to occur. See United States v. Bailey, 444 U.S. 394, 404, 100 S.Ct. 624, 631, 62 L.Ed.2d 575 (1980). There is no substance to this argument. The Maine Drug Paraphernalia Act is a part of the Maine Criminal Code, 17-A M.R.S.A. Section 10 of the Code contains the following

528 F. Supp. 409
definition of "intentionally": "A person acts intentionally with respect to a result of his conduct when it is his conscious object to cause such a result." 17-A M.R.S.A. § 10(1)(A). Section 2 of the Code makes clear that the word "intentionally" and its variants, wherever used in the Code, have the meaning set forth in Section 10. 17-A M.R.S.A. § 2(15). Plainly, the concept of "intent" in the Maine Drug Paraphernalia Act is not, as plaintiffs contend, impermissibly vague

2. Factors Relevant to Determining Drug Paraphernalia

Plaintiffs next challenge the list of fourteen factors, set forth in Section 3(A)-(N) of the Act, which are to be considered by a court or other authority in determining whether an object is "drug paraphernalia." Plaintiffs argue that these enforcement guidelines are vague and may lead to discriminatory enforcement. In addition, they attack each of the factors individually and present numerous hypotheticals showing that no single factor will necessarily provide an objective basis for enforcement authorities to infer the intent of the seller.

This argument wholly misconstrues the nature of the list of factors. The more sensible interpretation of the...

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3 practice notes
  • NL Industries, Inc. v. Gulf & Western Industries, No. 85-6039-K.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • August 7, 1986
    ...to apply, the plaintiff must allege "a conspiracy to commit a business tort which had foreseeable consequences in Kansas." Roussel, 528 F.Supp. at 404. Moreover, the allegations of a conspiracy must not be too conclusory or too unsupported to be given credence. In this case, the plaintiff c......
  • Tobacco Accessories and Novelty Craftsmen Merchants Ass'n of Louisiana v. Treen, No. 80-3854
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 29, 1982
    ...735 (N.D.Tex.1981); Stoianoff v. State of Montana, 529 F.Supp. 1197 (D.Mont.1981); New England Accessories Trade Ass'n v. Tierney, 528 F.Supp. 404 (D.Maine 1981); Nova Records, Inc. v. Sendak, 504 F.Supp. 938 (S.D.Ind.1980); New England Accessories Trade Association v. Browne, 502 F.Supp. 1......
  • New England Accessories Trade Ass'n, Inc. v. Tierney, No. 81-1886
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 28, 1982
    ...of the act the Maine Attorney General advanced and the lower court adopted. New England Accessories Trade Association v. Tierney, 528 F.Supp. 404 (D.Me.1981). Plaintiffs nevertheless contend the statute is unconstitutionally vague because the standard of intent is itself so vague that it pr......
3 cases
  • NL Industries, Inc. v. Gulf & Western Industries, No. 85-6039-K.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • August 7, 1986
    ...to apply, the plaintiff must allege "a conspiracy to commit a business tort which had foreseeable consequences in Kansas." Roussel, 528 F.Supp. at 404. Moreover, the allegations of a conspiracy must not be too conclusory or too unsupported to be given credence. In this case, the plaintiff c......
  • Tobacco Accessories and Novelty Craftsmen Merchants Ass'n of Louisiana v. Treen, No. 80-3854
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 29, 1982
    ...735 (N.D.Tex.1981); Stoianoff v. State of Montana, 529 F.Supp. 1197 (D.Mont.1981); New England Accessories Trade Ass'n v. Tierney, 528 F.Supp. 404 (D.Maine 1981); Nova Records, Inc. v. Sendak, 504 F.Supp. 938 (S.D.Ind.1980); New England Accessories Trade Association v. Browne, 502 F.Supp. 1......
  • New England Accessories Trade Ass'n, Inc. v. Tierney, No. 81-1886
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 28, 1982
    ...of the act the Maine Attorney General advanced and the lower court adopted. New England Accessories Trade Association v. Tierney, 528 F.Supp. 404 (D.Me.1981). Plaintiffs nevertheless contend the statute is unconstitutionally vague because the standard of intent is itself so vague that it pr......

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