Weiler v. Carpenter

• Decision Date: 11 February 1981
• Docket Number: Civ. No. 80-637-JB.
• Parties: Robert Forrest WEILER, d/b/a Pot Luck I, Plaintiff, v. Cleo CARPENTER, Jay R. Dickenson, Eddie Fowler, Tom Harden, Gordon Roswell and Pat Sandoval, Commissioners of the City of Clovis; Frank A. Murray, Jr., Mayor of the City of Clovis; and Nelson Worley, Chief of Police for the City of Clovis, Defendants.
• Court: U.S. District Court — District of New Mexico

507 F. Supp. 837

Robert Forrest WEILER, d/b/a Pot Luck I, Plaintiff, v. Cleo CARPENTER, Jay R. Dickenson, Eddie Fowler, Tom Harden, Gordon Roswell and Pat Sandoval, Commissioners of the City of Clovis; Frank A. Murray, Jr., Mayor of the City of Clovis; and Nelson Worley, Chief of Police for the City of Clovis, Defendants.

Civ. No. 80-637-JB.

United States District Court, D. New Mexico.

February 11, 1981.

Freedman, Boyd & Daniels, Nancy Hollander, Albuquerque, N. M., for plaintiff.

Harry L. Patton, City Atty., City of Clovis, Clovis, N. M., for defendants.

MEMORANDUM OPINION AND ORDER

BURCIAGA, District Judge.

THIS ACTION for declaratory relief is brought pursuant to 28 U.S.C. § 2201 and § 2202. At issue is the constitutionality of an ordinance enacted by the City of Clovis regarding drug paraphernalia. Plaintiff Robert Weiler, doing business as Pot Luck I hereinafter Pot Luck I, has leveled serious constitutional challenges to the ordinance asserting, in part, that the ordinance violates the First and Fourteenth Amendments to the United States Constitution. For reasons more fully set out below, the Court finds that the statute is unconstitutionally vague, overbroad, and violative of First Amendment freedoms.

A Federal District Court, more so than any other, must remain ever vigilant against constitutional encroachment. Social problems, serious as they are, cannot be solved by diminution of the rights guaranteed by our Constitution. To be sure, drug abuse is a problem of pressing proportions. Far more important, however, is continued allegiance to the historical guarantees of the Constitution. These guarantees have been long in the making, and cannot be abdicated or lessened to simplify solutions to social ills. All too often, erosion of basic principles begins with the loftiest of intentions. Such is the case the Court today decides.

Riddled with constitutional infirmities, the ordinance sacrifices constitutionality for expedience, safeguards for ease of enforcement, and fair notice for arbitrary opinion. Were the intrusion much less than is herein presented, the Court's task would be the same, for even the most minimal intrusion of human rights must undergo rigid scrutiny. Faithful adherence to constitutional principles, not short-term sacrifice for expeditious handling, is paramount. It is with this constitutional perception that the Court decides this case.

The ordinance enacted by the City of Clovis hereinafter referred to as the ordinance is among the progeny of the Model Drug Paraphernalia Act hereinafter the Model Act, drafted by the Drug Enforcement Administration of the United States Department of Justice.¹ It sets forth, at considerable length, definitions of "drug paraphernalia" and factors to be used in determining what constitutes "drug paraphernalia." Inter alia, the Model Act prevents use, possession with intent to use, manufacture, delivery, or advertisement of drug paraphernalia under certain circumstances. Penalty sections are present, along with a civil forfeiture and severability provision.

As expected and intended, state and local governments across the country began to enact ordinances based in whole or in part on the Model Act. These enactments have been everywhere subject to constitutional challenge, with differing results among the Federal District Courts. At the time of this opinion, the one Circuit Court of Appeals that has dealt with the issue held a local "drug paraphernalia" ordinance unconstitutional. Record Revolution v. City of Parma, 638 F.2d 916 (6th Cir. 1980).

The factual and procedural history of this case is simple. The City of Clovis enacted an ordinance, No. 1150-80, based on the Model Act.² Pot Luck I is a retail business within the City of Clovis, and routinely retails a great many of the items that the ordinance would define as "drug paraphernalia." Pot Luck I would be a major, if not the sole, recipient of the ordinance's excesses.

Confronted with the ordinance, Pot Luck I faced two options: close the business and remove its inventory, or remain in business, facing criminal prosecution and forfeiture of property. Pursuant to Fed.R.Civ.P. 65, Pot Luck I sought a temporary restraining order and a preliminary injunction against the ordinance. This Court issued a temporary restraining order on August 4, 1980, restraining the City of Clovis from enforcing the ordinance. Oral argument was heard on August 12, 1980, resulting in the Court's issuing a preliminary injunction against enforcement of the ordinance. At that time, the Court noted the substantial probability that the ordinance would be found to violate the Fourteenth Amendment to the United States Constitution. By recent stipulation of the parties, the trial on the merits was consolidated with the preliminary injunction hearing of August 12, 1980. Both parties agree that all exhibits, testimony, and pleadings up to the date of that hearing constitute the entire record of this matter. This stipulation brings the case to a posture where declaratory relief is appropriate. The Court now turns to an analysis of the ordinance.

By its clear terms, the City of Clovis ordinance seeks to make criminal virtually all conduct related to its definition of "drug paraphernalia." Section 1 of the ordinance reads in part as follows:

Section 1. Definition. The term "drug paraphernalia" means all equipment, products and materials of any kind which are used, intended for use, or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance as defined in the Controlled Substances Act (§§ 30-31-1 to 30-31-40, NMSA 1978 as the same now exists or as the same may be from time to time amended hereafter). It includes, but is not limited to:

(1) Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived;

(2) Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances;

. . . . .

(7) Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining marijuana;

(8) Blenders, bowls, containers, spoons and mixing devices used, intended for use, or designed for use in compounding controlled substances;

(9) Capsules, balloons, envelopes and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances;

(10) Containers and other objects used, intended for use, or designed to use in storing or concealing controlled substances;

(11) Hypodermic syringes, needles and other objects used, intended for use, or designed for use in parenterally injected controlled substances into the human body.

(12) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body such as:

(a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;

(b) Water pipes;

(c) Carburetion tubes and devices;

(d) Smoking and carburetion masks;

(e) Roach clips: meaning objects used to hold burning material such as a marijuana cigarette, that has become too small or too short to be held in the hand;

(f) Minature cocaine spoons and cocaine vials;

(g) Chamber pipes;

(h) Caruretor pipes;

(i) Electric pipes;

Following this definitional list, the second part of Section 1 sets out fourteen factors a "court or other authority should consider, in addition to all other logically relevant factors," "in determining whether an object is `drug paraphernalia.'" Highlights of these factors include statements by an owner or anyone in control of the object regarding its use, prior convictions, advertising on both the local and national level, and any "legal" uses an object may have. The sixth listed factor deserves independent citation.

(6) Direct or circumstantial evidence of the intent of an owner, or if anyone in control of the object, to deliver it to persons who he knows, or should reasonably know, intend to use the object to facilitate a violation of this Act; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this Act should not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;

Section 2 provides a penalty for possession of "drug paraphernalia"; Section 3 provides a penalty for manufacture or delivery of "drug paraphernalia"; Section 4 bans advertisement of "drug paraphernalia"; Section 4A provides for civil forfeiture of "drug paraphernalia"; and Section 5 anticipates unconstitutionality by providing for severability of any portion of the ordinance held invalid.

The Due Process Clause of the Fourteenth Amendment requires that a law be neither vague nor overbroad. Commendable though its purpose be, a criminal enactment must not violate these constitutional principles. The requirement that a law not be vague means that a criminal enactment must be sufficiently definite so as to provide adequate notice to a person of ordinary intelligence that his contemplated conduct is illegal, for

"no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v. Harris, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954).

To be constitutional, therefore, the vagueness doctrine requires that an ordinance give persons with common intelligence notice of two criteria: the persons covered by the ordinance and...