Headshop laws --When is a pipe a bong? Challenges abound to state laws

By ELAINE S. POVICH, United Press International   |   April 12, 1981
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Scene 1: A high school student wanders into a downtown shop, glances around at the t-shirts and posters for sale, then buys a pipe and walks out.

Scene 2: A college professor ambles into a shopping center store, looks over the aromatic tobaccos and fancy humidors, then buys a pipe and walks out.

In which scene has an illegal act taken place?

In an increasing number of states and localities, the high school student and his merchant have broken laws against the sale of 'drug paraphernalia.' The pipe is considered a 'bong,' meant to be used with marijuana.

Efforts to curb the spread of so-called 'headshops,' those which specialize in items designed for use with illegal drugs, have led to passage of laws outlawing the items themselves. Some of the laws apply only to juveniles, others to everyone. Some offenses are punishable by fines, others by jail.

But the laws are being challenged in every part of the United States. Opponents insist the statutes are unconstitutionally vague because they prohibit items which have other, legal, uses. Backers are equally vocal in maintaining the laws are aimed at clearly definable instruments.

At least four U.S. Circuit courts have under consideration cases which deal with the paraphernalia, and the U.S. Supreme Court is expected to get a case very soon from the 6th Circuit involving a statute in some Cleveland suburbs.

The federal Drug Enforcement Administration has drafted a model act against drug paraphernalia which is now being utilized in most places. Prior to the writing of this model, the laws were enacted haphazardly and in most cases were thrown out by courts as unconstitutional.

Harry Myers, the DEA attorney who drafted the model act, is positive that his work is constitutional and enforceable.

He bases his belief on similar federal paraphernalia statutes such as those which outlaw equipment used to build a still, to print counterfeit money or to conduct an illegal gambling operation.

Myers notes that in each of these cases the equipment itself is not illegal, but the intent to use that equipment in an illegal activity is.

'Hey! it's not a new problem, is it,' he said. 'It became clear that from the entire structure of federal law that a statute can be drafted for the outlawing of drug paraphernalia. We have a definition at least as precise as 110 other federal statutes.'

'Simple possession of paraphernalia is not a crime, it must be combined with a provable intent to violate the drug law,' he said.

Attorney Fred Joseph, who represents the Mid-Atlantic Accessory Trade Association, a group of accessory dealerships, maintains the 'intent' portions of the law are not adequate protection of constitutional rights.

'In essense this is a (law) aimed at ridding the community of certain kinds of businesses,' he said in an interview. 'A spoon sold at a supermarket may have no criminal significance whatsoever, but that same spoon sold at another type of store may be labeled a cocaine spoon and therefore be criminal.'

Joseph's theory was reinforced in January with the passage of an anti-drug paraphernalia law in Keene, N.H., which has only one 'head shop.' City officials said they would give that store owner time to remove certain items from his shelves.

Myers and others who back the paraphernalia laws say there are plenty of safeguards in the statutes to guard against random implementation.

'There are some things that by their design aren't going to be able to be sold under the law,' Myers said. 'A bong is one.'

But what about alligator clips vs. 'roach clips,' kitchen spoons vs. cocaine spoons and cigarette rolling papers vs. marijuana rolling papers?

'The things that could be used either way (legally or illegally) are in the statute to take care of the situation where they are actually found being used with drugs. The government is not going to come in and raid your kitchen,' Myers said.

But Joseph disagrees.

'It's my position that these safeguards are not adequate,' he said. 'I have been in one case where a magazine was considered paraphernalia. An Annapolis police officer testified that it was. It's called 'High Times.' There was a picture of a marijuana leaf on it, therefore it's paraphernalia. And they tried to say a popcorn scooper was paraphernalia in another case.'

Others say however that 'High Times' often includes instructions on growing and smoking marijuana, and is thus comparable to instructions on how to construct a Molotov cocktail.

If the issue of drug paraphernalia were simply one of use of certain instruments, it's unlikely it would cause such an uproar. But where drugs are concerned, politicians, like their constituents, react with emotion.

It's quite easy, and politically expedient, for a state legislator to vote to outlaw drug paraphernalia and let law enforcement officials worry about the practicalities. Not that some don't consider possible constitutional problems, but complex legal issues make poor campaign platforms.

'I think that politicians view this as an issue that will gain them nothing but support,' Joseph said.

When a paraphernalia bill was debated in Arkansas this year, legislators were reminded of earlier statutes that had been struck down as vague, but Rep. Henry Osterloh, D-Little Rock, summed up most of their feelings when he said, 'It's the kind of bill you just can't vote against.'

Arkansas Gov. Frank White let the bill become law without his siganture because he had questions about its consitutionality. Shortly after, attorneys for five shops filed suit in federal court.

In legislature after legislature, backers of the 'ban the bong' bills have showed up at hearings and dumped armloads of strange-looking pipes and devices on lawmakers' desks.

In Louisiana, District Attorney Ossie Brown, who has crusaded against pornographic movies and sale of cold beer at convenience stores as well as paraphernalia, arrived at a hearing with a tableful.

'We're telling young people it's against the law to use drugs yet we're providing them with things to violate the law,' he said. 'I just thought we were being hypocritical.' Smoking frisbees

Many of the exotic smoking devices are aimed at the young, including so-called 'power hitters' which force smoke deep into the lungs, and frisbees with hidden compartments for marijuana smoking which can be flown back and forth as each participant takes a 'hit.'

During a debate on a watered-down version of a drug paraphernalia ban, which eventually failed to pass, an Illinois legislator said he wanted to take away the 'legal glamorization' of the use of drugs.

'Right now you can buy Mickey Mouse roach clips and Donald Duck waterpipes,' he said.

The paraphernalia is extremely varied. At a Maryland hearing, witnesses displayed a 'concert kit' containing rolling papers, a roach clip, matches and a compartment for the 'stash' of marijuana. 'It's everything you need to enjoy your rock concert,' said mother Joyce Nalepka, one of the leaders of the crusade to outlaw the stuff.

At the same hearing, the president of the University of Maryland student union testified that outlawing manufactured drug equipment would just lead to more creative uses of everyday objects. With that, he pulled an apple out of his pocket, cut two holes in it with a penknife, shaped a bit of aluminum foil and voila! -- a perfect pipe.

The model act contains a long list of items that can be outlawed by the bills in various states. Most states have cut the list down. In New York for example, these are the eight things banned: Kits used to plant or grow controlled substances, kits used to manufacture or prepare them, kits that increase the potency of drugs, scales used to weigh drugs, substances used to cut drugs, separation chambers (to separate pot from seeds for example), syringes, and 'objects used to injest or inhale marijuana, cocaine, hashish or hash oil.' Voluntary curbs

Due to publicity about the paraphernalia, several large chain stores have voluntarily stopped selling certain legal items. 7-Eleven convenience stores took rolling papers off their shelves, convinced that the number of tobacco smokers still 'rolling their own' was too low for the amount of papers they were selling.

And the McDonald's hamburger chain stopped giving away tiny spoons as coffee stirrers two years ago because they apparently were being used to sniff cocaine.

Fines and prison sentences imposed for possession and-or sale of the paraphernalia are as varied as the laws themselves, ranging from misdemeanor fines of a few dollars to several years in jail and several thousand dollars in fines. Ironically, in some states where the paraphernalia statutes have been enacted, the penalty for possession of drug paraphernalia is more severe than for possession of marijuana.

Arrests and prosecutions under the drug paraphernalia laws seem to be moving slowly. Outside a few zealous district attorneys, law enforcement officials seem reluctant to push for convictions, perhaps due to the uncertainty about the laws' constitutionality. Several judges have issued stays of the laws as well, pending appeals. Reluctant prosecutors

When a paraphernalia law was enacted in Connecticut, assistant State's attorney Ernest Diette Jr., said he expected head shop owners to comply. 'I don't expect any mass arrests or massive sweeps of drug paraphernalia shops,' he said. A stay has since been issued on that law.

Sacramento County, Calif., imposed a total ban on paraphernalia, and several businesses face license suspension hearings as a result. San Francisco attorney Donald Brody, representing those accused of criminal violatins, contends the county 'selectively enforced' the ordinance. Brody said the sheriff's department 'refused to enforce the ordinance' when contacted and told that someone had bought an alligator clip from a Sears, Roebuck and Co. store while saying he intended to use it for marijuana smoking.

In addition to filing suits challenging the laws, merchants are coping with the paraphernalia ordinances in other ways.

Gordon Dunn, who has stores in Indianapolis and suburban Carmel, Ind., said: 'I sent a letter to the chiefs of police of Indianapolis and Carmel asking them to send somebody and look over our stock so we could remove anything that violated the law.' He had no takers but he and other members of the Indiana Contemporary Merchants Association have removed some magazines, bongs and metal pipes from their shelves and now sell only regular cigarette papers and some tobacco pipes.

'Head Shop' labels were replaced with 'Smokers Necessities,' 'Tobacco Supplies' and 'Complete Tobacco Boutique.' Dealers skip borders

Other dealers are folding their tents and getting out of town. One head shop owner from Idaho moved his shop across the border to Ontario, Ore., and has come under some fire from conservative elements there. Shop owners in Maryland are hopping over to Virginia or the District of Columbia, just a few miles away.

Towns to which the dealers move may object, but to some jurisdictions which have enacted the anti-bong laws, they have accomplished just what was intended.

Lakewood City, Calif., Administrator Don Waldie said the area's ordinance 'has been remarkably successful in getting rid of drug paraphernalia.' He conceded people can just go to another town to buy their equipment, 'but the nearest one is eight miles away and the ordinance has had the effect of getting the paraphernalia out of local record stores.'

Gordon Brownell, executive director of the National Organization for the Reform of Marijuana Laws in San Francisco, says his group sees all of the drug paraphernalia laws as 'a social backlash -- striking out at one of the most visible signs of illegal drug use.

'We don't have illegal drugs because of paraphernalia. We use paraphernalia because we have illegal drugs. So I don't see ordinances doing anything about controlling illegal drugs. We'll only be creating an illicit black market.'

And Mark Bennett, of the Iowa Civil Liberites Union, said: 'I'm opposed to it because it is a false panacea. You're not going to stop a single kid or adult from using drugs' by banning paraphernalia.

But Myers sees the overall issue as one of hypocracy. He says kids attend lectures about the dangers of drugs, then go to a store and see the paraphernalia glamorized.

'You can put on drug education programs on TV until they outnumber catfood commercials,' he said. 'But you can't do that and still have legal (paraphernalia) sales. It sends a dual message to the kids.'

Joseph maintains people can't hide behind their concern for children when supporting drug paraphernalia laws.

'I'm a parent too. I'm as much concerned about my children losing their constiitutional rights as I am about other matters, including drug abuse.'

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