NOVA RECORDS, INC., an Indiana corporation, et al.,
Plaintiffs-Appellants,
v.
Theodore L. SENDAK, Individually and in his official
capacity as Attorney General of the State of
Indiana, et al., Defendants-Appellees.
No. 81-1107.
United States Court of Appeals,
Seventh Circuit.
April 15, 1983.
Rehearing and Rehearing En Banc Denied May 26, 1983.
As Amended April 15, 1983.
Michael L. Pritzker, Stroup, Goldstein, Jenkins & Pritzker, Chicago, Ill., for plaintiffs-appellants.
Dаvid Michael Wallman, Deputy Atty. Gen., Indianapolis, Ind., for defendants-appellees.
Before PELL and CUDAHY, Circuit Judges, and BARTELS, Senior District Judge.*
PELL, Circuit Judge.
The plaintiffs, who are Indiana tobacco and snuff accessories retailers, appeal from the district court's decision, following a full hearing, that Indiana's drug paraphernalia statute is facially constitutional. The primary issue on appeal is whether the statute is violative of due process because of its alleged vagueness. The appellants also claim that the statute is violative of the First Amendment.
I. BACKGROUND
A. Predecessors of the Indiana Statute
Indiana House Enrolled Act 1468 (codified as Ind.Code Secs. 16-6-8.5-5, 35-48-4-8.1, 35-48-4-8.2, 35-48-4-8.3 (Supp.1980)) (HEA 1468 or Indiana statute) represents the State's third attempt to regulate drug paraphernalia. The first provision, enacted in 1975, was repealed after one member of a three-judge panel convened to judge the constitutionality of the law issued a temporary restraining order against its enforcement.
In 1977, the legislature enacted another statute which was quite similar to that previously repealed. Both the 1975 and 1977 statutes included a non-exclusive list of items deemed to be per se "paraphernalia." In February, 1980, a three-judge panel issued a declaratory judgment that the 1977 statute was unconstitutionally vague and overbroad. Indiana Chapter NORML v. Sendak, No. TH 75-142-C (S.D.Ind.1980) (NORML ). On March 3, 1980, Governor Bowen signed HEA 1468 into law. HEA 1468 expressly repealed the 1977 statute and became effective on Aрril 30, 1980. As a result of the repeal, the defendants' appeal regarding the 1977 statute was dismissed for mootness by this court in 1980.
B. Provisions of the Challenged Statute
The Indiana statutory provisions challenged on this appeal deal with the manufacture and possession of drug paraphernalia, dealing in or delivery of paraphernalia, and provide for forfeiture of a broad class of items, the use of which is related to violations of Indiana controlled substances law. Ind.code Secs. 16-6-8.5-5, 35-48-4-8.1, 35-48-4-8.2, 35-48-4-8.3 (supp.1980). Although the Indiana statute reportedly was patterned on the same provisions that provided the basis for the Model Drug Paraphernalia Act (Model Act) drafted by the Drug Enforcement Administration of the United States Department of Justice, the Indiana law differs from the model legislation.1 HEA 1468 has no separate definitional section but does incorporate a scienter requirement into the substantive provisions. It lacks any illustrative examples of prohibited items as well as factors to be considered in determining whether an object is included under the statutory prohibition.
Turning initially to the substantive sections of the Indiana statute, the first deals with the manufacture or design of paraphernalia:
A person who knowingly or intentionally manufactures or designs an instrument, device, or other object that he intends to be used primarily for:
(1) introducing into the human body a controlled substance;
(2) testing the strength, effectiveness, or purity of a controlled substance, or
(3) enhancing the effect of a controlled substance
in violation of this chapter, commits manufacture of paraphernalia, a Class D felony.
Id. Sec. 35-48-4-8.1. The following section, which prohibits dealing in paraphernalia, id. Sec. 35-48-4-8.2, differs from the manufacturing section quoted supra only in that the operative word is "delivers" rather than "manufactures or designs."
The third of the substantive offense sections prohibits possession of paraphernalia. It follows the same pattern as the two prior sections. It refers to "a person who possesses a raw material, instrument, device, or other object that he intends to use for" and then recites the "introducing ..., testing ..., enhancing" litany quoted above. Id. Sec. 35-48-4-8.3. Possession of paraphernalia, like manufacture and dealing, is generally a Class D felony. Section 35-48-4-8.3(b) provides, however, that it is a Class A misdemeanor if the violator intends to use the "raw material, instrument, device, or other object ... with marijuana, hash oil, or hashish" and has no prior conviction involving those substances.
Under Indiana law, Class D felonies are punishable by imprisonment for a fixed term of two years and a fine of up to ten thousand dollars. Two additional years of imprisonment are possible if aggravated circumstances exist. Id. Sec. 35-50-2-7. A Class A misdemeanor is punishable by imprisonment for a fixed term of not more than one year and a fine of up to five thousand dollars. Id. Sec. 35-50-3-2.
The forfeiture section provides for forfeiture of the following:
(1) All controlled substances with respect to which there hаs been any violation of controlled substances law;
(2) "[R]aw materials, instruments, devices and other objects that are used, or intended for use by the person in possession of them," in violating the controlled substances law;
(3) Any containers for property described in clauses (1) and (2), supra;
(4) All conveyances, including vehicles, used to facilitate the transportation or concealment of property described in clauses (1) and (2);
(5) Books, records, and other materials "used or intended for use by the person in possession of them" in violation of a law relating to controlled substances. Id. Sec. 16-6-8.5-5(a).
Subsection (b) of the forfeiture provision provides that the property enumerated in subseсtion (a) is subject to forfeiture upon court process. The subsection also provides that seizure without process may be made if one of four conditions is met. The condition most relevant to this appeal is that property is subject to seizure incident to an arrest made pursuant to the statute.
C. The Plaintiffs
The plaintiffs operate retail businesses in Indiana. Prior to the effective date of HEA 1468, the plaintiffs displayed and offered for sale the following: records, recording tapes, stereo equipment, clothing, jewelry, leather goods, snuff products and accessories, and tobacco goods and accessories. Included in their inventories were water pipes, "bong" pipes, chamber pipes, glass, ceramic and wood pipes. They assert that each item in their inventory had a recognized and established legal use; further, the plaintiffs state that they did not display or merchandise their inventory in such a way as to encourage any illegal activity.
Before enforcement of HEA 1468 commenced, the plaintiffs removed a variety of merchandise, including some literature, from their shelves. The retailers assert that the purpose of removing articles from display was to preclude any possibility of being charged under the statute, thereby losing the right to challenge its facial constitutionality.
D. Enforcement of the Statute
Although none of the plaintiffs has been arrested pursuant to the statute, two other аrrests have been made. The district court took judicial notice of the facts surrounding these arrests. The circumstances pertinent to the one arrest were as follows. A county deputy prosecutor advised state police that they would be justified in proceeding with a search warrant if they could "show an identifiable relationship between articles sold in the store and similar articles sold by drug users." An officer purchased "one pipe with two bowls and screen" and "one round shaped ceramic cigarette holder." He obtained a search warrant by setting forth the fact of these purchases and characterizing the items as ones "primarily intended" for use with marijuana. Pursuant to the sеarch warrant, a wide variety of merchandise was seized including glass pipes, plexiglas pipes, ceramic pipes, brass pipes, silver and wood pipes, animal horn pipes, water pipes, "bong" water pipes, clips, mirrors and spoons. Articles seized in the second arrest included cigarette papers and rollers, and an assortment of items that depicted marijuana leaves.
E. Proceedings Below
On April 29, 1980, the plaintiffs brought suit against the Indiana Attorney General and prosecuting attorneys for four judicial circuits of the State. The plaintiffs sought a declaratory judgment, injunctive relief, and damages. On May 29, 1980, Judge Noland denied the motion for a temporary injunction. A full hearing was held on July 18, 1980. At that time the district cоurt took judicial notice of the circumstances surrounding the two instances in which HEA 1468 had been enforced, see Section I(D), supra. On December 9, 1980, the district court entered its judgment in favor of the defendants. Following the district court's denial of the plaintiffs' petition for reconsideration, this appeal was taken.
II. FACIAL OR AS-APPLIED CHALLENGE
A preliminary issue is whether this appeal presents a facial challenge, an as-applied challenge, or both, to the Indiana statute. The question is important because Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
The judge below considered the plaintiffs' claim to be one of facial unconstitutionality. At oral argument here, however, counsel for the appellants asserted that the challenge was both facial and as-applied and that both grounds had been urged below.
Because the potential application of the statute poses a sufficient risk to the plaintiffs, they have standing to bring a pre-enforcement challenge. E.g., Steffel v. Thompson,
It is possible that the plaintiffs' arguments regarding an as-applied challenge are no more than an assertion that this court, like the court below, should acknowledge the pattern of enforcement demonstrated in application of the statute to other parties. Hoffman Estates involved a somewhat analogous situation: testimony by village officials and the police chief as to potential enforcement of the statute was offered and was considered by the Supreme Court in its discussion as to whether the ordinance was subject to arbitrary or discriminatory enforcement.
III. APPLICABLE PRECEDENT
Although we are aware of no previously decided case involving a drug paraphernalia law precisely like that at issue in this case, several decisions of this and other courts are relevant to our analysis. Initially, it is helpful to note the type of legislation and particular legal issues addressed in each opinion.
A. Hoffman Estates
The ordinance at issue in Hoffman Estates was a licensing provision: one who sells "any item, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal cannabis or drugs, as defined by Illinois Revised Statutes,"
The Hoffman Estates Court set forth the standards relevant to a facial challenge of a drug paraphernalia law. The Court characterized the ordinance as "economic regulation" and indicated that a less strict vagueness test was therefore mandated. Id. at 498,
Four aspects of Hoffman Estates are most relevant for purposes of this appeal. First, the Court followed the standards for evaluating vagueness enunciated in Grayned v. City of Rockford,
B. Model Act Cases
A number of courts have held constitutional drug paraphernalia laws patterned closely on the Model Act. E.g., Camille Corp. v. Phares,
Camille and Antioch, the two cases involving variants of the Model Act that have been decided by this court, both involved ordinances stating a general ban, enforced by criminal penalties, on the manufacture and delivery of drug paraphernalia. In those respects, both are analogous to the instant case. Like the Indiana statute, the scope of the prohibitions in the Camille and Antioch ordinances encompassed individuals as well as businesses.
C. Record Head and High Ol' Times
Twо other recent cases have involved drug paraphernalia laws that differed significantly from the Model Act. In Record Head Corp. v. Sachen,
A majority of the court found that the West Allis ordinance failed both to give adequate notice of what conduct was proscribed and to preclude arbitrary enforcement. The court read the ordinance as containing no meaningful scienter requirement, see id. at 677, which distinguished it from the ordinance at issue in Antioch.5 The court also relied heavily on the fact that the factors to be considered in determining whether an item was classifiable as drug paraphernalia invited inquiry into areas of doubtful relevance. Id.
In High Ol' Times, Inc. v. Busbee,
IV. FIRST AMENDMENT
Before turning to the appellants' claim that the Indiana statute is unconstitutionally vague, we address their argument that the statute encompasses conduct protected by the First Amendment. Because the substantive sections of the statute reach only items intended for introducing a controlled substance into the body, testing the strength, effectiveness, or purity of a controlled substance, or enhancing the effect of a controlled substance, their prohibitions clearly do not impinge upon any First Amendment values. See Ind.Code Secs. 35-48-4-8.1--8.3 (Supp.1980).
The appellants' concern must therefore be with the forfeiture provisions which permit seizure of, inter alia, books and literature and containers for controlled substances. Id. Sec. 16-6-8.5-5(a)(3), (5). The appellants foresee the seizure of literature advocating drug usage and refer to the seizure, during one of the previous applications of the Indiana statute, of cigarette cases that display a marijuana leaf. The appellants assert that this emblem is merely a symbolic statement advocating revision or repeal of current drug laws.
The scienter requirement embodied in the forfeiture provision--that items are subject to seizure only if they are used or intended for use by the person in control of them in viоlation of the controlled substances laws--eliminates the possibility that the statutory provision can lawfully be applied to items intended only to advocate a political view regarding drug usage. Further, if the forfeiture provision pertaining to books and literature, id. Sec. 16-6-8.5-5(a)(5), were broad enough to encompass advertising or other promotional materials pertaining to items intended for use with illegal drugs, it does not impinge upon the First Amendment right to commercial speech because speech proposing illegal activity can be regulated or banned entirely. E.g., Hoffman Estates,
The district court correctly concluded that HEA 1468 does not violate any protected First Amendment rights.
V. VAGUENESS
The final--and most difficult--question regarding the Indiana statute is whether it is unconstitutionally vague. The appellants' principal contention is that the lack of any examples of prohibited items and of factors to be considered in determining whether an object subject to the statute render it vague under both the fair notice and the arbitrary enforcement prongs of the Grayned test. Grayned v. City of Rockford,
A. Qualification of Scienter Requirement by "Primarily"
Sections 35-48-4-8.1 and 8.2 prohibit the manufacture or design and the delivery of drug paraphernalia. In each section an object is made subject to the statute if the alleged violator "intends it to be used primarily for" introducing a controlled substance into the body, testing the strength, effectiveness or purity of a controlled substance, or enhancing the effect of such a substance. The plaintiffs' claim is that the effect of "primarily" is to minimize the burden of proving intent.
The cases on which the appellants rely involve laws construed to turn on the intent--or, more precisely, the "primary" intent--of someone other than the violator, e.g., Magnani v. City of Ames,
The inclusion of the word "primarily" would appear more likely to benefit than to burden a defendant. If the word were absent from the statute, the prosecution's burden of proof would be to offer sufficient evidence that a reasonable trier of fact could conclude that the defendant "intended" an item for any of the specified drug-related purposes. Proving intent does not require the prosecution to prove that the defendant envisioned no legal uses to which an object might be put; rather, he must prove only that the defendant intended some illegal usage. The "primarily" requirement ensures that the defendant who antiсipates both legal and illegal uses of an item can be convicted only if his intent that it be used illegally predominates. See High Ol' Times, Inc. v. Busbee,
We conclude therefore that the inclusion of the word "primarily" in this context does not render the statute unconstitutional if it otherwise satisfies the vagueness criteria of Grayned.
B. Fair Notice: the Scienter Requirement
Under Grayned, we must evaluate the statute both in terms of the notice it affords potential offenders and the risk that it will be discriminatorily or arbitrarily enforced. Focusing on the fair notice prong of the test, it is critical that we construe the scienter requirement of the statute.
The Hoffman Estates Court 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."
A scienter requirement cannot eliminate vagueness, therefore, if it is satisfied by an "intent" to do something that is in itself ambiguous. In the context of drug paraphernalia legislation, the potential vagueness of a law would not be cured if the legislation required only an intеnt to display, design, supply or use whatever might be classifiable as drug paraphernalia. See Antioch,
The scienter requirement embodied in HEA 1468 distinguishes the statute from that at issue in Geiger v. City of Eagan,
The scienter requirement in HEA 1468 is not merely an intent to design, manufacture, distribute, or possess items that could be deemed drug paraphernalia. The Indiana statute "defines" the scope of its prohibition by reference to the intent of the violator. To this extent, it is similar to the Model Act. The Indiana statute is, in fact, somewhat clearer than the initial portion of the Model Act's definitional section because HEA 1468 is phrased so as to eliminate any possibility that one could be convicted on the basis of someone else's intent to use an object with controlled substances. This aspect of HEA 1468 also distinguishes the statute from the predecessor version found unconstitutional in NORML. Further, as the Antioch court stated: "Since very few of the items a paraphernalia ordinance seeks to reach are single-purpose items, scienter is the only practical way of defining when a multi-purpose object becomes paraphernalia."
The scienter requirement in HEA 1468 is analogous to that of the Model Act. Numerous courts, including this court in Antioch and Camille, have held that laws patterned on the model legislation satisfy the fair notice requirement of due process.
We turn therefore to the second prong of the Grayned test: the danger of arbitrary enforcement. The absence of enumerated examples of prohibited items and the lack of factors to be considered in determining whether an object is subject to the statute is relevant to this aspect of our discussion.
C. Arbitrary Enforcement
One possible starting point is the recent decision of the Eleventh Circuit in High Ol' Times, Inc. v. Busbee,
We therefore believe that a more certain basis of analysis is the comparison between the Indiana statute and the Model Act. The examples provided by the Model Act fall into two categories: (1) objects with distinctive design characteristics often associated with the use of controlled substances, e.g., roach clips; and (2) items such as "blenders," "containers," and "scales" which lack such design characteristics but have proven to be used frequently in conjunction with illegal drugs. Unlike the Indiana statute found unconstitutional in NORML, the Model Act does not consider any item to be per se drug paraphernalia. A roach clip, and certainly a blender, is subject to the statute only if it is used, intended for use, or designed for use with illegal drugs.
The fourteen factors that follow the list of examples are more relevant to determining whether the scienter rеquirement is met than to classifying items based on design characteristics or traditional association with illegal drug usage. The factors are concerned with how and where an item is displayed, how its use is described by those in control of it, how it is advertised, and how experts believe it is generally used. A second characteristic of the factors is that many involve determinations more likely to be made, or which could only be made, by a trier of fact rather than by an officer charged with enforcing the law. Whether residue found on an object is that of a controlled substance is impossible to determine without laboratory testing. Similarly, it is unlikely that an officer would know, prior to making an arrest, what the ratio of sаles of an object is to the total sales of the business enterprise. Certainly, "expert testimony" refers to evidence introduced at trial rather than to a consideration relevant to whether an arrest is justified initially.
The examples and factors read together suggest that an officer's decision to make an arrest will be based on one or both of the following patterns: (1) objects are present which display design characteristics making them uniquely suitable for drug usage, e.g., roach clips; (2) the items are immediately recognizable as ones frequently used with illegal drugs, whatever lawful uses they might also have, and are described, displayed, or advertised so as to suggest that they are intended for usе with illegal substances. The other evidence made probative by the enumerated factors plays little role in the initial decision to enforce the statute.
Deciding whether or not an arrest is justified by reference to design characteristics and/or by the manner of display is entirely consistent with Hoffman Estates. The Supreme Court found that the "designed for use" standard referred to the objective characteristics of an item and that "marketed for use" referred to the manner of display. Not only are the objective design features and the manner of display permissible starting points under Hoffman Estates, these considerations are dispositive as to whether an item is covered by the licensing provision. Roach clips, for instance, are not defined by the Hoffman Estates ordinance but invoke the licensing requirement without further showing. The guideline referring to "paraphernalia," which is subject to licensing, includes anything "displayed with roach clips or literature encouraging illegal use of cannabis or illegal drugs."
The appellants claim that HEA 1468 is unconstitutional because it will be enforced by reference to either the design characteristics of particular objects or the manner of a retailer's display without regard to whether additional evidence of an alleged violator's intent has been established. This is, however, the functional equivalent of the enforcement pattern of the Model Act-type laws such as those approved by this court in Camille and Antioch. It is also entirely consistent with Hoffman Estates in which the only scienter required to invoke the licensing provision was that which the court found inherent in the "marketed for use" standard.
A related argument, focusing on the prosecution stage rather than the time of initial arrest, is that the "intent" required under the Indiana statute will be presumed from the design or display of objects. As the district judge stated, there is simply no basis for assuming in a pre-enforcement challenge that no other proof of intent can or will be offered.
A law will be found facially unconstitutional only if it is incapable of any valid application. Hoffman Estates,
We cannot assume that the Indiana legislature will not clarify the scope of the law through additional guidelines or that clarification will not be provided by the pattern of enforcement. Hoffman Estates,
CONCLUSION
Having considered all the arguments urged by the appellants, we find no basis for holding the Indiana drug paraphernalia statute violative of either the First Amendment or the Due Process Clause. The judgment of the district court,
AFFIRMED.
Notes
John R. Bartels, Senior District Judge for the Eastern District of New York, sitting by designation
An example of a law patterned virtually verbatim on the Model Act is the East Moline, Illinois drug paraphernalia ordinance which is appended to this court's disposition in Camille Corp. v. Phares,
The ordinance also requires that one who sells such items file affidavits that the licensee and its employees have not been convicted of a drug-related offense, that records be kept of all sales of regulated items, and that no regulated items be sold to minors.
The analysis of this court in holding the ordinance unconstitutional, which was rejected by the Supreme Court, parallels to a large extent the analysis of the three-judge court in NORML
The Sixth Circuit disposition in Record Revolution, in which a variant of the Model Act was found unconstitutionally vague, has twice been vacated and remanded by the Supreme Court. See
Antioch and Record Head were decided by the same panel on the same day. The Antioch opinion dealt at some length with the contrast between the scienter required under two ordinances, characterizing that of the West Allis ordinance at issue in Record Head as circular and non-clarifying. Antioch,
The Record Head opinion states that "[i]n place of [a] scienter requirement, the West Allis ordinance enumerates various factors to be considered in deciding what is an instrument."