■i
Page 12 THE BATTALION
WEDNESDAY, APRIL 22, 1981
Features
Concern growing over head shops, paraphernalia
United Press International
When is a pipe a bong? Answer
ing this question creates a chal
lenge to states with laws curbing
drug paraphernalia sales.
Scene 1: A high school student
wanders into a downtown shop,
glances 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 locales, the high school
student and the merchant have
broken laws against the sale of
“drug paraphernalia.” The pipe is
a “bong, ” and is meant to be used
with marijuana..
Efforts to curb the spread of
so-called “head shops,” which
specialize in items designed for
use with illegal drugs, have led to
laws outlawing the actual items.
Some laws apply only to juveniles,
others to everyone. Some offenses
are punishable by fines, others by
jail terms.
But the laws are being chal
lenged in every part of the United
States. Opponents insist the sta
tutes are unconstitutionally vague
because they prohibit items which
have other legal uses. Supporters
are equally vocal in maintaining
that the laws are aimed at clearly
definable instruments.
At least four U.S. Circuit courts
are considering cases which deal
with the paraphernalia, and the
U.S. Supreme Court is expected
to get a case soon from the 6th
Circuit involving a statute in some
Cleveland suburbs.
The Federal Drug Enforce
ment Administration has drafted a
model act against drug parapher
nalia which is now being utilized
in most places. Prior to tbe writing
of this model, the laws were
enacted haphazardly and in most
cases were thrown out by courts as
being unconstitutional.
Harry Myers, the DEA attor
ney who drafted the model act, is
positive that his work is constitu
tional and enforceable.
He bases his belief on similar
federal paraphernalia statutes
such as those which outlaw equip
ment 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 activ
ity is.
“Hey! It’s not a new problem, is
it?” he said. “It became clear that
from the entire structure of feder
al law that a statute can be drafted
for the outlawing of drug para
phernalia. We have a definition at
least as precise as 110 other feder
al statutes.”
“Simple possession of para
phernalia is not a crime, it must be
combined with a provable intent
to violate the drug law,” Myers
said.
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senting the Mid-Atlantic Acces
sory Trade Association, a group of
accessory dealerships, maintains
the “intent” portions of the law are
not adequate protection of consti
tutional rights.
“In essence, this is a (law)
aimed at ridding the community of
Harry Myers, the
DEA attorney who
drafted the model drug
paraphernalia act, is
positive that his work is
constitutional and en
forceable.
certain kinds of businesses,” he
said. “A spoon sold at a supermar
ket may have no criminal signifi
cance 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 im
plementation.
“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 roll
ing 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.
Joseph disagrees.
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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.”
In contrast, others, say that
“High Times” often includes in
structions on growing and smok
ing marijuana, and is thus compa
rable to instructions on how to
construct a Molotov cocktail.
If the drug paraphernalia issue
was simply the use of certain in
struments, 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 com
plex legal issues make poor cam
paign 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 ear
lier statutes that had been struck
down as vague, but Rep. Henry
Osterloh, D-Little Rock, summed
up most of their feelings.
“It’s the kind of bill you just
can’t vote against,” he said.
Arkansas Gov. Frank White let
the bill become law without his
signature because he had ques
tions 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 shown up at hearings and
dumped armloads of strange-
looking pipes and devices on law
makers’ desks.
Arriving at a hearing with a
tableful was a Louisiana District
Attorney, Ossie Brown, who has
crusaded against pornographic
movies and sale of cold beer at
convenience stores as well as para
phernalia.
“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 hypocri
tical.”
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vices are aimed at the young, in
cluding 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 parapher
nalia 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 wit
nesses 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 presi
dent of the University of Maryland
“Head Shop” labels
were replaced with
“Smokers’ Necessities, ”
“Tobacco Supplies ” and
“Complete Tobacco
Boutique. ”
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“I don’t expect any mass arrests
or massive sweeps of drug para-
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student union testified that out
lawing manufactured drug equip
ment would just lead to more crea
tive 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 per
fect 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, there are
eight items banned: Kits used to
plant or grow controlled subst
ances, 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 exam
ple), syringes, and “objects used
to ingest or inhale marijuana,
cocaine, hashish or hash oil.”
Due to publicity about the pa
raphernalia, 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.
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 im
posed for possession and/or sale of
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. Ironical
ly, in some states where the para
phernalia statutes have been
enacted, the penalty for posses
sion of drug paraphernalia is more
severe than for possession of mari
juana.
Arrests and prosecutions under
the drug paraphernalia laws seem
to be moving slowly. Outside a
few zealous district attorneys, law
enforcement officials seem reluc
tant to push for convictions,
perhaps due to the uncertainty
over the laws’ constitutionality.
Several judges have issued stays of
the laws as well, pending appeals.
When a paraphernalia law was
enacted in Connecticut, Assistant
State’s Attorney Ernest Diette Jr.
said he expected head shop own
ers to comply.
phernalia shops,” he said
has since been issued on
Sacramento County, G
posed a total ban on parapl
and several businessesfacelj
suspension hearings as i
San Francisco attorney
Brody, representing tli
cused of criminal violation]
tends the county “selectm
forced” the ordinance.
Brody said the sheriffs
ment “refused to enforcety
nance” when contacted^
that someone had boughtii
gator clip from a Seats, Rn
and Co. store and sayingIj
tended to use it for msfl
smoking.
In addition to filing siiilij
lenging the laws, rnerclffiii
coping with the parapb
ordinances in other ways.
“1 sent a letter to thei
police of Indianapolis and
asking them to send
and look over our stock
could remove anything
violated the law,” said
Dunn, who has stores in Ml
polls and Carmel, Ind
He had no takers but 1*|
other members of the hi
Contemporary Merchants
ciation have removed some
zines, bongs and metal pipes!
their shelves and now
regular cigarette papers and
tobacco pipes.
“Head Shop” labelsweii)
placed with “Smokers’ Ni
ties,” “Tobacco Supplies’
“Complete Tobacco Boutiqi
Other dealers are
tents and getting out of tom
head shop owner from
moved his shop across the
to Ontario, Ore., and has
under some fire from consei
elements there. Shop owi
Maryland are hoppingover&j
ginia or the District of Coll
just a few miles away.
People in towns to whkij
dealers move may object, is
some jurisdictions w
enacted the anti-bong laws,
have accomplished just wki
intended.
Lakewood City, Calif,
nistrator Don Waldie saii
ordinance “has bees
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finishing
modular
area s
markably successful in gelthl
of drug paraphernalia.” Hei
ceded people can go to airf ^ ^ ^ ^
town to buy their equipment' Intensedi
the nearest one is eight miles? cross
and the ordinance has had u : stat .„ s
effect of getting the parapb ornac } oeS) ^
out of local record stores.’ during thre
Gordon Brownell, execute ^ J p C
ightning de:
rector of the National Oi
tion for the Reform of Marij
Laws in San Francisco, say
group sees all of the drug
phernalia laws as “a socialb:
— striking out at one ofthefi
visible signs of illegal drug
“We don’t have
because of paraphernalia,
said. “We use paraphernal#
cause we have illegal drugs
don’t see ordinances
thing about controlling *
drugs. We’ll only be create,
illicit black market.’
falling in
hunderston
Monday, bul
•eported.
John Clan
left elbow hi
issed throu
'Ut his oth(
lalifornia st
table condi
is upper be
I Another j
‘SO, knocki n;
He was hosp
Mark Bennett of the low Jition with a
Liberites Union, said: /W of a mile;
opposed to it because it isal 5^ was i ea
panacea. You’re not goingtoS |fg that w
single kid or adult from ^ mfferednur
drugs” by banning paraphen# m no t hos
But Myers sees the Fierce wi
issue as one of hypocrisy. He> jprooted a 1
kids attend lectures aboutthei Lg p erson
gers of drugs, then go to as! ? Three to
and see the paraphernalia gH'tolumbia, J
rized. were report
“You can put on drugeduc* l - The torn
programs on TV until the) ;'heels of a b
number catfood commercials. 1 ^Tulsa, Okla.
said. “But you can’t do that* * That “sui
still have legal (paraphed five people,
sales. It sends a dual messaj 1 ‘demolished
the kids.” .MikePass, ;
Joseph maintains people e fer Service ii
hide behind their concernfoi“ Nothing me
dren when supporting anti-i area jr a
paraphernalia laws. j; ^the tomadc
A few res
li djL/iic:! iictiict laws.
“I’m a parent too,” hesaid [ *
as much concerned about m)" ^trailer park
dren losing their constitute-lucky enoug
rights as I am about otherma^
including drug abuse.”
You Get What You Pay Fa
And Then Some.
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