By Jacob Sullum
A recent set of drug paraphernalia busts in Louisiana nicely illustrates the contrast between state and federal law in this area. As I noted in my February Reason article
on the subject, people typically can be convicted of selling drug
paraphernalia under state law only if there is specific evidence
indicating an item's intended use. In this case, the St. Bernard Parish
Sheriff's Department conducted an undercover investigation in which an
informant wired for sound and video went into stores asking for "crack
pipes" or "a bong to smoke my weed." Well-trained clerks will rebuff
such requests, maintaining the pretense that the unconventional pipes
they sell are for smoking tobacco or other legal plant matter. Not in
"Chief Deputy Jimmy Pohlman told WWL First
News these items are normally sold legally as novelty items, but are
not legal when the customer "crosses the line."
"He says it's all in what a customer asks for and how the cashier responds.
someone goes in a specifically asks for a crack pipe or a marijuana
pipe and they sell the items as such we feel we had a good basis to get
warrants for these individuals,'' Pohlman said....
the arrests fit the law involving sale of drug paraphernalia because
all the workers arrested were aware the items they were selling were
going to be used for using drugs.
"The charges are misdemeanors with a thousand dollars bond.
says the message is clear not only to the clerks but the store owners:
A zero-tolerance policy for selling drug paraphernalia in the parish."
truth, the message is that stores selling drug paraphernalia should be
discreet about it. Under the Supreme Court's interpretation of federal
law, by contrast, there needn't be an explicit acknowledgement that
a device will be used to consumed illegal drugs. As Justice Harry
Blackmun put it in a 1994 decision, prosecutors don't have to show
"knowledge on the defendant's part that a particular customer actually
will use an item...with drugs. It is sufficient that the defendant be
aware the customers in general are likely to use the merchandise with
drugs." Although the federal statute makes an exception for any device
"traditionally intended for use with tobacco products," it includes a
long list of items that are presumed to be illegal drug
paraphernalia, among them "water pipes," "carburetion tubes," "smoking
masks," "electric pipes," "chillums," "chillers," "wired cigarette
papers," and "metal, wooden, acrylic, glass, stone, plastic or ceramic
pipes with or without screens."
The federal law still leaves some
leeway to sell dual-use products. In most contexts, for example,
standard rolling papers would not qualify as drug paraphernalia, and a
narghile/hookah, though a "water pipe," is also "traditionally intended
for use with tobacco products." It's not exactly clear how
nontraditional a pipe has to be for it to be deemed drug paraphernalia.
But while it may be effective in Louisiana, claiming that a bong is
merely a "novelty item" (or, as Chong Glass initially argued after the
2003 crackdown known as Operation Pipe Dreams, a work of art) will not
get you far in federal court.
Not only is a federal conviction
easier, but the consequences are more severe. Selling drug
paraphernalia, which Louisiana classifies as a misdemeanor, is a felony
punishable by up to three years in prison under federal law.