Where 'Don't Ask, Don't Tell' Works

Jacob Sullum | June 4, 2009

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 this case:

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.

''When 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....

Officials 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.

Pohlman 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.

In 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.

Comments

jasno|6.4.09 @ 6:42PM|#

I wonder how the presence of legal, commonly available drugs like Salvia D. affects the legality of said devices. After all, a bong is a required device if you're ingesting salvia.

Brett Stevens|6.4.09 @ 6:51PM|#

Any lightbulb is a crack pipe.

The only workable war on drugs is one that deports all users.

|6.4.09 @ 6:55PM|#

Maybe they can just tax the paraphernalia. Isn't that the liberaltarian solution?

Paul|6.4.09 @ 7:18PM|#

Everyone derided "don't ask don't tell". I always thought that DADT should be the central policy, philosophy and driving force behind the Federal Government. It's almost the perfect answer to almost everything the government wants from its citizens:

Income data: don't ask, don't tell
Race: don't ask, don't tell
Religion: don't ask, don't tell
# of children: Don't ask, don't tell
Political affiliation: Don't ask, don't tell
Sexual orientation: don't ask, don't tell.
What meetings or gatherings you're having in your home without a license: don't ask, don't tell.
What drugs or substances are you putting into your body: don't ask, don't tell
What did you just order over the interent: don't ask, don't tell
What did you just post on Craigslist: don't ask, don't tell
Marital status: don't ask, don't tell

It just goes on and on and on.

|6.4.09 @ 8:03PM|#

Good god, this is the "if you don't lie, then we will arrest you law".

Gene Berkman|6.4.09 @ 8:26PM|#

The Louisiana law is typical of paraphernalia laws in most states. After states starting banning sales of marijuana pipes, head shops started selling tobacco alongside the pipes and rolling papers, and taking out books & magazines related to "high culture."

Now that various products are being made from hemp - soap from hemp oil, clothes, caps, backpacks etc from hemp cloth - they present a dilemma for head shops, since they can be used as evidence that the pipes are intended for use with "hemp" i.e. marijuana.

Stores that specialize in hemp clothes therefore don't sell pipes, and vice versa.

In Canada and Germany by contrast, there are comprehensive hemp stores that sell hemp clothes, soaps, etc alongside pipes and rolling papers.

SIV|6.4.09 @ 8:53PM|#

Does anyone routinely use wired cigarette papers?
I remember smoking a joint once in HS days (30 yrs ago) that a restaurant co-worker rolled.I seem to recall the wire is supposed to function as a roach clip but it kinda conducts way too much heat.

|6.4.09 @ 10:13PM|#

# kwais | June 4, 2009, 8:03pm | #

# Good god, this is the "if you don't lie,
# then we will arrest you law".

Of course it is also against the law to give false information to law enforcement officers. So if you don't lie, you're arrested; if you do lie, and they can later make the case that you did, you'll be arrested. The wisest course is to sell the gear only if the customer does not indicate an illegal use, and never to state or imply suitability of the equipment for any particular purpose.

So when are we going to repeal the Controlled Substances Act, already? We have instance after instance to illustrate how BAD the act and its ever more corrupt intrusive enforcement are. By now, the bad done in the name of the act far outweights any good ever done. End it, already.

JB|6.5.09 @ 12:53AM|#

Insane. The law is arbitrary, capricious and thus invalid.

Bob A|6.5.09 @ 12:51PM|#

Absolute stupidity. During (alcohol) Prohibition, it wasn't illegal to sell shakers or shotglasses.

Tacos mmm...|6.5.09 @ 3:04PM|#

I remember smoking a joint once in HS days (30 yrs ago) that a restaurant co-worker rolled.I seem to recall the wire is supposed to function as a roach clip but it kinda conducts way too much heat.

Making the wire out of stainless steel should get around this problem.

Coleman Mulkerin|6.5.09 @ 3:36PM|#

I'll be sure not to sell food in my store to customers who look like they have the munchies.

|6.6.09 @ 2:51PM|#

When I bought my grinder at my local head shop, the very nice and helpful woman behind the counter educated my on the benefits of one that had a kief catch, explaining that it was good for "collecting my excess tobacco pollen". I had to muster every once of self restraint to not bust up laughing.