The War on Bongs

The Drug Policy Alliance reposts a new piece in Rolling Stone on the recent crusade against bongs. Question for the legal-eagles present: does it violate the Constitution's prohibition on ex post facto laws to begin enforcing existing laws against conduct that previous interpretation had given business owners reason to believe was legal? That is, if it had always been the case that head shop owners were left alone under drug paraphernalia laws, provided they marked their pipes as "for tobacco use only," can the government arbitrarily decide that this is no longer good enough and begin breaking down doors?

Comments

[Luca Brasi]

I'm not a legal expert, but I did stay at a Holiday Inn Express last night and I would say that those actions would be in violation. Maybe I am just saying that because that is how I want it to be.

[Chris]

I don't think the ex post facto argument will get you very far. Law enforcement authority generally is given fairly wide latitude in matters of where they concentrate their efforts. The fact that speed limits in a particular jurisdiction are normally loosely enforced isn't a winning defense for the unlucky motorist who gets tagged by a bored or angry cop.

Like (I assume) a lot of people here, I think all 'possession' laws are pretty dumb - and maybe should be suspect under some kind of 'rational basis' argument (even though that doesn't work either apparently under Supreme Court doctrine). But the ex post facto line of attack seems pretty flimsy when all that's changed is the way laws are interpreted and enforced.

[Chris]

I don't think the ex post facto argument will get you very far. Law enforcement authority generally is given fairly wide latitude in matters of where they concentrate their efforts. The fact that speed limits in a particular jurisdiction are normally loosely enforced isn't a winning defense for the unlucky motorist who gets tagged by a bored or angry cop.

Like (I assume) a lot of people here, I think all 'possession' laws are pretty dumb - and maybe should be suspect under some kind of 'rational basis' argument (even though that doesn't work either apparently under Supreme Court doctrine). But the ex post facto line of attack seems pretty flimsy when all that's changed is the way laws are interpreted and enforced.

[Max]

It?s worse: Disney will soon be releasing a movie showing the U.S. military as drug dealers, thieves, and assorted criminals -- thereby fueling the controversy over the drug war.

[Paladin]

So long as they didn't prosecute for actions that occurred prior to the change in interpretation, I don't think an ex post facto challenge could be mounted against the prosecutions.

[Julian Sanchez]

Well, judging by the articles, they didn't exactly announce a change in interpretation. They just raided a bunch of pipe-shops one day, saying "Oh, you thought you were within the law as long as you posted a warning that these were only for tobacco? Surprise!" Seems like a de facto way of criminalizing what the proprietors had every reason to believe was legal, since the law speaks to intent. (Almost any pipe, after all, could be used to smoke marijuana. And plenty of other household objects as well.)

[Mike Branom]

Doesn't every mall have a pipe store? And in "pipe," I mean the big wooden things tweed-wearing professors use.
Check these out:
http://www.ottomansouvenir.com/Pipe/Meerschaum_Pipe.htm
Are these sites gonna get nailed, too?
Perhaps it's all in the appearance for the DEA: Grafix is out, classic is in.

[Sic Semper Tyrannosaurus]

Ex post facto arguments won't win on an enforcement issue, to the extent I remember constitutional law. Governments likely have the necessary leeway in using police power to enforce laws within their mandates. (For example, there have been many arguments over how and when to enforce DOJ laws under Ashcroft. The choice to use limited funds in one area rather than another would receive deference.)