Drug War

'Oh Yeah Man, We Got the Water Pipes Bro'

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A search warrant affidavit posted by DCist illustrates the absurd contortions required to avoid prosecution under drug paraphernalia laws. D.C. police sought the warrant, which they used for raids on two Capitol Hemp locations last month, after an undercover officer was approached by a store employee handing out flyers outside a nightclub. Here is how the affidavit describes the encounter:

The unidentified male said "Hey, 10% off water pipes man, come by." Your Affiant said "Yeah man, I'm in the market for a good one. Do you have any 3 or 6 footers? There's nothing like packing a fat bong hit and shot gunning it through a 6 footer." The white male replied "We have a 6 footer but it's more like a display piece. But we have stackable pieces, kinda like legos." Your Affiant said "I'm all about it, I need something to smoke my herb in." The white male said in a long drawn out tone "Oh yeah man, we got the water pipes bro come by."

Assuming this account is accurate, the leaflet distributor erred by not immediately correcting the cop's use of the word bong. "We do not sell bongs," he should have said. "We sell water pipes for consumption of tobacco and other perfectly legal plant matter." The cop's mention of "herb" is also potentially problematic, although it could be interpreted as a reference to legal smoking material rather than a euphemism for marijuana.

But this is really a damned-if-you-do, damned-if-you-don't situation. When the same officer stopped by Capitol Hemp to pick up a bong—er, water pipe—the employees were more careful about terminology, which he also viewed as suspicious. DCist summarizes:

When he asked for a bong, salespeople would correct him and say that they only sold water pipes. He also said that every time he referenced marijuana, the salespeople would change the subject, which he claimed was "unnatural and deceptive" behavior.

The District of Columbia Drug Paraphernalia Act makes it a crime to sell drug paraphernalia "knowingly, or under circumstances where one reasonably should know" that it will be used to consume illegal substances. Last August, in a case involving glass pens that double as crack pipes, the District of Columbia Court of Appeals upheld the law, reading it to require both specific intent and knowledge. It said both these elements can be established with "credible and compelling direct, indirect, or circumstantial evidence that, at the time of the sale, the owner or clerk ofa retail establishment had knowledge or reasonably should have known that the buyer would use the items" to consume illegal drugs.

That wide evidentiary net explains why police, in trying to establish that Capitol Hemp broke the law, cited not just what its employees said or allowed to be said about items that might or might not be drug paraphernalia but also the store's indisputably legal merchandise. "While hemp is legal," says the affidavit, "the hemp clothing, accessories, food, books and promotions within 'Capitol Hemp' only direct one to see that the focus of the store is its promotion of marijuana, its illegal use and the sales of devices to smoke marijuana." As DCist suggests, the upshot of using such evidence is that people can be punished for exercising their First Amendment rights: The same item might be deemed legal when sold on its own but illegal when sold alongside pro-cannabis literature or (as in this case) "even a DVD titled '10 Rules of Dealing with Police.'"

I noted that problem in "Bongs Away!," my 2009 Reason story about drug paraphernalia laws. While the Supreme Court has dismissed such concerns, the focus on countercultural signifiers and pro-drug (or anti-prohibition) speech is of a piece with the whole anti-paraphernalia crusade, which is best understood as a reaction against messages that offend people.

For more on the free speech and due process issues raised by drug paraphernalia laws, I highly recommend Thomas Regnier's recent article (PDF) in the New York University Journal of Legislation and Public Policy.

NEXT: Citizen Journalist Demonstrates How to Stand Up to NYPD

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  1. Oh look, another drug article on a lizardtarian website.

    1. My nipples explode with delight!

  2. “While hemp is legal,” says the affidavit, “the hemp clothing, accessories, food, books and promotions within ‘Capitol Hemp’ only direct one to see that the focus of the store is its promotion of marijuana, its illegal use and the sales of devices to smoke marijuana.”

    Lowe’s is fucked. They sell the shit out of water pipe. And all those dangerous tools are clearly intended for use in killing and dismembering one’s competitors and disposing of the remains.

  3. You know what else is unnatural and deceptive?

  4. My little brother got a drug paraphernalia charge for his rolling papers. Then again he and his friend were being a dumbasses, driving down the highway 20 mph over the speed limit, smoking a joint. Cop gave them both dp charges and told them to drive on home. Ran into the nicest state trooper in the country apparently.

    1. My experience here in Texas has been favorable with just about every state trooper that has stopped me. Can’t say the same for city and county pigs though.

      1. I haven’t interacted with one but my Indian American (dot not feather) friends have been pulled over numerous times in West Texas for driving while brown. Then again when they do actually get tickets they get out of them because the cop always puts hispanic as their race.

        My brother’s was in NC. The reason I say he was nice was his friend was doing the equivalent of drinking while driving. I obviously think drugs should be legal but even if prohibition ended I don’t think driving while intoxicated would go away, particularly such a blatant case.

    2. My anecdotal evidence suggests that Staties are nicer in many cases. Especially the ones out west here where they sit on ranch exits napping…I was pulled over by one once on my way back from the east. He was driving a new camero, I was in a new Cobra…he said “you were doin 12 over the limit” I said ” i dont believe I was” he said ” I was hoping you would run so I could show you how fast my camero is” I said “never crossed my mind”

      He chuckled and gave me a warning but did comment on my car and then proceeded to peel out and drive off. I was tempted…and I bet he would have played along for a little but I decided against it.

      1. …I bet he would have played along for a little but I decided against it.

        Smart move. About six years ago I got into a little “speed contest” with a CHP officer on the 580 in Livermore. It started out kind of cool, but as soon as I hit 95mph, she pulled me over. Gave me a ticket for 75mph, so that was good.

  5. Anyone who peppers his speech with “bro” in such a correct manner is assumed to be an expert in drug culture and therefore should have known enough not to engage in commerce with the suspicious person obviously wishing to use the product unlawfully.

    Or, um, advertise where to engage in commerce.

  6. Why isn’t this a violation of freedom of speech?

    1. Because the children.

    1. Of course, that’s SUPPOSED to read, “pick it, pack it, fire it up, come aloooooong, and take a hit from the boooong.”

      1. I hear that when Cypress Hill get off work, they all put on suits and ties and have a martini.

  7. This is one area in which NYC looks relatively libertarian, despite being generally pretty repressive: bongs, pipes, etc. are openly available in a ton of places, and the police clearly do not give half a crap about it.

    1. Same in Texas. I think the it is an area of the law where it varies greatly around the country.

  8. Who was it that linked to that Texas glass law yesterday? I’ve gotta have a license to buy a fucking test tube now. Whoever wrote that damn bill should be raped with a broken beaker.

  9. Jesus fucking Christmas on a popsicle stick.

    Its a crime in D.C. to sell a product that draws air through a tube? Which may hold some water? Which *might*/Can/Should/Could be used to get baked with, while also reducing inhaled particulate matter?

    I’ve clearly been out of it for the last 2 decades or something. I blame the internet. I’ve been too busy watching people light their farts on fire/stooges concerts/yokels shooting guns on YouTube to realize how bad things have gotten.

    In my own neighborhood they happen to sell said air-inflow ‘devices’ in most bodegas. Shaped like Skulls/Dragons/Penises too. Just about anything you can imagine. You will be shocked to discover that ready availability of said devices seems to have no impact whatsoever on the apparent drug use in the area, or relative social cohesion/ strength of the fabric of our society, etc. Shit, I don’t think they even *sell well*, what with kids these days too busy parachuting ecstasy, or wearing ether-gas masks… marijuana? pppt. that stuff is for Grandpa’s galucoma!

    Yet, there may be an upside = kids may be inspired to actually get down in the workshop and *produce their own* personal medication devices.

    I recall a summer of invention in my HS years (a time referred to as ‘the stone age’ by former associates of the era) where we spent many hours with glue guns, aquarium tubing, and other sundry materials to produce some genuinely inventive solutions for recreational ingestion of ‘plant matter’.

    One notable device, powered by an electric air pump, which had 3 separate chambers, including ‘coiled tubes in jar of ice’ concentrating-elements inspired by recent HS experiments with distillation equipment, and could only be carried in a crate by 2 people, was christened “King Bong”. It should have been patented. Eli Whitney, or the Mythbusters crew would have been proud. yes, it was only used twice, and while it was extremely effective in its role, was not the most socially-convenient item. Basically, imagine a tube coming out of an air conditioner which instantly turned relatively charming and affable people into giggling, drooling, pizza-desiring zombies. But, at least we learned a great deal about both the vacuum, and condensation. I did quite well in college Physics, possibly as a consequence. At least it apparently didn’t hurt.

    I personally think this current epidemic of “stuffing alcohol and drugs up your ass”-thing is clearly fostered by the state’s persecution of perfectly reasonable and legitimate ways of making kung-fu movies/Gallagher-comedy shows far more watchable.

    I’m sorry, this shit is just too ridiculously stupid. It distracts me from even more monumentally stupid issues, like the current cumulative debt of the Western World. @!(##@ Water Pipe-crimes? I need a drink, stat.

    Happy thanksgiving, all, btw.

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