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.