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

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.