The District of Columbia Court of Appeals ruled (PDF) today that a local law barring the sale of items commonly used as drug paraphernalia is sound, rejecting a challenge from a gas station owner and clerk arrested for selling items often used to smoke crack cocaine to an undercover officer.
Attorneys for the defendants, who had argued the statute is unconstitutionally vague, said this morning that they plan to petition for a rehearing en banc.
The court found that the District of Columbia Drug Paraphernalia Act of 1982 requires proof that a seller had specific intent to sell otherwise innocuous items – in this case, an ink pen and metal scrubbing pad – as drug paraphernalia and also knew that the items could be used to ingest drugs.
The defendants had argued the law was unclear on defining specific intent and unfairly held business owners and store clerks responsible for the sale of the ordinary items used to ingest drugs. They argued that under other case law, specific intent meant the seller had to know that the buyer was going to use the items to ingest drugs, not just that the items could be used as paraphernalia.
The U.S. attorneys’ office had argued the law did not require proof of specific intent at all. The case represented the first test of the law on this issue.
The appellate judges upheld the convictions, finding that by selling the pen and scrubber together, the defendants knew or should have reasonably known that the buyer would use the items sold together as drug paraphernalia.
Steven Kiersh, who represented store owner Shahzad Aslam, said this morning that he plans to petition for a rehearing because “the statute is unconstitutionally vague and oppressive to small business owners.”
Jeffrey Light represented the clerk, Surur Fatumabahirtu. Light said he also plans to pursue a rehearing en banc, noting that while the appellate judges acknowledged the law could be interpreted several ways on intent, he believes they made a decision without proper grounds.
Light maintains that other case law, including the U.S. Supreme Court in Posters ‘N’ Things Ltd., et al v. U.S., interpreted specific intent to mean the seller had to know that the buyer was going to use the items to ingest drugs.
“The way they apply it, you don’t really need to know anything about drugs,” Light said. “Store clerks are put in this position now where they’re going to have to ask their managers, ‘Well, why are we selling these items together, is that for drugs, and if so, I need to quit my job.’”
A spokesman for the U.S. attorneys' office declined to comment.
The undercover operation began on June 28, 2007, when an officer went into the gas station and asked for an “ink pen.” He explained during the bench trial that the glass pen he asked for could be rigged as a device to smoke crack cocaine. Aslam, the officer testified, sold him the pen and a metal scrubbing pad that was also commonly used as part of the device.
Based on that visit, the police came back a week later with a search warrant to look for other drug paraphernalia. Police seized two boxes of copper scouring pads, digital scales, and small, empty ziplock bags, according to the opinion. The officers testified that a number of the items were found in a back storeroom or behind the counter.
Aslam and Fatumabahirtu testified they had no knowledge of any illegal activity or that the items they were selling could be used to ingest drugs.
District of Columbia Superior Court Judge Wendell Garner Jr. found the two guilty on Feb. 19, 2008 of attempted possession of drug paraphernalia with intent to sell.