The opinion of the court was delivered by: DEBEVOISE
Plaintiff, Jerry Green, co-owner of Record Museum, a retail establishment located at Quaker Bridge Mall, Lawrenceville, New Jersey,
instituted this action seeking declaratory and injunctive relief for alleged violations of his civil rights. He asserts a cause of action arising under 42 U.S.C. §§ 1983 and 1985 and under 28 U.S.C. §§ 2201 and 2202. Jurisdiction is invoked under 28 U.S.C. §§ 1331 and 1343(3) and (4).
The defendants are the Township of Lawrence, New Jersey, and its mayor, chief of police, and members of the Township council.
The matter was heard on plaintiff's application for a preliminary injunction, a temporary restraining order having been denied eight days earlier. Prior to the hearing, the parties agreed, pursuant to Fed.R.Civ.P. 65(a)(2), that the trial of the action on the merits would be advanced and consolidated with a hearing on the application for a preliminary injunction. An order to that effect was entered from the bench.
The facts are as follows:
Record Museum is a retail establishment which conducts its business in Quaker Bridge Mall, the largest shopping center in Lawrence Township. It specializes in the sale of records and novelty items and is open and available to all members of the public who utilize the mall.
Prior to April 18, 1979, Record Museum sold numerous publications and accessories which are unmistakably oriented to drugs such as marijuana, cocaine, hashish, mushrooms having mind-affecting properties and to the many uses of such drugs.
The publications included the following: (i) High Times, a slick magazine identifying itself as "The Magazine of High Society" and devoted to drug-related topics such as mushroom cults, how to avoid detection by law-enforcement officers when smuggling narcotics, and sex and drugs; (ii) Cooking with Marijuana, the subject of which is, as its name implies, using that particular drug in performing the culinary arts; (iii) Connoisseur's Handbook of Marijuana ; and (iv) a pseudo-scholarly volume entitled High Times Encyclopedia of Recreational Drugs, which touts itself as being "The most exhaustive mass market book ever published on drugs" and which devotes itself to such subjects as the history of drugs, growing and improving your own drugs, herbal highs, aphrodisiacs, drug laws, and much more.
Record Museum sold posters depicting such subjects as mushrooms having exotic properties and a greatly enlarged bud of Columbian Gold, a brand of marijuana. It sold The High Times Calendar, which has an attractive picture for each month of the year portraying a drug or drug-related subject.
In addition, plaintiff introduced in evidence a number of items which Record Museum sold prior to April 18, 1979, such as cigarette rolling papers, clips, hemostats and the like. Mr. John E. Neuman, who had been in the employ of the Record Museum for fourteen and a half years, professed not to know for what purposes people bought these items, but had he read the chapter in High Times Encyclopedia of Recreational Drugs entitled "Paraphernalia" (Exhibit P-25), he would have learned the following:
Language changes. "Paraphernalia" adopted directly from the ancient Greek word for dowry (Paraphernos (thing) carried beside) and used for three centuries to refer in general to optional accoutrements of wardrobe or military gear, today means primarily the vessels and tools of recreational drug use. These include a bewildering variety of pipes, hookahs, chillums, bongs, carburetors, rolling papers, roach clips, herb cleaners, screens, razors, mirrors, syringes, paper and cellophane bags, and increasingly bizarre constructions of sheet metal, plumbing fixtures, rare Oriental woods and laboratory tubes and filters that look like discarded moonshine stills or alchemical astrolabes. As we shall see, paraphernalia has become technological subculture, rooted in the old American tradition of the basement tinkerer and the backyard adventurer, watered by the capital of a rapidly-growing dope-paraphernalia industry, and harvested by a generation of bionic dopers who demand both scientifically sophisticated and environmentally balanced accessories to get high with. At page 285.
Mr. Neuman was slightly more familiar with drug-related uses of other items which Record Museum sold prior to April 18, 1979, examples of which plaintiff did not introduce as exhibits, but the sale of which was brought out on cross-examination bongs, testing kits to determine if marijuana were contaminated, rollers and snorting hoses.
In March, 1979, William F. Seabridge, Lawrence Township's Chief of Police, was requested by the Municipal Manager to investigate citizens' complaints about sales of drug paraphernalia in a number of retail outlets located in Quaker Bridge Mall. The police officers assigned to conduct the investigation reported to the Chief of Police, and he reported to the Town Manager, that there were five outlets in Quaker Bridge Mall which were selling drug paraphernalia, namely Record Museum, Music Scene, Shop of India, Oriental Pearl and John David, Ltd.
Chief Seabridge did not define the words "drug paraphernalia" in his affidavit filed in this action, nor did his written report to the Municipal Manager dated March 16, 1979, define that term. The report, however, was accompanied by ten photographs of displays at various of the five retail establishments at Quaker Bridge Mall (including Record Museum) which sold narcotics paraphernalia. These photographs disclosed a number of items of the nature referred to above, and the evidence shows that the terms "drug paraphernalia" or "narcotics paraphernalia" have a recognized meaning among law-enforcement people and among owners and patrons of establishments like the Record Museum.
Section 1 of the ordinance provides:
No person either as principal or as an employee, agent, or representative of a firm or corporation, nor any firm or corporation, shall advertise, display, sell or offer to sell, lease, distribute or give to minors, or maintain any ...