licensed manufacturer, licensed dealer, or licensed collector to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person . . . (3) is an unlawful user of or addicted to marijuana or any depressant or stimulant drug (as defined in section 201(v) of the Federal Food, Drug, and Cosmetic Act) or narcotic drug (as defined in section 4731(a) of the Internal Revenue Code of 1954); . . ." (emphasis added)
The Court is unable to find a case in which the constitutionality of this subsection of 18 U.S.C. § 922 has been questioned and its validity upheld.
However, 18 U.S.C. § 922(d)(3) and the challenged ordinance are distinguishable despite the fact that each requires a seller of merchandise to assess the drug-using intention of the purchaser. Firearms are inherently dangerous items sold by those specially licensed to engage in that activity. Such circumstances may mandate that a greater duty of inquiry should be imposed upon a seller of guns than should be imposed upon a seller of the type of merchandise prohibited by the Roxbury ordinance.
Moreover, the seller faced with the Roxbury ordinance has to do more than merely assess whether or not the purchaser is an unlawful user of drugs. He must also determine what the customer intends to do with the items of purchase. Certainly in a case where the purchaser announces his or her intention to utilize the paraphernalia purchased for an illegal purpose, the seller would be placed in no dilemma; however, the question arises as to what would create a reasonable belief in the mind of the seller in the absence of such an unlikely announcement by the purchaser. Does the purchaser's age, sex, mannerisms or dress afford to a seller reason to believe that the paraphernalia will be used for an illegal purpose? Or should the nature of the purchaser's companions or the items he or she carries be determinative? These questions indicate the difficulty that a merchant, as well as a law enforcement officer, would have, in the absence of an admission by the purchaser, in determining what gives rise to a reasonable belief that a purchaser intends to utilize the paraphernalia for an illegal purpose. An additional concern is whether it is proper to charge an owner of a department store, or any other store, with the responsibility for a sales clerk's determination as to whether the person purchasing an item, especially an innocuous one such as a weight scale or a spoon, intends to utilize it for some improper and illegal purpose.
Not only is the subjective standard imposed by the ordinance vague, but so is the enumeration of the items covered. The ordinance refers to "any other paraphernalia or appliance." Thus, a merchant might have difficulty not only in determining the purpose for which the merchandise was to be used, but in speculating as to which items come within the ordinance's coverage. While the language may have been intended as a catch-all in the event the itemization was not sufficient, it makes it difficult, if not impossible, for the targets of the ordinance to know what conduct falls within its purview.
If the ordinance were written to prohibit the sale of specified paraphernalia where the seller intended it to be used in connection with controlled substances, the ordinance might survive judicial scrutiny. The seller's intent could be inferred, for example, from store displays suggesting the item's utility in conjunction with illegal drug usage. In contrast, the subject ordinance focuses upon a seller's subjective determination of a purchaser's state of mind and intention with regard to various identified and unidentified articles.
Therefore, in striking the ordinance for vagueness the Court does not mean to indicate that there are no means by which this municipality or any other governmental entity might accomplish the goals of such legislation, but unfortunately this particular ordinance is not constitutionally suited to that purpose. The Court is mindful of problems occasioned by rampant drug use, but it cannot sustain an enactment obviously intended to combat that ill where due process is violated. The ordinance is aimed at a legitimate target the sale of paraphernalia utilized in connection with illegal drugs, but its impact is too broad. It is a cannon where an arrow is more appropriate.
Finally, plaintiff claimed at oral argument that the ordinance was overbroad in violation of the First Amendment. The prohibition in the ordinance that "no person shall . . . offer to sell" would prohibit advertisement of paraphernalia for any purpose, legitimate or not. "Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price." Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 765, 96 S. Ct. 1817, 1827, 48 L. Ed. 2d 346 (1976). Consequently, even commercial speech is entitled to some First Amendment protection. However, it is not clear from the record whether plaintiff engages in advertising of the items enumerated in the ordinance. Since his conduct may not be constitutionally protected under the First Amendment, he does not have standing to challenge the ordinance on this ground.
See Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977).
Plaintiff's motion is granted, without costs. Counsel for plaintiff should submit an appropriate form of judgment consented to as to form by opposing counsel.