The opinion of the court was delivered by: DEBEVOISE
This case is the latest in a series of cases challenging municipal ordinances designed to make unlawful the sale of so-called narcotics paraphernalia, usually in retail establishments known as "headshops".
On May 16, 1980, plaintiffs, World Imports, Inc. and its owner, Roger Chu, filed a complaint naming as defendants Woodbridge Township and its Mayor, the Director of Police, the Chief of Police, and the members of the Township Council. Injunctive and declaratory relief was sought with regard to Woodbridge Township Ordinance No. 80-20 regulating and controlling the possession and sale of drug paraphernalia. Jurisdiction is asserted under 28 U.S.C. §§ 1331 and 1343(3) and (4).
I declined to enter an order temporarily restraining enforcement of the ordinance and scheduled a hearing on plaintiffs' application for a preliminary injunction. The hearing was held on June 4, 1980. Pursuant to Rule 65(a)(2), and with the consent of the parties, I ordered that the trial of the action on the merits be advanced and consolidated with the hearing on the application for a preliminary injunction.
According to the verified complaint, Ordinance No. 80-20 was adopted by the Woodbridge Township Council on April 15, 1980, to become effective twenty (20) days thereafter, on May 8, 1980. In general, the ordinance defined drug paraphernalia, set forth factors which a court or other authority should consider in determining whether an object is drug paraphernalia; prohibited the use, or possession with intent to use, of drug paraphernalia to produce, store or ingest a controlled dangerous substance; prohibited the distribution or possession with intent to distribute or manufacture with intent to distribute, of drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to produce, store or ingest a controlled dangerous substance; and prohibited the placing in any publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement in whole or in part is to promote the sale of objects designed or intended for use as drug paraphernalia.
Chu asserted in his affidavit that he is not certain what is specifically covered by the ordinance. Interestingly, he stated that "Many of the items which are enumerated in the Ordinance like pipes, scales and rolling papers are sold to customers who use those items for purely legitimate purposes.", leaving the clear impression that other items enumerated in the ordinance are sold to customers who do not use those items for purely legitimate purposes.
At the hearing on plaintiffs' application for a preliminary injunction, plaintiffs called John Patrick Driscoll as a witness. Driscoll, until two years ago, had been a police officer in a private New Jersey college. During his training and thereafter he had taken courses concerning drugs and drug abuse, and while on the campus he occasionally dealt with students who were using drugs.
The purpose of his testimony was to establish that various items of equipment which would commonly be identified as drug paraphernalia also have innocent uses. He testified that a number of years ago he purchased a glass water pipe in a pharmacy in the Monmouth Mall, that he never used it in connection with drugs other than one experiment with a combination of brandy and tobacco, and that he has converted it into a lamp. He testified that a pewter box which he had purchased in a headshop in Ocean County was not used by him as a stash box for marijuana; rather, he bought it because his wife liked giraffes and there was a giraffe engraved on the box; the box was used to store coins. Finally, he identified an alligator clip which he purchased in an electrical supply store, and which he does not use to puff marijuana roaches; he uses it to make an electrical connection on his stereo.
On cross-examination, Driscoll was shown a number of items, the like of many of which Driscoll had seen in the special area of the World Imports store where articles commonly known as drug paraphernalia were sold. As to a number of these items, he conceded that they might be used to smoke marijuana, ingest cocaine or to enhance the effect of drugs, and he would not have been surprised to learn that similar items were sold at World Imports. These items included a simulated rifle cartridge which, when pulled apart, disclosed an alligator clip, known as a roach clip; a small hashish pipe; a replica of a rifle cartridge which, when pulled apart, was found to contain a projectile with a curved bowl at the end a coke spoon used for the ingestion of cocaine a bong and various other devices for smoking and enhancing the effect of marijuana.
Since Driscoll's law-enforcement days had terminated two years ago, he was not aware of some of the new delights which are currently available. He was unfamiliar with an object which looked like a frisbee, had a hole and a screen in the middle and was called a buzzbee. Later testimony disclosed that it is intended to be thrown like a frisbee and then used by the catcher to obtain an enhanced puff of marijuana smoke through the honeycomb screen before throwing it to another participant to catch and take his puff through the honeycomb screen.
Neither was Driscoll able to identify an object that looked like a small bomb, and labeled the Power Hitter. He read the instructions which went with the object, which stated: 1) Insert joint in metal jointholder; 2) Light joint; 3) Screw cap on firmly; 4) Cover over hole and squeeze a puff of smoke into the mouth. Having read this, Driscoll was led to believe that the Power Hitter was designed to hold marijuana.
It was Driscoll's opinion that these kinds of objects do not promote the use of drugs, observing that most of the items similarly used which he had encountered in his law-enforcement days were homemade.
He testified that he had confiscated nine of the items of drug paraphernalia shown to Driscoll during police investigations and arrests for drug offenses. None of the nine had been obtained from World Imports. He had been in the World Imports store on several occasions. The store maintained a back room in which similar items were sold.
After the enactment of the ordinance, Detective Alexander went to each establishment known to him to sell drug paraphernalia and gave each a copy of the ordinance and explained it to the owner. He stated that the only question any owner asked was the status of rolling papers.
It appears from his testimony that Detective Alexander's understanding of the ordinance is flawed, at best. It can be inferred that he is unclear as to the elements of the offenses defined by the ordinance and the relationship prescribed in the ordinance of the articles covered by the ordinance to the ...