Why Head Shop Raids Are Unfair and Unjust

NORML Board Member Norm Kent tells the story of a reefer mad mayor of Key West, Florida, bringing in the federal agents to raid the headshops in his town.  These merchants had been operating in Key West openly and legally for years:

Why Head Shop Raids Are Unfair and Unjust | DrugReporter | AlterNet
Moti Elfasi, an Israeli by birth, is one of those businessmen whose inventory was seized. Having lived in Key West for a decade, he loves the atmosphere and the community of the island. But his head is spinning over what happened to him.

Here is what he told local reporters: “I don’t understand America. They gave me a license in Key West. I paid my taxes. I obeyed the law. Florida said it was OK to sell the things. But now people from Immigrations and Customs Enforcement, and federal agents from the Drug Enforcement Administration come in and take everything away from me without even a notice to remove it first.”

It’s more than that, Moti.

You detrimentally relied upon the representations of Key West city representatives that you could lawfully do what you were doing. Day by day, hour by hour, Key West city police patrolled your business, and no one told you that you could not do what you were doing. You have been operating openly and legally for years. You paid your taxes. You had an occupational license. You employed your neighbors. Now you got screwed.

Norm notes how all these seizures are done without any warrant or judicial approval as the items are deemed to be “drug paraphernalia” by the feds, even though they don’t actually have to prove the items were actually drug paraphernalia.  Any business owners who threaten to challenge the legality of the seizures and the return of their inventory are threatened back with federal drug prosecutions and mandatory minimum sentences if they don’t keep their mouths shut.

The federal law in question here is this:

Title 21, Chapter 13 of federal law states: “Drug paraphernalia means any equipment, product or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance …”

But then there is this nice little list of exceptions:

(f) Exemptions
This section shall not apply to—
(1) any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items; or
(2) any item that, in the normal lawful course of business, is imported, exported, transported, or sold through the mail or by any other means, and traditionally intended for use with tobacco products, including any pipe, paper, or accessory.

So what we have here is a law questioning the “primary intention” of a pipe, but exempting pipes with a “traditional intention” of smoking tobacco.  So, then, how does anybody go about legally creating a new kind of tobacco pipe?  ”Tradition” tells me that Sherlock Holmes’ curved pipe or Popeye’s corncob pipe are OK for tobacco (or spinach, I guess), but suppose I create a new pipe for tobacco?  How can anything new be “traditional”?

Suppose further that in the interest of making my new tobacco pipe easier to clean, I design it from glass rather than wood or plastic.  Then, to protect my tobacco-smoking users from tar, I give this pipe a large chamber for percolating the tobacco smoke through water.  Unless I can sell my new easy-clean tobacco-water-pipe to some customers over a period of time, it is never going to become anyone’s tradition to use it!

These stores go to great lengths to sell innovative new tobacco-smoking devices and accessories.  They post large signs that say “For Tobacco Use Only”.  They ask for people’s IDs and don’t serve the underaged.  They kick people out of the store if they even mention the word “bong”.  The feds can say it’s a “wink wink nudge nudge” game everyone is playing, that the buyer and the seller all know what the tobacco products are being used for, but how do you prove that in court without mind-reading technology?

Well, the point of Norm’s article is that you don’t.  These federal agents come in and seize the inventory based on their own opinion that something is “primarily intended” for drug use and they don’t have to prove that in court.  You have to prove that your property was intended for some other primary use or that it is traditionally used for tobacco, and if you try to prove that, they’ll charge you with selling drug paraphernalia and cost you more time, money, and freedom than you’ve already lost, even if you win your case.

And it’s a fruitless endeavor, anyway.  All you do when you shut down a headshop is increase the sales of plastic “honey bear” bottles and surgical tubing, toilet paper rolls and tinfoil, and apples and Bic pens.  (Say, that’s an idea.   Rather than opening a headshop, open a “Build-a-Bong” store!  You sell chambers, posts, screens, tubes, pieces and parts, but the customer has to assemble it at home!)