Buzzkill: State lawmakers target head shops

class=img_thumbleft> Believe it or not, Minnesota does have a law against selling drug paraphernalia. Really. It's right there in Chapter 152 of the Minnesota State Statutes, which states: "It is unlawful for any person knowingly or intentionally to deliver drug paraphernalia or knowingly or intentionally to possess or manufacture drug paraphernalia for delivery."

The existence of this statute raises some questions. For instance, why are there so many headshops in Minnesota? How come you can buy crack pipes--you know, those little glass tubes with the tiny paper roses--at half the convenience stores in the state? And what about all those high-end boutiques in Uptown with the $200 glass bongs in their display cases?

Aside from the self-evident explanations (the rule of supply-and-demand, the pathologically conflict averse nature of the Minnesotan, the general public tolerance for marijuana), the answer lies in the verbiage of the state law. By invoking that little clause--"knowingly or intentionally"--sellers and manufacturers of paraphernalia can, in effect, play dumb without legal consequence. As in, "No, that's not a bong. That's a four foot water pipe for use in smoking tocacco. Don't ever mention drugs in my store again!"

Lawmen and straight people may snicker at such flagrant prevarication. Nonetheless, the tactic has proved effective. Denial may be the enemy of the 12-stepper, but it is the backbone of sound legal strategy for headshop proprietors, glassblowers and tobacconists.

If two state lawmakers have their way, the local paraphernalia industry will have to adapt to a harsher environment. Leading the charge is State Senator Michael Jungbauer, a first term Republican from East Bethel. Jungbauer, who works as a wastewater treatment designer and serves as a youth minister, says he was inspired to push for a new law after discovering that his local video rental store offered pot pipes for sale. The ubiquity of paraphernalia, Jungbauer contends, serves only to encourage drug use by the young people. "If you see it everywhere," he opines, "people start to assume that it must be okay."

Last week, Jungbauer and State Senator Amy Koch (R-Buffalo) announced plans for legislation to eliminate the wiggle room in the existing law. Jungbauer says he is modeling the bill on laws in California, Wisconsin, and several other states. But in one important regard, his proposal would make Minnesota's paraphernalia law the functional equivalent of the federal code. And as the comedian Tommy Chong discovered in 2003, a federal paraphernalia rap is no laughing matter.

Why? Because the U.S. Code doesn't pay much attention to such fine legal points as the intentions or fore-knowledge of the alleged seller; it simply declares certain items to be drug paraphernalia and metes out penalties accordingly.

Robert Vaughn, an attorney with the National Organization for the Reform of Marijuana Laws, says he doesn't know of anyone who has beaten a federal parahernalia charge. By contrast, he says, acquittals are not unusual under state laws, most of which are vaguely worded and, like Minnesota's, predicated on intent. That said, Vaughn notes that one commonly employed tactic--posting signs that say paraphernalia "is not intended for illegal use"--doesn't always fly. Vaughn cites the case of a California headshop proprietor who posted 147 such signs in his store. The judge, quoting King Lear, told the businessman that he "doth protest too much."

Though State Senator Jungbauer insists he's not interested "in creating a new class of criminals," his proposal does beg one question: Will it reduce drug use or will more Minnesotans simply be consigned to a future of smoking their drug of choice out of homemade devices fashioned from light bulbs, pop cans, and carved fruit?