Moorhead drug paraphernalia law: A look at the precedent-setting ordinance and legal ruling

Is there a workable legal distinction between this...
Is there a workable legal distinction between this...

In recent weeks, two cities in the Twin Cities metro -- Stillwater and Hudson, Wisconsin -- have taken steps to criminalize the sale or possession of unused glass pipes and other objects that can be used to inhale controlled substances. Such objects, city officials argue, constitute "drug paraphernalia."

State statute prohibits the use, possession, delivery, and advertisement of drug paraphernalia, but doesn't precisely define what constitutes "drug paraphernalia." In practice, Minnesota cities have historically turned a blind eye as smoke and head shops through the state sold glass pipes, bongs, and other items of that sort.

But last December, the city council in Moorhead took the unusual step of banning "objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing controlled substances," including glass pipes, water pipes, roach clips, and chillums. In February, that broad definition of "drug paraphernalia" withstood a challenge in U.S. District Court, suggesting to cities like Stillwater and Hudson that there is a legal basis for their crackdown on glass pipes.

Given its proximity to North Dakota and the more restrictive drug paraphernalia laws there, Moorhead was something of a hub for head shops -- five stores in town sold everything from glass pipes to grinders to bongs before the "drug paraphernalia" ban went into effect in January.

A couple weeks after the new ordinance went on the books, Randall Tigue, an attorney representing Moorhead head shop Discontent, filed a federal lawsuit requesting a temporary restraining order to keep police from enforcing the new law. Part of Tigue's argument was that the ordinance caused irreparable harm to Discontent's business. In fact, the shop closed the day the ordinance went into effect.

... and this? Courts haven't yet provided a decisive answer to that question.
... and this? Courts haven't yet provided a decisive answer to that question.

But in February, Chief U.S. District Judge Michael Davis denied Tigue's request, ruling that Discontent failed to prove it would suffer irreparable harm under the ordinance.

Two months later, Stillwater approved an almost identical paraphernalia ban and cited Moorhead's ordinance and its ability to withstand a legal challenge as inspirations. Then, earlier this month, Hudson police decided to change their working definition of "drug paraphernalia" to mirror Moorhead's and on Monday confiscated a smoke shop's entire collection of glass pipes.

Hudson Police Chief Marty Jensen said that before the Moorhead ordinance came along, his department worked "under the assumption that [if] the pipe hadn't been used, it wasn't considered drug paraphernalia." Now, it appears there is a legal basis for criminalizing unchristened pipes.

But Tigue, who also represents a Stillwater tobacco store affected by that city's new paraphernalia ban, recently said he plans to challenge that city's new ordinance as well. He suggested that this time around, his legal argument will hinge on the seemingly unenforceable ambiguity between legal tobacco pipes and illegal drug paraphernalia rather than the harm such ordinances do to tobacco stores' business.

"What [cities like Moorhead and Stillwater] have done is gone in and said, 'If you sell any of these pipes, we're going to bust you for it, regardless if you have intent,'" Tigue told the Pioneer Press last month, adding that he doesn't think the new drug paraphernalia bans cropping up throughout the region justify that level of enforcement.

It may soon be for the courts to decide. Head shop owners throughout the state will no doubt be looking on with bated breath.

Related coverage:
-- Hudson police raid smoke shop, confiscate all glass pipes as "drug paraphernalia"
-- Stillwater drug paraphernalia ban becomes law, lawyer promises court challenge
-- Stillwater approves drug paraphernalia ban, on forefront of war against glass pipes

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