A U.S. appeals court upheld Virginia's 14-month-old drug paraphernalia law yesterday, rejecting a challenge by the National Organization for Reform of Marijuana Laws that claimed the law violated its free speech rights.
NORML argued the law, intended to crack down on so-called "head shops" selling marijuana pipes and other items, violated its First Amendment rights by allowing police to seize the organization's literature as evidence of a shopowner's intent to encourage drug usage. The organization, whose literature urged repeal of marijuana laws, argued that the law threatened to chill its efforts.
In a five-paragraph ruling, a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond sided with a lower court judge in Alexandria who last year found any impact on Washington organization's rights to be "incidental."
"The Virginia statute does not prohibit NORML's activities, nor does it proscribe any of NORML's materials," said the appellate court in upholding the July 1981 decision by District Judge Albert V. Bryan Jr.
Alexandria lawyer John Zwerling, past president of the state's NORML chapter, yesterday praised the Virginia legislature for drafting "a decent law" on the issue, but said he could not support the measure's purpose. " . . . I think it's ridiculous. The legislature recognized people wouldn't stop using drugs. It's the message they were concerned with."
"It wasn't a paraphernalia case, it was a First Amendment case," said attorney John Grad, who argued NORML's position before the appeals court earlier this month. "I begged the 4th Circuit to give us some guidelines and they didn't do it."
Alexandria chief prosecutor John Kloch said yesterday two alleged head shops have been successfully prosecuted in the city since the law took effect last July 1. There are none left in the city "to my knowledge," Kloch added.
Fairfax County Commonwealth's Attorney Robert F. Horan said that although there are about 10 suspected head shops in his jurisdiction, the much-publicized paraphernalia measure may have hindered, rather than helped, prosecutors.
"Certain politicians were parading around proclaiming the millenium," after the law's passage, Horan said. "It's pure malarkey."
Horan said Fairfax head shops cleared their stores of anything that suggested pipes and other items could be used to ingest illegal drugs as soon as the statute took effect. There have been no prosecutions in the county, as a result, although police "make the rounds periodically," Horan said.
Horan said that shops that once provided such drug literature as how to use cocaine or smoke marijuana, now post signs disclaiming any drug-related purpose for their merchandise and require that minors sign disclaimer forms.
"A bong may be used to smoke oriental tobacco or dope. A mirror may be used to cut cocaine or it may just be a mirror. There's a lot of ambiguity when it comes to bringing a successful prosecution -- as any law enforcement official could have told you back when the law was passed with great fanfare," said Horan.
Horan said prosecutors have brought charges in only about a half-dozen paraphernalia cases in Virginia since the law went into effect.