can't we all just get a bong

8/4/2019 Can't We All Just Get a Bong

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How the Federal crackdown on paraphernalia crippled theindustry and nearly sunk a magazine.By Paul DeRienzo

On February 24, 2003, US Attorney General John Ashcroft

announced the indictments of 55 individuals on charges of sellingdrug paraphernalia. The arrests were based on two federalinvestigations: Operation Pipe Dreams in Pittsburgh,Pennsylvania; and Operation Headhunter in Des Moines, Iowa.But the scope was extra jurisdictional. In other words, the bustsspanned America. Across the nation, 2,000 federal, state andlocal officers had swept down on unsuspecting business people.

The busts came down in Idaho, Texas, Iowa, Pennsylvania, Floridaand Ohio. Several of the people indicted were well known; themost notorious was comedian-actor Tommy Chong, who served 9

months in federal prison. Chris Hill, founder of Chills, a well-known purveyor of rolling papers and other smoking products,got 14 months.

The 2003 busts signaled a sea of change in federal paraphernaliaprosecutions. Up to that time, most investigations were aimed atretailers. Now the target was the distributors and manufacturers..Another new development was the seizure of distributorsInternet sites. The government didnt just seize these websites,but they replaced them with an anti-drug message.

Famous Oregon glass pipe blower Jerome Baker Designswebsite currently sports a US flag logo and a less than terrifyingmessage, the website you are attempting to visit has beenrestrained by the United States District Court for the WesternDistrict of Pennsylvania.Robert T. Vaughn is an attorney who has spent his career

fighting drug paraphernalia laws. He also publishes a newslettertitled The Letter of the Law, which has dealt with theparaphernalia industrys unique legal challenges for more than 20

years.

Since 1981 hes litigated paraphernalia cases in 31 states, andwas once indicted himself. Vaughn says the governmenteventually dropped the charges, but kept him too busy to fight aspate of new federal anti-paraphernalia laws. Vaughn says, Itssimple. If you have a bong, youre violating federal law. You can


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get a license to own a Tommy gun, but you cant get one to owna bong. Stores that have bongs are screwed. They cant win.

Change and challenge

It wasnt always like that. There was a time back in the early andmid-1970s that every town had its head shop. Head shops werewhere papers, pipes and bongs shared space with blacklightposters, incense, and lava lamps. But most head shops couldntsurvive the 1980s anti-pot atmosphere epitomized by first ladyNancy Reagans just say no philosophy. In August 1979 theDrug Enforcement Agency had come up with what they called themodel enactment. It was a proposed anti-paraphernalia lawdesigned for the then-difficult task of passing constitutionalmuster in every state.

The first attempt was a licensing law that was approved by theSupreme Court in 1982. West Virginia is the only state whereparaphernalia can be bought and sold legally with a license. ButWest Virginia still cant grant you a Tommy gun license, sinceFederal law bans automatic weapons. So, in the mid-1980scongress stepped in to target the paraphernalia industry underRepresentative Jim Wrights Omnibus Drug Bill.

Distribution danger

John is a distributor in California, but he doesnt distribute bongs,pipes or anything else remotely like pot or drug paraphernalia.But hes worried enough to want his identity kept on the quiet.What John deals in are what he calls first amendment materials,marijuana grow books, magazines like Cannabis Culture, Headsand High Times, and little hemp hackiesacks and other doo-dads.But John likes a low profile because he says hes notices thatpeople who expose themselves are targets. He says that hesseen too many people with a high profile in the business get

busted.

John says he wanted to be an astronomer, but when NASAsbudget got cut he had to find a new career. He started out as anaccountant and eventually was working for Ask Ed Rosenthal,eventually buying the part of his business that distributed books.

Things were not great, but except for a couple of ups and downs,


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went smoothly for the most part.

Until about three years ago when his phone stopped ringing andretailers stopped ordering. They government was busting hiscustomers, putting people in jail, imposing heavy fines and

putting people out of business. But John says he noticedsomething else. After about a year his sales started picking up,not in the US, but first in Canada and then in Europe.

He realized that US tourists travelling in Canada and Hollandwere buying his grow books and returning with them to the US.His European customers responded by selling more books. Then

Tommy Chong got busted. The TV star and pot funnyman hadbeen as public as you could be, offering his drug de-tox productsin full-page ads in High Times every month. John says, I knew

the business I was in was heading for a rocky road.

Former High Times Editor-in-Chief Richard Stratton says theeffect of the Chong bust was chilling. It was like an American

Taliban. Adds Stratton, theres no saying what theyll bannext. Paraphernalia distributors had much more success in thepast staying one step ahead of the Feds. Our experience wasgreater, Vaughn says. They didnt know who the players were;there were blanks to be filled in over the years. But in 1990 theSupreme Court ruled drug-paraphernalia violators could be

subject to Racketeer Influenced and Corrupt Organization (RICO)and money laundering charges. That gave an incentive toprosecutors: they could seize assets, cash, and other holdings inthe same way they prosecute organized crime and moneylaundering.

Kinda-not-really illegal

In 1994 the U.S. Supreme Court dealt another blow to theparaphernalia industry with the Posters N Things decision, which

approved a so-called subjective standard for defining what drugparaphernalia is. Before Posters N Things, a distributor or aretailer had to discourage intent, by a customer, to use pipes andbongs for illegal drugs. Thats why customers at headshops wouldoften see prominent signs above pipes with the warning fortobacco use only.


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In Poster N Things, the Court actually included a footnote with adefinition of a bong. The decision also included a laundry list ofitems that could be used for illegal drugs. If an item is sold withcertain designs, be it marijuana leaves or High Times logos, it canbe considered illegal paraphernalia. The list checks off categories

of items: chillums, bongs, wired cigarette papers, roach clips(meant to hold burning material that has become too small ortoo short to be held in the hand) are listed with an itemdescribed simply as cocaine freebase kits.

By 1999 the government was ready for a coordinated sweep, thistime not just of retailers, but also of distributors, Internet sitesand manufacturers. According to Vaughn the latest sweepsbegan when the initial victims of Posters N Things cases got outof jail, and began complaining about selective prosecution

because other paraphernalia distributors werent being arrested.A federal prosecutor for the Southern District of Iowa namedLester Paff, based in Des Moines, took the lead.

Paff is someone who knows how to make busts outside hisimmediate jurisdiction, and collect large sums of money from hisvictims using the RICO laws. The Des Moines federal prosecutorsoffice was headquarters for Operation Headhunter. Although Paffwouldnt comment directly for this article, Cannabis Culture didspeak with Southern District press spokesperson Al Overbaugh

about Headhunter. Overbaugh acknowledges Iowa has a longhistory of prosecuting headshops, adding with a little cheek, weshouldnt ignore certain laws over others. He says the lawdoesnt directly address magazines and grow books not to saythey wouldnt be evidence, but he adds openly selling druguse material has an effect. It makes drug use seem OK andlegitimate in society.

Overbaugh says Operation Headhunter wasnt that financiallylucrative. We didnt end up with all that much money in all of our

cases. We cant put a company in jail, so we go after assets.Forfeitures (assets seized under federal forfeiture laws) go to theForfeiture Asset fund. The forfeiture money is usually returned tothe state and local law enforcement, with a percentage going tovarious federal agencies.

But what happens to the seized merchandise? Overbaugh wont


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give too many details, but he says the contraband, is kept in astorage facility until they run out of room, and they rent adumpster. Also, on a certain day, any law enforcement officialthat has some free time is invited to show up and help smash theglassware. Overbaugh implied he considered it good fun, and

laughed.

Always on alert

Allen F. St. Pierre, Executive Director of the NationalOrganization for the Reform of Marijuana Laws, says theprosecutors in paraphernalia cases have abused peoples civilrights.According to St. Pierre the paraphernalia laws are one of the

last great thought crime in America, because, he says, youre

prosecuted for what prosecutors think you would use it for.But St. Pierre believes the governments heavy-handed tactics

might be backfiring. He points out that when Tommy Chong wasreleased from federal prison he was quickly invited onto the

Tonight Show by Jay Leno. Leno encouraged the comedian toplug his future work and in effect, St. Pierre says, stick hisfinger in the eye of the US government.

With tens of millions of pot smokers in the US, he has no doubtthat there is no reduction in paraphernalia sales. But he does

say that the prosecutions have increased worry and fear amongbusiness people. NORML recently received calls from Florida,from small business people whove been visited by the police,checking out their merchandise, and making threateningcomments about possible prosecutions.

As long as the wolf is at the door, there will be concern, saysRobert Vaughn, and St. Pierre agrees. He adds a warning:paraphernalia distributors shouldnt go to bed without theburning sensation they will wake up and find yellow tape.

can't we all just get a bong

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