Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80-C-1574 -- George N. Leighton, Judge.
Cummings, Chief Judge, Pell, Circuit Judge, and East, Senior District Judge.*fn* Pell, Circuit Judge, concurring.
Peter and Ernest Levas, doing business as Levas T-Shirts, brought suit in federal district court to challenge the facial constitutionality of a drug paraphernalia ordinance enacted by the trustees of the Village of Antioch, Illinois. They sought declaratory and injunctive relief based on Fourteenth Amendment due process and equal protection claims, challenges under the First and Eighth Amendments as incorporated into the Fourteenth Amendment, and a contention that the ordinance violated the Commerce Clause. The district judge denied all relief, finding no constitutional infirmity in the ordinance. The Levas brothers appealed, and we heard oral argument on June 8, 1981. Thereafter the case was held for decision pending the Supreme Court's resolution of a related case, Village of Hoffman Estates v. Flipside, 455 U.S. 489, 102 S. Ct. 1186, 71 L. Ed. 2d 362, 50 U.S.L.W. 4267 (1982). This Court, sua sponte, ordered the parties to submit simultaneous memoranda concerning the effect of the Hoffman Estates decision. Informed by the original argument, the Supreme Court's decision, and the additional briefing, we now affirm the judgment of the district court.
I. Procedure in the District Court
As a threshold matter, the Levases object to the procedures employed by the district judge. The Levases had appeared before Judge Leighton on April 16, 1980, seeking a temporary restraining order (TRO); the defendants opposed it. At the close of the hearing, the judge indicated that he would rule on April 28. Instead, he issued his decision, with two days' notice and no further hearing, on April 22. In his decision the judge denied temporary, preliminary and permanent injunctive and also declaratory relief. 4/22/80 Tr. at 6, 18-20. The Levases maintain that different evidentiary standards and burdens of proof apply to temporary restraining orders and preliminary injunctions, and that the trial judge's consolidation of the proceedings on short notice deprived them of an adequate opportunity to make their case. Br. 15-17.
A review of the record convinces us that the trial judge acted properly. When a TRO is issued ex parte and without notice, the applicant must show "that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition," and that he has tried to give notice or has special reasons why notice should be excused. Federal Rules of Civil Procedure 65(b). The trade-off for ex parte issuance is that the TRO has a limited life.*fn1 Thus a party might fail to satisfy the criteria for an ex parte TRO and still be entitled to a preliminary injunction. This is the position the Levases claim to have been put in.
In fact, no TRO was being sought ex parte : the defendants had notice and appeared at the hearing to contest the motion. The Levases were therefore not required to make the higher showing contemplated by Rule 65(b). The court could and did treat the application as one for a preliminary injunction. MLZ Inc. v. Fourco Glass Co., 470 F. Supp. 273, 275 (E.D. Tenn. 1978), citing 11 Wright & Miller Federal Practice and Procedure § 2951. There was no reason for the judge to hold a second evidentiary hearing, explicitly denominated a hearing on the Levases' motion for a preliminary injunction, when the first hearing had already served that function.
Perhaps the Levases are objecting, somewhat inartfully, to a different problem: the trial judge's decision to deny all relief, rather than just preliminary injunctive relief, when he ruled on April 22. To that objection, too, there is an appropriate response. Rule 65(a) (2) of the Federal Rules of Civil Procedure allows the court to advance a trial on the merits, consolidating it with the hearing on the application for a preliminary injunction.
It is quite clear * * * that no notice [of consolidation] need be given prior to the hearing, since the rule provides in terms that advancement and consolidation may be ordered after the commencement of the hearing. What is required is that the parties be given a full opportunity to present evidence in the case. * * * A plaintiff putting on his case for temporary relief may hold back evidence, or, indeed, his case may not be fully developed. Thus it is important for him to know when he puts on his evidence that he is having his final "day in court."
7.2 Moore's Federal Practice para. 65.04 (emphasis in original; footnotes omitted)
Here the Levases concededly had put on all their evidence. At the beginning of the April 16 hearing, they said, "Your honor, we have agreed there probably are no factual disputes that would require testimony." 4/16/80 Tr. at 2. The issues had been fully briefed, and in the hearing they had had an opportunity to develop all the legal arguments in support of their facial attack on the ordinance. When the judge issued his final decision on April 22, the Levases' attorney sought clarification of some points but raised no objection to the procedure. The judge explained his reasons for acting expeditiously: "Your clients are entitled to know as promptly as possible and that is why I asked you to come here today instead of waiting until next Monday." The attorney's response was: "Thank you, your Honor." 4/22/80 Tr. at 24. Finally on May 7 the Levases appeared again before the district judge, to ask for an injunction pending appeal. The request was denied. The Levases made no objection then, either, to the April 22 procedure.
The Levases' claim of prejudice in the development of their case is therefore without merit. See, e.g., Socialist Workers Party v. Illinois State Board of Elections, 566 F.2d 586 (7th Cir. 1977), aff'd, 440 U.S. 173, 59 L. Ed. 2d 230, 99 S. Ct. 983 (no prejudice to defendants when permanent injunction issued after hearing on application for preliminary injunction); Cousins v. City Council of the City of Chicago, 322 F. Supp. 428 (N.D. Ill. 1971) (permanent relief denied at close of hearing in which preliminary injunction was sought against Chicago redistricting ordinance), rev'd on other grounds, 466 F.2d 830 (7th Cir. 1972), certiorari denied, 409 U.S. 893, 34 L. Ed. 2d 151, 93 S. Ct. 85.
II. The District Court's Decision that the Antioch Ordinance Is Constitutional
A. The Terms of the Ordinance
In recent years communities across the country have come to believe that criminal laws prohibiting the possession, sale, and distribution of drugs do not adequately deter drug use, particularly among the young. Accordingly, many states, counties, and municipalities have enacted drug paraphernalia ordinances designed to stop or control the sale of equipment that can be used to grow, purify, store, ingest, inhale, or inject drugs. The drafting problem inherent in such ordinances, however, is that few items are useful solely as drug implements, and an astonishing variety of ordinary articles can be converted to drug use. The Model Drug Paraphernalia Act, drafted by the Drug Enforcement Administration, is an attempt to write a statute that will be broad enough to deal with the problem effectively, yet not so broad that it impinges on constitutionally protected conduct or so vague that neither the law's targets nor its enforcers know what it means.*fn2 The distinctive features of the Model Act are two: it attempts to give content to the necessarily general definition of drug paraphernalia by listing examples and factors to be considered; and it contains an intent requirement that is meant to mitigate any definitional uncertainty.
The Village of Antioch has enacted the Model Drug Paraphernalia Act, with some modification, as its ordinance. The full text of the Antioch ordinance is set out in the Appendix. Antioch has taken over verbatim the Model Act's:
(1) definition of drug paraphernalia, which consists of a general paragraph, followed by an illustrative, but not exhaustive, list of concrete examples;
(2) list of factors "a court or other authority should consider in addition to all other logically relevant factors" in deciding whether a particular object qualifies as drug paraphernalia;
(3) prohibition on the sale or delivery of drug paraphernalia; and
(4) broad severability provision.
Like the Model Act, the Antioch ordinance has a scienter requirement, though it is differently drafted in the two statutes. The Model Act includes an intent requirement in the definition of drug paraphernalia,*fn3 and repeats it in a slightly different form in the offense section.*fn4 The Antioch ordinance sets out a scienter requirement only in the definition of drug paraphernalia*fn5 and incorporates it into the offense section by referring to the term "drug paraphernalia."*fn6
In addition, the village has added language of its own banning (apparently on a per se basis)*fn7 the sale or delivery of cocaine spoons and marijuana or hashish pipes. The penalty for violating the ordinance is a fine of $25 to $500, and each day of violation is treated as a separate offense.
Antioch has not enacted the Model Act's ban on the manufacture or use of drug paraphernalia, although actual use by the purveyor of paraphernalia is relevant to his intent. Nor does the Antioch ordinance contain the Model Act's ban on advertising that in some degree encourages illegal drug use or its enhanced penalties for sales to certain minors.
B. The District Court's Decision
In his April 22 order, the district judge found all appellants' constitutional claims except vagueness insubstantial. On the vagueness issue, the district judge's holding is that the short definitions are "easily understood, clear, concise, lucid and understandable," 4/22/80 Tr. at 9, and that the definition of drug paraphernalia, though it is long and elaborate, is "definite and clear," id. at 11.
However, Judge Leighton based his opinion explicitly on the reasoning and result of Judge Manos in Record Revolution No. 6, Inc. v. City of Parma, 492 F. Supp. 1157 (N.D. Ohio 1980).*fn8 We think therefore that Judge Leighton meant his decision to embody the same modifications that Judge Manos deemed necessary to uphold the same Model Act provisions in the Parma ordinance. These are:
(1) The intent language, "used, intended for use, or designed for use" must be understood as a somewhat awkward attempt to assign the appropriate scienter to each category of offender within the Model Act's ambit. The Parma ordinance reached manufacturers ("designed for use"), distributors ("intended for use"), and possessors ("used"). The Antioch ordinance applies only to the distributional level. We need not strike "designed for use" or "used" from the Antioch ordinance (although they will rarely have any application to the head shop proprietor), so long as it is clearly understood that no one can constitutionally be convicted on the basis of someone else's intent. See 492 F. Supp. at 1168-1169.
(2) Wherever the Model Act allows intent to be inferred from what the charged party knew or "should reasonably have known," the quoted language must be excised. (In the Model Act the phrase occurs four times in Article II (Offenses and Penalties) and once in Article I's enumeration of factors a court may consider in deciding whether a particular item is drug paraphernalia. In the Antioch ordinance it occurs only once in the list of factors.) If an intent requirement is to compensate for the vagueness that inheres in the definition of drug paraphernalia (see IV.A infra), the intent must be based on knowledge of facts or strong probabilities -- rather than on negligent failure to know. 492 F. Supp. at 1171, n. 7; 1174.
(3) Among the factors a court or other authority may consider is whether the owner or person in control of a particular object is a "legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products." Judge Manos severed that factor, because it posed a serious risk of discriminatory enforcement. 492 F. Supp. at 1171. Judge Leighton apparently concurred.
There is one further complication in parsing Judge Leighton's opinion. The Sixth Circuit's decision, 638 F.2d 916 (1981), in turn has twice been vacated and remanded by the Supreme Court -- the first time for reconsideration in light of a recently enacted Ohio statute, 451 U.S. 1013, 101 S. Ct. 2998, 69 L. Ed. 2d 384; the second time for reconsideration in light of the Hoffman Estates decision, 456 U.S. 968, 102 S. Ct. 2227, 72 L. Ed. 2d 840, 50 U.S.L.W. 3915. Of course, the Sixth Circuit's decision would not bind us or Judge Leighton, and the Supreme Court has expressed no view on the merits of the case. But in fact the Sixth Circuit approved Judge Manos' construction of the intent requirement in (1) above (p. 8 supra), 638 F.2d at 928-929; and disapproved of the severances in (2) and (3) (p. 8 supra) chiefly because the Parma ordinance had a narrow severability provision, id. at 932, a feature it does not share with the Antioch ordinance or the Model Act.
III. The Effect of Hoffman Estates
Before we address the Levas brothers' contentions on appeal, we must decide what effect the Supreme Court's decision in Hoffman Estates v. Flipside, 455 U.S. 489, 102 S. Ct. 1186, 71 L. Ed. 2d 362, 50 U.S.L.W. 4267 (1982) has on either the methodology of our review or our final determination. The parties have argued, in predictable and cursory fashion, that Hoffman Estates mandates validation or invalidation of the ordinance. Given that Hoffman Estates dealt with a licensing ordinance, not based on the Model Act at all, we cannot treat it -- as appellees suggest -- as direct precedent. But Hoffman Estates also sets important limits on facial constitutional attacks in the drug paraphernalia area, and is therefore not so distinguishable as appellants would have us believe.
We have recently had occasion to describe the nature of the inquiry under Hoffman Estates. Record Head Corp. v. Sachen, 682 F.2d 672 (1982) slip op. at pp. 2-4. The Supreme Court has made clear that drug paraphernalia legislation of either the Hoffman Estates or the Antioch type does not infringe freedom of speech. At most it may indirectly influence the conduct of certain advertisers, but the appellants here have no such complaint and they cannot assert the commercial speech rights of others. 50 U.S.L.W. at 4269. The Supreme Court has also made clear that unless drug paraphernalia legislation implicates a fundamental right or suspect classification, it need only satisfy a rational basis test to satisfy most due process or equal protection claims. Id. at 4269, n. 9; 4271, n. 21. Neither the Hoffman Estates nor the Antioch ordinance has any difficulty passing that relatively undemanding test, especially in the context of a pre-enforcement challenge. Thus the likeliest constitutional infirmity that might arguably be found in such legislation is vagueness, which also offends the Due Process Clause. But a finding of unconstitutional vagueness cannot be based on uncertainty at the margins, or on a parade of bizarre hypothetical cases: problems of that order can be resolved in challenges to the ordinance as applied. Id. at 4271 and nn. 21, 22. In the absence of First Amendment issues or other constitutionally protected conduct, "the complainant must prove that the enactment is vague "'not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible ...