Feds vs. Bongs: Heads Up for Head Shops

Adam Engleby thought everything was cool. Yes, his shop, Hemp Cat in Iowa City, sold, ahem, "smoking accessories," or bongs, pipes, and rolling papers, but the Iowa City Police Department visited regularly, and they never had any problem with Hemp Cat's back room. Heck, Engleby even had signs in his store advertising the accessories as being for use with tobacco, he wouldn't allow any talk about drugs in the shop, and he certainly didn't allow minors into the back room. And after all, Iowa City is a progressive, tolerant college town, and local police reflected the relaxed attitude.

The Iowa City Police Department's Sgt. Brotherton has said as much. "We don't see [the Hemp Cat] as a major problem," he said. "We weren't paying much attention."

But what was an acceptable arrangement for the community wasn't good enough for the feds. On February 11th, Engleby's home and business were raided by teams of civilian-dressed law officers, headed by the Drug Enforcement Administration.

"The DEA led the raids," Engelby said. "The only badge I was shown was a DEA badge. They had warrants for "drug paraphernalia" and any sort of records, and they took everything. They took our rolling papers, they took real tobacco pipes, and, of course, they seized all of our computers -- four of them, two at the store and two at home. They even took my wife's computer."

"The Iowa City PD never hassled us in six years of business," groaned Engleby, "and no one ever came in and told us to stop, no one complained."

No one was arrested, Engleby said, and no charges have been filed, but Engleby has now joined a growing number of "alternative store" (the industry cringes at the term "head shop") owners and operators being rudely awakened to the reality of federal drug paraphernalia laws.

Unlike many state and local paraphernalia statutes, which allow for a subjective, contextual interpretation of whether a given object is indeed drug paraphernalia -- sometimes a spoon is only a spoon -- federal law is black and white: Possession of a bong is a federal offense, and so, of course, is sale or manufacture of a bong, or conspiracy to do so. It can get you three years in federal prison. And it doesn't matter if the bong has never been used or if it is a jewel-encrusted work of art; a bong is a crime. And to make things even rosier, since 1990 federal law has made drug paraphernalia violators subject to Racketeer Influenced and Corrupt Organization (RICO) and money laundering charges, as well.

"It's simple," said head shop defense attorney Robert Vaughan, the long-time publisher of an industry newsletter. "If you have a bong, you're violating federal law. You can get a license to own a tommy gun, but you can't get one to own a bong."

"Stores that have bongs are screwed," the Nashville-based lawyer said. "They can't win. The Supreme Court upheld its so-called objective standard in US vs. Pipes and Things in 1994, and now categories of items are per se illegal."

That was news to Engleby and his customers. "The customers are really disappointed, they're saying can they do that?," Engleby said. "Everyone is shocked that DEA has that kind of power. One city council member came in to express his support; he didn't think it was right."

Unfortunately for Jerry Clark and Kathy Fiedler of Des Moines, they were already well aware of federal paraphernalia laws. Their shop, Daydreams, was raided by the feds last year, and they are scarred by the experience.

"We were raided by US Postal Inspectors, the DEA, and local cops and sheriff's deputies," Clark said, "and we're barely hanging on now. It's hurt us financially; we've lost over $250,000 in inventory and paid out lots of money in legal fees."

"And they're using the RICO act on us, so we're facing 10 to 12 years," Clark said bitterly. "They've seized my partner's properties under the asset forfeiture laws. But all we can do is try to litigate our way out or come to a negotiated settlement. We're trying to work out a better deal than going to court."

"We weren't aware of the federal law," interjected Fiedler, "but let's face it, we weren't the only ones. We did everything to the letter of the law as we knew it, we did not sell to minors, we checked ID, if they didn't have ID, tough luck."

Clark and Fiedler remain in business, but they are angry. "This is a bullshit law," snorted Clark, "and you have to get mad at the people who created this stupid law. But," he hesitated, "looking at the penalties we face, we're not going to do anything to rock the boat."

"We don't feel like felons," added Fiedler, more hurt than angry. "These people don't have any idea who's smoking -- they think it's the kids, but our customers are lawyers, preachers, even people from the state Attorney General's office. They're nice, average people, but instead of drinking a six-pack, they'd prefer to smoke things."

"Morally, I see nothing wrong with what we're doing," she insisted.

That doesn't matter to the feds. Although the anti-head shop campaign is irregular and occasional compared to the feds' halcyon days of Operation Pipeline in the early 1990s, when they ran most major manufacturers out of business, it is Engleby's and Clark's and Fiedler's misfortune to live in an area where the United States Attorney happens to be one of the most experienced and enthusiastic in dealing with federal drug paraphernalia violations.

So who ordered the raids? Hard to say. Repeated calls to the DEA were referred to the US Attorneys' office in Des Moines, and they didn't return calls. The Iowa City Police Department's laconic Lt. Wyss, who coordinates the Johnson County Multi-Agency Task Force, did confirm that his officers participated at the DEA's request.

When asked why his officers were devoting their time to busting bongs, Wyss said: "Because they violated the law, I suppose. The DEA asked us and we were happy to help."

Attorney Vaughan, who is representing Clark and Fiedler, finds it all faintly ridiculous were it not for the serious consequences.

"With Operation Pipeline they managed to knock out all the big boys," he said, "but all they've created is a whole multi-level cottage industry, and lot's of these people don't even know about the federal law, they don't have any historical memory of Pipeline, and enforcement is sporadic. What a waste of time and resources and peoples' lives."

"It's as if the feds were out arresting the guy smoking a joint on the corner," he said.

This article comes from the newsletter of the Drug Reform Coordination Network, www.DRCNet.org.

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