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Page 5 of 6 <br />James Monge <br />Posters 'N' Things, the Ordinance contains a list of per <br />se drug paraphernalia, which provides clear guidelines <br />of prohibited conduct. See 511 U.S. at 525-26. The <br />Ordinance also sets forth objective criteria to determine <br />if other objects qualify as drug paraphernalia, which <br />"minimize the possibility of arbitrary enforcement and <br />assist in defining the sphere of prohibited conduct under <br />the statute." Id. at 526. See also Village of Hoffman <br />Estates, 455 U.S. at 500-03. Similar to the Ordinance <br />here, the statute in Posters 'N' Things defines drug <br />paraphernalia as "items 'primarily intended . . . for use' <br />with controlled substances and items 'designed for use' <br />with such substances." 511 U.S. at 518. <br />The Court rejects Plaintiffs' claim that their submission <br />of affidavits averring that certain items have been used <br />to smoke legal herbs and tobacco undermines the <br />validity of the Supreme Court's decision in Posters 'N' <br />Things. The new facts submitted [*14] by Plaintiffs do <br />not make the Ordinance any vaguer than the law at <br />issue in Posters 'N' Things. The new facts do not affect <br />the constitutionality of the Ordinance or of the City's <br />announced intention to enforce the Ordinance as <br />written, particularly as to items explicitly listed in the <br />Ordinance, as in this case. Rather, the new facts go to <br />whether the criteria in the Ordinance have, in fact, been <br />met – in other words, whether, if Plaintiffs were <br />prosecuted, they would be found guilty. <br />2. Defendant's Intended Enforcement Policy <br />The City's announced enforcement policy passes <br />constitutional muster. All of the evidence before the <br />Court supports the City's assertion that it intends to <br />enforce the Ordinance as written. The transcript and <br />officer affidavits support this view. Although the police <br />did tell Plaintiffs that they viewed the pipes at issue to <br />be drug paraphernalia, there is no evidence to <br />contradict the police affidavits that their opinion was <br />based on their experience as officers on drug-related <br />cases and experience with drugs that the pipes fit the <br />objective criteria listed in the Ordinance. Moreover, as <br />the Supreme Court has made clear, it is permissible for <br />the Ordinance to [*15] apply regardless of Plaintiffs' <br />subjective intent as sellers, and, based on an item's <br />objective features, it can be designated as drug <br />paraphernalia. The Supreme Court has squarely <br />rejected the argument that a definition of "drug <br />paraphernalia" must include an analysis of subjective <br />intent. See Posters 'N' Things, 511 U.S. at 518, 526. <br />Under the Constitution and the Ordinance as written, the <br />Moorhead police officers were not required to determine <br />whether Discontent employees specifically intended the <br />items at issue to be used for drug consumption. Rather, <br />the Ordinance requires only that a seller know or <br />reasonably should know of use of the object with illegal <br />drugs. <br />Plaintiffs also argue that the Moorhead police have no <br />foundation to provide expert testimony that the pipes <br />sold by Discontent were designed for use with illegal <br />drugs and are used primarily for this purpose because <br />the police have no documented experience with legal <br />smoking herbs and tobacco. The officers have not <br />opined that the pipes at issue cannot theoretically be <br />used for a lawful use. Rather, the police officers <br />concluded that certain items in Plaintiffs' store met the <br />definition of "drug paraphernalia" based on [*16] their <br />knowledge and experience that the items are designed <br />for use with illegal drugs and are used almost <br />exclusively for that unlawful purpose. The Moorhead <br />police officers have significant experience with drug- <br />related cases. Thus, they are qualified to give an <br />opinion regarding which items meet the definition of <br />"drug paraphernalia" in order to aid them in enforcing <br />the ordinance. <br />3. Significance of Plaintiffs' Affidavits <br />The affidavits submitted by Plaintiffs in opposition to the <br />City's summary judgment motion contain no disputed <br />facts regarding the City's intended enforcement practice. <br />The affidavits merely assert that Plaintiffs sell a variety <br />of lawful tobacco substances, which are ordinarily and <br />customarily smoked in devices that are defined as drug <br />paraphernalia under the Ordinance (such as small- <br />bowled glass, metal, and water pipes and bongs). The <br />affidavits submitted by Plaintiffs from purported tobacco <br />and herbal smoking experts do not touch on the relevant <br />issue. The affidavits do not contradict the officer <br />affidavits that the objects are commonly used for illegal <br />drugs; they merely provide evidence that the objects <br />also have legal uses. <br />Whether or not some legal herbs and [*17] tobacco <br />may be smoked in the devices at issue could be <br />relevant if there is a prosecution under the Ordinance, to <br />attempt to show, for example, that Plaintiffs should not <br />have reasonably known that the items would be used <br />illegally based on the additional use of the objects for <br />legal smoking. But, at this point, there is no prosecution. <br />Instead, all evidence shows that the City intends to <br />enforce the Ordinance as written. The assertions in <br />Plaintiffs' submitted affidavits do not undermine the <br />2013 U.S. Dist. LEXIS 4392, *13