In a June 20 opinion, the 5th Circuit Court of Appeals vacated and dismissed a lower court ruling that cleared the way for the feds to enforce a ban on the possession and use of pacifiers and glow sticks at raves. At issue is a 2001 plea agreement resulting from a raid by federal drug agents of a rave at the State Palace Theatre in New Orleans. The venue owners and event promoters were charged with conspiracy to violate the notorious crack-house law — that is, intentionally making a property available for drug use. Instead of going to trial, the defendants pled guilty to the conspiracy charge — and agreed to “take all reasonable steps to prohibit the introduction of infant pacifiers … [and] objects that glow, including but not limited to glow sticks and flashing rings,” according to the plea agreement.
Shortly after the plea deal was accepted by a federal district judge, three frequent State Palace Theatre ravegoers (an electronic-band member who wears glow sticks on his porcupine-inspired costume, a member of the U.S. Air Force saber drill team who uses glow sticks to represent “acrobatic sword techniques,” and a performance artist who wears glowing masks) cried foul, claiming the ban on glow sticks and pacifiers violates their First Amendment right to free expression. Represented by the American Civil Liberties Union, the three brought legal action, seeking a permanent injunction that would forbid the government from enforcing the plea agreement.
The district judge agreed, the government appealed, and the 5th Circuit has now sided with the feds, ruling that the lower court erred by allowing the three plaintiffs’ legal standing to interfere with a criminal judgment. The 5th Circuit opinion noted that “special conditions” within criminal judgments “often affect third-party constitutional interests” but that it is still within a court’s discretion to impose a criminal sentence “to the extent that such conditions involve only such deprivations of liberty or property as are reasonably necessary.”
Meanwhile, the 9th Circuit Court of Appeals in San Francisco on June 30 threw out the Drug Enforcement Administration’s October 2001 “interpretive rule” that criminalized the manufacture and possession of food or oil products containing hemp seed or oil. The Hemp Industries Association had filed suit against the DEA, primarily on the grounds that the trace amounts of THC found in hemp food products are not psychoactive. The 9th Circuit did not actually address the merits of the HIA’s case, rather deeming the DEA’s rule “procedurally invalid” because the agency failed to give sufficient advance notice of its proposed changes or allow for any public comment. But the court’s ruling nonetheless keeps hemp food and oil products legal until the courts can address the HIA’s substantive legal claims against the DEA.
This article appears in July 11 • 2003.