Kentucky voices

Ky. Voices: State's definition of 'drug paraphernalia' too broad

January 25, 2013 

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MUGSHOT: David Adams, Campaign Manager for Moffett and Harmon. Phil Moffett and Mike Harmon announced their campaign for governor and lt. governor on Leland Conway's radio program at the WLAP studio in Lexington, Ky., on Thursday, July 29, 2010. The pair are running for the Republican nomination with Moffett at the top of the ticket. Photo by Pablo Alcala | Staff

PABLO ALCALA | STAFF — HERALD-LEADER Buy Photo

I never thought I had reason to read the Commonwealth of Kentucky's definition of drug paraphernalia.

But what I learned should concern even those who, like me, abstain from alcohol, tobacco and just about anything else one might consider a drug.

The reason this came up is a new bill in the General Assembly assessing a $10,000 fine for the manufacture, possession or selling of "drug paraphernalia."

Dirt is drug paraphernalia under Kentucky law. Yes, dirt.

Read KRS 218A.500 and you will see. Dirt, plastic bags, two liter Coke bottles, "all equipment, products and materials which are used, intended for use or designed for use ... for introducing into the body a controlled substance."

Making things illegal is supposed to be a challenge in a free society.

Prohibition must be well-reasoned and precise, ideally, so that it can be expressed in law and executed in practice while minimizing harm to those who aren't hurting anyone else.

If you have been paying attention at all to the methamphetamine problem in our state, you've heard that ingredients and supplies necessary to make meth can be found at your local Wal-mart.

But don't assume Rep. Darryl Owens (D-Louisville), sponsor of House Bill 91, plans to soak Wal-marts for millions of dollars in fines. He knows corporate attorneys can defend the company against unconstitutionally ambiguous laws. However, he also knows you probably can't.

Targets of this bill would likely include small retailers and individuals far less likely to fight back in court, whether any alleged association with drug dealing is accurate or not.

You may remember how few of us were concerned about being inconvenienced by a little personal search in an airport because we weren't terrorists until some Transportation Security Administration agents started fondling women and small children. And now what can we do? They are following the letter of the law.

What we can do is start looking at proposed laws more carefully. Just because it claims to not have you in its cross hairs now doesn't mean that the government won't be coming after you later, particularly if you sit quietly while it writes laws allowing it to do so.

Fortunately, Kentucky's constitution contains a unique and powerful protection of individual rights for just such a potential abuse.

Section 2 of Kentucky's Bill of Rights prohibits government from acting arbitrarily. That means the law applies equally to everyone or it doesn't apply at all. Because of that, the General Assembly can't legitimately impose $10,000 fines on the sale of Coke bottles with a wink and a nod because you aren't doing anything but enjoying a cold drink. HB 91 appears unconstitutional because it effectively forces government agents to apply the law unequally across the population.

So which is it: Is every Coke bottle sold in Kentucky a piece of drug paraphernalia or none of them?

Under Kentucky's constitution, it must be one or the other.

Observing the standard of arbitrary application of the laws to Kentucky's statute books has been delayed for far too long. If we went back and thought more carefully about the justification for our laws, as well as the likelihood of their arbitrary abuse of our citizens, our commonwealth would enjoy more freedom and prosperity as our Founding Fathers obviously intended.

David Adams of Lexington is a Tea Party activist and founder of the Kentucky Progress blog.

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