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Little Arm, Inc. v. Adams

United States District Court, S.D. Indiana, Indianapolis Division

September 3, 2014

LITTLE ARM INC. D/B/A B& B DISTRIBUTIONS, BOHEMIAN GROOVE LLC, MELX2 ENTERPRISES INC., and IDK ANYTHING LLC, Plaintiffs,
v.
PROSECUTORS: ADAMS, ALLEN, BARTHOLOMEW, BENTON, BLACKFORD, BOONE, BROWN, CARROLL, CASS, CLARK, CLAY, CLINTON, CRAWFORD, DAVIESS, DEARBORN, DECATUR, DEKALB, DELAWARE, DUBOIS, ELKHART, FAYETTE, FLOYD, FOUNTAIN, FRANKLIN, FULTON, GIBSON, GRANT, GREENE, HAMILTON, HANCOCK, HARRISON, HENDRICKS, HENRY, HOWARD, HUNTINGTON, JACKSON, JASPER, JAY, JEFFERSON, JENNINGS, JOHNSON, KNOX, KOSCIUSKO, LAGRANGE, LAKE, LA PORTE, LAWRENCE, MADISON, MARION, MARSHALL, MARTIN, MIAMI, MONROE, MONTGOMERY, MORGAN, NEWTON, NOBLE, OHIO, ORANGE, OWEN, PARKE, PERRY, PIKE, PORTER, POSEY, PULASKI, PUTNAM, RANDOLPH, RIPLEY, RUSH, ST. JOSEPH, SCOTT, SHELBY, SPENCER, STARKE, STEUBEN, SULLIVAN, SWITZERLAND, TIPPECANOE, TIPTON, UNION, VANDERBURGH, VERMILLION, VIGO, WABASH, WARREN, WARRICK, WASHINGTON, WAYNE, WELLS, WHITE, WHITLEY COUNTIES, Defendants

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[Copyrighted Material Omitted]

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For BOHEMIAN GROOVE LLC, MELX2 ENTERPRISES INC., IDK ANYTHING LLC, LITTLE ARM INC., doing business as B& B DISTRICTIONS, Plaintiffs: Mark W. Rutherford, THRASHER BUSHMANN GRIFFITH & VOELKEL PC, Indianapolis, IN; Stephen R. Donham, THRASHER BUSCHMANN & VOELKEL, P.C., Indianapolis, IN.

For ADAMS COUNTY PROSECUTOR, ALLEN COUNTY PROSECUTOR, BARTHOLOMEW COUNTY PROSECUTOR, BENTON COUNTY PROSECUTOR, BLACKFORD COUNTY PROSECUTOR, BOONE COUNTY PROSECUTOR, BROWN COUNTY PROSECUTOR, CARROLL COUNTY PROSECUTOR, CASS COUNTY PROSECUTOR, CLARK COUNTY PROSECUTOR, CLAY COUNTY PROSECUTOR, CLINTON COUNTY PROSECUTOR, CRAWFORD COUNTY PROSECUTOR, DAVIESS COUNTY PROSECUTOR, DEARBORN COUNTY PROSECUTOR, DECATUR COUNTY PROSECUTOR, DEKALB COUNTY PROSECUTOR, DELAWARE COUNTY PROSECUTOR, DUBOIS COUNTY PROSECUTOR, ELKHART COUNTY PROSECUTOR, FAYETTE COUNTY PROSECUTOR, FLOYD COUNTY PROSECUTOR, FOUNTAIN COUNTY PROSECUTOR, FRANKLIN COUNTY PROSECUTOR, FULTON COUNTY PROSECUTOR, GIBSON COUNTY PROSECUTOR, GRANT COUNTY PROSECUTOR, GREENE COUNTY PROSECUTOR, HAMILTON COUNTY PROSECUTOR, HANCOCK COUNTY PROSECUTOR, HARRISON COUNTY PROSECUTOR, HENDRICKS COUNTY PROSECUTOR, HENRY COUNTY PROSECUTOR, HOWARD COUNTY PROSECUTOR, HUNTINGTON COUNTY PROSECUTOR, JACKSON COUNTY PROSECUTOR, JASPER COUNTY PROSECUTOR, JAY COUNTY PROSECUTOR, JEFFERSON COUNTY PROSECUTOR, JENNINGS COUNTY PROSECUTOR, JOHNSON COUNTY PROSECUTOR, KNOX COUNTY PROSECUTOR, KOSCIUSKO COUNTY PROSECUTOR, LAGRANGE COUNTY PROSECUTOR, LAKE COUNTY PROSECUTOR, LA PORTE COUNTY PROSECUTOR, LAWRENCE COUNTY PROSECUTOR, MADISON COUNTY PROSECUTOR, MARION COUNTY PROSECUTOR, MARSHALL COUNTY PROSECUTOR, MARTIN COUNTY PROSECUTOR, MIAMI COUNTY PROSECUTOR, MONROE COUNTY PROSECUTOR, MONTGOMERY COUNTY PROSECUTOR, MORGAN COUNTY PROSECUTOR, NEWTON COUNTY PROSECUTOR, NOBLE COUNTY PROSECUTOR, OHIO COUNTY PROSECUTOR, ORANGE COUNTY PROSECUTOR, OWEN COUNTY PROSECUTOR, PARKE COUNTY PROSECUTOR, PERRY COUNTY PROSECUTOR, PIKE COUNTY PROSECUTOR, PORTER COUNTY PROSECUTOR, POSEY COUNTY PROSECUTOR, PULASKI COUNTY PROSECUTOR, PUTNAM COUNTY PROSECUTOR, RANDOLPH COUNTY PROSECUTOR, RIPLEY COUNTY PROSECUTOR, RUSH COUNTY PROSECUTOR, ST. JOSEPH COUNTY PROSECUTOR, SCOTT COUNTY PROSECUTOR, SHELBY COUNTY PROSECUTOR, SPENCER COUNTY PROSECUTOR, STARKE COUNTY PROSECUTOR, STEUBEN COUNTY PROSECUTOR, SULLIVAN COUNTY PROSECUTOR, SWITZERLAND COUNTY PROSECUTOR, TIPPECANOE COUNTY PROSECUTOR, TIPTON COUNTY PROSECUTOR, UNION COUNTY PROSECUTOR, VANDERBURGH COUNTY PROSECUTOR, VERMILLION COUNTY PROSECUTOR, VIGO COUNTY PROSECUTOR, WABASH COUNTY PROSECUTOR, WARREN COUNTY PROSECUTOR, WARRICK COUNTY PROSECUTOR, WASHINGTON COUNTY PROSECUTOR, WAYNE COUNTY PROSECUTOR, WELLS COUNTY PROSECUTOR, WHITE COUNTY PROSECUTOR, WHITLEY COUNTY PROSECUTOR, Defendants: David A. Arthur, OFFICE OF THE ATTORNEY GENERAL, Indianapolis, IN.

OPINION

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ENTRY ON PLAINTIFFS' SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY A PRELIMINARY INJUNCTION

RICHARD L. YOUNG, Chief United States District Judge.

Plaintiffs, Little Arm Inc. d/b/a B& B Distributions (" Little Arm" ), Bohemian Groove LLC (" Bohemian" ), MELX2 Enterprises Inc., and IDK Anything LLC, bring this action against all Prosecuting Attorneys in Indiana (" Defendants" ), seeking injunctive and declaratory relief as to Indiana Code 35-48-4-10.5 (" Statute" ). The Statute makes it illegal to possess, distribute, or manufacture any " synthetic drug lookalike substance," as defined in Indiana Code § 35-31.5-2-321.5. Plaintiffs alleged, among other things, that the Statute violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution as well as Article I, Sections 12 and 23 of the Indiana Constitution.

On March 31, 2014, the court granted Defendants' motion for judgment on the pleadings on Plaintiffs' claims challenging the Statute under: (1) state law; (2) the federal Equal Protection Clause; and (3) the federal due process clause on an as-applied challenge. (Filing No. 110). The court also denied Defendants' motion as to Plaintiffs' federal due process claim challenging the Statute's facial validity. ( Id.). The court then denied as moot Plaintiffs' motion for summary judgment on all claims which had been dismissed, ordered further briefing as to Plaintiffs' remaining facial due process challenge, and took Plaintiffs' alternative motion for preliminary injunction under advisement. (Filing No. 111).

In accordance with the court's Order on Schedule for Further Briefing, Plaintiffs filed their Supplemental Brief in Support of Their Request for Summary Judgment or Alternatively a Preliminary Injunction on April 21, 2014. That motion is now fully briefed and is the subject of this Entry. The court, having reviewed the parties' supplemental briefing along with the applicable case law, now DENIES Plaintiffs' Supplemental Motion for Summary Judgment; sua sponte GRANTS Defendants summary judgment; and DENIES AS MOOT Plaintiffs' alternative motion for a preliminary injunction.

I. Background[1]

A. Parties

Plaintiffs are for-profit companies in Indiana that sell, among other things, aromatherapy products throughout Indiana. (Affidavit of Barry Bay (" Bay Aff." ) ¶ ¶ 3, 5; Affidavit of Daniel J. Patterson (" Patterson Aff." ) ¶ ¶ 3, 4; Affidavit of Mark Levenda (" Levenda Aff." ) ¶ ¶ 3, 4). Defendants are prosecutors, who are elected officials, whose responsibilities include investigating and prosecuting criminal offenses (including those created by the Statute)

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within the various counties in the State of Indiana. Ind. Code § 33-39-1-5.

B. Statute

Plaintiffs challenge the constitutionality of Indiana Code § 35-48-4-10.5, which criminalizes the possession, distribution, and manufacture of synthetic drugs and synthetic drug lookalike substances (" Lookalike Substances" ). The Statute became effective May 7, 2013. Plaintiffs contend that Defendants have improperly targeted their legal businesses through their enforcement of the Statute. (Bay Aff. ¶ ¶ 26-32; Patterson Aff. ¶ ¶ 21-28; Levenda Aff. ¶ ¶ 23-28).

1. Definitions

The Indiana Code defines " synthetic drug" as a substance containing one or more of a multitude of specific chemical compounds, including an analog of the compound. Ind. Code § 35-31.5-2-321 (amended May 7, 2013). An " analog" is defined as a " new or novel chemical entity, independent of synthetic route or natural origin, having substantially the same: (1) carbon backbone structure; and (2) pharmacological mechanism of action; as a compound specifically defined as a synthetic drug . . . ." Ind. Code § 35-31.5-2-16.5. Moreover, a compound may be determined to be a synthetic drug under an emergency provision. Ind. Code § 35-31.5-2-321(13). This entails the Indiana Board of Pharmacy adopting an emergency rule to declare that a substance is a synthetic drug. Ind. Code § 25-26-13-4.1.

The Indiana Code defines a Lookalike Substance as one (1) or more of the following:

(1) A substance, other than a synthetic drug, which any of the factors listed in subsection (c) would lead a reasonable person to believe to be a synthetic drug.
(2) A substance, other than a synthetic drug:
(A) that a person knows or should have known was intended to be consumed; and
(B) the consumption of which the person knows or should have known to be intended to cause intoxication.

Ind. Code § 35-31.5-2-321.5. The factors listed in the Statute which may be considered in determining whether a substance is a Lookalike Substance include:

(1) the overall appearance of a dosage unit of the substance;
(2) how the substance is packaged for sale or distribution, including its shape, color, size, markings or lack of markings, taste, consistency, and any other identifying physical characteristics;
(3) any statement made by the owner or person in control of the substance concerning the substance's nature, use, or effect;
(4) any statement made to the buyer or recipient of the substance suggesting or implying that the substance is a synthetic drug;
(5) any statement made to the buyer or recipient of the substance suggesting or implying that the substance may be resold for profit;
(6) the overall circumstances under which the substance is distributed, including whether:
(A) the distribution included an exchange of, or demand for, money or other property ...

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