What is a playground?

February 14th, 2012

The 10th Circuit ponders this deep question, which matters a lot because if you deal drugs near a playground, the sentence is greater.

Subsection 860(e)(1) defines “playground” as an outdoor public facility “containing three or more separate apparatus intended for the recreation of children including, but not limited to, sliding boards, swingsets, and teeterboards.” In this appeal, we must determine whether the Government established that the public park near where Defendant Willie D. West engaged in illicit drug activity contained the three “separate apparatus” necessary to constitute a “playground” within the meaning of § 860(a).

So how does the Court resolve this juvenile quandry?

The foregoing recitation of the law makes the outcome of this case painfully apparent. Defendant does not dispute that the swingset in Holcom Park is one “apparatus” for purposes of § 860(a) & (e)(1). We also assume for the sake of argument that the park’s two jungle-gyms connected by a set of monkey bars constitute only one “apparatus.” That leaves us with “four baseball fields, two soccer fields, two tennis courts, . . . two handball courts, [and] a volleyball court,” none of which, Defendant points out, are much like the “sliding boards, swingsets, and teeterboards” listed in § 860(e)(1). But neither are basketball hoops, baseball backstops, or softball fields much like the apparatus specifically enumerated in § 860(e)(1). Nonetheless, the Fourth Circuit in Parker, while rejecting the idea that a “blacktop” is an “apparatus” within the meaning of § 860(e)(1), certainly suggested that a basketball hoop is an “apparatus”: “The Government’s argument is too cute by half . . . . The jury could not reasonably have inferred that there were two basketball hoops in the park . . . .” Parker, 30 F.3d at 552. Meanwhile, the Fifth Circuit in Johnson squarely held a baseball backstop is an “apparatus.” Johnson, 1997 WL 811737, at *1. And in Migi, the Ninth Circuit held the totality of a softball field, among other things, is an “apparatus.” Migi, 329 F.3d at 1089.

Undoubtedly, Congress’ intent in enacting § 860(a) was “to create drug-free zones by increasing punishment for drug transactions that occur near places where children gather.” Johnson, 1997 WL 811737, at *1. A thoughtless application of the principle of ejusdem generis in construing § 860(e)(1)’s definition of “playground” would thwart that intent as encompassed within the statute’s plain language. First, we wholeheartedly agree with the Ninth Circuit that reliance on ejusdem generis to limit the meaning of “apparatus” in § 860(e)(1) to devices similar to “sliding boards, swingsets, and teeterboards” would be inconsistent with Congress’ reference to “children” in § 860(c) as “person[s] under 18 years of age.” Migi, 329 F.3d at 1088–89; see supra n.2. We may safely assume that not many teenagers play on sliding boards, swingsets, teeterboards, or similar apparatus. Yet teenagers are considered “children” for purposes of § 860(c). Consequently, we consider them “children” for purposes of § 860(e)(1) because, absent good reason to the contrary, “when the same words are used in different sections of the law, they will be given the same meaning.” See In re Harline, 950 F.2d 669, 674 (10th Cir. 1991). As the Ninth Circuit aptly observed: “[A]pplication of ejusdem generis [to subsection (e)(1)] would narrow Congress’s definition of ‘children” from people ‘under 18 years of age’ to those young enough to be able to play on swingset, slides, and teeterboards.” Migi 329 F.3d at 1088–89. But any such definition of “children” for purposes of § 860(e)(1) is unacceptable because it is inconsistent with Congress’ characterization of “children” in § 860(c).3 . . .

As mentioned above, the Government introduced uncontroverted evidence at trial that Holcom Park contains “four baseball fields, two soccer fields, two tennis courts, . . . two handball courts, [and] a volleyball court” in addition to the swingset and playground equipment. Rec. Vol. 2, at 114. Furthermore, the Government introduced pictures into evidence which appear to show a baseball backstop (Government Exhibits 33 and 34). We conclude that this evidence, at a minimum, would have allowed the jury to reasonably find that the baseball field with the backstop constituted an “apparatus.”5 More specifically, the baseball field with the backstop constituted “a collection or set of materials, instruments, [or] appliances . . . designed for a particular use.” Webster’s Third New Int’l Dictionary 102 (1981). Thus, Holcom Park constitutes a “playground” within the meaning of § 860(a) because it is an outdoor public facility “containing three or more separate apparatus intended for the recreation of children including, but not limited to, sliding boards, swingsets, and teeterboards.” 21 U.S.C. § 860(e)(1). We need go no further than that.

Interesting tidbit. All housing projects have playgrounds. The vast majority of drug crimes took place in Johnstown in, or near the housing projects. By definition, they were all near a playground. Like fish in a barrel.