Hemp Litigation: Does Certified Immunity Defend Regulation Enforcement Who Wrongly Destroy Hemp?

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Hemp Litigation: Does Qualified Immunity Protect Law Enforcement Who Wrongly Destroy Hemp?

Earlier this fall, several news outlets reported a lawsuit alleging that federal and state law enforcement agencies wrongly destroyed more than $ 3 million worth of hemp cultivation in California. (See here and here). The Agro Dynamics, LLC v DEA et al. Filed in Federal District Court for the Southern District of California. The defendants include the DEA, San Diego County and various federal and state law enforcement officers who seek to hold the plaintiffs personally liable for the destruction of the hemp.

Recently, San Diego County and its officials filed a motion to dismiss them, in part under the doctrine of qualified immunity. Before going into a qualified immunity, a quick review of the allegations is helpful.

Plaintiff claims it received a county registration for legal hemp cultivation in August 2019, a few months after the 2018 Farm Bill came into effect. Citing his approval, the plaintiff spent considerable time and effort planting approximately 3,000 hemp plants that laboratory tests showed had a THC content of less than 0.3%.

In September 2019, a DEA agent conducted an aerial reconnaissance in support of marijuana eradication and observed what he thought was marijuana. In fact, the agent watched the plaintiff’s hemp, which was made from immature, non-flowering plants, grow. The next day, the DEA, armed with the aerial reconnaissance and affidavit from the agent who said he had observed a marijuana cultivation because of its appearance and smell, obtained a search warrant on the plaintiff’s property and carried it out.

The renter advised officials that it has legal registration from San Diego County to grow hemp. Even so, officials confiscated and destroyed the 3,000 plants without testing, causing over $ 3 million in damage. The lawsuit against the DEA, the district and the officials involved followed.

Qualified Immunity (“QI”) has been the subject of significant discussion over the past year in connection with the Black Lives Matter movement. (See here, judge asks whether the teaching belongs in the “trash can”; here the teaching is a “flash point”; and here the ABA discussion). For readers unfamiliar with the doctrine, the QI problem in Agro Dynamics is the same as that addressed in the linked articles. In short, QI is a kind of legal immunity from the lawsuit. QI protects government officials, such as DEA officials and county officials, from being sued (and not held liable for damage) in legal proceedings alleging that an official violated a plaintiff’s rights. The doctrine allows such lawsuits only when officials have violated a “clearly defined” legal or constitutional right. In determining whether a right has been “clearly established”, the courts consider whether a hypothetically reasonable official would have known that his conduct violated the plaintiff’s rights.

Agro Dynamics shows how QI works in contexts other than civil rights. Plaintiff contends that after the fourth amendment, she has a clearly defined right to be free from unreasonable searches and seizures. The plaintiff alleges that the defendants willfully and willfully violated this right by:

  1. not to determine the legal status of industrial hemp cultivation on the site,
  2. ignoring the tenant’s recommendation that the growing plants were industrial hemp and not marijuana.
  3. Disregarding the tenant’s offer that the plants were not marijuana, and
  4. Seizure and destruction of hemp plants.

The plaintiff also challenges the reason for the arrest warrant and affidavit of the DEA agent who conducted the aerial reconnaissance as inappropriately, alleging the agent had no reason to believe the plants were marijuana and not hemp acted solely on the basis of their appearance and smell.

San Diego County claims the claims against him should be dismissed. According to the district, such an infringement suit must assert a “policy, custom or practice that was the driving force behind the violations of the constitution”. Without such accusations, the district said, a community cannot be held liable for violations of a person’s constitutional rights.

County officials claim the lawsuit must be dismissed under the QI doctrine. The officers recite the two-step analysis described above: First, was the law governing the behavior of the officer clearly stated? Second, under this law, could a reasonable officer have believed the conduct was lawful? The officers argue that no “reasonable deputy” would have questioned “the validity of the search warrant” or the content of the DEA agent’s affidavit. As a result, officials said, allegations that they violated the plaintiff’s constitutional right to be free from improper searches and seizures must be dismissed on legal grounds.

The court has yet to decide.

This is the case that we are keeping an eye on. If law enforcement can get an aerial reconnaissance warrant only and an official affidavit stating that what he observed “looked and smelled” what marijuana was, and if officials and the government are exempt from liability, hemp growers run the risk of destroying the crops no recourse.

In our view, a likely cause for a warrant should not be simply because a police officer claims he has observed what looks and smells like marijuana. Typically, neither hemp plants nor hemp flowers are easily distinguishable from marijuana with the naked eye (or nose). In fact, one of the major law enforcement complaints about smokable hemp, which is legal in many states where marijuana remains illegal under state law, is that officials cannot reasonably distinguish the two. Here it seems that no one tried.