Earlier this fall, a number of information retailers reported on a lawsuit alleging that federal and state regulation enforcement businesses in California wrongfully destroyed a hemp develop value greater than $3 million. (See here, and here). The case, Agro Dynamics, LLC v. DEA, et al., was filed within the federal district courtroom for the Southern District of California. Together with the DEA, the defendants embrace San Diego County and varied federal and state regulation enforcement personnel, whom the plaintiffs search to carry personally responsible for the destruction of the hemp.

Lately, San Diego County and its officers filed a movement to dismiss the lawsuit as towards them, partly underneath the doctrine of certified immunity. Earlier than discussing certified immunity, a quick evaluation of the allegations will likely be useful.

Plaintiff alleges that it obtained a registration from the County for the authorized cultivation of hemp in August 2019, a number of months after enactment of the 2018 Farm Invoice. Counting on its allow, Plaintiff expended appreciable effort and time to plant roughly 3,000 hemp vegetation, that in line with laboratory testing had THC content material of lower than .3%.

In September 2019, a DEA agent performed aerial reconnaissance in help of marijuana eradication operations and noticed what he believed to be rising marijuana. Actually, the agent noticed plaintiff’s hemp develop, comprised of immature non-flowering vegetation. The following day, armed with the aerial reconnaissance and the affidavit of the agent who acknowledged he noticed a marijuana develop based mostly on its look and odor, the DEA obtained and executed a search warrant on Plaintiff’s property.

The tenant knowledgeable the officers that it had a authorized registration issuance from San Diego County to develop hemp. However the officers nonetheless seized and destroyed the three,000 vegetation, with out doing any testing, and inflicting over $3 million in damages. The lawsuit towards the DEA, County, and the officers concerned adopted.

Certified immunity (“QI”) has been the topic of appreciable dialogue within the final 12 months in reference to the Black Lives Matter motion. (See here, choose asks whether or not the doctrine belongs within the “dustbin”; here, doctrine is a “flash level”; and here, ABA dialogue). For readers unfamiliar with the doctrine, the QI situation in Agro Dynamics is similar situation mentioned within the linked articles. Briefly, QI is a form of authorized immunity from swimsuit. QI protects authorities officers, just like the DEA officers and County officers, from being sued (and thus from being held responsible for damages) in lawsuits alleging that an official violated a plaintiff’s rights. The doctrine permits such lawsuits solely when officers violated a “clearly established” statutory or constitutional proper. In figuring out whether or not a proper was “clearly established,” courts think about whether or not a hypothetical cheap official would have identified that his conduct violated the plaintiff’s rights.

Agro Dynamics reveals how QI works when in contexts aside from civil rights. Plaintiff contend it has a clearly established proper underneath the Fourth Modification to be free from unreasonable searches and seizures. Plaintiff alleges the defendants deliberately and willfully violated this proper by:

  1. failing to establish the authorized standing of business hemp cultivation on the premises,
  2. not heeding the tenant’s advisement that the vegetation rising had been industrial hemp, not marijuana,
  3. disregarding the tenant’s provide of proof that the vegetation weren’t marijuana, and
  4. seizing and destroying the hemp vegetation.

The Plaintiff additionally assaults the bottom for the warrant and the affidavit of the DEA agent who performed aerial reconnaissance, as improper, alleging the agent had no motive to suspect the vegetation had been marijuana and never hemp based mostly solely on their look and odor.

San Diego County contends the claims towards it should be dismissed. In line with the County, a rights-violation declare of this type should allege a “coverage, customized, or apply that was the transferring pressure behind the constitutional violations.” Absent such allegations, says the County, a municipality can’t be held responsible for violating an individual’s constitutional rights.

The County’s officers contend the declare should be dismissed underneath the doctrine of QI. The officers recite the two-step evaluation described above: First, was the regulation governing the official’s conduct clearly established? Second, underneath that regulation, might an affordable officer have believed the conduct was lawful? The officers argue that no “cheap deputy” would have “doubted the validity of the search warrant” or the contents of the DEA agent’s affidavit. Consequently, say the officers, the declare that they violated the plaintiff’s constitutional proper to be free from unreasonable searches and seizures should be dismissed as a matter of regulation.

The courtroom has but to rule.

That is case we’re protecting on eye on. If regulation enforcement could acquire a warrant solely on aerial reconnaissance and an officer’s affidavit stating that what he noticed “regarded and smelled” like marijuana, and if officers and the federal government are exempt from legal responsibility, then hemp producers run the danger of the crop destruction with no recourse.

In our view, possible trigger for a warrant mustn’t exist just because a police officer states he noticed what “appears and smells” like marijuana. Usually, neither hemp vegetation nor hemp flower are simply distinguishable from marijuana by the bare eye (or bare nostril). Certainly, considered one of regulation enforcement’s chief complaints about smokable hemp, authorized in lots of states the place marijuana stays unlawful underneath state regulation, is that officers can’t moderately distinguish between the 2. Right here, evidently nobody even tried.