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

qualified immunity hemp

Earlier this fall, several news outlets reported on a lawsuit alleging that federal and state law enforcement agencies in California wrongfully destroyed a hemp grow worth more than $3 million. (See here, and here). The case, Agro Dynamics, LLC v. DEA, et al., was filed in the federal district court for the Southern District of California. Along with the DEA, the defendants include San Diego County and various federal and state law enforcement personnel, whom the plaintiffs seek to hold personally liable for the destruction of the hemp.

Recently, San Diego County and its officers filed a motion to dismiss the lawsuit as against them, in part under the doctrine of qualified immunity. Before discussing qualified immunity, a brief review of the allegations will be helpful.

Plaintiff alleges that it obtained a registration from the County for the legal cultivation of hemp in August 2019, several months after enactment of the 2018 Farm Bill. Relying on its permit, Plaintiff expended considerable time and effort to plant approximately 3,000 hemp plants, that according to laboratory testing had THC content of less than .3%.

In September 2019, a DEA agent conducted aerial reconnaissance in support of marijuana eradication operations and observed what he believed to be growing marijuana. In fact, the agent observed plaintiff’s hemp grow, comprised of immature non-flowering plants. The next day, armed with the aerial reconnaissance and the affidavit of the agent who stated he observed a marijuana grow based on its appearance and odor, the DEA obtained and executed a search warrant on Plaintiff’s property.

The tenant informed the officers that it had a legal registration issuance from San Diego County to grow hemp. But the officers nonetheless seized and destroyed the 3,000 plants, without doing any testing, and causing over $3 million in damages. The lawsuit against the DEA, County, and the officers involved followed.

Qualified immunity (“QI”) has been the subject of considerable discussion in the last year in connection with the Black Lives Matter movement. (See here, judge asks whether the doctrine belongs in the “dustbin”; here, doctrine is a “flash point”; and here, ABA discussion). For readers unfamiliar with the doctrine, the QI issue in Agro Dynamics is the same issue discussed in the linked articles. In brief, QI is a kind of legal immunity from suit. QI protects government officials, like the DEA officers and County officers, from being sued (and thus from being held liable for damages) in lawsuits alleging that an official violated a plaintiff’s rights. The doctrine permits such lawsuits only when officials violated a “clearly established” statutory or constitutional right. In determining whether a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that his conduct violated the plaintiff’s rights.

Agro Dynamics shows how QI works when in contexts other than civil rights. Plaintiff contend it has a clearly established right under the Fourth Amendment to be free from unreasonable searches and seizures. Plaintiff alleges the defendants intentionally and willfully violated this right by:

  1. failing to ascertain the legal status of industrial hemp cultivation at the premises,
  2. not heeding the tenant’s advisement that the plants growing were industrial hemp, not marijuana,
  3. disregarding the tenant’s offer of proof that the plants were not marijuana, and
  4. seizing and destroying the hemp plants.

The Plaintiff also attacks the ground for the warrant and the affidavit of the DEA agent who conducted aerial reconnaissance, as improper, alleging the agent had no reason to suspect the plants were marijuana and not hemp based solely on their appearance and odor.

San Diego County contends the claims against it must be dismissed. According to the County, a rights-violation claim of this kind must allege a “policy, custom, or practice that was the moving force behind the constitutional violations.” Absent such allegations, says the County, a municipality cannot be held liable for violating a person’s constitutional rights.

The County’s officers contend the claim must be dismissed under the doctrine of QI. The officers recite the two-step analysis described above: First, was the law governing the official’s conduct clearly established? Second, under that law, could a reasonable officer have believed the conduct was lawful? The officers argue that no “reasonable deputy” would have “doubted the validity of the search warrant” or the contents of the DEA agent’s affidavit. Consequently, say the officers, the claim that they violated the plaintiff’s constitutional right to be free from unreasonable searches and seizures must be dismissed as a matter of law.

The court has yet to rule.

This is case we are keeping on eye on. If law enforcement may obtain a warrant solely on aerial reconnaissance and an officer’s affidavit stating that what he observed “looked and smelled” like marijuana, and if officers and the government are exempt from liability, then hemp producers run the risk of the crop destruction with no recourse.

In our view, probable cause for a warrant should not exist simply because a police officer states he observed what “looks and smells” like marijuana. Typically, neither hemp plants nor hemp flower are easily distinguishable from marijuana by the naked eye (or naked nose). Indeed, one of law enforcement’s chief complaints about smokable hemp, legal in many states where marijuana remains illegal under state law, is that officers cannot reasonably distinguish between the two. Here, it seems that no one even tried.