10th Circuit says man cannot sue Denver officer for confiscating hemp plants at airport

Colorado Politics reports

The 2018 law that legalized hemp production and barred states from prohibiting the transportation of hemp does not permit a man to sue a police officer for confiscating 32 of his plants at Denver International Airport, the federal appeals court based in Colorado ruled on Tuesday.

It was an open question whether a provision of the 2018 Farm Bill, which specifies that no state or tribe “shall prohibit the transportation or shipment of hemp or hemp products,” gave Francisco Serna the right to sue Officer Anselmo Jaramillo for seizing his legal hemp plants in March 2021. A three-judge panel of the U.S. Court of Appeals for the 10th Circuit determined Serna did not have that right.

“Serna must show that Congress intended such authorization,” wrote Judge Nancy L. Moritz in the Jan. 24 opinion.

Jeffrey S. Gard, a criminal defense attorney who also focuses on cannabis and hemp issues, said the case revolved less around hemp than about individuals’ broader ability to hold the government liable for wrongdoing.

“I think I agree with the plaintiff. He had every right under the Farm Bill to transport his product. It says right there, right where he quoted it directly, nobody should be prohibiting my transportation of a legal product,” Gard said. “Being able to sue for that right is another matter.”

Serna told Colorado Politics he had not been optimistic the 10th Circuit would find an ability to sue, known as a private right of action, in the hemp-legalization language of the Farm Bill.

“I think it’s an interesting result for the hemp industry because it answers the question: Whether there’s a private right of action if somebody gets their stuff confiscated,” he said. “At least in this circuit, it answers that question.”

Serna, who lives in Austin, Texas, filed a federal lawsuit by himself one day after passing through Denver International Airport in March 2021. He alleged he was traveling with 32 hemp plant clones or rooted clippings. According to Serna, he legally cultivated the plants pursuant to the 2018 Farm Bill, which set up a framework for nationwide hemp production as long as plants contain less than 0.3% of the psychoactive substance tetrahydrocannabinol.

Anything over that THC threshold is legally considered marijuana, which is outlawed federally.

Alex Buscher, a lawyer whose practice touches on hemp and marijuana, said the 10th Circuit’s interpretation means that the federal government is the party who can enforce states’ compliance with the transport provision.

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