Texan hemp producer cannot sue for confiscation of plants at Denver International Airport, federal judge rules

As reported via Colorado Politics

Congress has not given a Texas hemp producer the ability to sue the Denver Police Department for confiscating 32 of his plants at Denver International Airport earlier this year, a federal judge determined in dismissing the lawsuit.

Francisco Serna, a resident of Austin, said the seized plants cost him under $200, but would have been worth more as hemp products, such as food, clothing or oils. He vehemently disagreed with the dismissal order.

“I don’t consider it persuasive and that’s why I plan on appealing,” he said. “This is my chance, I feel, to go into the appellate courts and get a ruling that supports the rights of producers.”

Serna was traveling through DIA on March 16 with hemp plants that he produced pursuant to the 2018 Farm Bill. He reportedly had a certificate of compliance indicating that the plants contained a concentration of tetrahydrocannabinol less than 0.3%. THC is the psychoactive ingredient in marijuana, and the 0.3% threshold is the difference under the law between hemp and marijuana. The latter remains illegal at the federal level.

According to Serna, Officer Anselmo Jaramillo seized his plants in consultation with a police detective, saying there was a policy of confiscating substances with any amount of THC. Representing himself in court, Serna sued the police department and Jaramillo for prohibiting the interstate transportation of hemp. He alleged that such conduct ran counter to the language of the Farm Bill.

Denver countered that its policy was to not confiscate seeds or plants unless there was suspicion of marijuana trafficking. Officers who are unsure if a product is hemp or marijuana are instructed to seek guidance from detectives.

“Since the 2018 Farm Bill went into effect, many people have attempted to transport marijuana products under the guise of shipping legal industrial hemp,” the city wrote to the court. Lawyers added that Serna’s appeared to be the first case of a Denver officer responding to a hemp transport at DIA.

In June, U.S. Magistrate Judge Michael E. Hegarty recommended dismissing Serna’s claims. The Farm Bill, which set up a regulatory regime for hemp, did not create any right for hemp producers to sue government actors who prevent the transportation of hemp, he reasoned.

At the time of the recommendation, one other federal judge in the Northern District of Iowa also found that private citizens could not enforce the terms of the Farm Bill.

On Dec. 6, U.S. District Court Judge William J. Martínez adopted Hegary’s interpretation of the federal legislation and tossed the lawsuit.

In response to Serna’s claims, Denver indicated that it would remind detectives about the hemp policy and had purchased a mobile THC testing unit to evaluate THC concentrations quickly. The Denver Police Department did not immediately confirm whether the city had acquired and used the mobile unit.

The Transportation Security Administration has alerted travelers that its officers do not search for marijuana or other illegal drugs, but will instead refer to law enforcement any discovery of narcotics during screenings.

Serna told Colorado Politics he believes Congress granted a specific right to licensed hemp producers to enforce the interstate commerce provision of the Farm Bill, but he also advocated for Congress or the U.S. Department of Agriculture to clarify the regulations further.

“It’s so hard to get anything done. Passing a legislative item would be hard even if it’s a commonsense thing,” he said. “The commonsense thing is, of course, let any hemp producer sue.”

The case is Serna v. Denver Police Department et al.

Source:  https://www.coloradopolitics.com/courts/judge-tosses-hemp-producer-lawsuit-dia/article_aec5796c-6421-11ec-a622-47e69040bef4.html

 

 

Serna v. Denver Police Department et al
Plaintiff:Francisco Serna
Defendant:Denver Police Department and Anselmo Jaramillo
Case Number:1:2021cv00789
Filed:March 17, 2021
Court:US District Court for the District of Colorado
Presiding Judge:Michael E Hegarty
Referring Judge:William J Martinez
Nature of Suit:Civil Rights: Other
Cause of Action:42 U.S.C. § 1983
Jury Demanded By:None

Docket Report

This docket was last retrieved on December 6, 2021. A more recent docket listing may be available from PACER.

Date FiledDocument Text
May 14, 2021Opinion or Order Filing 26 Minute ORDER by Magistrate Judge Michael E. Hegarty on 14 May 2021. The Motion for Withdrawal by Melanie B. Lewis #24 is granted. Ms. Lewis’s representation of Defendants in this case is terminated. Defendants will continue to be represented by Jennifer Marie Johnson of the Denver City and County Attorney’s Office.(cmadr, )
May 14, 2021Filing 25 MEMORANDUM regarding #24 MOTION to Withdraw as Attorney filed by Anselmo Jaramillo, Denver Police Department. Motions referred to Magistrate Judge Michael E. Hegarty by Judge William J. Martinez on 5/14/2021. Text Only Entry (wjmsec, )
May 13, 2021Filing 24 MOTION to Withdraw as Attorney by Defendants Denver Police Department, Anselmo Jaramillo. (Lewis, Melanie)
April 27, 2021Filing 23 ERRATA re #20 MOTION to Dismiss Certificate of Service by Defendants Denver Police Department, Anselmo Jaramillo. (Lewis, Melanie)
April 26, 2021Opinion or Order Filing 22 Minute ORDER by Magistrate Judge Michael E. Hegarty on 26 April 2021. Before the Court is Defendants’ Motion to Dismiss (ECF #20 ). Pursuant to D.C.Colo.LCivR 7.1(d) and Fed. R. Civ. P. 6(d), Plaintiff shall file a written response to the Motion on or before May 19, 2021, and Defendants may file a reply in support of the Motion within fourteen days after the response is served. (cmadr, )
April 23, 2021Filing 21 MEMORANDUM regarding #20 MOTION to Dismiss filed by Anselmo Jaramillo, Denver Police Department. Motions referred to Magistrate Judge Michael E. Hegarty by Judge William J. Martinez on 4/23/2021. (wjmsec, )
April 23, 2021Filing 20 MOTION to Dismiss by Defendants Denver Police Department, Anselmo Jaramillo. (Lewis, Melanie)
April 7, 2021Opinion or Order Filing 19 Minute ORDER by Magistrate Judge Michael E. Hegarty on 7 April 2021. For good cause shown, Defendants Unopposed Motion for Extension of Time to Respond to Plaintiff’s Complaint and Request for Injunction #16 is granted. Defendants shall file their answer or other response to Plaintiff’s Complaint on or before April 23, 2021.(cmadr, )
April 6, 2021Filing 18 MEMORANDUM regarding #16 MOTION for Extension of Time to File Answer or Otherwise Respond re #1 Complaint filed by Anselmo Jaramillo, Denver Police Department. Motions referred to Magistrate Judge Michael E. Hegarty by Judge William J. Martinez on 4/6/2021. Text Only Entry (wjmsec, )
April 6, 2021Filing 17 NOTICE of Entry of Appearance by Jennifer Marie Johnson on behalf of Denver Police Department, Anselmo JaramilloAttorney Jennifer Marie Johnson added to party Denver Police Department(pty:dft), Attorney Jennifer Marie Johnson added to party Anselmo Jaramillo(pty:dft) (Johnson, Jennifer)
April 6, 2021Filing 16 MOTION for Extension of Time to File Answer or Otherwise Respond re #1 Complaint by Defendants Denver Police Department, Anselmo Jaramillo. (Lewis, Melanie)
April 1, 2021Opinion or Order Filing 15 ORDER Denying Plaintiff’s Construed #1 Motion for Preliminary Injunction, Denying as Moot Plaintiffs #13 Motion for Expedited Discovery, and Striking Plaintiffs Rule 15(a) Pleading Amendment. Plaintiff’s Rule 15(a) Pleading Amendment (ECF No. #14 ) is STRICKEN. ORDERED by Judge William J. Martinez on 4/1/2021. (angar, )
March 31, 2021Opinion or Order Filing 11 Minute ORDER by Magistrate Judge Michael E. Hegarty on 31 March 2021. This matter comes before the Court sua sponte. Due to a conflict on the Court’s calendar, the Fed. R. Civ. P. 16(b) Scheduling Conference set for May 25, 2021 is vacated and rescheduled for May 26, 2021, at 10:45 a.m. in Courtroom A-501, on the fifth floor of the Alfred A. Arraj United States Courthouse located at 901 19th Street, Denver, Colorado. The litigants (counsel and parties) and the public may appear at the conference either in person or by telephone. (cmadr, )
March 27, 2021Filing 14 STRICKEN Rule 15(a) Pleading, by Plaintiff Francisco Serna. (angar, ) Modified on 4/1/2021 to strike pursuant to #15 Order (angar, ).
March 27, 2021Filing 13 MOTION for Expedited Discovery, by Plaintiff Francisco Serna. (angar, )
March 27, 2021Filing 12 Brief in Support of Request for Preliminary Injunction Motion for Expedited Discovery Rule 15(a) Pleading Amendment, by Plaintiff Francisco Serna. (Attachments: #1 Exhibit, #2 Certificate of Service, #3 Email)(angar, )
March 24, 2021Filing 10 RESPONSE to #1 Complaint / Construed Motion for Preliminary Injunction by Defendants Denver Police Department, Anselmo JaramilloAttorney Melanie Bailey Lewis added to party Denver Police Department(pty:dft), Attorney Melanie Bailey Lewis added to party Anselmo Jaramillo(pty:dft). (Attachments: #1 Exhibit A – Masciangelo Declaration, #2 Exhibit B – Jaramillo Declaration)(Lewis, Melanie)
March 23, 2021Opinion or Order Filing 9 ORDER: This matter is before the Court on Plaintiff’s Letter re: Certificate of Service on Defendants #8 . This filing satisfies the requirement of the Court’s #7 Order that Plaintiff file a certificate of service by 12:00 p.m. on March 22, 2021, confirming service of the Complaint and Request for Injunction #1 and this Court’s Order #7 on the Defendants. SO ORDERED by Judge William J. Martinez on 3/23/2021. Text Only Entry (wjmsec, )
March 22, 2021Filing 8 Plaintiff’s Letter re: Certificate of Service on Defendants, by Plaintiff Francisco Serna. (angar, )
March 18, 2021Opinion or Order Filing 7 ORDER taking under Advisement Plaintiff’s Construed Motion for Preliminary Injunction. Plaintiff shall send or deliver a copy of the Complaint and Request for Injunction (ECF No. 1), and this Order, to Defendants by any means (including multiple means, if appropriate) reasonably calculated to reach Defendants by March 22, 2021 at 12:00 Noon, Mountain Time. ORDERED by Judge William J. Martinez on 3/18/2021. (angar, )
March 18, 2021Opinion or Order Filing 6 Minute ORDER by Magistrate Judge Michael E. Hegarty on 18 March 2021. Proposed Scheduling Order due 5/18/2021. Scheduling Conference set for 5/25/2021 10:15 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. (cmadr, )
March 18, 2021Opinion or Order Filing 5 ORDER: Counsel for the parties and all counsel who may later enter an appearance shall review and familiarize themselves with the undersigned’s Revised Practice Standards (as most recently revised effective December 1, 2020 and as they may be amended from time to time), which may be downloaded #here. SO ORDERED by Judge William J. Martinez on 3/ 18/2021. Text Only Entry (wjmsec, )
March 18, 2021Opinion or Order Filing 4 ORDER REFERRING CASE to Magistrate Judge Michael E. Hegarty. Magistrate Judge Hegarty, or such other Magistrate Judge who may in the future be reassigned to this case, is designated to conduct ALLMTN proceedings pursuant to 28 U.S.C. 636(b)(1)(A) and (B) and Fed.R.Civ.P. 72(a) and (b). Court sponsored alternative dispute resolution is governed by D.C.COLO.LCivR 16.6. On the recommendation or informal request of the Magistrate Judge or on the request of the parties by motion, the court may direct the parties to engage in an early neutral evaluation, a settlement conference, or another alternative dispute resolution proceeding. SO ORDERED by Judge William J. Martinez on 3/18/2021. Text Only Entry (wjmsec, )
March 17, 2021Filing 3 Magistrate Judge consent form issued pursuant to 28 U.S.C. 636(c). NO SUMMONS ISSUED. (jtorr, )
March 17, 2021Filing 2 Case assigned to Judge William J. Martinez and drawn to Magistrate Judge Michael E. Hegarty. Text Only Entry. (jtorr, )
March 17, 2021Filing 1 COMPLAINT and Request for Injunction against Denver Police Department (Filing Fee: $402.00, Receipt Number:COX098435), filed by Francisco Serna.(jtorr, )

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Defendant: Denver Police Department
Represented By:Melanie Bailey Lewis
Represented By:Jennifer Marie Johnson
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Defendant: Anselmo Jaramillo
Represented By:Melanie Bailey Lewis
Represented By:Jennifer Marie Johnson
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Plaintiff: Francisco Serna
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