Civil Rights Case to Proceed Against Tennessee Officials in CBD Raid
I was visiting Nashville, Tennessee last February with my family when I received news of the now infamous “Operation Candy Crush” CBD raid just south of Nashville in Rutherford County, TN. In a chaotic press report staged by local law enforcement immediately after padlocking 23 stores and arresting over 30 individuals, one of my client’s products were prominently displayed as part of the “evidence” of illegal substances that were being sold.
Since I was nearby I called the prosecutor’s office and offered to meet and discuss the matter. In a contentious phone call with Assistant District Attorney John Zimmerman, whom I later discovered was one of the architects of the raid, I attempted to explain the legal distinction between lawful CBD (derived from industrial hemp) and unlawful CBD (derived from marijuana). I explained that, at least with respect to my client’s products, I could vouch that they were definitely derived from industrial hemp and thus lawful. Zimmerman was unmoved.
In fact, we had a circular conversation. I asked him how he knew that the substance at issue (cannabidiol) was illegal. He said that it was based on the lab reports he received from the Tennessee Bureau of Investigation (TBI). I responded by stating that the lab report can only show what the substance is, not the source from which it is derived. Since the source of CBD determines its legal status, the lab report cannot state whether it is lawful or not. He responded by stating, “That’s what the lab told me and I follow the lab report.” I reiterated that the lab cannot determine whether the CBD is lawful or not. As the attorney it is his job to determine the substance’s legal status. He responded as before. Zimmerman also bemoaned the fact that the stores selling CBD were run by “foreigners”.
As it turns out, these two claims by Zimmerman- that the TBI’s analytical lab report was what he relied on to determine the CBD’s legal status and the fact that CBD was being sold locally by “foreigners”- have become key issues in a civil rights lawsuit filed against him and other law enforcement officials by the store owners who were arrested and had their businesses shuttered.
As I wrote here and here, Operation Candy Crush was eventually crushed. All charged were dropped, the store owners’ criminal records were expunged, their stores were ordered reopened, and their seized merchandise was returned. Angry and frustrated, many of them filed a federal lawsuit in the US District Court for the Middle District of Tennessee alleging violations of their civil rights.
The defendants, including Zimmerman, filed a motion to dismiss the case. In a robust Memorandum of Law denying the law enforcement motions to dismiss (see below), Judge Aleta Trauger made it clear that the store owners could proceed with their claims against Zimmerman and the other law enforcement officials that they sued. Zimmerman and the other defendants have appealed Judge Trauger’s order.
In the Memorandum, Judge Trauger referenced the “foreigner” comment that Zimmerman made to me. The store owners allege that other stores in the area selling CBD products that were operated by non-immigrants were not raided and their owners not arrested. And, in a press release cited by Judge Trauger, the TBI sharply disputed Zimmerman’s argument to me that its lab report told him that the CBD being sold was illegal marijuana:
“In this matter, it is inaccurate for the local stakeholders in these cases to assert they made decisions in this case unaware of the limits of our forensic work. . . .
Our laboratory analysis can only determine relevant compounds, not the particular origin of those substances. So, in this matter, we are not able to determine whether the CBD in these cases originated from industrial hemp, illicit marijuana, or synthetic production. In fact, such a determination is beyond the capability of contemporary drug identification. Still, the identified CBD, as a derivative of marijuana, may be considered a Schedule VI substance under the Tennessee Code, which is why our agency reported it that way to the local law enforcement agency and District Attorney General….
Again, to be clear: TBI lab reports objectively determine the compound present, but in no way are statements of compound origin, circumstances of possession, or guilt or innocence.” (emphasis added)
Although things are much clearer now under the 2018 Farm Bill than they were under the 2014 Farm Bill, there are still too many instances of law enforcement arresting people and/or seizing their hemp products based on a misunderstanding (or knowing pretense) that they are illegal “marijuana” substances. (See, for instance, this and this.) Hopefully, Judge Trauger’s memorandum will provide sufficient notice that these types of arrests and seizures must stop.
Here is the memorandum:
Kudos and many thanks to Nashville attorney Christopher Smith for his excellent work on this case for the store owners and for updating me on its progress. You can read local news coverage of the story here.
May 20, 2019
Rod Kight is an attorney who represents lawful cannabis businesses. He speaks at cannabis conferences across the country, drafts and presents cannabis legislation to foreign governments, is regularly quoted on cannabis matters in the media, and maintains the Kight on Cannabis legal blog, where he discusses legal issues affecting the cannabis industry. You can contact him here.