Cannabis cultivation is big business in southern Oregon. The investment required to successfully grow, grow, harvest, and sell cannabis crops is huge—in terms of time and money. The combined risks of drought, fire, pests, theft and low prices are not suitable for the faint-hearted. Complicating these stress factors is the risk that the cannabis crop may fail the test and law enforcement confiscates and destroys your cannabis.

If law enforcement agencies mistakenly confiscate and destroy cannabis companies because they (wrongly) believe that cannabis is cannabis, what recourse does the cannabis companies have?

Unfortunately, the answer is that prosecuting the government and its officials to recover the value of marijuana that has been erroneously seized and destroyed is not easy.At the end of last year, we wrote Regarding a case before the California Federal Court, one of the cannabis companies sued DEA, San Diego County, individual law enforcement officers and others for wrongful seizure and destruction of legal cannabis cultivation worth $3 million. Several defendants filed to dismiss the lawsuit against them on the grounds of exemption; the court has not yet made a ruling.

At the same time, just last week, in Oregon, a federal court dismissed Oregonized Hemp Co.’s claims against Josephine County, multiple police officers, and other claims arising from the seizure and destruction of marijuana. (The situation is Oregonized Hemp Co, LLC, etc. v. Josephine County, etc., No. 1:20-cv-00720-CL, D. Or.). In terms of procedure, the district court judge completely adopted the district judge’s findings and suggestions without adding any additional explanations or comments. So the next discussion is the ruling of the magistrate passed by the district court. (e-mail Me, if you want a copy of the magistrate’s ruling).

The opening remarks of the ruling summarized the risks faced by cannabis growers and the breadth of the qualifying exemption principle: “Understandably, the plaintiff is frustrated with the enforcement actions in this case. If the allegations are true, the plaintiff has suffered huge economic losses due to the destruction of his industrial hemp , Law enforcement agencies mistaken it for marijuana. However, it is difficult for the court to determine whether this case violates the Constitution.”

There are very few public facts. Oregonized Hemp leased a facility on Panther Gulch Road in Williams, Oregon, as a part of the cannabis business. A few months later, law enforcement confiscated and destroyed approximately 5,000 pounds of industrial hemp from the Panther Gulch facility based on a search warrant. The search warrant allowed the confiscation of marijuana, not marijuana. Oregonized Hemp claims that there is no illegal marijuana, and law enforcement went beyond the scope of a search warrant when seizing plant material, because (in short) marijuana is legally different from marijuana. The company seeks to recover the value of marijuana from Josephine County, Jackson County, Medford City, and certain named and unnamed police officers. Oregonized Hemp accused the defendant of violating various constitutional rights (search and seizure, due process, equal protection, unconstitutional access) and infringement claims.

Although sympathizing with Oregonized Hemp, the court found two major obstacles to Oregonized Hemp’s restoration of any damages. (Recall that unless an official violates an “clearly established right,” limited immunity can prevent litigation against government officials. This question concerns whether hypothetical rational officials would know that their actions violated the rights of the plaintiff.)

The first problem is that, under Oregon and federal laws, search warrants are “appearingly valid”. This means that from the court’s point of view, the presumed behavior of the person who enforces the warrant is reasonable, because the warrant is legal and effective on the surface. Therefore, government officials who act on seemingly legitimate warrants for all intents and purposes should not bear any responsibility. (Even if the arrest warrant is falsely assuming that there is marijuana at the Panther Gulch Facility. Please note that the answer may be different for the officer who obtained the warrant). Although law enforcement agencies were told that the material was marijuana and not marijuana when executing the arrest warrant, the court found that there was no precedent that required the police to pay attention to the innocence claims made by the suspect at the scene of the execution of the arrest warrant. The second obstacle is that Oregonized Hemp did not raise “specific unreasonable behaviors” against defendants who did not participate in the warrant application. In other words, if all defendants in Josephine County are limited to executing arrest warrants that appear to be legal, there is no violation of the Constitution.

The only light in the Oregonized Hemp tunnel is that the court gave it the opportunity to file an amendment complaint. It remains to be seen whether Oregonized Hemp can make enough factual allegations to survive another motion to dismiss. It seems unlikely now.