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.
"At the TSA checkpoint, Officer Jaramillo confiscated the plants after speaking with Detective Casper, who stated they have a policy of confiscating any plants above 0%," Serna wrote.
Serna sued under the provision of the Farm Bill that ostensibly prohibits states and tribes from blocking hemp transport. A magistrate judge initially reviewed Serna's claims and determined the provision gave no private right of action to hemp producers, even if states violated the law.
U.S. District Court Judge William J. Martínez acknowledged licensed hemp producers were a "protected class" under the law, but that Congress had not created a remedy if states violate their rights. He subsequently dismissed the case.
Martínez relied in large part on a U.S. Supreme Court decision from 2001, Alexander v. Sandoval. The majority held that if Congress did not intend to include an individual right to sue, "courts may not create one, no matter how desirable that might be as a policy matter."
Serna then appealed to the 10th Circuit, now represented by a student attorney with the University of Colorado. The appellate panel during oral arguments observed the law, which describes what states and tribes may not do, contains no language about how hemp producers may personally litigate a violation. The panel's opinion confirmed that view.
The provision, Moritz wrote, "does not suggest that Congress intended to grant hemp farmers a right to freely transport their product from one jurisdiction to another, with no interference from state officials."
She added that, pursuant to the Supreme Court's Sandoval decision, there must be "rights-creating language" for Serna to prevail.
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' violations of the transport provision.
"In order to change this outcome, the Supreme Court can hear the case and potentially overturn it, or Congress can amend the statute to provide the private right of action," he said. "With the next Farm Bill due this year, the legislative route is likely to be more successful."
Groups representing the hemp industry in Colorado and nationally did not respond to emailed requests for comment on the ruling.
Serna indicated he may appeal the 10th Circuit's decision. Although he remains interested in the hemp industry and hemp products, he said he is no longer producing himself. He called his effort to clarify the law a "fun hobby project."
"They’re saying, instead of it being written, ‘no farmer’s gonna have their rights infringed,’ it’s written as a prohibition against the states," Serna said, adding, "I do think they got the wrong answer."
The case is Serna v. Denver Police Department et al.
