The Department of Homeland Security (DHS) and U.S. Customs and Border Protection (CBP) are now facing a lawsuit over seizures of state-legal cannabis products, cash and vehicles from licensed operators at interior Border Patrol checkpoints in New Mexico.
The seizures have been going on all year, and it seems like New Mexico weed businesses have had enough. Border Patrol has seized an estimated hundreds of thousands of dollars worth of products from licensed businesses that are operating within state laws. Last week, The Paper. spoke with local manufacturer Mesilla Valley Extracts about a recent seizure of its company car and more than $20,000 worth of products.
The suit, which was filed Oct. 22, is calling for DHS and CBP to amend its policies regarding cannabis to allow state-licensed operators and couriers to pass through checkpoints without interference or at least reclaim seized products.
Irina Dashevsky, a partner at Greenspoon Marder, the law firm that filed the lawsuit, says it’s unclear what Border Patrol does with the products it seizes.
“As it relates to the cannabis, it’s a total black box,” she says. “What happened to that product? In a lot of instances, the companies do try to follow up, but get the runaround and no clarity. They’re getting no due process.”
Dashevsky says the agency doesn’t appear to have sent itemized lists of the products it has seized to any of the companies involved.
“These are summary seizures, meaning they’re keeping all this product and making it impossible to get it back and impossible to get receipts for it or any documentation about what transpired,” she says.
On a number of occasions in the last year, Border Patrol agents have arrested cannabis workers and seized their products but have let them go after a few hours in custody without prosecution. Although they have been allowed to leave, they have reportedly been told that they were being placed on a list of known drug traffickers.
“We’re hearing stories that they’re being processed and put on international drug trafficker lists,” says Dashevsky. “Then when the Department of Justice (DOJ) indicates that they don’t intend to prosecute or file charges — which has been the case in every single instance we’re aware of — then these folks are released in a very inconvenient fashion and with absolutely no due process or receipts.”
The lawsuit describes one such incident: An employee of Royal Cannabis — one of the plaintiffs in the suit — was allegedly detained for several hours at a Border Patrol checkpoint in Alamogordo in August under inhumane conditions. The suit alleges that the employee was held in a cell furnished with a cot covered in black mold where she was only allowed to use the restroom in full view of Border Patrol agents. The suit also alleges that she was deprived of clean drinking water.
Despite not being prosecuted or charged, the employee was not allowed to leave and was forced to wait for someone to come pick her up.
Dashevsky says the lack of prosecutions is significant because it allows Border Patrol to act without facing scrutiny.
“What happens is you don’t get due process. Nobody looks at the records of what was seized or how it was seized,” she says. “You can’t prove that it was state-legal and in the state seed-to-sale tracking system.”
Dashevsky says this is problematic, because it’s impossible to tell what happens to the seized products and cash.
“Does it get destroyed? Is it in an evidence locker somewhere? Is it being used in some way? It’s just gone,” she says.
The plaintiffs are seeking a top-down policy change.
“We would like a similar policy change as there was on the Department of Justice side,” Dashevsky says. “If you can prove that it’s state-legal cannabis, then this shouldn’t be happening to you. Whatever the right solution and policy solution is, we believe that Homeland Security and Border Patrol should have something in place that mirrors what DOJ has in place through an annual appropriations rider. CBP should be prevented from using resources to seize state legal cannabis.”
Dashevsky says her clients aren’t looking to stop all cannabis seizures or claim that the Border Patrol is acting outside its jurisdiction.
“What we’re really pushing for in the case is recognition of state-legal cannabis, and that it’s no longer a black and white situation,” she says. “That not all cannabis is cartel cannabis, or illegal cannabis per se. Some of it is state-legal and property rights should attach to that product.”
Dashevsky believes that the case highlights old conflicts between federal and state law that need to be addressed in the current environment.
“There’s a state-legal cannabis program in almost every state and it’s time for the federal government to recognize that they can’t treat this like they do with other Schedule I narcotics at the border,” she says.
The lawsuit names eight companies as plaintiffs: Mesilla Valley Extracts, Royal Cannabis, Super Farm, Impact Farms, Chadcor Holdings NM, Mylars, Rollin Love and Desert Peaks Farm.