New Mexico Marijuana Businesses Sue Biden Administration Over Border Patrol Seizures Of State-Legal Products

A coalition of New Mexico marijuana businesses have filed a lawsuit against U.S. Customs and Border Protection (CBP), alleging that federal agents have been unconstitutionally seizing state-legal cannabis products, unlawfully detaining industry workers and, by doing so, empowering illicit operators.

The court filing also contains claims about instances where cannabis workers were subject to at times “inhumane” conditions while in CBP custody, including one woman who was detained for hours without being charged and was allegedly forced to use the bathroom in view of agents and went without clean water during her detention.

Representatives of eight New Mexico marijuana businesses jointly filed the lawsuit against the federal government on Tuesday in the U.S. District Court for the District of New Mexico. This comes months after initial reports emerged of CBP agents increasingly taking cannabis products and other assets from state licensees at border checkpoints throughout the state.

“This has resulted in loss of revenue, upset business operations and expectations, difficulties with the New Mexico cannabis regulators and the required seed-to-sale tracking obligations,” the filing says.

The plaintiffs say the CBP actions, without due process, violate protections against unlawful searches and seizures guaranteed under the Fifth Amendment of the U.S. Constitution.

They also noted that the seizures and detainments “conflict with the Federal Government’s longstanding policy of not interfering with state-legal cannabis programs” and comes as the Biden administration moves forward in its effort to federally reschedule marijuana.

While the Justice Department and its component agencies have been largely barred from interfering in state-legal medical marijuana programs under a congressional appropriations rider that’s been annually renewed for a decade, that policy doesn’t apply recreational cannabis and also doesn’t restrict CBP, which falls under the U.S. Department of Homeland Security.

“The Federal Government once imposed an absolute ban on marijuana. More recently, however, the Federal Government legalized the hemp form of cannabis and has significantly retreated from its prior position on the marijuana form of cannabis through a variety of measures,” the complaint, which was first reported by Law360, says.

The consequences of CBP’s actions run deeper than simply harming the businesses and employees that have been impacted, attorneys for the plaintiffs said. It may be inadvertently helping illicit operators.

“CBP’s actions are having a rippling effect and, if left unchecked, have the potential to undermine New Mexico’s entire regulatory scheme under the [state’s marijuana law]. By failing to provide licensees such as Plaintiffs with due process and an accounting of the products that it seizes, CBP is preventing New Mexico from verifying reported seizures of state-legal cannabis products and creating an opportunity for bad actors to falsely report product seizures and subsequently sell unseized product on the black market, not subject to taxation and regulation by the state.”

The filing then details multiple CBP encounters with the plaintiffs, documenting their experiences having products and other assets seized as employees were frequently detained, at time for hours on end, without being charged with any specific crimes.

One “egregious example of the ongoing pattern of unconstitutional enforcement methods” that attorneys for the plaintiffs highlighted concerned an employee of the company Royal Cannabis, who they said was held “under inhumane conditions” in CBP custody as the agency seized products, as well as the vehicle she used to transport the state-legal products.

Agents “attempted to search the Royal Cannabis employee, an adult woman small in stature, for weapons—in full view of traffic waiting to pass through the checkpoint—even though it was visibly apparent that she did not have any weapons on her person,” they said.

“CBP then detained her in a holding cell inside the checkpoint where she was only allowed to use the restroom inside of a locked cell in full view of the CBP,” the filing continued. “Toilet paper was not within reach but was stored on a shelf 3-4 feet away behind the sink, and there was no hand soap available to wash her hands or any dryer or paper towels to dry her hands. She was even deprived of clean drinking water during the hours-long detention.”

The cannabis businesses are asking the court to order CBP to provide documents on property the agency seized, return the property (or compensation equal to the value of the products) to plaintiffs and also set out a process to challenge “any future seizures in accordance with the Due Process Clause of the Fifth Amendment of the United States Constitution.”

The controversy has also caught the attention of certain congressional lawmakers. For example, Rep. Gabe Vasquez (D-NM) sought to amend appropriations legislation covering DHS by explicitly preventing U.S. border patrol agents from using funds to seize marijuana from state-licensed businesses.

In April, New Mexico Gov. Michelle Lujan Grisham (D) could be heard saying on a leaked recording that she was “offended” when the secretary of the DHS reacted to her concern about the recent surge in CBP seizures of marijuana from legal operators in her state by saying, “Who cares? They make a lot of money.”

The governor also said on the call that CBP officials are trying to justify the interdictions of marijuana from state-legal businesses at interior checkpoints, primarily around the Las Cruces area, as a necessary consequence of seizing illicit fentanyl. However, as industry stakeholders have pointed out, the spike in cannabis seizures seems to be largely isolated to New Mexico, even though other states like Arizona and California also have legal cannabis operators near the Mexico border.

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Starting earlier this year, the agency has taken a more proactive approach to enforcing federal prohibition, taking hundreds of pounds of cannabis at the checkpoints inside the state. CBP is able to carry out its activities within 100 miles of the U.S. border.

“Although medical and recreational marijuana may be legal in some U.S. States and Canada, the sale, possession, production and distribution of marijuana or the facilitation of the aforementioned remain illegal under U.S. federal law, given the classification of marijuana as a Schedule I controlled substance,” a CBP spokesperson told Marijuana Moment in April. ”Consequently, individuals violating the Controlled Substances Act encountered while crossing the border, arriving at a U.S. port of entry, or at a Border Patrol checkpoint may be deemed inadmissible and/or subject to, seizure, fines, and/or arrest.”

CBP “wants to remind the public that while traveling through any U.S. Border Patrol checkpoint, to include New Mexico, being in possession of marijuana is illegal under federal law,” they said.

CBP’s actions against state-legal marijuana business has also received pushback from other members in Congress as well.

“The Biden-Harris Administration is not doing enough to protect states who are not waiting for the federal government to catch up,” Rep. Earl Blumenauer (D-OR), founding co-chair of the Congressional Cannabis Caucus, told Marijuana Moment in April.

“These seizures underscore the confusion and harm caused by the growing gap between the federal government and state-legal operations,” the congressman said. “Absent descheduling, President Biden urgently needs to issue guidance to prevent this type of infringement from happening again.”

Read the marijuana companies’ lawsuit against CBP over the marijuana seizures below: 

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Photo courtesy of Chris Wallis // Side Pocket Images.