Federal Judge Dismisses Marijuana Businesses’ Lawsuit Challenging CBP Seizures Of State-Legal Products

A federal judge has dismissed a lawsuit against U.S. Customs and Border
Protection (CBP) over allegations from New Mexico marijuana businesses that
claimed the agency unconstitutionally seized state-legal cannabis products
and detained industry workers.

More than a year after CBP moved to dismiss the suit, the U.S. District
Court for the District of New Mexico issued an opinion and order on Monday
siding with the agency, rejecting all four claims of constitutional
violations under the Fifth and Tenth Amendment.

Judge Kenneth Gonzales said the eight New Mexico marijuana businesses who jointly
sued CBP over the searches and property seizures in 2024 failed to
establish procedural due process violations because those protections do
not apply to “property that is contraband per se,” which includes cannabis
because “Congress has decreed explicitly that Schedule I controlled
substances are ‘deemed contraband and seized and summarily forfeited to the
United States.'”

“Because Plaintiffs lacked a cognizable property interest in the marijuana
products, they were not entitled to post-forfeiture notice or a hearing to
challenge the seizure of those products,” the order states, adding that
marijuana “remains contraband under federal law notwithstanding evolving
enforcement policies or prospective regulatory changes.”

In an earlier filing, CBP put emphasis on that argument, asserting that as
long as marijuana remains federally prohibited, border agents are within
their statutory right to disregard state law and seize the property—and
that the limited protections that states with marijuana programs enjoy
under a congressional rider and Justice Department discretionary policies
don’t apply to CBP, which falls under the Department of Homeland Security
(DHS).

Plaintiffs also “claim rests on the assertion that Defendants diverted
enforcement resources to seize state-legal cannabis products in New Mexico
rather than prioritizing border enforcement, as Defendants do in other
states,” the judge said in the order, which was first reported by Law360.

“That allegation, even if true, does not support a selective enforcement
claim,” he wrote. “Plaintiffs identify no similarly situated individuals or
businesses who were treated differently and allege no facts suggesting that
Defendants acted with impermissible motives. Either deficiency is fatal.”

CBP, in its original motion to dismiss, made a series of more nuanced
challenges to the complaint’s allegations, including about the seizure of
non-cannabis assets such as cash and vehicles they used to transport the
marijuana. The agency said the vehicle issue was moot because the property
was “returned to Plaintiffs before this action was filed, so Plaintiffs
lack standing to seek relief stemming from the seizures of those vehicles.”
The court ultimately agreed with that position.

Beyond that, the government contested plaintiffs’ argument that the federal
government’s “hands-off” approach to state-level marijuana reform was
relevant to the case at hand. The agencies simply said that, regardless of
past DOJ and Treasury Department guidance or informal policy precedent,
there’s nothing currently codified in law that bars DHS and CBP from
continuing to enforce federal prohibition.

In the original lawsuit, the cannabis businesses also detailed multiple CBP
encounters where employees were detained, at time for hours on end, without
being charged with any specific crimes. The agency didn’t address the
nature of the detainments, and it simply maintained its legal authority to
hold the workers.

The controversy over the CBP seizures caught the attention of some in
Congress. 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 2024, 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 were 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 seemed to be largely
isolated to New Mexico, even though other states like Arizona and
California also have legal cannabis operators near the Mexico border.

Beginning in 2024, the agency seemed to take 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.

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

*Read the federal court’s ruling in the CBP marijuana seizure case below:*

*Photo elements courtesy of rawpixel and Philip Steffan.*

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CBP Seizures Of State-Legal Products appeared first on Marijuana Moment.