Prosecutors and the sheriff of Rutherford County, Tenn., will face claims that they wrongly raided stores selling legal cannabidiol products after the Sixth Circuit denied the majority of their immunity arguments.
The raid, dubbed “Operation Candy Crush,” occurred on Feb. 12, 2018, and the store owners were arrested and charged with violating the state drug control act. All charges against the store owners were eventually dismissed.
The prosecutors aren’t immune because their alleged conduct —directing the sheriff’s office investigation, advising on the legality of the CBD products, and “propelling the officers to execute” the raid—occurred before the judicial phase and without probable cause, the court said.
The plaintiffs, 17 store owners, may proceed with their Fourth Amendment and equal protection claims against District Attorney Jennings Jones and Assistant District Attorney John Zimmerman, the U.S. Court of Appeals for the Sixth Circuit said Friday.
The owners allege the defendants violated their Fourth Amendment rights against false arrest, unlawful seizure, and unlawful prosecution, and their right to equal protection by selectively targeting them “because they were small business owners, rather than large commercial operations such as Amazon or
Sheriff Mike Fitzhugh isn’t immune from claims of violating the store owners’ Fourth Amendment rights against unreasonable search and seizure because the complaint alleges that he knew or should have known that probable cause didn’t exist to arrest the plaintiffs, the court said.
But Fitzhugh is immune from the equal protection claims because the complaint doesn’t establish that he participated in the decision to selectively target the plaintiffs’ stores, the court said.
The plaintiffs allege that Jones and Zimmerman were aware members of the sheriff’s office questioned whether the CBD was actually illegal, and that forensic analysts at the Tennessee Bureau of Investigation refused to label the products as illegal.
Nevertheless, Zimmerman urged the sheriff’s department to go ahead with the raid, the court said.
Judge Julia Smith Gibbons wrote the opinion, joined by Judges Raymond M. Kethledge and John K. Bush.
Brazil Clark PLLC and David Randolph Smith & Associates represent the store owners.
The Tennessee Attorney General’s Office represents Jones.
Neal & Harwell PC represents Zimmerman.
Hudson, Reed & McCreary PLLC represents Fitzhugh.
The case is Rieves v. Town of Smyrna, 6th Cir., No. 19-05319, 5/15/20.