Aaron Anderson, a marijuana and hemp activist on the island of Hawaii, won the right to sue prosecutors and the County of Hawaii (the "Big Island") for a violation of his constitutional rights in a multi-year case first brought in 1992. Anderson was charged for purchasing a 23 lb. box of sterile hemp seed (used extensively in birdseed, as well as a variety of food and other products) at $.49 per pound from Special Commodities Inc. of Fargo, North Dakota, a legally operating company with a DEA license to sell hemp products (see http://www.drcnet.org/wol/015.html#hawaii). The 9th US Circuit Court of Appeals in San Francisco ruled Tuesday (6/3) that a lawsuit filed by Anderson will be heard in federal court in Honolulu, overturning an earlier ruling by US District Judge David Ezra.
Steven Strauss, attorney for Anderson, and for Christie in a similar lawsuit in state court, told the Week Online, "The constitutional violation that gave rise to the 1993 claims did not depend on their being innocent, but rather on their being prosecuted for the wrong reason: advocating the decriminalization of marijuana and building a legal hemp business."
According to the Honolulu Star-Bulletin, deputy prosecutor Kay Iopa told a judge in 1992, "As a practical matter, no, we're not going to go out, bust the little old lady that's got a bag of bird seeds... When you get 25 pounds ... going to, um, a hemp grower, that is very vocally, very outwardly advocating the legalization of marijuana."
Anderson and Christie charge that Iopa selectively, and therefore illegally, prosecuted them, and that Big Island chief prosecutor Jay Kimura knew of this, but failed to take actions to remedy the situation. The 9th Circuit has ruled that if the charge is true, the County of Hawaii would be civilly liable. Kimura told the Star-Bulletin that the prosecution was proper and that the County should appeal the decision to the US Supreme Court.
The jury in Anderson's case deadlocked 9-3 in favor of acquittal, and Iopa dropped the case against Christie in 1995. Iopa resigned her position last December, after a Circuit Court judge found she had "misrepresented information" regarding evidence to the court on two occasions, leading to a mistrial in a high-profile murder case, according to the Hawaii Tribune-Herald.
On the issue of prosecutors bringing charges for activity that is legal, Strauss told the Week Online, "The problem is that prosecutors are typically immune from individual liability," and that "There are no protections against an overzealous prosecutor."
Still, Strauss pointed out, the case does have implications when charges are brought for inappropriate reasons. "No longer can a high-level prosecutorial official ignore the constitutional violations of his deputy, and say it's not his policy, so the municipality isn't liable." In such cases, the burden is on the injured parties to report the possible constitutional violations to the top prosecutorial official in the jurisdiction. It is only if he or she fails to take action to repair the damage, that the municipality can become civilly liable.
(Anderson and Christie have been put out of business for eight years by the prosecutors' lawlessness in charging them for a non-crime. Donations to help Anderson's federal case and Christie's state case can be sent to: Steven D. Strauss Client Trust Account, P.O. Box 11517, Hilo, HI 11517. Reference Anderson and/or Christie on the check.)
The full text of the 9th Circuit decision is available on our web site at http://www.drcnet.org/legal/anderson.html or http://www.drcnet.org/legal/anderson.rtf (includes formatting).
To get involved in drug policy reform in Hawaii, check out the Drug Policy Forum of Hawaii, online at http://www.drugsense.org/dpfhi/.