Rieves v. Town of Smyrna

• Decision Date: 15 May 2020
• Docket Number: Nos. 19-5319/5320/5347,s. 19-5319/5320/5347
• Citation: 959 F.3d 678
• Parties: James Swain RIEVES, et al., Plaintiffs-Appellees, v. TOWN OF SMYRNA, TENNESSEE, et al., Defendants, Jennings S. Jones (19-5319); John Zimmerman (19-5320); Mike Fitzhugh (19-5347), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

959 F.3d 678

James Swain RIEVES, et al., Plaintiffs-Appellees,

v. TOWN OF SMYRNA, TENNESSEE, et al., Defendants,Jennings S. Jones (19-5319); John Zimmerman (19-5320); Mike Fitzhugh (19-5347), Defendants-Appellants.

Nos. 19-5319/5320/5347

United States Court of Appeals, Sixth Circuit.

Decided and Filed: May 15, 2020

ON BRIEF: Heather C. Ross, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellant Jennings Jones. William T. Ramsey, Blind Akrawi, NEAL & HARWELL, PLC, Nashville, Tennessee, for Appellant John Zimmerman. Nicholas C. Christiansen, Roger W. Hudson, Daniel W. Ames, HUDSON, REED & MCCREARY, PLLC, Murfreesboro, Tennessee, for Appellant Mike Fitzhugh. Frank Brazil, BRAZIL CLARK, PLLC, Nashville, Tennessee, Christopher W. Smith, DAVID RANDOLPH SMITH & ASSOCIATES, Nashville, Tennessee, for Appellees.

Before: GIBBONS, KETHLEDGE, and BUSH, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge.

On February 12, 2018, law enforcement officials in Rutherford County, Tennessee, executed "Operation Candy Crush." Officials raided certain stores within the county selling legal cannabidiol ("CBD") products and arrested their owners. The seventeen store owners alleged that law enforcement violated their constitutional rights to be free from false arrest, unlawful seizure, and unlawful prosecution, as well as their right to equal protection. They also alleged a civil conspiracy to violate those rights. In support of their complaint, the plaintiffs attached documents revealing communications between law enforcement officials leading up to Operation Candy Crush in which officials expressed doubts about the CBD products’ purported illegality and concerns regarding the planned arrests and raids. The defendants moved to dismiss the claims pursuant to Federal Rule of Civil Procedure 12(b)(6), claiming absolute and qualified immunity. The district court denied their motions.

District Attorney Jennings Jones and Assistant District Attorney John Zimmerman claim they are entitled to absolute prosecutorial immunity or qualified immunity for their alleged misconduct during the investigation of the plaintiffs’ CBD products. Mike Fitzhugh, the Rutherford County Sheriff, similarly claims he is entitled to quasi-judicial absolute immunity and qualified immunity for his actions related to the investigation and arrests of the plaintiffs. For the following reasons, we affirm the district court’s denial of absolute and qualified immunity to Jones and Zimmerman, affirm the denial of quasi-judicial and qualified immunity to Fitzhugh for his alleged Fourth Amendment violations, and reverse the denial of qualified immunity to Fitzhugh with respect to the plaintiffs’ equal protection claim.

I.

The seventeen plaintiffs in this case are all citizens and residents of Rutherford County, Tennessee.¹ The plaintiffs each owned and operated businesses, including convenience stores, tobacco stores, and "vape shops," selling a range of tobacco and related products. Each of the plaintiffs’ stores sold industrial hemp-derived products containing CBD.² During the relevant period, hemp-derived products containing CBD were, and continue to be, legal under Tennessee and federal law. Tenn. Code Ann. § 39-17-402(16)(D) (2017) ("Marijuana does not include: ... [i]ndustrial hemp as defined in § 43-26-102.").

From February 2017 through February 2018, the Rutherford County Sheriff’s Office ("RCSO") investigated the sale of CBD products in Rutherford County. The investigation began when two plaintiffs promoted the sale of "100% legal CBD products" on their store’s Facebook page. DE 5-2, Ex. 2, PageID 73. After seeing the advertisement, an undercover RCSO officer³ purchased CBD products from the store in February 2017 and then submitted those products to the Tennessee Bureau of Investigation ("TBI") for lab testing.

RCSO officers received the results in May 2017. The lab report indicated that the product contained CBD, which the report listed as a Schedule VI substance. After receiving the first lab report, several RCSO officers met with Assistant District Attorney John Zimmerman to seek "advice" and "prosecutorial direction on the case." Id. ; DE 5-1, Ex. 1, PageID 49. The officers were concerned by the lab report stating CBD was a Schedule VI substance even though they could not find it listed as such under Tennessee statutes. At the meeting, Zimmerman called the TBI to discuss the lab results and "assured [the officers] CBD was an illegal Schedule [VI] product and that it needed to be prosecuted." DE 5-1, Ex. 1, PageID 50; DE 5-2, Ex. 2, PageID 73. Notably, an officer informed Zimmerman that Amazon, the online retailer, was also selling similar CBD products. Zimmerman laughed in response and said, "we aren’t going aft[er] Amazon." DE 5-2, Ex. 2, PageID 75. He instructed the officers to make more purchases of CBD products from similar vape stores, including from outside the city of Murfreesboro, and to photograph their purchases.

RCSO officers continued to express their concern regarding CBD’s purported illegality. An officer "sought legal advice from prosecution" regarding CBD’s legal status and spoke with Zimmerman several times "for clarity." DE 44, SAC, PageID 317 (citing DE 5-2, Ex. 2, PageID 73). Although in these instances the officer "could not get clarity" from Zimmerman, the notes further state that Zimmerman recommended padlocking the businesses because they were "selling illegal products." DE 5-2, Ex. 2, PageID 73. An officer also spoke with District Attorney Jones who told him the CBD products were "definitely illegal." DE 44, SAC, PageID 317 (citing DE 5-2, Ex. 2, PageID 74). In addition to their doubts about CBD’s legality, RCSO officers expressed concern about Zimmerman’s plan to padlock the stores and seize their assets, which they felt seemed "extreme." DE 5-2, Ex. 2, PageID 75.

In early December 2017, Zimmerman called RCSO Major William Sharp. Zimmerman told Sharp to get a certain detective "more involved" in the investigation of the CBD products as "a lot needed to be done." DE 5-4, Ex. 4, PageID 77. He also told Sharp they "needed to move quickly," "wanted to [present] this case to the February Grand Jury," and needed to "have this done before (something about legislation) [occurred]."⁴ Id. "[L]ater in December or first part of January," Jones also called Sharp to direct the certain detective to "take a more active approach" in the investigation. Id . Following these conversations, Sharp made the investigation a "priority case." Id.

The plaintiffs point to a December 17, 2017, email from Zimmerman to various TBI employees as evidence that Zimmerman knew the TBI lab reports did not conclude the tested CBD products were illegal. In that email, titled "lab reports," Zimmerman summarized various lab results and inquired why one test was "inconclusive" and in another the test "found [the product] to be Cannabidiol, BUT did not list it as a schedule VI substance." DE 5-3, Ex. 3, PageID 76. Additionally, he wrote: "Before we indict these owners of businesses, and padlock their businesses, we want to make sure we are understanding what is being offered for sale. Police say we have about 20 businesses and I want to make sure we are on the same page as the expert chemists." Id.

On January 11, 2018, an RCSO officer attended a meeting with TBI employees, Zimmerman, and another Assistant District Attorney. The meeting was intended for the TBI to clarify whether the CBD products tested were illegal. The TBI stated that CBD was a Schedule VI substance, but the employees clarified that they could not determine the products’ legality because the TBI lacked the equipment to test the percentage of THC, preventing them from determining legality.⁵ A TBI attorney explained that determining the legality of a substance containing CBD is a "case[-]specific" inquiry. DE 5-1, Ex. 1, PageID 51. In response, Zimmerman turned to the RCSO officer and said, "this stuff is illegal and we are going forward with this." Id. The officer felt "shut down" by Zimmerman and was "not comfortable" with the case because "no one ha[d] explained how [the CBD products] w[ere] illegal." Id. ; DE 5-4, Ex. 4, PageID 77. The next day, the officer who had attended the meeting called Sharp and informed him the "[TBI] [did] not feel comfortable testifying about the [CBD products’ legality]."⁶ DE 5-4, Ex. 4, PageID 77. Sharp subsequently told the officer "not to make any further buys and to stop any further investigation until [he could] get some answers." Id.

Sharp came to believe the investigations should be postponed. On January 22, 2018, Sharp advised his supervisors, including Sherriff Mike Fitzhugh, that he was not comfortable proceeding with the case until he had more information. On January 24, 2018, Sharp called Jones to relay his concerns regarding the undercover purchases and plan to raid the stores, and he further noted that the TBI had concerns as well. Jones apparently became "upset" about the comments regarding the TBI’s testing limitations and reiterated that the products contained a scheduled substance. Id . The same day, Jones emailed Zimmerman and Sharp to explain to Zimmerman that Sharp was concerned about indicting the plaintiffs and seizing their property and then having the TBI "refuse[ ] to testify that the substances [sold were] illegal." DE 5-6, Ex. 6, PageID 84. Around one week later, on January 30, 2018, Sharp called a TBI agent and again did not receive any assurances about the legality of the products being sold. As of January 30, Sharp noted that "no one [in the RCSO was] comfortable moving ahead" with Operation Candy Crush. DE 5-4, Ex. 4, PageID 78.

Because of Sharp’s delay, the District Attorney’s office met with Sherriff Mike Fitzhugh and two other Chiefs—supervisors to Sharp and the other RCSO officers—to speed up the investigation. Fitzhugh would not override Sharp’s decision but helped arrange further meetings between the prosecutors and officers for...