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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