Man granted trial inBy Rod Thompson
hemp birdseed case
HILO -- A Big Island hemp and marijuana advocate who was prosecuted for buying sterilized hemp birdseed must receive a trial for his lawsuit claiming his civil rights were violated, a federal appeals court has ruled.
The 9th U.S. Circuit Court of Appeals in San Francisco ruled Tuesday that the lawsuit by Aaron Anderson will be sent back to federal court in Honolulu.
It overturned an earlier ruling against Anderson by U.S. District Judge David Ezra.
The appeals court said a jury may find Anderson's rights were violated, and Big Island prosecutor Jay Kimura may be responsible.
Kimura responded that the prosecution which prompted Anderson's lawsuit was proper. He said the county should appeal to the U.S. Supreme Court.
In 1991, Anderson ordered 25 pounds of sterilized hemp birdseed from North Dakota. A later U.S. Drug Enforcement Administration affidavit said the seed was legally imported from China.
County police intercepted the shipment to Anderson at the Hawaiian Hemp Council, where Roger Christie was also a member.
Charges of marijuana possession against the two followed, although deputy prosecutor Kay Iopa dropped the charge against Christie in 1995.
Anderson was tried, but a mistrial was declared when the jury deadlocked.
Also in 1995, Anderson and Christie sued Iopa, Kimura and the county.
They said Iopa and Kimura selectively and therefore illegally prosecuted them, and were trying to stifle their right to free speech.
They cited a 1992 statement made in court by Iopa.
"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 ... " Iopa told a judge.
"When you get 25 pounds ... going to, um, a hemp grower, that is very vocally, very outwardly advocating the legalization of marijuana."
Iopa gave no evidence that Anderson or Christie grow marijuana. In its ruling, the appeals court said a jury might conclude Iopa violated the men's rights, but Iopa didn't have final authority over the case. The final authority was with Kimura, it said.
Anderson's and Christie's lawsuit put Kimura on notice there might be a violation of rights. A jury may find Kimura deliberately allowed the violation, the court said.
Christie is excluded from the suit because the charge against him was dropped, it said. Anderson's attorney, Steven Strauss, said he hopes the case can be tried before Ezra in six months.
That would be blocked if the county appeals to the U.S. Supreme Court. County attorney Steven Christensen said it's too soon to know if the county will do that.