Photo courtesy of Murfreesboro Voice
An ongoing lawsuit between Rutherford County business owners and multiple city officials regarding the February 2018 “Operation Candy Crush” sting is causing quite a stir – most recently because of an added accusation: The defendants say that authorities targeted the local businesses because of the owners’ Egyptian heritage.
The sting, which focused on products infused with cannabidiol, was carried out on 23 Rutherford County stores and resulted in 21 people being criminally indicted for selling products containing illegal controlled substances. The charges were later dropped after a series of issues forced investigators to announce that they could not determine if the cannabidiol was derived from marijuana or hemp.
Authorities in the case, including but not limited to the Rutherford County Sheriff’s Office, the Tennessee Bureau of Investigation and the Rutherford County District Attorney’s Office, have all directed blame at each other for the mishandling of the case.
The lawsuit was filed in September and represents 19 of the 23 targeted stores. The accusation of racial profiling, which was added as an amended complaint on Dec. 20, states that 12 owners are of Egyptian descent.
The lawsuit also points out the fact that nearby businesses and major retailers selling CBD products – often identical items – were not targeted.
The discrepancy regarding the legality of the CBD products acted as a key factor in the initiation of the sting, and ultimately, led to its downfall.
MTSU professor Elliot Altman, who heads the University’s Botanical Medical Research Center and is one of Tennessee’s leading experts on CBD oil, has been subpoenaed to testify in the case based on his expertise.
“The problem is the misconception and confusion … that they both come from the same plant- cannabis,” said Altman, in an interview with News Channel 5. “The legal definition is hemp is less than point three percent THC which is the psychotropic agent. Marijuana is point three percent or greater.”
This small legal boundary is the crux of the ongoing controversy – and judicial sparring – surrounding “Operation Candy Crush,” and goes back as far as early 2017.
Operation Candy Crush: A timeline
The investigation into the local businesses began Feb. 3, 2017, after an RSCO narcotics detective stumbled upon an advertisement on Facebook for CBD-infused gummy candies. The detective then purchased the candies and submitted the product to the TBI Crime Laboratory for analysis.
On May 12, 2017, RSCO received the chemical analysis back from the TBI, which stated that the products contained CBD and 5-Fluoro ADB, a synthetic drug that is illegal in Tennessee. Following this assessment, narcotics detectives met with an attorney from the Rutherford County District Attorney’s Office to decide how to move forward.
“One concern was the lab report stated that CBD was a Schedule VI (drug), but it could not be found in Tennessee Code Annotated,” said Lt. Matt Goney of the RSCO office of professional responsibility, in a summary report of an internal investigation following the incident.
Goney stated that detectives spoke several times with District Attorney Jennings Jones and TBI employees about the state law, and “detectives were assured CBD was an illegal Schedule VI product and that it needed to be prosecuted.”
Several narcotics detectives spoke to their supervisor Lt. Bill Sharp “on multiple occasions…(regarding) concerns in the prosecutorial direction of CBD cases” and even suggested alternate methods of response rather than presenting to the Grand Jury, as stated in the summary report.
One detective also questioned an unnamed assistant district attorney as to why they were not addressing similar CBD products that are sold on Amazon.
“He states an ADA advised that we were not going after Amazon,” Goney said in the statement.
Many detectives, according to the report, “agreed that padlocking the businesses was extreme,” and that Sharp wanted to postpone the case.
Although the DA wanted the case to be presented to the October 2017 grand jury, it was pushed back to December 2017, as the lead narcotics detective “slow-walked the CBD case from going to grand jury in the later part of 2017 because he wanted more assurance the products were illegal,” according to Goney.
The delay, however, was not appreciated. The DA, according to the internal affairs report, spoke with Sheriff Mike Fitzhugh in an effort to hasten the investigation.
Fitzhugh stood by Sharp’s decision but suggested a meeting between the DA’s office and the narcotics division.
On Jan. 4, 2018, an unnamed ADA sent an email to the lead narcotics detective with the subject “CBD memorandum,” and featured an attachment called the “Memorandum of Law Regarding Sale of Substances Containing Cannabidiol in Tennessee.”
However, this law was the incorrect law to apply to the CBD case in question, according to the report.
The confusion continued to mount on Jan. 11 after the lead narcotics detective attended a meeting with the TBI. The meeting, according the report, “consisted of what he described as ‘lawyer talk’ that was unclear to him.”
A TBI employee also reportedly explained to the detective that CBD was a scheduled substance but could not explain to him if it was considered illegal in this case or not, as the TBI “could not test for the percentage of THC. TBI was very clear they did not have the equipment.”
Following this meeting, the lead narcotics detective then spoke to a TBI attorney for clarification as to whether the products were legal or not. According to the report, before the TBI attorney answered, the ADA stated that “this stuff is illegal and we are going forward with this.” Goney continued, saying that the detective “stated he felt shut down by the ADA.”
One last effort to clear up the legality of the case was made on Feb. 2 when a “contentious meeting” between the detective and the ADA took place, where “detectives again expressed various concerns,” as Goney said, but the ADA continued to assure detectives that the products were indeed illegal.
On Feb. 12, 2018, the operation commenced, and 23 stores were padlocked as a result.
In a press conference in front of one of the padlocked stores, Fitzhugh praised the collaboration of the Murfreesboro, Smyrna and La Vergne Police, as well as the TBI, DEA and FBI and made no mention of the prior misgivings regarding the case.
“Products containing cannabidiol, also known as CBD, and other synthetic drugs (were found) in all 23 of these stores,” Fitzhugh said during the press conference. “And warrants were issued on each of these stores, and that’s the raid that took place (today).”
District Attorney Jennings Jones was also in attendance, and contrary to his previous surety in closing all 23 businesses, said that “I know that there has been one location that has been a manufacturer for certain items and selling the oils. I believe that there is one location within the jurisdiction that has been selling the oil.”
“…One of our agents (walked in to) the store and said, ‘Hey do you have any CBD gummies?’ and immediately the clerk went straight to it,” said Smyrna Police Chief Kevin Arnold, regarding the “illegal” products that were seized. “So again, this is not some obscure product that’s sitting on their shelf, that they don’t know anything about. They know it’s there, and they know what the purpose for it is.”
Twenty-one store owners were arrested and charged with felony possession and selling of a Schedule VI drug.
On Feb. 13, the DA was contacted by an advocate for the use of hemp products, stating that authorities had used the wrong law to arrest the store owners.
According to an open records request from the Murfreesboro Voice, ADA John Zimmerman responded to this development by sending an email to the lead narcotics detective with the subject “Bill just introduced.” The bill attached to the email, Tennessee Public Chapter 369, was signed into law in May of 2017, eight months prior to the 2018 sting.
The law makes any industrial hemp products, whether ingestible or topical, legal to sell and possess in Tennessee as long as the items do not exceed the THC threshold of 0.3 percent. THC is the psychoactive chemical in marijuana that makes consumers high.
Due to this evidence (or lack of) and the subsequent confusion regarding the products illegality, four days after the sting Circuit Court Judge Royce Taylor allowed stores to reopen. During the hearing, ADA Zimmerman asked the judge to wait until another bill regarding medical marijuana was considered by the state Legislature, but the judge denied this request, stating that a decision could not legally be based on a future law.
A following court date was set for March 19, but less than a week after this decision, the DA filed papers to drop all charges in the case.
After the charges were dropped, Goney ordered Fitzhugh to perform an administrative review of Operation Candy Crush. The internal affairs investigation, which was previously mentioned, found that the RSCO did not violate any department policies during the investigation.
It was found that many narcotics detectives “and other Sheriff’s Office employees” had “concerns over the legality of CBD from the very beginning of the investigation,” according to the report, but their concerns were heard and overruled by the DA’s office.
The DA, however, lays the blame on the TBI.
“The District Attorney’s office initiated actions to enforce the law in this case because the TBI assured us that the items being sold at various businesses in Rutherford County were infused with illegal controlled substances” Jones said in a press release.
Jones also said that at a meeting prior to the sting, “…TBI officials assured us that they were standing by their determination that the ‘cannabidiol’ substance found on the edible products was a Schedule VI controlled substance and that their previous reports were accurate.”
Jones then explained that chemists from the TBI “have now informed my office” that they could not accurately determine whether the CBD came from hemp or marijuana, and that the TBI lab “cannot determine the level of tetrahydrocannabinol (THC)” in any of the tested items.
“It now appears that the TBI lab reports, if they had been accurately written, should have stated that their findings were ‘inconclusive’ as to whether cannabidiol is a controlled substance,” Jones stated, adding that “since the TBI lab cannot conclusively establish in court that the cannabidiol they detected was derived from a marijuana plant, the State cannot prove the substance is actually a Schedule VI controlled substance. The TBI lab reports constituted the foundation of all indictments and nuisance actions in this case.”
The TBI responded rather succinctly, explaining that the role of the TBI was simply to analyze the substance – not determine its legality.
“In this matter, it is inaccurate for the local stakeholders in these cases to assert they made decisions in this case unaware of the limits of our forensic work,” the TBI said in their released statement” …The role of the (TBI) in laboratory analysis is to objectively analyze submitted evidence, and, in fact, our Forensic Scientists are rarely aware of the circumstances involving the evidence submitted for analysis.”
The TBI continued by saying that they can “only determine relevant compounds, not the particular origins of those substances,” so that they were “not able to determine whether the CBD in these cases originated from industrial hemp, illicit marijuana, or synthetic production.”
“Local agencies and prosecutors, including those in Rutherford County, are well aware of that nuance,” the TBI release read “… Though we identified the substance and the relevant schedule, we made no determination about the legality of the substance or the circumstance in Rutherford County. That was a decision closely made – as in all cases – by the local agency and District Attorney General.”
Jones stands by his office’s handling of the case.
When asked about Zimmerman’s role in the operation, according to the Murfreesboro Post, Jones “declined to be specific,” other than saying that it was Zimmerman that brought the case to Jones’ attention.
Zimmerman himself has not been without scrutiny over the years. Most notably, Zimmerman was censured back in 2002 by the Board of Professional Responsibility after withholding key evidence in the life-sentencing of a Tennessee man for murder. Zimmerman received the censure while working for the Davidson County District Attorney’s office. His long legal career has had many more accusations, including altering testimonies, offering inadmissible evidence to the jury, pretrial misrepresentations, misleading the judge into allowing inappropriate seizure and lying to the court and grand jury.
In more recent history, it was discovered that Zimmerman’s son, who was arrested on a serious drug charge in Davidson County back in 2017, has been arrested numerous times before for drug possession while his father was Assistant District Attorney. Each time his son’s name was entered into the court clerk’s database, however, it was mispelled as ‘Zimmeran’, going back as far as 2000, obscuring the fact that the ADA who was famous for being tough on drugs was related to the habitual drug user.
The controversy seems to have followed him to Rutherford County as well. In an interview with the Murfreesboro Post, store owner Stacey Hamilton said Zimmerman came into one of her businesses the day of the Operation Candy Crush sting and “called her and her clerk ‘drug dealers.’”
“They targeted minorities and they targeted small business owners because they didn’t think we’d fight back,” Hamilton said.
But fight back they did. On Sept. 25, 2018, attorneys with Brazil Clark Law Firm filed a lawsuit on behalf of Cloud 9 Hemp owner James Swain Reeves and 16 other plaintiffs, naming the Town of Smyrna, Smyrna Police Chief Kevin Arnold, Rutherford County, District Attorney Jennings Jones, Assistant DA John Zimmerman and Sheriff Mike Fitzhugh as defendants.
“This action arises under the United States Constitution and under the laws of the United States of America, particularly under the provisions of the Fourth and Fourteenth Amendments of the United States Constitution, and particularly under the Civil Rights Act,” the lawsuit states.
The lawsuit alleges that the seizing of legal merchandise from Rieves caused severe loss of business, serious mental and emotional distress and diminished reputation in the community.
This is actually the second time James Rieves has been targeted. His business was also raided back in September 2017, and more than $60,000 in product was withheld for four months. No evidence of marijuana was found, and no criminal charges were pressed, so Rieves continued to sell his products.
As stated in the lawsuit, “Mr. Rieves believed that, once the (Smyrna Police Department) realized the mistake, everything would return to normal … Despite suffering serious harm to his business, (Rieves) purchased more inventory and resumed the sale of his industrial hemp derivatives because he had a family to feed, and he knew that he was not breaking the law.”
“These failure exposed citizens of Smyrna, including Plaintiff Rieves, to an extreme risk of constitutional deprivations,” the lawsuit continues, regarding the legal oversights that led to the 2018 raid
Three counts have been filed in the lawsuit in relation to Operation Candy Crush: Count one claims violation of civil rights, and counts two and three claim a violation of the plaintiffs’ 4th amendment rights to be free from false arrest, unlawful seizure and unlawful prosecution of all defendants. In addition, the lawsuit alleges that Zimmerman was involved in investigatory functions that are usually regulated solely to police, and that both Jennings and Zimmerman entered into an agreement to violate the plaintiffs’ civil rights by forcing law enforcement to move forward with the sting despite misgivings.
“Acting under color of law, they pushed law enforcement agencies to move OPERATION CANDY CRUSH forward, despite the serious and legitimate concerns raised by the investigating police officers,” the lawsuit states. “By the time Rutherford County and the Town of Smyrna conducted the February 2018 raid, they knew they were intentionally preying on local small businesses with the expectation that they would take a plea to get their businesses opened back up.”
It also claims that the RSCO and the SPO “knowingly participated in the illegal seizure, arrest, criminal prosecution and nuisance petition against Mr. Rieves,” and that “Mr. Rieves’ false arrest and unlawful prosecution were sanctioned and ratified by the highest-level policymakers for Smyrna and Rutherford County.”
The lawsuit also alleges that Rieves’ property wasn’t returned until September 2018.
The plaintiff requests:
- That jury of 12 persons be empaneled to try this case.
- A declaratory judgement that Defendant’s conduct violated Plaintiff’s protected constitutional rights.
- For nominal damages.
- For compensatory damages in the amount of $500,000.00.
- Reasonable attorney’s fees and litigation expenses.
- Such other and general relief as the court deems just.
The amended complaint of racial bias was included on Dec. 20, 2018 and adds yet another layer of misconduct to an already complicated case.
“They say we were drug dealers selling drug-laced candies to kids, with the intent of getting high,” Rieves said in a statement with WKRN.
“I’m still trying to wrap my head around it. It was a series of unfortunate events that never should have happened. It’s forever changed my family and our life, our businesses for the worse.”
Read District Attorney Jennings Jones’ press release, and the TBI Chemistry report (beginning on page 3), here.
Read the entirety of the lawsuit here.
See a complete list of stores affected by Operation Candy Crush here:
- Vapesboro 1675 Middle Tennessee Boulevard
- Enchanted Planet 109 East Lytle Street
- T&B Tobacco & Beer 5524 N.W. Broad Street
- Quick Stop Discount Tobacco and Beer 1722 S. Rutherford Boulevard
- 99 Cents Discount Tobacco 3325 Memorial Boulevar
- Kaleidoscope, 3325 Memorial Boulevard
- Last Stop Market 6858 Lascassas Pike
- Kwik Sak 1219 Hazelwood Drive, TN
- Vape & Smoke 901 Rock Springs Road
- Stop & Shop Tobacco & Beer 901 Rock Springs Road
- One Stop Shop Tobacco & Beer 1872 Almaville Road
- Magical Vapors 504 East Enon Springs Road
- Cloud 9 and 105 Jefferson Street
- Waldron Market 606 Waldron Road
- Family Market Discount Tobacco and Beer 546 Waldron Road
- Tobacco Brew & Chew 5104 Waldron Road
- La Vergne Vapor, 5234 Murfreesboro Road
- Y&H Discount Tobacco and Beer 2075 Lascassas Pike
- A&M Tobacco & Beer 2075 Lascassas Pike
- Kaleidoscope 2992 S. Church St.
- Magical Vapors 517 W. Main St.
- Stop-N-Go 1624B New Salem Highway
- Stop-N-Shop 490 Andrews Drive
To contact News Editor Angele Latham, email email@example.com.
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