Source: Gazette Xtra
JANESVILLE — An attorney for Hemp 1848 shop owner Jerry McCoy wants a Rock County judge to throw out major drug trafficking charges against McCoy, arguing that police and prosecutors bypassed regulatory rules and instead skipped straight to raids at Hemp 1848 — resulting in McCoy’s arrest.
Defense attorney Michael Torphy filed a motion in Rock County Court on Thursday seeking dismissal of a case that levels 13 counts of drug trafficking against McCoy. Among those charges are multiple counts of both maintaining a drug trafficking place and possession with intent to distribute THC in quantities greater than 10 kilograms.
Torphy said McCoy is being treated as a common, illicit “drug dealer” following raids of several of his Hemp 1848 stores. Instead, the attorney said, concerns over his operations should have been handled through regulatory laws the state holds for licensed hemp producers
McCoy’s Aug. 19 arrest came on suspicion that McCoy, a licensed hemp operator, marketed and sold hemp-derived THC that is far too potent to be allowed in Wisconsin under the 2018 Farm Bill rules on hemp.
McCoy’s attorney does not argue whether the cannabis McCoy was selling at Hemp 1848 exceeded limits for THC allowed in Wisconsin.
Rather, he is arguing that it initially should have been up to the state Department of Trade, Agriculture and Consumer Protection (DATCP), the state’s regulator of hemp operations — not police or a criminal prosecutor — to determine if there was a problem with McCoy’s products.
Torphy told The Gazette that authorities’ decision to launch an investigation of McCoy’s shops and the THC he sells — and then arrest him and charge him with criminal drug trafficking — completely bypassed the state’s legal regulatory framework for hemp operators.
“There’s a whole process that the state has to go through to be able to bring charges against someone who’s licensed, and that process includes approaching DATCP… and having them contact the producer for the purpose of determining if there is some problem with how the product is being produced,” Torphy explained.
Torphy believes authorities ignored the state’s hemp regulatory framework, and because of that created a case that the court now lacks legal “competency” to take up.
The attorney also said McCoy’s arrest and prosecution is highly unusual and selective, calling it a “wild” anomaly in Wisconsin.
Torphy said McCoy had been selling the same products as any of the hundreds or thousands of retail sellers of Hemp-based THC in Wisconsin, all of which have their sales handled under the same state regulatory framework as McCoy.
McCoy has been selling hemp-based products in stores in Rock County since 2019.
“If you want to point a finger in this instance, I would say that you have to question first why of all the purveyors of product in the state of Wisconsin, why was Jerry McCoy singled out?” Torphy said. “Jerry had adopted leases with various locations, had gotten business licenses in those municipalities, occupancy licenses, and had been engaged in the sale of products there for years, literally five or six years (depending on location).”
Torphy said state law on marijuana has not changed. Psychoactive cannabis products remain illegal. That makes it complicated for police “about what it is they’re supposed to do” when it comes to legal, hemp-based THC products.
Authorities said in a criminal complaint that police investigated McCoy’s Hemp 1848 stores because they pulled over McCoy’s employees as they were transporting Hemp 1848 products from a store to a warehouse. Police say that’s when they learned some of the products had THC potency far surpassing state limits for hemp-derived cannabis products.
Then, authorities said, they determined that McCoy had products produced with unlawfully potent THC that were intentionally mislabeled in packaging that marketed the products as legal in Wisconsin, according to the criminal complaint.
A date has not yet been set for a judge to hear and rule on Torphy’s motion to dismiss. Thursday’s initial appearance was held before Rock County Court Commissioner Mason Braunschweig.
