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Georgia Supreme Court ruling | Gwinnett DA can resume prosecutions over Delta-8, Delta-10

The court vacated an earlier decision by a Fulton County court that placed an injunction on Gwinnett County prosecutions related to cannabinoid products.

GWINNETT COUNTY, Ga. — A Fulton County ruling last year that placed an injunction on the district attorney in Gwinnett County against raids, arrests and prosecutions in relation to the cannabinoid products Delta-8 and Delta-10 has been reversed by the Georgia Supreme Court.

The products have broadly been considered legal under Georgia's allowance for hemp products, so long as their amounts of THC remain below 0.3%.

But in January last year, Gwinnett County District Attorney Patsy Austin-Gatson said her office would pursue raids, arrests and seizures of the Delta-8 and Delta-10 products.

That prompted a lawsuit by businesses seeking a court intervention against the law enforcement targeting of Delta-8 and Delta-10. 

RELATED: Injunction issued against Delta-8 and Delta-10 prosecutions in Gwinnett County

The lawsuit won a victory last April, with Judge Charles M. Eaton Jr. of Fulton County Superior Court determining that businesses, which sell Delta-8 and Delta-10 products "will suffer irreparable harm" and "will be unable to remain open" without an injunction against the DA's actions against them and that the DA had "provided no actual evidence to indicate that the distribution and sale of these products had led to any direct harm to any individuals or parties in Gwinnett County." 

The DA had generally argued that the products are potentially fatal and that because the law legalizing hemp in Georgia does not specifically allow Delta-8 and Delta-10, they should be considered illegal.

The Georgia Supreme Court ruling did not address these arguments - instead finding the Fulton County court erred in its interpretation of state sovereign immunity statutes.

The state Supreme Court said, essentially, there should not have been a suit allowed from the start against the Gwinnett district attorney because of how sovereign immunity works under the Georgia Constitution.

"...the lawsuit must be brought ‘exclusively against the state and in the name of the State of Georgia’ ...If a lawsuit does not comply, then the entire lawsuit must be dismissed, even if some claims within the lawsuit could have otherwise been brought on their own without relying on (the Georgia Constitution's) waiver," the ruling stated.

Basically, the state constitution provides for a waiver of sovereign immunity principles (thanks to a 2020 amendment approved by voters in a referendum) to allow people to sue the state of Georgia - but, according to the Georgia Supreme Court ruling, it is written as such that any lawsuit seeking to apply the sovereign immunity waiver must only be brought against the state.

This lawsuit was brought against the state and the Gwinnett district attorney - meaning it did not qualify for the sovereign immunity waiver. Thus, the state Supreme Court said, it should have been dismissed.

The practical effect of the ruling is that the lawsuit was dismissed and the Gwinnett DA may resume law enforcement actions against Delta-8 and Delta-10.

It's not clear if another lawsuit might be filed. It was originally brought by the firm Pate, Johnson & Church - whose partner, Page Pate, drowned in a strong current in September. Pate, 55, was an 11Alive legal analyst as well.


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