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7/31/2017
Source: The Am Law Litigation Daily
 

The Kirkland Associate and the Case of the Bungled Pot Raid

If Spiderman was a lawyer, he might be a lot like Kirkland & Ellis associate Rob Bernstein. No, not the part about webs. But because when Bernstein saw something wrong, he jumped in to fight it.

Outraged by a story in the Washington Post about a suburban Kansas City family whose home was wrongfully raided by deputies, Bernstein as a brand-new associate convinced partners Paul Clement and Viet Dinh that he should reach out and offer pro bono appellate representation.

Last week, the U.S. Court of Appeals for the Tenth Circuit handed Bernstein and his clients a victory, reversing and remanding a lower court decision and bolstering Fourth Amendment protections.

The facts of the case are “absolutely bananas,” Bernstein said. “You will not find a case with more outrageous facts. It’s one of the things that made it such an attractive vehicle in moving Fourth Amendment law.”

Tenth Circuit Judge Carlos Lucero laid it out in one of the best-ever openings of an opinion:

“Law-abiding tea drinkers and gardeners beware: One visit to a garden store and some loose tea leaves in your trash may subject you to an early-morning, SWAT-style raid, complete with battering ram, bulletproof vests, and assault rifles.

Perhaps the officers will intentionally conduct the terrifying raid while your children are home, and keep the entire family under armed guard for two and a half hours while concerned residents of your quiet, family-oriented neighborhood wonder what nefarious crime you have committed. This is neither hyperbole nor metaphor—it is precisely what happened to the Harte family in the case before us on appeal.”

But it turns out, the police “messed with the wrong family,” Bernstein said. Because plaintiffs don’t come much more squeaky-clean than Robert and Adlynn Harte.

The Johnson County Sheriff’s Office didn’t actually bother to investigate their backgrounds before the raid, but if they had, they’d have found the Hartes are both ex-CIA employees who held the highest-level security clearances. An attorney at Waddell & Reed Financial, Adlynn Harte is also a graduate of the Leawood Citizens Police Academy.  They have two children, a boy who was 13 at time and a girl who was 7. The family’s only prior run-in with the law was a traffic ticket.

They were, in fact “the perfect plaintiffs,” Bernstein said, who weren’t afraid to fight back against egregious police overreach.

How did they wind up as targets?

It started with a Missouri Highway Patrol trooper with a creepy pastime. He liked to stake out a hydroponic garden supply stores for hours on end, writing down the license plates of everyone who shopped there on the theory that some of them might be buying supplies for growing pot.

Or, in the Hartes’ case, growing indoor tomatoes.

The trooper passed on the information to local law enforcement agencies for investigation, and in 2012, the Johnson County Sheriff’s Office decided it would use the leads for a big raid on April 20—a.k.a. “Weed Day,” when pot smokers celebrate by getting high en masse.

The deputies only had a month to investigate, but the press conference for “Operation Constant Gardener” was set in advance. There would be big busts of pot growers to brag about. The deputies just needed to find them.

The Hartes’ name was on the list of hydroponic store shoppers. Rather than conduct surveillance or check utility bills or look for pot-growing clues like blacked-out windows or fans—or even peek in their basement windows, where the tomato plants were readily visible—the deputies searched their trash three times (which can be done without a warrant).

On April 3, 2012, they found wet green vegetation that they determined was “innocent plant material.” A week later, they came back and found the same stuff. But now, with only 10 days before the big press conference on April 20 and a dearth of potential suspects, they decided it actually looked like marijuana that was processed to extract the THC—even though it had little bits of flowers and fruit in it.

They said they did a field test—though there’s no record of it—and the substance tested positive for THC. The deputies came back on April 17, found the same stuff and did another test, again without photographing it. Once again, it was positive.

And that’s how they got a warrant. One problem: the field test has a 70 percent false positive rate—it’s been known to identify substances including vanilla extract, peppermint, ginger, eucalyptus, cinnamon leaf, basil, thyme, lemongrass, oregano, a strip of newspaper and even air, as positive. And the officers didn’t send the material to the crime lab for testing.

If they had, they would have discovered it was loose-leaf tea from Teavana that Adlynn Harte enjoyed drinking.

At 7:30 a.m. on April 20, a team of seven SWAT officers brandishing guns, an assault rifle and battering ram descended on the Hartes’ house.

“Mrs. Harte recalled hearing ‘screaming and loud banging, so hard that the walls were rattling and it sounded as though our front door was coming off the hinges.’ She ran down the stairs to find a team of officers flooding the foyer, shouting at her to put her hands behind her head, and Harte lying face-down and shirtless, an officer holding an assault rifle over him,” Lucero wrote.

It didn’t take the officers more than 15 or 20 minutes to realize there was no indoor pot farm. But they kept the whole family on the couch under guard and refused to let a neighbor take the children while they tore the house apart for two and a half hours looking for anything drug-related.

“SON-OF-A-BITCH!!!” wrote one lieutenant in an email after the raid to another, who responded, “Nothing?????????????????????????”

The Hartes, who all suffered from PTSD after the experience, sued the sheriff’s department and the county for $7 million, claiming unlawful search and seizure and excessive force, as well as related state law claims.

They lost.

U.S. District Judge John Lungstrum in Kansas City tossed the case on summary judgment, ruling in December of 2015 that the search warrant was properly granted and gave probable cause to search the Hartes’ house, and that the defendants didn’t use excessive force.

That’s when Bernstein got involved. A 2013 graduate of Columbia Law School, he had just finished clerking for Judge Danny Boggs at the U.S. Court of Appeals for the Sixth Circuit and was four months into working at Bancroft, an elite appellate litigation boutique that merged with Kirkland in 2016.

When he read about the Hartes’ district court loss, he was outraged. Still, maybe the reporter misconstrued the decision, he thought. “But when I went into Pacer and read the opinion, I was even more outraged,” he said.

As a former clerk, he was also “in the habit of reading opinions and thinking ‘probable affirm’ or ‘probable reverse,’” he said. “This struck me as a probable reverse”—a lower court holding that both liberal and conservative judges might find objectionable.

He pitched the idea of taking the case pro bono to Paul Clement and Viet Dinh. “There were extremely supportive and had the same assessment,” he said. “They were wonderful about allowing me to run with it,” he said. Partner Jeffrey Harris supervised his work on the case.

Bernstein reached out to the Hartes’ counsel, Cheryl Pilate and Melanie Morgan of Morgan Pilate, about teaming up. “Cheryl put together a massive summary judgment record,” he said. “It’s a record every appellate lawyer dreams of.”

In November, he argued the case before the Tenth Circuit panel—his first-ever appellate appearance.

The resulting decision is an anomaly. Each judge wrote an individual opinion—100 pages combined—concurring and dissenting in part as each found different things to be outraged about.

Topping the indignation scale was Lucero, who was nominated to the bench in 1995 by President Bill Clinton.

He found the lower court erred in ruling the search was legal. Instead, he determined that there was a “triable issue of fact on whether [the deputies] lied about having conducted the field tests, or about having obtained ‘positive’ results.”

To Lucero, it was significant that the deputies didn’t think the tea was pot the first time they saw it, only to change their minds a week later. “A jury could certainly infer the reason for this about-face was pressure to meet an arbitrary April 20 deadline for manufacturing probable cause.”

He continued, “There was no probable cause at any step of the investigation. Not at the garden shop, not at the gathering of the tea leaves, and certainly not at the analytical stage when the officers willfully ignored directions to submit any presumed results to a laboratory for analysis. Full stop.”

Judge Nancy Moritz, an Obama appointee, agreed that the “Hartes’ allegations of lying are sufficiently grounded in record evidence, and that same evidence creates a triable issue of fact as to whether the deputies lied about the field-test results.”

She noted that the Hartes’ expert used the same test on the same tea, and it came back negative.

“The record is replete with circumstantial evidence that the deputies were motivated to obtain a search warrant by whatever means necessary,” she wrote. “A jury may conclude that the same pressure that caused a shoddy investigation also motivated the deputies to manufacture false test results.”

Their combined opinions were enough to remand the unlawful search and seizure claims.

Judge Gregory Phillips, another Obama appointee, disagreed, finding that the search warrant complied with the Fourth Amendment. While this “surely isn’t top-notch policing that any law enforcement agency might take pride in,” he wrote that “I can’t reasonably infer from these facts that the officers lied about field-testing the suspected marijuana or about the test results.”

Also, maybe they had valid reasons to think the tea was pot—some of the leaves looked serrated, like marijuana, and one deputy  testified he’d never actually seen loose-leaf tea before. And while fruity tea doesn’t smell anything like marijuana, it was surrounded by stinky garbage, so who could tell?

The deputies also said they didn’t know the field test was notoriously inaccurate. Moreover, Kansas law allows them to rely on it to establish probable cause.

Still, Phillips criticized their use of excessive force.

“Because the deputies had no reason to think that the Hartes posed a threat, the circumstances simply didn’t justify the overwhelming force,” he wrote.

“Indeed, if permitted here, such conduct will be routinely permissible. Thus, the Hartes have presented enough evidence to show that the Sheriff’s Office’s tactics violated the Hartes’ Fourth Amendment rights to be free from the use of excessive force.”

But he didn’t see the use of force as a violation of clearly established law. “The deputies’ conduct didn’t reach the level of conduct we have condemned in previous cases,” Phillips found.

Moritz agreed, writing that “the law in this area isn’t clearly established”—which meant the panel upheld the lower court’s decision to toss the excessive force claims.

Phillips also objected that the deputies continued to search even after they knew they weren’t going to find a pot farm.  “When the deputies discovered a tomato garden, their entire basis for believing that the Hartes used marijuana disappeared—they had no more basis to search the Hartes’ house for marijuana than they had to search any random neighbor’s house,” he wrote.

But again, he found that the deputies didn’t violate “clearly established law” by extending the family’s detention while they continued to search.

However, he did find the detention was sufficient to keep their state law claim of false arrest alive. The panel also remanded the Hartes’ other state law claims of trespass, assault and intentional infliction of emotional distress.

Bernstein said it’s still undecided if Kirkland will represent the Hartes on remand, but he said the appellate win was deeply gratifying.

“Challenging government overreach like this was a strong motivation for becoming a lawyer,” he said. “When you see results like this, it represents the important role lawyers play in the rule of law and protecting individual liberties.”

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