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Source: Law360

Kirkland Ellis Wins At 10th Circ. In Marijuana Raid Appeal

A Kansas couple is getting a second crack at holding police officers to account for a premeditated but mistaken marijuana raid on their home, thanks to the pro bono efforts of Kirkland & Ellis LLP.

Robert Bernstein, a fifth-year associate at the firm, helped ensure that Robert and Addie Hartes’ unlawful search and seizure lawsuit against a local sheriff’s office was reinstated, carving out an important win for the Fourth Amendment. Bernstein, 31, secured a reversal of a Kansas federal court decision at the Tenth Circuit on Tuesday that remands the Hartes’ claim that deputies lied or manipulated evidence as they obtained a search warrant for the Hartes’ home.

The decision, to say the least, was complicated, Bernstein said. In a 100-page, split-decision ruling, each judge carefully explained how they arrived at their decision. In addition to pursuing a claim that police did not get a proper search warrant, the court ruled that the officers did not have immunity from four state-law claims, including trespass, assault, false arrest and intentional infliction of emotional distress.

“The ruling was unusual. I read decisions every day, and you don’t see many cases where each judge writes individually," Bernstein said. "The judges agreed on the results, but everyone found a different part of the case to be outraged by. I think that’s one of the fascinating things about the case: The facts are so complex, there are so many angles to seize on."

Although his outrage about the case had been stirred up by a Washington Post account of the raid, Bernstein expected it to dissipate when he began poring through the court filings in 2015.

At the time Harte v. Board of Commissioners of Johnson County had just been shot down by a Kansas federal court. Suspecting the news had sacrificed a nuanced court record for narrative ease, Bernstein began digging through court documents.

But his outrage just grew.

“My immediate reaction was that this was a probable reverse."

According to court documents the Kansas couple, their 7-year-old daughter and 13-year-old son were getting ready for another day when someone started banging on the door just before 7:30 a.m. in April 2012.

It was a SWAT team, there to raid the house after police mistook tea leaves in the trash for marijuana.

Rewind the clock seven months, and Robert Harte and his son were leaving a garden center that sells hydroponics — plants that can grow without soil — in Missouri. A state trooper parked outside the store noticed they’d purchased something and wrote down their license plate number, part of a surveillance effort collecting information on suspected marijuana growers.

The Hartes, both former CIA employees, were believed to be growing marijuana. Several months after spotting them, local police began sifting through the Hartes' garbage, which they do not need a warrant for. On three occasions, they found what officers suspected was marijuana. Twice, field tests showed the leaves were pot.

But the tests, which contain strong language recommending results be sent to labs for verification, were false positives. The substance was merely Addie Harte’s loose Teavana tea leaves, which police never submitted to their laboratory for testing.

Instead, to coincide with a press conference planned weeks before the raid, police obtained a search warrant and, on April 20 armed with assault rifles, detained the Hartes as they searched through their house.

Despite early signs there was no marijuana being grown, only a hydroponic tomato garden Robert Harte had devised to help his son with a school project, police held the Hartes for almost three hours. Police eventually brought in a drug-sniffing dog, and ultimately told the Hartes to have their kids checked for drug use. No charges were filed.

The Hartes responded by requesting a copy of the affidavit in support of the search warrant, and wound up spending more than $25,000 in legal fees to change Kansas records’ laws to get a copy.

The Hartes sued the sheriff’s office, the deputies who took part in the raid, the county and the state trooper who originally reported their plates, alleging that the police’s search was unconstitutional.

However, in 2015, a federal judge in Kansas granted summary judgment in the officers’ favor, finding that although the police could have sent the drug tests to a lab, they did not have to conduct the search, according to court documents.

Instead, the court held that, since there was no obligation for police to know that their tests were inaccurate — and since they did not have to wait to verify the tests — officers had acted properly. The Hartes could only proceed if they showed police had lied or manipulated the tests, the court said, something they’d not done.

Shortly after the district court’s decision, Bernstein got approval from Kirkland to tackle the case. In his mind, it was the perfect confluence of factors: ideal clients; interesting, even novel concepts of law and — importantly — a set of facts that plainly shocked him.

For the Hartes’ trial attorney, Cheryl Pilate of Morgan Pilate LLP, had unearthed internal emails between officers that suggested that police planned a series of marijuana raids well in advance of ever having a suspect. Instead, according to court documents, officers wanted to warn the public about the dangers of drug use. They just needed some criminals.

Pilate, who spent uncountable hours compiling some 20,000 pages of discovery for Bernstein to sift through, discovered officers were under pressure to come up with results they could wave before the public.

“I thought [the emails] were very authentic,” Pilate said. “This is how [police] speak together when they don’t think people outside the department are looking.”

Pilate was happy to have the aid of Bernstein, who began reading the entire record and searching for every case of qualified immunity the Tenth Circuit had ever decided on summary judgment. Bernstein, who clerked for a Sixth Circuit judge, tried to put himself in judges’ shoes. Overcoming qualified immunity that protects law enforcement officers from liability as they carry out their duties is a fact-intensive, high hurdle to leap. But what he saw in the records never gave him pause: The facts were too conclusive, and the more he peeled back the layers, the stronger he felt their chances were.

“Government overreach is something I feel strongly about," Bernstein said. “These kinds of police tactics really do occur all the time. What makes the case more sympathetic is we have ideal plaintiffs. But we should be outraged should this happen to anyone.”

The appeal was filed in January 2016. During oral arguments, Bernstein got an unexpected assurance from the court.

"When Judge [Carlos] Lucero asked [the sheriff office's counsel] for help writing an opinion that won’t result in the court getting skewered in The Onion, we were cautiously optimistic."

In overturning the decision, Judges Lucero  and Nancy Moritz found that deputies’ right to search “dissipated” early on, as soon as it was evident there was no likelihood marijuana was present.

“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,” Lucero wrote. “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."

Among details that Lucero picked up on were emails sent after a series of 2011 raids, discussing ways to publicize the event the following year, including “a telethon type billboard with a large green marijuana plant filling up as the pledges come in” and T-shirts.

“This is too rich for fiction,” Lucero said.

In his dissent, Judge Gregory Phillips said he couldn't infer from the facts that the deputies lied.

Counsel and representatives for police did not return a request for comment.

Although the circuit court affirmed summary judgment in favor of the state trooper, and against the use of excessive force, Bernstein said the majority of the lawsuit survives.

“Anytime you win a qualified immunity case, it’s a cause to celebrate. Bob and Addie have been fighting this for years, they’ve put tens of thousands of dollars into this case to just figure out why it’s happened to them. To have it reinstated by the appeals court is huge.”

The case is Harte et al. v. the Board of Commissioners for the County of Johnson, Kansas, et al., case number 16-3014, in the Tenth Circuit Court of Appeals.


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