WaPo: 10th Circuit grants narrow victory to family raided by a SWAT team over loose leaf tea

WaPo: 10th Circuit grants narrow victory to family raided by a SWAT team over loose leaf tea by Radley Balko. The case is Harte v. Bd. of Commissioners, 2017 U.S. App. LEXIS 13399 (10th Cir. July 25, 2017), over a raid because loose tea found in a trash pull with a false positive field test (which can happen 70% of the time) combined with a visit to a hydroponic store that made the police suspicious. It cost them $25,000 just to litigate getting the affidavit for the search warrant, which should have been a public record.

I can’t summarize this better than Mr. Balko:

Here’s how the court ruled:
● The court unanimously dismissed all claims against the state trooper who tipped off the Hartes to local police. The judges found that the trooper’s actions, while perhaps troubling in that they implicated people for shopping at a perfectly legal retail store, weren’t a violation of the Fourth Amendment.
● By a 2-to-1 margin, the court dismissed the Hartes’ claim that either the sheriff’s department or the county should be held liable for failing to properly train the police officers who conducted the investigation and the raid.
● The Hartes argued that given the weak evidence of wrongdoing and the utter lack of corroborating investigation, the SWAT tactics were an unreasonable use of force. Again by a 2-to-1 margin, the court found that while SWAT tactics themselves may have been an unreasonable use of force, in order to get past the qualified immunity afforded to police officers, the Hartes would have to show that not only were the tactics unreasonable, but also that there was clearly established law at the time stating that the officers’ tactics were unreasonable. One judge found both. One judge found that the raid was unreasonable but there was no clearly established law stating as much. Another found no clearly established law and so decided that she didn’t need to bother to determine the reasonableness of the raid itself. In the end, the Hartes’ claim was dismissed.
● The Hartes also argued that it was unreasonable for the deputies to hold them for two hours under armed guard when the deputies should have known within minutes that they had made a mistake. Here, one judge ruled that this was a violation of the Hartes’ Fourth Amendment rights. Another ruled that it wasn’t. And the third ruled that it was but that there was no clearly established law stating as much. Therefore, the Hartes’ claim was dismissed.
● The Hartes argued that the police violated their children’s rights in particular, by holding them under armed guard for two hours, despite finding no evidence of criminal wrongdoing. (A neighbor had approached and asked if she could take the children to school. She was denied by police.) Here, too, one judge ruled for the Hartes. One judge ruled that there was no violation — on the curious argument that the deputies weren’t pointing their guns at the children but rather were holding their guns near the children in a fashion ready for immediate use. This apparently makes all the difference. Finally, the third judge ruled that there is no clearly established law on the point, so she needn’t bother to determine whether holding the children under armed guard constituted excessive force.
● The Hartes also made several claims under Kansas state law. For the purposes of this post, I’d like to stick with their claims under the U.S. Constitution. But it’s worth noting that the court did allow some, but not all, of the Hartes’ state claims to move forward.
● The Hartes made numerous arguments that the search warrant itself was illegal, thus making the search of their home unreasonable. They cited, for example, the lack of corroborating investigation — the police did no surveillance, no background check, no controlled buy. A background check would have revealed that the Hartes had no criminal record. It likely would have revealed that they are retired CIA employees who had security clearances. The police also didn’t check the Hartes’ utility records to see if they were using inordinate amounts of water or electricity. (A check would have shown that they weren’t.) They pointed to the sloppiness of relying on the field tests and the fact that wet tea leaves of the variety Addie Harte used look and smell nothing like marijuana. Once again, on all of these claims, one judge ruled for the Hartes, while another ruled against them every time. The third judge ruled against the Hartes on every claim but one. She found that the Hartes had presented credible evidence that the officers may have lied about the field test results. So on their argument that the search warrant was invalid, the Hartes lost 2 to 1 on every claim but that one, which they won 2 to 1.

Then on Friday: WaPo: ‘We’ll never be the same’: How a hydroponic tomato garden inspired cops to raid a family’s home (“‘You take the Constitution, the Bill of Rights, all the rights you expect to have – when they come in like that, the only right you have is not to get shot if you cooperate,’ Harte told The Washington Post this week. ‘They open that door, your life is on the line.'”)