Family Raided for Growing Tomatoes Gets Partial Win

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By Jordan S. Rubin

A family whose tomato-growing was mistaken for marijuana-growing can pursue some of its claims against officials responsible for the raid on their home, a divided U.S. Court of Appeals for the Tenth Circuit held July 25 ( Harte v. Bd. of Comm’rs of Johnson Cty. , 2017 BL 256882, 10th Cir., No. 16-3014, 7/25/17 ).

Law enforcement “caused an unjustified governmental intrusion into the Hartes’ home based on nothing more than junk science, an incompetent investigation, and a publicity stunt” in violation of the Fourth Amendment, Judge Carlos F. Lucero said.

Lucero and the two other judges on the panel—Gregory A. Phillips, and Nancy L. Moritz—each wrote their own opinions. In a patchwork of decisions spanning nearly 100 pages, the circuit court partially affirmed and partially reversed the district court’s grant of summary judgment based on qualified immunity.

In addition to the unique facts of their case, the Hartes might owe some of their partial victory to Kirkland & Ellis LLP attorney Robert M. Bernstein, who took on the appeal pro bono after reading about the case in a Washington Post article.

The Tenth Circuit ruling is a “victory for the Fourth Amendment,” Bernstein said.

Split Rulings, Partial Win

Taken together, the three opinions affirmed the district court’s grant of summary judgment for Sergeant James Wingo of the Missouri Highway Patrol, who gave the Johnson County, Kan. sheriff’s office information that led to the raid. They also affirmed the district court’s ruling against the Hartes on their claims of excessive force and claims that government policy caused the alleged constitutional violations in this case.

But the circuit judges allowed the Hartes’ unlawful search and seizure and state-law claims to proceed against the remaining government defendants on remand in the district court.

The Hartes can now pursue their claim, under U.S. Supreme Court case Franks v. Delaware , that officers lied about the results of marijuana field-tests to get the warrant for the raid. A reasonable jury could find that the cops lied, the circuit court said.

Garden Variety Investigation?

In 2011, Sergeant Wingo saw Robert Harte and his two kids at a garden store, where Harte bought a small bag of supplies. He was attempting to grow tomatoes and other vegetables in his basement as an educational project with his 13-year-old son, Judge Lucero said.

Wingo gave Harte’s information to Thomas Reddin, a Johnson County sergeant. Reddin wanted to conduct a coordinated raid of suspected indoor marijuana growers on April 20, 2012. The date—4/20—is popular with marijuana smokers partly because of The Grateful Dead, Judge Phillips noted in his opinion, citing a Time Magazine article.

To get probable cause to search the Hartes’ home, Johnson County cops did three “trash pulls.” They recovered “green vegetation” mixed in with the kitchen trash put out by the Hartes. Cops said the substance from two of the trash pulls tested positive for marijuana, but they didn’t keep any records of such tests and didn’t seek laboratory testing to confirm the alleged field tests.

They got the warrant based on Wingo’s observation, the trash pulls, and the field tests.

Even though there was no evidence that the Hartes were dangerous, the cops “dispatched a team of seven officers” and “timed the raid for when the Hartes’ children would be home but failed to create any safety plan in anticipation of risks to the children,” he said.

“In the first 15 to 20 minutes of their search, they discovered nothing more than what had been in plain view all along: a tomato garden,” he said.

Officials held a press conference regarding other raids conducted that day, but didn’t mention “the law-abiding family wrongfully targeted for their indoor tomato garden,” as Judge Lucero put it.

Hartes’ Pro Bono Boon

Bernstein, the Kirkland & Ellis lawyer, read the Washington Post article after the district court granted summary judgment for the government.

He was “outraged” after reading about the case, he said.

Bernstein had just come off a federal appellate clerkship on the Sixth Circuit and was in the habit of evaluating district court rulings. The Harte case looked like it should be reversed on appeal, he said.

Over the course of 2016, Bernstein worked for hundreds of hours on the Harte case, he said.

It all led to a “rewarding” experience for Bernstein and Kirkland & Ellis, Bernstein said. They saw an injustice in the world and did something about it, he said.

Ferree, Bunn, Rundberg & Ridgway Chtd., Overland Park, Kan., represented Johnson County, and the Missouri Attorney General’s Office, Jefferson City, Mo., represented Wingo. Neither office returned requests for comment on the case.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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