Tenth Circuit rules on hydroponic tomato raid

A hydroponic-tomato setup and the finding of soggy tea leaves in discarded trash led heavily armed cops to stage an early morning surprise raid on a Kansas family’s home, part of a police venture called Operation Constant Gardener. As noted earlier, my colleagues at the Cato Institute filed an amicus brief urging the Tenth Circuit to uphold the family’s rights by applying “the knock-and-announce rule… an ancient one rooted in the English common law dating back to the early 17th century.”

This week a Tenth Circuit panel reinstated many of the claims in the family’s lawsuit. Kyle Swenson, Washington Post:

…this week a three-judge panel on the U.S. Court of Appeals for the 10th Circuit ruled that the family could move forward in court. The decision has larger implications for Fourth Amendment litigation and legislation targeting badly behaving police officers.

The scorching judicial pronouncement blasted authorities for laziness and possible fabrication, the kind of overzealous police work that’s become a sometimes deadly facet of the drug war….

“The defendants in this case caused an unjustified governmental intrusion into the Hartes’ home based on nothing more than junk science, an incompetent investigation, and a publicity stunt,” Judge Carlos Lucero wrote in his opinion. “The Fourth Amendment does not condone this conduct, and neither can I.”…

The appellate win, if not successfully appealed, means the Hartes will be able to press their case in district court.

And this from Ilya Shapiro on the new Tenth Circuit decision:

Even if the court didn’t fully address the issues Cato raised in our brief, the ruling in Harte v. Board of Commissioners of Johnson County, Kansas is a step forward….

The Tenth Circuit mostly agreed with Cato on the Fourth Amendment issue. Two judges on the three-judge panel found that the district court had been wrong to grant summary judgment to the police on the search and seizure issue, with Judge Carlos Lucero alluding briefly to the knock-and-announce requirement. It was a convoluted opinion that took a long time to produce because of each judge writing separately and different sets of judges coming together on different parts of the ruling. Most importantly, Judge Gregory Phillips, joined by Judge Lucero, found that “what the deputies learned early on in the search dissipated any probable cause to continue searching.”

Ultimately, the judges only discussed in passing the police-militarization and general-warrant concerns raised by Cato and sided with the police on the excessive-force claims. Nevertheless, the court held that what the Hartes experienced qualified as unreasonable search and seizure – and also let them continue with their state-law claims – so Harte v. Board of Commissioners represents a positive development in the jurisprudence surrounding dynamic police raids.


  • And no apologies from the cops . . . .

    • They can’t apologize [even if they wanted to, which I doubt] because it might prejudice their case.

      • They still can, and they could have immediately after the raid.

        I wonder, is accusing a son of drug use with no evidence to the father’s face “fighting words?”

        By the way, the WaPo article misstated the standard for QI and it also took an unwarranted shot at Jeff Sessions. And the praise of the Obama Administration, which is no stranger to heavy-handed DoJ conduct, was just rich.

      • Of course they can. They are claiming immunity – not that the raid was appropriate. Just that it didn’t rise to a level of inappropriateness that would wipe out the immunity they are claiming.

        • At this stage, they can no longer claim immunity. And it would have been imprudent to apologize earlier because of the possibility [high probability, and I suspect their attorneys anticipated that] of precisely such a stripping of immunity.

          • It’s not disputed that the cops raided the home and found nothing. An apology for that wouldn’t prejudice the case if it was worded correctly.

            I can see why they wouldn’t want to use expensive attorney time vetting an apology to make sure it IS worded correctly, but don’t say they can’t do it.

        • We are the police, we are OMNIPOTENT. The family was unwilling to accept our sincere “oops”. Obviously no sense of humor. We on the other side simply have no sense. Just wait till we get our armored vehicle from Trump.