Posts Tagged ‘Tenth Circuit’

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.

Tenth Circuit: neighbors’ RICO suit against pot growers can proceed

I wrote two years ago about how

a pro-Drug-War group [Safe Streets Alliance] is using civil RICO to go after banks, bonding companies, landlords, and other commercial vendors that do business with marijuana facilities legalized under Colorado’s Amendment 64. Whatever you think of the underlying Colorado law, RICO (I argue) puts too much power in the hands of bounty-hunting private lawyers.

Now the Tenth Circuit has ruled that Safe Streets Alliance, representing a couple named Reilly, can proceed with a racketeering suit against the Reilly’s marijuana-growing neighbors. The direct damages claimed, including noxious odors, are of the sort that might form the basis of a conventional nuisance action, but the RICO framing could make possible steeper penalties, such as triple damages and attorneys’ fees, while the continued unlawfulness of the growing under federal law (even if left unenforced) knocks out possible defenses for the growers [Eugene Volokh; my 2015 piece]

They fought the EPA and the EPA won

From John Ross’s Short Circuit newsletter for the Institute for Justice, Mar. 10: “Allegation: EPA agents lead armed raid of Casper, Wyo. laboratory based on false accusation from former employee, an 18 year old, that the lab falsified water-quality records. Five years later, case dismissed against former lab owners without charges. They sue the EPA. District court: It’s too late to sue; the two-year statute of limitations started running when you lost the lab. Tenth Circuit: Actually, you couldn’t have even sued then because sovereign immunity.” [Garling v. EPA]

Free speech roundup

  • Sequel to Driehaus case on penalizing inaccurate campaign speech: “A Final Goodbye to Ohio’s Ministry of Truth” [Ilya Shapiro, Cato; earlier here, here]
  • FCC commissioner Ajit Pai: U.S. tradition of free expression slipping away [Washington Examiner]
  • Québécois comedian Mike Ward is already out $100,000 in legal fees after discovering how CHRC can stand for Crushes Humor, Ruins Comedy [Gavin McInnes, The Federalist]
  • 10th Circuit free speech win: Colorado can’t shackle small-group speech against ballot measure [Coalition for Secular Government v. Williams, earlier]
  • New York Times goes after publisher of “War Is Beautiful” book: are picture thumbnails fair use? [Virginia Postrel, earlier]
  • Constitutional? Not quite: Illinois bill would ban posting “video of a crime being committed” “with the intent to promote or condone that activity” [Eugene Volokh]

Politics roundup

  • NY Assembly Speaker Sheldon Silver hangs blame for a retrospectively unpopular position on the *other* Sheldon Silver. Credible? [NY Times via @jpodhoretz]
  • Julian Castro, slated as next HUD chief, did well from fee-splitting arrangement with top Texas tort lawyer [Byron York; earlier on Mikal Watts]
  • 10th Circuit: maybe Colorado allows too much plebiscitary democracy to qualify as a state with a “republican form of government” [Garrett Epps on a case one suspects will rest on a “this day and trip only” theory pertaining to tax limitations, as opposed to other referendum topics]
  • “Mostyn, other trial lawyers spending big on Crist’s campaign in Florida” [Chamber-backed Legal NewsLine; background on Crist and Litigation Lobby] “Texas trial lawyers open checkbooks for Braley’s Senate run” [Legal NewsLine; on Braley’s IRS intervention, Watchdog]
  • Contributions from plaintiff’s bar, especially Orange County’s Robinson Calcagnie, enable California AG Kamala Harris to crush rivals [Washington Examiner]
  • Trial lawyers suing State Farm for $7 billion aim subpoena at member of Illinois Supreme Court [Madison-St. Clair Record, more, yet more]
  • Plaintiff-friendly California voting rights bill could mulct municipalities [Steven Greenhut]
  • John Edwards: he’s baaaaack… [on the law side; Byron York]
  • Also, I’ve started a blog (representing just myself, no institutional affiliation) on Maryland local matters including policy and politics: Free State Notes.

Prosecution and police roundup

Delegate to Durban conference up for 10th Circuit nod

Keith Harper, now with Kilpatrick Stockton, is a longtime Native American Rights Fund attorney and class counsel in the gigantic Indian trust fund litigation, Cobell. Some critics focus on his prospective appointment for an “Oklahoma seat” on the court, others are not happy with developments in Cobell. [Tulsa World, Kimberly Craven/Billings Gazette]

“Negligent-security” law, down Memory Lane

Eugene Volokh recalls (with a followup) a groundbreaking 1973 case in which the Tenth Circuit ruled that it could be found negligent for a supermarket to have installed a silent alarm that summoned the police when a holdup was in practice; a hostage was killed in the resulting shootout. The case is consistent with others in which lawyers have advanced theories summed up in the phrase “negligent provocation”.

Howard Hughes “Mormon Will” case, thirty years later

Thirty years after a jury ruled against his claims to be the inheritor of a fractional share of the reclusive tycoon’s wealth, Melvin Dummar still hasn’t given up. In a 19-page opinion, the Tenth Circuit has now upheld the dismissal of his latest lawsuit. (Pamela Manson, “10th Circuit Court of Appeals rules against Melvin Dummar and the ‘Mormon Will'”, Salt Lake Tribune, Sept. 13)(via Know Your Courts, Tenth Circuit/Colorado gadfly site).

We were counting on you for favorable testimony, cont’d

Robert Ambrogi has more discussion on that case from Utah (Apr. 8 ) in which a litigant is suing an expert witness who changed his mind on the eve of trial about his willingness to support a medical malpractice suit, resulting in an adverse outcome. He mentions this site and quotes Ted, who

believes that [dissenting Tenth Circuit Judge Neil] Gorsuch is correct in his analysis. “The incentives of expert witnesses to give independent truthful opinions are already distorted, and should not be distorted further.”

Beyond that, the court appears not to have thought through the consequences of its decision, he says. “Every cross-examination of an expert at deposition should now include questions relating to the expert’s fear of being sued.”

(Bullseye newsletter, May; sidebar on state-by-state immunities for experts).