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 rules on hydroponic tomato raid is a post from Overlawyered - Chronicling the high cost of our legal system

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]

Tenth Circuit: neighbors’ RICO suit against pot growers can proceed is a post from Overlawyered - Chronicling the high cost of our legal system

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Howard Hughes “Mormon Will” case, thirty years later is a post from Overlawyered - Chronicling the high cost of our legal system

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).

We were counting on you for favorable testimony, cont’d is a post from Overlawyered - Chronicling the high cost of our legal system