940 F.3d 498
10th Cir.2019Background
- In April 2012 Johnson County deputies obtained a warrant based on trash searches and field tests that allegedly showed THC; the wet vegetation was actually plaintiff Addie Harte’s loose‑leaf tea. Deputies executed a SWAT‑style raid, detained the family for ~90+ minutes, and searched the house. Plaintiffs sued under Franks, 42 U.S.C. § 1983 (unlawful execution, dissipation of probable cause, prolonged detention), excessive force, Monell, and several state‑law torts.
- The district court granted summary judgment for defendants on all claims. On appeal the Tenth Circuit issued a per curiam reversal in part (Harte I) but the three panel judges produced three separate opinions and no single rationale commanded a majority; the per curiam reversed the district court as to some search/seizure and state‑law claims but limited the surviving Franks theory.
- On remand the district court read the fractured mandate narrowly and allowed only the limited Franks theory to proceed to trial; a jury found for defendants on all claims and the district court denied a new trial.
- Plaintiffs appealed, raising (inter alia) (1) that the district court violated the appellate mandate by not allowing Count II (unlawful execution/dissipation/scope/detention) to proceed; (2) juror impartiality and Batson issues; (3) improper impeachment of plaintiffs’ expert and denial of a new trial; (4) exclusion of certain emails; (5) final‑jury‑instruction on dissipation and denial of judgment as a matter of law on trespass/false arrest.
- The Tenth Circuit held that a lower court must follow the result reached by a prior fractured appellate panel (the per curiam), not attempt to synthesize separate rationales; it affirmed in part, reversed in part, and remanded. It held the district court erred by reading the mandate so narrowly as to bar all of Count II but correctly refused to allow the dissipation theory to proceed to trial; it affirmed the district court on jury selection, evidentiary rulings, and instruction issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mandate / law‑of‑the‑case after a fractured panel: scope of prior remand for Count II | Harte: prior per curiam and two concurring opinions together permitted full Count II to proceed (including dissipation); district court violated the mandate by limiting trial to the narrow Franks theory | Defs: prior panel’s separate opinions do not create a broader mandate; district court properly followed the per curiam and limited remand | Court: district court must follow the result the prior panel reached (per curiam). It erred by barring the non‑dissipation parts of Count II but properly excluded the dissipation claim from trial (affirmed as to dissipation; remanded other Count II theories) |
| Dissipation of probable cause (should it have proceeded / jury instruction) | Harte: two judges agreed probable cause dissipated; district court should have allowed dissipation claim and instructed jury that probable cause dissipated when officers discovered no grow operation | Defs: a different two‑judge combination reached the opposite result (affirmance) or limited the claim; the panel issued no single controlling rationale so dissipation is not law of the case | Court: no single narrow rationale controlled; because two prior panel members’ positions lead to affirmance on dissipation, the district court properly refused to try the dissipation theory; jury instruction given was adequate |
| Other Count II theories (proper execution, scope of warrant, prolonged detention/illegal arrest) | Harte: per curiam reversal allowed these federal unlawful search/seizure claims to proceed if supported by the jury’s Franks finding | Defs: prior opinions foreclose broader Count II | Court: per curiam reversal (and Moritz/Lucero opinions read together) permitted trial on (1) proper execution, (2) exceeding scope/search for general criminal activity, and (3) prolonged detention; remanded those claims for trial |
| Jury selection / impartiality and Batson challenges | Harte: trial court seated biased jurors and struck the only Black juror (Batson violation); selection process was unfair | Defs: trial judge’s voir dire and for‑cause rulings were reasonable; peremptory strikes had race‑neutral bases | Court: reviewed for abuse of discretion/clear error and found no reversible error—trial judge did not abuse discretion seating Juror 17 or excusing Juror 42; Batson rulings affirmed |
| Expert impeachment and motion for new trial (counsel’s cross‑examination implying prior misconduct) | Harte: defense counsel violated the district court’s bounds and prejudicially suggested misconduct by plaintiffs’ expert, warranting a new trial | Defs: questioning stayed within permitted scope; no extrinsic evidence of misconduct was introduced; any prejudice did not reach presumptive level | Held: no abuse of discretion in denying new trial; no presumption of prejudice arose |
| Admission of emails (waiver / Rule 403) | Harte: emails contradicted Sheriff Denning’s testimony and were probative of cover‑up and emotional‑distress/Franks theories; exclusion prejudiced plaintiffs | Defs: waiver was limited; emails were collateral, not probative of legal advice; admission would be confusing and prejudicial | Court: district court did not abuse its discretion; waiver was read narrowly and exclusion also justified under Rule 403; affirmed |
| JMOL on trespass / false arrest (was dissipation established as law of the case?) | Harte: Lucero and Phillips conclusions that probable cause dissipated are law of the case and require JMOL for plaintiffs on trespass/false arrest | Defs: the prior panel decided qualified immunity and summary judgment viewing facts in plaintiffs’ favor; factual dispute remained for jury | Court: denied JMOL; a reasonable jury could find probable cause persisted through the search; verdict for defendants stands |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (1978) (standard for invalidating a warrant based on deliberate falsehood or reckless disregard in affidavit)
- Marks v. United States, 430 U.S. 188 (1977) (framework for identifying controlling rationale in fractured decisions)
- Batson v. Kentucky, 476 U.S. 79 (1986) (prohibiting race‑based peremptory strikes)
- Skilling v. United States, 561 U.S. 358 (2010) (deference to trial judge’s contemporaneous voir dire assessments)
- Martinez‑Salazar v. United States, 528 U.S. 304 (2000) (peremptory strikes are nonconstitutional auxiliary tools; impartial jury is constitutional requirement)
- City of Ontario v. Quon, 560 U.S. 746 (2010) (applying multiple approaches that reach same result)
- DeLoach v. Bevers, 922 F.2d 618 (10th Cir. 1990) (probable cause in civil‑rights suits is typically a jury question)
- Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah, 114 F.3d 1513 (10th Cir. 1997) (mandate rule / law‑of‑the‑case principles)
- United States v. Shipp, 644 F.3d 1126 (10th Cir. 2011) (mandate rule requires district‑court conformity with appellate remand)
- Lederman v. Frontier Fire Prot., Inc., 685 F.3d 1151 (10th Cir. 2012) (standard for reviewing jury‑instruction challenges)