Adlynn K. HARTE; Robert W. Harte; J.H., a minor, by and through his parents and next friends, Adlynn K. Harte and Robert W. Harte; L.H., a minor, by and through her parents and next friends, Adlynn K. Harte and Robert W. Harte, Plaintiffs-Appellants, v. The BOARD OF COMMISSIONERS OF the COUNTY OF JOHNSON, KANSAS; Frank Denning, Sheriff, in his official and individual capacity; Mark Burns, deputy, in his individual capacity; Edward Blake, deputy, in his individual capacity; Michael Pfannenstiel, deputy, in his individual capacity; James Cossairt, deputy, in his individual capacity; Larry Shoop, deputy, in his individual capacity; Lucky Smith, deputy, in his individual capacity; Christopher Farkes, deputy, in his individual capacity; Thomas Reddin, lieutenant, in his individual capacity; Tyson Kilbey, deputy, in his individual capacity; Laura Vrabac, deputy, in his individual capacity; Jim Wingo, sergeant, Missouri Highway Patrol, in his individual capacity, Defendants-Appellees, and Nate Denton, deputy, in his individual capacity, Defendant.
No. 16-3014
United States Court of Appeals, Tenth Circuit.
FILED July 25, 2017
864 F.3d 1154
Cato Institute; Marijuana Policy Project, Amici Curiae.
We cannot say the same in this case. The ALJ‘s comments below bear some resemblance to those at issue in Energy West Mining, as both ALJ orders criticized an expert for relying on generalities rather than the claimant‘s particular case. See id. However, in contrast to that case, the ALJ below did not make an express credibility finding, and he further equivocated in his assessment of the positions advanced by Consolidation‘s expert. See id. at 832-33. In discussing the competing expert opinions on the “connection between coal-dust exposure and the carcinoma of the lung,” the ALJ stated that Consolidation‘s expert “ha[d] the better of th[e] professional dispute.”
We think remand is the appropriate course under these circumstances. Although it is unfortunate that we must send this case to an ALJ for yet another round of review, our remand should not require a great deal of time or energy. To the extent the ALJ merely used the term “rule out” in its colloquial sense, proceedings should be very brief. If not, the ALJ will be required to reconsider the existing evidence under the proper standard.
IV
We GRANT the petition for review and REMAND for further proceedings consistent with this opinion.
Robert M. Bernstein, Bancroft PLLC, Washington, D.C. (Jeffrey M. Harris, Bancroft PLLC, Washington, D.C., Cheryl A. Pilate and Melanie S. Morgan, Morgan Pilate LLC, Kansas City, Missouri, with him on the briefs), for Plaintiff-Appellants.
Lawrence L. Ferree, III (Kirk T. Ridgway and Brett T. Runyon, with him on the brief), Ferree, Bunn, Rundberg & Ridgway, Chtd., Overland Park, Kansas, for Johnson County Defendants-Appellees.
Chris Koster, Attorney General, and Jeremiah Morgan, Deputy Solicitor General, Jefferson City, Missouri, on the brief for Sgt. James Wingo, Defendant-Appellee.
Ilya Shapiro and Randal J. Meyer, Cato Institute, Washington, D.C., filed an amicus curiae brief for Cato Institute.
Kate M. Bell, Marijuana Policy Project, Washington, D.C., and Tejinder Singh, Goldstein & Russell, P.C., Bethesda, Maryland, filed an amicus curiae brief for the Marijuana Policy Project.
Before LUCERO, PHILLIPS, and MORITZ, Circuit Judges.
In this appeal, we affirm in part and reverse in part the district court‘s grant of summary judgment in favor of the defendants. Although the panel members write separately, each issue has been resolved by a minimum two-judge majority. The disposition of the claims is as follows: We AFFIRM the district court‘s grant of summary judgment on all claims asserted against defendant Jim Wingo. We similarly AFFIRM as to the plaintiffs’ excessive force and Monell liability claims. However, we REVERSE the district court‘s grant of summary judgment on the unlawful search and seizure claims asserted against the remaining defendants. On remand, plaintiffs’ claim under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), is limited to their theory that one or more of the remaining defendants lied about the results of the field tests conducted in April 2012 on the tea leaves collected from the plaintiffs’ trash. We further REVERSE the grant of summary judgment as to the four state-law claims raised on appeal. We REMAND these claims to the district court for further proceedings not inconsistent with these opinions.
LUCERO, Circuit Judge.
Law-abiding tea drinkers and gardeners beware: One visit to a garden store and some loose tea leaves in your trash may subject you to an early-morning, SWAT-style raid, complete with battering ram, bulletproof vests, and assault rifles. Perhaps the officers will intentionally conduct the terrifying raid while your children are home, and keep the entire family under armed guard for two and a half hours while concerned residents of your quiet, family-oriented neighborhood wonder what nefarious crime you have committed. This is neither hyperbole nor metaphor—it is precisely what happened to the Harte family in the case before us on appeal.
“[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment‘s very core stands the
I
A
On August 9, 2011, Robert Harte and his two children visited the Green Circle Garden Center, a garden store, where they purchased one small bag of supplies. Harte was a stay-at-home dad, attempting to grow tomatoes and other vegetables in his basement as an educational project with his 13-year-old son. Unbeknownst to Harte, Sergeant James Wingo of the Missouri State Highway Patrol was parked nearby in an unmarked car, watching the store as part of a “pet project.” Wingo would often spend three or four hours per day surveilling the garden store, keeping meticulous notes on all of the customers: their sex, age, vehicle description, license plate number, and what they purchased. On this particular day, Wingo observed Harte‘s visit and recorded the details in his spreadsheet.
More than five months later, Thomas Reddin, a sergeant in the Johnson County Sheriff‘s Office (“JCSO“), emailed Wingo about the possibility of conducting a joint operation on April 20, 2012. The idea stemmed from a multi-agency raid on indoor marijuana growers that was conducted on the same date the previous year. That raid, known as “Operation Constant Gardener,” was spearheaded by Wingo on the basis of several hundred tips he had amassed from his garden store surveillance. Wingo chose April 20 because he understood that date to be “Christmas Day” for marijuana users. Approximately thirty law enforcement agencies participated in the 2011 operation, including the JCSO. Although the operation yielded some success, it also resulted in the search of at least one home containing nothing but tomato plants, which became a running joke amongst the agencies.
When asked by Reddin about a second Operation Constant Gardener in 2012, Wingo replied that he “[didn‘t] really have enough new contacts to justify a full throttle 420 operation.” He offered to share the names he did have, although he was not planning to participate in any raid himself. On March 20, 2012, Wingo sent Reddin a list of names, including Harte‘s, from the garden store surveillance. Thus, over seven months after Harte made his single, innocent trip to a garden store with his children, he became a criminal suspect in the JCSO‘s marijuana grow investigation.
Undeterred by the limited pool of suspects provided by Wingo, Reddin was determined to “at least mak[e] a day of it,” even if the Missouri Highway Patrol was not going to conduct a “full blown” operation. Despite not yet having probable cause for search warrants, and with only four weeks to investigate, the JCSO began planning a press conference to celebrate the success of their operation. The pressure was on for JCSO officers to find probable cause by April 20.
B
Robert Harte was and is married to Adlynn Harte. Mrs. Harte did not accompany her husband on his visit to the garden store, and we are told nothing about why she was a suspect. The “investigation” of the Hartes was nominal at best: Despite believing the Hartes had a marijuana grow operation somewhere in their home, the
Instead, the entirety of the JCSO‘s investigation of the Hartes consisted of three “trash pulls.” On April 3, 2012, Deputies Mark Burns and Edward Blake found wet green vegetation mixed in with the Hartes’ kitchen trash. They determined it was not suspicious. Burns found the same wet green vegetation when he returned to the Hartes’ home with Deputy Nate Denton on April 10, 2012. This time, with only ten days before JCSO‘s planned press conference on the success of its April 20 raid, the previously innocuous vegetation was considered to be wet marijuana plant material. Burns asserts that he field tested the plant material found on April 10 using a Lynn Peavey KN reagent test kit, and that it was positive for marijuana. However, there is no record of that test because, although Burns thought it good practice to photograph the results of field tests and had done so in other situations in the past, he did not take pictures of the plant material or the KN reagent test results. The deputies needed one more positive trash pull before they could seek a warrant. So, on April 17—with only three days before the pre-planned raid—Burns and Blake conducted one final trash pull from which they found the same green vegetation. They claim that vegetation field tested positive for marijuana, but once again, the officers did not photograph this crucial evidence.
With nothing more than Harte‘s one trip to the garden store over eight months earlier and two allegedly positive field tests, the JCSO went straight for a search warrant. The directions for use of the test clearly provide “that these tests are only presumptive in nature” and “will give you probable cause to take the sample in to a qualified crime laboratory for definitive analysis.” Officers opted against sending the vegetation to a lab for confirmation, despite having the ability to do so. Had the officers taken that extra step, they would have saved the Hartes a traumatic and invasive experience and themselves the embarrassment of a botched investigation. The “marijuana,” officers would soon learn, was nothing more than loose-leaf Teavana tea.
C
As if the botched investigation were not enough, the JCSO subsequently executed an excessive, SWAT-style raid. The officers did not consider it a high-risk entry, yet Lieutenant Mike Pfannenstiel dispatched a team of seven officers to the Hartes’ home on the morning of April 20. Even more concerning, the officers 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.
At approximately 7:30 a.m., the seven JCSO officers, clad in “black swat-type uniforms” and brandishing .9 millimeter
The Hartes were kept under armed guard on the family‘s couch as the officers carried out a search of the home. 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. Yet, despite this strong evidence that the Hartes were not concealing a marijuana grow in their home, the officers continued their search for two and a half hours, even bringing in a drug-sniffing dog after over an hour of searching proved fruitless. Throughout this entire period, the Hartes were not permitted to leave, even though there were no charges against them. The officers went so far as to refuse a concerned neighbor‘s request to remove the children from the home during the search.1
When Reddin was informed that the two-and-a-half-hour, seven-man raid yielded nothing but tomato plants, he was furious. “You‘re lying to me,” he said to Deputy Larry Shoop when Shoop reported the news, later writing “SON-OF-A-BITCH!!!” in an email to Lieutenant Pfannenstiel, who responded, “Nothing?????????????????????????” After learning that the drug raids were not going well, Sheriff Frank Denning attempted to cancel the pre-planned press conference. But notice of the conference had already been sent, so Denning reluctantly proceeded. The subsequent news coverage, which featured pre-recorded video footage of Denning and marijuana plants purportedly confiscated during the raids, suggested a successful operation across Johnson County, even though no live plants had been seized that day. Notably absent from the news reports was any mention of the law-abiding family wrongfully targeted for their indoor tomato garden.2
II
We review the grant of summary judgment de novo. Hobbs ex rel. Hobbs v. Zenderman, 579 F.3d 1171, 1179 (10th Cir. 2009). Summary judgment is appropriate only if, viewing the evidence in the light most favorable to the non-moving party, “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.”
The Hartes assert three violations of their
A
The
The record evidence before us creates a triable issue of fact on whether Burns and Blake lied about having conducted the field tests, or about having obtained “positive” results. The only evidence that the field tests were conducted is the deputies’ own testimony and representations in the warrant affidavit; there is no photographic evidence, despite Blake‘s testimony that he had a camera in hand at the time. The Hartes have presented sufficient evidence to cast doubt on the veracity of the deputies’ statements. And while the term “positive” is used by the law enforcement witnesses throughout the record, the test upon which they seek to rely clearly precludes such a conclusion. The face of the package patently provides, “these tests are only presumptive in nature” and “will give you probable cause to take the sample in to a qualified crime laboratory for definitive analysis.” Only an analytical lab test as prescribed by the container could yield a final, positive result. The government concedes that the requisite laboratory analysis was not conducted. Q.E.D., there is no evidence of positive test results.
Furthermore, the plant matter found on April 10 and 17 was similar to the material collected on April 3. Yet on April 3, it was identified as innocent plant material and discarded without testing. As the April 20 deadline approached, however, it is notable that the officers determined that this previously innocuous material was now suspicious and should be tested for the presence of marijuana. A jury could certainly infer the reason for this about-face was pressure to meet an arbitrary April 20 deadline for manufacturing probable cause.
Viewed together, these facts are sufficient to permit a conclusion that the officers fabricated the “positive” field tests. As the judge who issued the warrant indicated, Harte‘s one trip to the garden store, standing alone, would have been insufficient to establish probable cause. And the officers were under enormous pressure to make the requisite showing in time to carry out the raids on April 20. The evidence presented thus gives rise to a reasonable inference of a classic Franks violation, a law that was clearly established at the time of the officers’ conduct in this case. See Clanton v. Cooper, 129 F.3d 1147, 1154 (10th Cir. 1997), overruled on other grounds by Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007); see also Kaul v. Stephan, 83 F.3d 1208, 1213 n.4 (10th Cir. 1996) (“A state officer is not automatically shielded from
B
Because there is a genuine dispute of fact regarding the validity of the search warrant, summary judgment as to the Hartes’ unlawful seizure claim must also be reversed. If “the search was illegal and not supported by probable cause, the justification for using the search as the foundation for the seizure disappears because it was the connection of the individual with a location suspected of harboring criminal activity that provided the reasonable basis for the seizure.” Poolaw v. Marcantel, 565 F.3d 721, 732 (10th Cir. 2009) (quotation and brackets omitted); see also Michigan v. Summers, 452 U.S. 692, 703, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (“[A] detention represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant.” (emphasis added)). There was no probable cause at any step of the investigation. Not at the garden shop, not at the gathering of the tea leaves, and certainly not at the analytical stage when the officers willfully ignored directions to submit
C
The injury to the Hartes’ constitutional rights continued through defendants’ execution of the search warrant. The
[w]here a plaintiff claims that the use of a SWAT team to effect a seizure itself amounted to excessive force, we review the decision to use that degree of force by “balanc[ing] the nature and quality of the intrusion on the individual‘s
Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.”
Id. (quoting Garner, 471 U.S. at 8).6
Applying this test, the court in Holland concluded that the decision to use a SWAT team was reasonable, in light of defendants’ assertions that: (1) the property owner had a history of violence; (2) there were several other individuals residing on the property who also had histories of violence; (3) the officers suspected there were firearms on the property; (4) the officers thought there might be at least 7-8 adults at the compound; (5) the officers believed the raid was likely to be very dangerous to all persons on scene and were especially concerned about the safety of any children present; and (6) the use of a SWAT team was intended to ensure a quick and safe execution of the search warrant and preservation of evidence. Id. at 1190-91.
Although the parties agree that defendants did not use a formal “SWAT” team in executing the search warrant, the district court found that the evidence, viewed in a light most favorable to plaintiffs, permitted a conclusion that the officers executing the search warrant constituted a “special unit or team” rather than an ordinary group of patrol officers. Moreover, defendants do not explain why there is any meaningful difference between a formal SWAT team and a SWAT-style or “tactical” team for purposes of an excessive force analysis.
Defendants offer only one argument to justify the deputies’ conduct: they “were serving a felony narcotics warrant with little to no knowledge about the occupants.” But this argument fails in two respects. First, under Holland, the potential existence of narcotics cannot, by itself, justify the decision to deploy a tactical team to execute a search warrant. To conclude otherwise would swallow the balancing test in its entirety and ignore past precedent, which makes clear that “not every drug investigation” will “pose special risks to officer safety.” Richards v. Wisconsin, 520 U.S. 385, 393, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) (rejecting a categorical exception to knock-and-announce requirement for searches involving narcotics); see also United States v. Basham, 268 F.3d 1199, 1205 (10th Cir. 2001) (rejecting argument that “because a person is engaged in the drug trade, that person is likely to be dangerous and possess firearms“). The second issue with the deputies’ argument is that it relies on their own willful ignorance and failure to conduct an adequate investigation. The use of a SWAT-style raid may not be justified by the unknowns of the search if those unknowns were readily discoverable through simple investigatory tactics, such as running a background check. Cf. Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1259 (10th Cir. 1998) (“[P]olice officers may not ignore easily accessible evidence and thereby delegate their duty to investigate and make an independent probable cause determination based on that investigation.“); BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) (stating that “police officer may not close her or his eyes to facts” and that “[r]easonable avenues of investigation must be pursued“). Thus, under clearly established precedent, defendants’ use of a SWAT-
Although the above analysis is sufficient to reverse the district court on the Hartes’ excessive force claim, another troubling aspect of the search is defendants’ treatment of the Hartes’ children. I have already called into question the reasonableness of the decision to execute a SWAT-style raid at a time when young children were likely to be present in the home. But the Hartes have also raised a triable issue as to whether the officers unnecessarily prolonged the detention of the children, despite a concerned neighbor‘s request to remove them from the home.10
In considering the reasonableness of a particular use of force, “personal security and individual dignity interests, particularly of non-suspects, should also be considered.” Cortez v. McCauley, 478 F.3d 1108, 1131 (10th Cir. 2007) (en banc). These considerations are especially heightened “when the officers’ use of force is directed at children....” Maresca v. Bernalillo Cty., 804 F.3d 1301, 1313 (10th Cir. 2015). Mrs. Harte testified that her family was required to sit in their living room under armed guard for two and a half hours, and that it “was clear if we did not comply with every command ... these officers were prepared to use the multitude of firearms available to them.” At no point did officers inform her that she could take her children to school or otherwise remove them from the situation and, as noted, a neighbor‘s offer to take the children was rebuffed. That the children were permitted to play with toys, use the restroom, and get water does not justify this unreasonably prolonged detention. Cf. Cortez, 478 F.3d at 1131-32 (officers’ seizure of plaintiff by escorting her from bedroom in the middle of the night to locked patrol car for an hour was excessive, even though she was permitted to use a phone during her detention).
It is clearly established that officers may “use only as much force as [is] necessary to secure their own safety and maintain the status quo,” keeping in mind the safety and dignity interests of non-suspects. Id. at 1131. The officers in this case clearly exceeded that mandate. See Walker v. City of Orem, 451 F.3d 1139, 1149-50 (10th Cir. 2006) (ninety-minute detention of non-suspects, in absence of any exigencies, could not be justified based on investigative rationale or officers’ need to control crime scene).
D
The Hartes assert liability against Sheriff Denning and Johnson County for establishing a policy or custom that caused the misconduct in this case. See generally Monell v. Dep‘t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A government policy or custom is created by “lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Id. at 694. The record in this case demonstrates two policies that may serve as the basis for plaintiffs’ Monell claim.
The first is the JCSO‘s investigatory policy under which the targets, deadline, and even success of the April 20 drug raid were pre-determined. As discussed supra, this placed enormous pressure on the deputies to find probable cause in time to make the raid publicity-worthy, thereby creating incentives for the deputies to cut corners and fabricate probable cause.11 The Hartes have sufficiently demonstrated
The second policy at issue is Sheriff Denning‘s decision to authorize the use of inconclusive field tests with a high false positive rate, and without the laboratory confirmation expressly required by the manufacturer‘s label, as the sole basis for probable cause. The reliability of evidence used to support probable cause is “highly relevant” in determining whether to issue a search warrant. Illinois v. Gates, 462 U.S. 213, 230, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (stating that informant‘s reliability is highly relevant to determining value of his report in probable cause analysis); see also United States v. Ludwig, 641 F.3d 1243, 1251 (10th Cir. 2011) (“[I]t surely goes without saying that a drug dog‘s alert establishes probable cause only if that dog is reliable.“). The field tests used by the JCSO, which are expressly identified by the manufacturer as a preliminary tool requiring laboratory confirmation, do not meet this standard of reliability. One study found a 70% false positive rate using this field test, with positive results obtained from substances including vanilla, peppermint, ginger, eucalyptus, cinnamon leaf, basil, thyme, lemon grass, lavender, organic oregano, organic spearmint, organic clove, patchouli, ginseng, a strip of newspaper, and even air. As demonstrated by this litigation, caffeine may now be added to that list. A 70% false positive rate obviously flunks the reliability test. Cf. Eaton v. Lexington-Fayette Urban Cty. Gov‘t, 811 F.3d 819, 822 (6th Cir. 2016) (“Procedures that generate results that are not close to ‘accurate in the overwhelming majority of cases’ may themselves cause testing to be unreasonable in the
At oral argument, the respondents sought to wrap themselves in the cloak of the Kansas legislature by arguing that Kansas statutes justified their use of field tests. See
By failing to ensure the reliability of the field tests used by the deputies in this case, and by not requiring lab confirmation as a prerequisite for seeking a search warrant, Sheriff Denning and the JCSO allowed deputies to base probable cause on largely inaccurate information. The constitutional violations in this case can be directly attributed to that policy.
III
“[T]he physical entry of the home is the chief evil against which the wording of the
PHILLIPS, Circuit Judge.
The
How did a quiet, Kansas family with two young children find itself enmeshed in one Kansas county‘s “4/20” crackdown on marijuana-grow operations?1 It began when a Missouri Highway Patrol trooper tipped deputy sheriffs in Johnson County, Kansas that, several months earlier, Mr. Harte had left a hydroponic-gardening store carrying a small bag, accompanied by his young children. Acting on the tip, two deputies searched the Hartes’ outside garbage for three consecutive weeks, twice finding a small amount of wet vegetation that they say field-tested positive for marijuana. Based on the field tests, the Johnson County deputies obtained a search warrant for the Hartes’ house. Just before 7:30 a.m. on April 20, 2012, after Mr. Harte opened the door in response to their yelling and pounding, seven deputies burst into the Hartes’ house with guns drawn, detained all four Harte family members in the living room, and executed the search warrant.
Early in the search, the deputies found a hydroponic tomato-growing operation. Even so, the deputies continued searching the Hartes’ home for an extended time, supposedly hoping to find evidence of drug use. After searching high and low for a trace of marijuana, even calling for a drug dog ninety minutes into the search, the deputies found nothing. As it turned out, the two samples of vegetation that the officers had tested three and ten days earlier were brewed, loose-leaf tea.
Asserting claims under
BACKGROUND
I. Operation Constant Gardener
In March 2011, just over a year before the search of the Hartes’ house, Trooper Jim Wingo of the Missouri Highway Patrol invited law-enforcement agencies, including the Johnson County Sheriff‘s Office (“Sheriff‘s Office“), to participate in “Operation Constant Gardener.” Appellant‘s App. at A667. To agencies expressing interest, Trooper Wingo sent the names of persons that he had seen visiting local hydroponic-gardening stores (more specifically, the car owners listed on the car registrations). Upon receiving those names, the participating agencies investigated (sometimes with trash pulls, checking utility bills, doing knock-and-talks, and even using a lost-puppy ploy credited to Trooper Wingo) and were able to obtain search warrants for some properties. They executed the warrants on April 20, 2011, a date that Trooper Wingo described as the marijuana enthusiasts’ version of Christmas.2 Officers unable to obtain search warrants for other suspected locations did knock-and-talk visits instead of full searches. The 2011 operation uncovered forty indoor marijuana-grow operations and resulted in eight felony arrests. The operation also uncovered at least one “tomato grow.” Id. at A678.
About a year later, in February 2012, Sergeant Tom Reddin of the Sheriff‘s Office sent Trooper Wingo an e-mail, asking if Trooper Wingo had gathered enough new information to support another round of “4/20” searches that year. Trooper Wingo responded that he lacked sufficient information to “justify a full throttle [4/20] operation,” but on March 20, 2012, he sent Sergeant Reddin another list of car license plates and their registered owners, whom Trooper Wingo surmised had been the visitors he had seen enter the hydroponic stores. Id. at A690.
II. The Investigation
One person on the 2012 list was Bob Harte. On August 9, 2011—eight months before Trooper Wingo sent Sergeant Reddin the list containing Mr. Harte‘s name—Trooper Wingo had seen Mr. Harte enter a Green Circle store with his children. From his parked patrol car, Trooper Wingo watched Mr. Harte leave the store, carrying a small bag. Trooper Wingo wrote his observations, including Mr. Harte‘s automobile information, on his spreadsheet. This was the sole time that Trooper Wingo ever saw Mr. Harte at the store.
Once the Sheriff‘s Office received Trooper Wingo‘s spreadsheet—and the Hartes’ home address in it—Sergeant Reddin told his deputies to investigate the Hartes. In doing so, the deputies never bothered to investigate the Hartes’ backgrounds. Instead, in what was apparently common practice, deputies merely collected the Hartes’ outside trash on April 3, April 10, and April 17, 2012 to search for evidence of a marijuana-grow operation. On April 3, Deputies Edward Blake and Mark Burns did the first trash pull. They found a small amount of wet, green vegetation dispersed throughout the trash, but they didn‘t find it suspicious or photograph it.
A week later, on April 10, Deputy Burns again collected the Hartes’ outside trash. This time, Deputy Burns found about a cup of green vegetation, which he thought looked like “wet marijuana plant material.” Appellant‘s App. at A700. He noted that he had found “[a] similar quantity of plant
A week later, on April 17, Deputies Burns and Blake again collected the Hartes’ outside trash. This time, they found about a quarter-cup of green vegetation. In his report, Deputy Blake mentioned that the vegetation had again tested positive for marijuana. Again, nobody photographed the April 10 or April 17 field-test results. Nor did any Sheriff‘s Office employee send the plant material to the crime lab to be tested before Deputy Burns applied for a search warrant.
Deputy Burns prepared a search-warrant affidavit, relying on his observations of the wet vegetation, the two positive field-test results, and on Trooper Wingo‘s having seen Mr. Harte leaving the hydroponic-gardening store carrying a small bag. In his affidavit, Deputy Burns swore that the field test used for the April 10 and April 17 plant material “consist[ed] of reagents similar to those utilized by the Johnson County Criminalistics Laboratory to conduct its initial screening test for marijuana,” and that it was “presumptive but not conclusive for the presence of marijuana.” Appellant‘s App. at A708. On April 17, 2012, a few hours after the third trash pull, a state judge issued a search warrant, relying on Deputy Burns‘s affidavit.
III. The Search
Lieutenant Mike Pfannenstiel assigned seven deputies to execute the search warrant at the Hartes’ house.4 On April 20, 2012, just before 7:30 a.m., these deputies arrived at the Hartes’ house. The deputies timed their arrival early enough to ensure that Mr. and Mrs. Harte would not yet have left for work. At that hour, Mr. and Mrs. Harte were home with their two children, aged thirteen and seven.5 The deputies wore bulletproof vests and carried guns, and they pounded on the door and screamed for the Hartes to let them in. When Mr. Harte opened the door, the deputies “flooded the foyer” before he could say anything. Id. at A104; A132. One deputy carried an AR-15 rifle and the others carried pistols. All had guns drawn and pointed down, in the “low ready” position. Id. at A558, A561, A580. Mrs. Harte, roused from bed by the deputies’ loud knocking and entry, rushed downstairs and saw armed officers in bulletproof vests “spreading through her house.” Appellant‘s Opening Br. at 16.
As one deputy pointed his assault rifle either at or near Mr. Harte, who lay prone on the floor, other deputies ordered Mrs. Harte and the Hartes’ two young children to sit cross-legged against the wall. The deputies then moved the Hartes to the living-room couch, and an armed deputy
The deputies searched the house for about two-and-a-half hours even though they quickly discovered that the Hartes were using their hydroponic-grow operation to grow tomatoes and vegetables. After about ninety minutes, and after the house had been thoroughly searched, a couple of deputies claimed to have smelled a “faint odor of marijuana ... at various places in the residence,” and called for a drug dog. Appellant‘s App. at A177-78. But the dog didn‘t alert, and his handler never noticed a smell of marijuana. After the search flopped, the deputies in parting told the Hartes the family should sit down and talk about drug use. The deputies “strongly suggested” that the Hartes’ thirteen-year-old son was a drug user, and recommended that they “take [their] son to a pediatrician for an anonymous drug test,” and “have a family meeting to try and discuss the problems” they had in their family. Id. at A731; Appellee Sheriff‘s Office‘s App. at JCSA458.
IV. The Aftermath
That afternoon, the Sheriff‘s Office issued a press release and held a press conference, even though Sheriff Denning had tried to cancel it because the April 20, 2012 searches had uncovered no marijuana grows. Despite the day‘s failures, Sheriff Denning still spoke to television reporters in front of a pile of marijuana plants while warning about the dangers of marijuana. Privately, the Sheriff‘s Office was disappointed with the operation‘s results, and lamented its failure. Worse yet, the Sheriff‘s Office later learned that the green vegetation from the Hartes’ outside trash was not marijuana, but instead brewed, loose-leaf tea. The deputies had used the Lynn Peavey KN-reagent field test on the tea, and obtained two false-positive results.
The Hartes immediately complained to the Sheriff‘s Office about the search, and, unsatisfied with the response, requested records related to the investigation. About four months after the search, and after the district attorney‘s office told the Sheriff‘s Office that the Hartes had complained about the search, Deputy Blake submitted the vegetation found in the Hartes’ trash to the county‘s crime lab. Using the same brand and type of field test used by the deputies, the crime lab determined that there “was a peak for caffeine in the sample.” Appellant‘s App. at A198. A lab technician tested both tea samples from the Hartes’ trash and got two false-positive results. But according to the technician, the leaves didn‘t “appear to be marijuana” to the naked eye, and under the microscope they didn‘t “look anything like marijuana leaves or stems.” Id.
The Hartes retained their own expert to test four kinds of Teavana-brand, loose-leaf tea, the brand that Mrs. Harte had brewed in April 2012. For each test, the expert brewed the tea samples and then tested them on the same day. The expert used three different field tests: one was the exact brand and type of test that the deputies had used, the KN Reagent Lynn Peavey Marijuana QuickCheck Pouch. The second was a different test by the same manufacturer but with different reagents,
Using the KN-Reagent Marijuana QuickCheck test from Lynn Peavey, the expert obtained four negative results. With the Lynn Peavey D-L test, one of the teas falsely tested positive, two tested negative, and one sample wasn‘t tested. Finally, using the NarcoPouch with the KN Reagent, the expert obtained three negative results, and didn‘t test one sample. So just once did any of the brewed tea leaves test positive for marijuana.
While all this was happening, Lieutenant Pfannenstiel reached out to Doug Peavey, the president of Lynn Peavey, the manufacturer of the KN field test that the Sheriff‘s Office had been using to test for marijuana. Doug Peavey told Lieutenant Pfannenstiel that the KN-reagent test “is primarily only used in the UK and Europe.” Id. at A202. But Peavey confirmed that the KN test reacts with THC, and reminded the Lieutenant that “you guys in particular have had some successes in the past with KN and testing for [synthetic marijuana].” Id. Concerned about the e-mail, Captain Douglas Baker told his team to stop using the KN-reagent test and to use the D-L test instead. The Johnson County crime lab agreed that the KN-reagent test was the wrong field-test kit to use to test for marijuana, and recommended sending potential evidence to the crime lab in addition to field-testing it.
V. The District Court Case
In November 2013, asserting claims under
In December 2015, the district court granted both summary-judgment motions, concluding (1) that the search-warrant affidavit gave probable cause to search the
DISCUSSION
I. Standard of Review
We review de novo a grant of summary judgment based on qualified immunity. Puller v. Baca, 781 F.3d 1190, 1196 (10th Cir. 2015). “[Q]ualified immunity ... is both a defense to liability and a limited ‘entitlement not to stand trial or face the other burdens of litigation.‘” Ashcroft v. Iqbal, 556 U.S. 662, 672, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). We review summary-judgment motions on qualified-immunity grounds differently from other summary-judgment motions. See Koch v. City of Del City, 660 F.3d 1228, 1238 (10th Cir. 2011). When a defendant asserts a qualified-immunity defense, the burden shifts to the plaintiff to submit sufficient evidence to show (1) the violation of a constitutional right, (2) that was clearly established at the time of the violation. See id. We may decide which of these prongs to address first, and need not address both. Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 n.2 (10th Cir. 2009).
A constitutional right is clearly established when “‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reason-able official would have understood that what he is doing violates that right.‘” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Though the plaintiff need not cite a case directly on point, “existing precedent must have placed the statutory or constitutional question beyond debate.” Id. “The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004). Still, we must not “define clearly established law at a high level of generality.” al-Kidd, 563 U.S. at 742.
To meet the “heavy, two-part burden” necessary to overcome a qualified-immunity defense, plaintiffs must allege facts sufficient to show a constitutional violation, and those facts must find support from admissible evidence in the record. Puller, 781 F.3d at 1196 (quoting Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)); Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015). “[W]e construe the facts in the light most favorable to the plaintiff as the non-movant.” Quinn, 780 F.3d at 1004. But we need not make unreasonable inferences or adopt one party‘s version of the facts if the record doesn‘t support it. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, ... a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.“); Llewellyn v. Allstate Home Loans, Inc., 711 F.3d 1173, 1187 (10th Cir. 2013) (“[O]ur summary judgment standard ... does not require us to make unreasonable inferences in favor of the non-moving party.“) (quoting Carney v. City & Cty. of
Here, the Hartes allege that the Defendants violated their
II. Fourth Amendment § 1983 Claims
A. Invalid Search Warrant
The Hartes challenge the search warrant on several grounds. Specifically, they allege that probable cause didn‘t support the search warrant, because Deputy Burns‘s search-warrant affidavit contained material misstatements and omissions. On this point, they dispute the district court‘s conclusion that Deputies Burns and Blake had in fact obtained two positive field-test results on the tea leaves taken from the outside trash. The Hartes contend that the deputies (1) lied about whether they field-tested the vegetation from the Hartes’ trash at all, (2) lied about the results, or (3) misinterpreted the results or incorrectly used the field test. And, they say, “the summary-judgment record is ... most consistent with lying.” Appellant‘s Opening Br. at 29. But I disagree with these bases.
1. Constitutional Violation
A search warrant generally establishes probable cause unless it “was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” Stonecipher v. Valles, 759 F.3d 1134, 1142 (10th Cir. 2014) (quoting Messerschmidt v. Millender, 565 U.S. 535, 547 (2012)), or unless the affiant has misrepresented or omitted material facts to the judge issuing the warrant, id. “This test is ... objective ...: when there is no dispute over the material facts, a court may determine as a matter of law whether a reasonable officer would have found probable cause under the circumstances.” Id. To overcome the validity of the search warrant, the Hartes must present evidence either that the deputies knew that the information in the search-warrant affidavit was false or “that the [deputies] ‘in fact entertained serious doubts as to the truth of [their] allegations,‘” but still sought a search warrant in reckless disregard for the truth. Beard v. City of Northglenn, 24 F.3d 110, 114, 116 (10th Cir. 1994) (quoting United States v. Williams, 737 F.2d 594, 602 (7th Cir. 1984)). “[A] factfinder may infer reckless disregard from circumstances evincing obvious reasons to doubt the veracity of the allegations.” Id. (quoting Williams, 737 F.2d at 602).
The Hartes also challenged the search warrant under Franks v. Delaware, 438 U.S. 154 (1978). Under Franks, we presume that the affidavit supporting a search warrant is valid. Franks, 438 U.S. at 171-72. Only intentional and knowingly false statements in a search-warrant affidavit, or statements made with reckless disregard for the truth, can undermine a finding of probable cause. Id. at 171. “[N]egligence or innocent mistake[s] are insufficient” to challenge a warrant affidavit‘s validity. Id.
a. The Wet Vegetation
In my view, the record doesn‘t support the Hartes’ claim that Deputy Burns lied in his affidavit. The Hartes rely heavily on the lack of photographic or documentary evidence of the field-test results. They find
I can‘t reasonably infer from these facts that the officers lied about field-testing the suspected marijuana or about the test results. Accepting the Hartes’ version of the facts as true doesn‘t require ignoring additional evidence presented by the deputies, because the deputies’ evidence supplements rather than conflicts with the Hartes’ evidence. The two parties simply ask us to reach different inferences based on the same set of facts. But, in my view, to infer from the Hartes’ evidence that the deputies lied would require an unreasonable inference based on little more than speculation. See Llewellyn, 711 F.3d at 1187.
Deputy Burns testified that he generally photographs field-test results when he‘s “on the side of a road and do[ing] a field test kit in order to make an arrest,” or when he is using a field-test kit “as part of my probable cause for an arrest.” Appellant‘s App. at A546. But almost immediately after this, he said that he didn‘t photograph the field-test results from the Hartes’ tea leaves because “[i]t wasn‘t part of our normal practice to take pictures of [field tests] during the trash pulls.” Id. Deputy Blake testified that he typically takes pictures of trash pulls when it would be impractical to keep the relevant trash as evidence, for example, if it might “spoil or mold.” Id. at A563. And Deputy Blake correctly believed that the Sheriff‘s Office could preserve the green vegetation from the trash—in fact, the crime lab successfully tested the tea leaves four months later.
According to Deputy Blake, he took pictures of paperwork in the Hartes’ trash to link the trash to the Harte family and address, but didn‘t take any pictures of the field test because, just as Deputy Burns said, “[i]t wasn‘t a common practice at that time.” Id. at A564. This testimony doesn‘t support an inference that the agents lied about the tests or misrepresented them. Though I agree with the Hartes that the deputies could have photographed the field-test results, the evidence doesn‘t require the inference that the deputies lied. See Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007) (“[E]vidence, including testimony, must be based on more than mere speculation, conjecture, or surmise. Unsubstantiated allegations carry no probative weight in summary judgment proceedings.” (quoting Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006))).
Nor do I think it matters much that Deputy Burns didn‘t have his drug dog sniff the supposed marijuana from the trash. He explained that the overwhelming smell of the trash would have impeded the dog in detecting any marijuana-related odor. And he also expressed concern that the wet vegetation might have “some kind of chemical that wouldn‘t be safe” to sniff. Appellant‘s App. at A549. Deputy Burns testified that though he ordinarily uses his dog to help build probable cause for a search warrant, he didn‘t need a search warrant for the Hartes’ outside trash. So in my view, Deputy Burns‘s failure to use his drug dog to sniff the Hartes’ trash doesn‘t support the Hartes’ allegation that the deputies lied about the positive field-test results.
In addition, the deputies had other reasons to believe that the vegetation was marijuana. Deputy Burns testified that when he unrolled some leaves, he saw serrated-leaf edges, and saw stems consistent with marijuana stems. Deputy Burns further said that in his experience, the saturated vegetation looked like marijuana that had been processed to extract the THC. Processed marijuana looks similar to brewed tea leaves, so even a trained eye could mistake one for the other when the material is mixed in with other trash. See Appellee Sheriff‘s Office‘s Response Br. at 5-6 (comparing photographs of processed marijuana with photographs of brewed tea leaves). Finally, Deputy Burns testified that he had never before seen loose-leaf tea. I conclude that it would be unreasonable after viewing all the evidence to infer that the deputies knew or suspected that the wet vegetation was not marijuana. See Llewellyn, 711 F.3d at 1187.
In fact, the record lends support to Deputy Burns‘s claims set forth in the search-warrant affidavit. As the district court observed, a Johnson County crime-lab technician tested the tea leaves four months after the deputies did and received false positives on both samples. The Hartes acknowledge that the Lynn Peavey KN-reagent test often yields false positives, supporting the deputies’ claims that they did obtain false positives. Appellant‘s Opening Br. at 39 (“Readily available sources would have suggested to the deputies that their ‘test’ yielded a false-positive rate around 70%, especially with kitchen botanicals.” (emphasis in original)). And the Hartes’ own expert obtained a false positive when field-testing samples of the same kind and brand of brewed tea leaves that Mrs. Harte thought she had brewed and later tossed in the trash.9
b. Statements About the Field Tests
Similarly, Deputy Burns didn‘t omit material information or include material misstatements in his search-warrant affidavit. “The standards of deliberate falsehood and reckless disregard set forth in Franks ap-
The Hartes claim that the deputies recklessly misstated that the KN-reagent field test is similar to the test used by the Johnson County crime lab, and that the deputies recklessly disregarded a warning instruction that the field test wouldn‘t provide probable cause. They also claim that Deputy Burns recklessly omitted from his search-warrant affidavit that he had found the vegetation in the kitchen trash, that the vegetation was hard to identify and didn‘t smell like marijuana, and that no one had sent the vegetation to the crime lab. These arguments similarly fail to create a genuine dispute of material fact that the deputies lied or recklessly disregarded the truth.
In his affidavit, Deputy Burns stated that “[t]he field test utilized by Deputy Blake consists of reagents similar to those utilized by the Johnson County Criminalistics Laboratory to conduct its initial screening test for marijuana. This test is presumptive but not conclusive for the presence of marijuana.” Appellant‘s App. at A709. Even if this is “boilerplate” language that Deputy Burns included “in all his drug affidavits at the urging of [an] Assistant District Attorney,” it still communicates that the field-test results weren‘t conclusive. Appellant‘s Opening Br. at 14; Appellant‘s App. at A551-52. And Johnson County‘s crime-lab technician confirmed that the lab used KN-reagent-based tests to test for the presence of marijuana. Further, by
I also find it significant that Deputy Burns testified that he wasn‘t aware of the possible occurrence of false positives. So, though Deputy Burns didn‘t explicitly say that the field test is often inaccurate—because he didn‘t think the test was inaccurate at all—he sufficiently advised the state judge that the field test wasn‘t conclusive. Probable cause for a search warrant depends on the facts known to law-enforcement officers when they obtain the search warrant. See Buck v. City of Albuquerque, 549 F.3d 1269, 1281 (10th Cir. 2008); Molina ex rel. Molina v. Cooper, 325 F.3d 963, 971 (7th Cir. 2003) (false positive field-test results didn‘t undermine probable cause where unreliability of field tests was determined only after the warrant issued and no evidence suggested the officer had thought the field tests were unreliable when he applied for the warrant).
Nor is it problematic that Deputy Burns‘s affidavit didn‘t mention that the deputies had found the vegetation in a bag containing the kitchen trash, that it hadn‘t smelled like marijuana, or that it was hard to identify. In light of the two false-positive test results, I don‘t believe that this information would have altered the state judge‘s decision to issue the search warrant. The same is true of Deputy Burns‘s failure to mention that no one had sent the wet vegetation to the crime lab for testing. Although he and Deputy Blake would have done better to take this step, they did at least keep the vegetation as evidence, pre-
c. Failure to Investigate Further & Unreasonable Reliance on the Field Tests
The Hartes also fault the deputies for limiting their investigation to the three trash pulls. The Hartes argue that a better investigation would have revealed information suggesting that the field test results were wrong. Indeed, the deputies seem to have done the bare minimum required to obtain a search warrant. The deputies didn‘t surveil the Hartes’ house, they didn‘t investigate the Hartes’ backgrounds (and learn that both Hartes were former CIA employees) or run their criminal histories, they didn‘t send the suspicious vegetation to the crime lab, and they didn‘t inspect utility records for the house to see if the Hartes’ electric bills showed energy consumption consistent with the suspected grow operation.
This surely isn‘t top-notch policing that any law enforcement agency might take pride in. But for purposes of qualified immunity, the deputies needed merely to show arguable probable cause to satisfy the
The Hartes claim that the deputies should have followed the directions on the test and submitted the tea leaves to the crime lab for further analysis. They argue that field tests—the Lynn Peavey KN-reagent field test in particular—are widely known to be inaccurate. See Amicus Curiae Marijuana Policy Project Br. at 10 (explaining that field tests in general are difficult to read, often tainted by user error, and prone to giving false-positive results for an array of legal substances, including vanilla extract and household herbs and spices).
I certainly have concerns about this potential inaccuracy. Still,
Even if the deputies had mistakenly interpreted the tests as positive, this wouldn‘t have invalidated the search warrant. Negligence is insufficient to challenge a search warrant‘s validity. Franks, 438 U.S. at 171. Because the Hartes haven‘t presented evidence sufficient for a jury to find that Deputy Burns knowingly, intentionally, or recklessly gave false statements in his warrant affidavit, I presume, as I must, that the affidavit was valid. See id. at 156. In other
In addition, the Hartes argue that Deputies Burns and Blake weren‘t properly trained to use the field tests. In fact, Deputy Burns confirmed that he had received no formal training on “the actual processing of marijuana.” Appellant‘s App. at A550. But Deputy Burns had received training from the manufacturer of a field test similar to the Lynn Peavey KN-reagent test. And both Deputies Burns and Blake were trained in marijuana grows and drug recognition and detection. The Hartes presented evidence that Deputy Blake had to do remedial training for field testing in December 2013, after the Sheriff‘s Office changed its policies. But Deputy Blake needed this training because he had found several tests for methamphetamine and cocaine negative when they should have been positive.
Similarly, even if the deputies should have known that the test was inaccurate, this would negate probable cause only if they recklessly disregarded information suggesting as much. The Hartes point out that the field-test instructions say that positive test results give probable cause only to submit a sample to a crime laboratory, meaning that the deputies should have known better than to rely on it. But the instructions on the box bind no one. Moreover, the instructions use the term “probable cause” in a non-legalistic way, simply to caution testers that crime-lab results are more reliable.
The deputies knew that Trooper Wingo had seen Mr. Harte shopping at a hydroponic-growing store and that their trash pulls had yielded two positive field tests of wet, green vegetation that, to them, looked like marijuana processed to extract THC. Even though I believe that the deputies should have investigated further before applying for a search warrant, the evidence they obtained gave them at least arguable probable cause to believe that the Hartes were growing marijuana. Thus, because the evidence does not support the Hartes’ claim that the deputies lied or recklessly misrepresented information in the search-warrant affidavit, I would hold that the search warrant itself complied with the
2. Clearly Established Law
Even if I concluded that the deputies’ search-warrant affidavit didn‘t provide probable cause and violated the
The
Under the second prong of the qualified-immunity analysis, the Hartes must either “identify a case where an officer acting under similar circumstances as [the deputies] was held to have violated the
Here, the Hartes cite no cases concluding that law-enforcement officers lack probable cause when relying on two positive field-test results for marijuana. The Hartes challenge the reliability of the Lynn Peavey KN-reagent field test, and other field tests in general. But no court has gone so far as to prohibit law-enforcement officers from relying on field tests to establish probable cause. In fact, courts regularly uphold this practice. See, e.g., Cooper, 325 F.3d at 971 (holding that police officers had no duty to send field-tested items taken from the suspect‘s trash to the lab before applying for a warrant, because the officers didn‘t discover the test‘s unreliability until after the warrant issued).
The cases the Hartes do cite provide them little help. First, Franks describes
make[] a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the
Fourth Amendment requires that a hearing be held at the defendant‘s request.
Franks, 438 U.S. at 155-56 (emphasis added). And even then, the
Stonecipher does no more than Franks to support the Hartes’ claim—it is so factually distinguishable from this case that it would offer the deputies little guidance. And, further, we found no
We held that the agents were entitled to qualified immunity despite their omissions in the search-warrant affidavit because federal agents couldn‘t be expected to know the minutiae of state laws and federal regulations. Id. at 1143-44. Quite simply, Stonecipher would not advise the deputies that their actions would violate clearly established law.
The Hartes also rely on Eaton v. Lexington-Fayette Urban County Government, 811 F.3d 819 (6th Cir. 2016), to support their claim that the deputies lacked probable cause based on the field tests. In Eaton, a man alleged that Kentucky‘s drug-testing program violated his
The sole similarity between Eaton and this case is that they both involved drug testing. Moreover, at the time the deputies used the Lynn Peavey KN-reagent field test, they didn‘t suspect that it was “utterly unreliable.” Id. at 822. And Eaton held that some error in drug testing procedures isn‘t enough to make them unreasonable under the
Finally, the Hartes point to Harman v. Pollock, 446 F.3d 1069 (10th Cir. 2006), to support their claim that the Sheriff‘s Office unreasonably failed to investigate more thoroughly. But while I acknowledge that
In sum, even if I concluded that the deputies here acted unreasonably in procuring a warrant to search the Hartes’ house for marijuana, I couldn‘t do so based on clearly established law.
B. Unreasonable Search
1. Constitutional Violation
The Hartes also claim that the deputies violated the
The
In determining whether probable cause dissipated, I examine what the deputies knew and when. Before the search, the deputies knew that Mr. Harte had shopped one time at a Green Circle store and left carrying a small shopping bag. Based on this information, the deputies conducted three trash pulls from which they found green vegetation. They field-tested the vegetation twice and received positive results for marijuana. To the deputies, the three trash pulls combined with the two positive field-test results indicated that the Hartes were steadily harvesting marijuana from a marijuana-grow operation. I concluded in Section II.A that the deputies had probable cause to obtain a search warrant, but the analysis does not end there.
The deputies learned more about the Hartes once they executed the warrant. “The deputies quickly found the hydroponic garden in the basement,” which contained at least six plants, including tomato plants and other vegetables, in various stages of growth. Appellee Sheriff‘s Office‘s Response Br. at 14 (citing Appellant‘s App. at A571). When the deputies field-tested these plants, the plants tested negative for marijuana. The deputies saw no indicia of a marijuana-grow operation, such as blacked-out windows, fans, ventilators, drying racks, or scales.
The deputies claim the garden had “quite a few empty spaces on the hydroponic spots, holes that did not have pots in them.”10 Appellant‘s App. at A637. One deputy also claimed the plants were dead. This led the deputies to continue searching the basement for any remnants of an earlier marijuana-grow operation—e.g., stray leaves or stems, or harvested marijuana being processed. Deputy Larry Shoop helped in this search and was “positive we were going to find remnants of a grow operation that ... had been there at one point” because “[t]ypically even when people clean up grow operations, we will find leaves that they have failed to sweep up, or stems that they had failed to get rid of.” Id. Yet the deputies found no leaves, stems, or other remnants of a grow operation.
While I accept that marijuana remnants would be probative of a past grow operation, the opposite could be said for the absence of remnants, which indicates that a marijuana-grow operation had never existed. Deputy Shoop admitted that after finding the hydroponic setup in the basement, the deputies knew within the first 15 or 20 minutes that “we wouldn‘t have a massive grow operation, as we had speculated.”11 Id. at A636.
What their eyes, ears, and noses told them once inside the Hartes’ house severely undermined the positive field-test results from the trash pulls. The absence of remnants, stems, or leaves “left over from the processing of the plants after cultivation,” Appellant‘s App. at A709, should have alerted the deputies that the green vegetation from the Hartes’ trash was not processed marijuana from a grow operation. Moreover, they knew that their field test was not as certain as a lab test. Still, with their field tests from the trash pull now far more suspect, the deputies searched the entire house—even inside dresser drawers and under beds—as though the reliability of the field tests was unaffected. And though they had full access to the kitchen trash during the search, and despite relying almost exclusively on trash pulls to obtain the warrant, the record is silent on whether the deputies even checked the Hartes’ trash during the search.
Then, knowing much more than the state judge knew when issuing the warrant, armed with strong reasons to doubt their previous conclusions about the Hartes, and lacking any evidence independent of a marijuana-grow operation that the Hartes were marijuana users, the deputies began searching for evidence of personal marijuana use. They didn‘t return to the state judge who issued the warrant. The deputies contend that they “switched just a little bit, and being that the warrant cover[ed] all marijuana in all forms ... we were going to find some kind of use of marijuana in the house ... more specific to a personal type of use.” Id. at A639. Pressing on with the housewide search, a couple of deputies claimed to have smelled a faint odor of marijuana in “various places” in the house (other deputies had not smelled it), so the deputies called for a drug dog. Id. at A178. Despite being deployed throughout the house, the dog failed to alert to the presence of any drugs, and the dog‘s handler didn‘t smell any marijuana either. All told, the search lasted about two-and-a-half hours.
I conclude that the tenuous probable cause that the Hartes might have used marijuana depended on their growing marijuana. Thus, when the probable cause for growing marijuana dissipated, the already-weak probable cause of personal use also dissipated. By ignoring everything they learned and rummaging for any marijuana, the deputies ran afoul of the
In dispute, the deputies point to the search warrant‘s language authorizing seizure of “[m]arijuana in all forms,” including “plants and plant material, marijuana seeds, [and] marijuana in any stages of growth and/or processing.” Appellant‘s App. at A705. And they point to other language allowing seizure of “[d]rug [p]araphernalia used to cultivate and/or process marijuana,” including “packaging material, trimmers, scales, dryers, and hanging systems,” as well as “drug paraphernalia used to introduce drugs into the body.” Id. The deputies also state that “no record evidence suggest[s] that any deputy actually looked in a place where evidence of mari-
But the deputies cannot ignore the facts they learned when they executed the warrant, namely that their suspected marijuana-grow operation did not exist. To rely on the above search-warrant language, the deputies needed to find a marijuana-grow operation or remnants of one. The affidavit shows this. Paragraphs twelve and thirteen of the affidavit lie at its heart.12 Those paragraphs read as follows:
12. The Affiant has been involved in the investigation of no less than 15 marijuana indoor grow operations and has received training specific to marijuana cultivation. Through this training and experience, the Affiant has come to know marijuana plant material which is left over from the processing of the plants after cultivation, such as leaves and stems, is often saved to be used for extraction of THC for the manufacture of resins and oils with extremely high THC content.
13. Based on the Affiant‘s law enforcement training and experience, the Affiant knows marijuana is often grown for sale and narcotics dealers who sell out of their residence commonly maintain illicitly gained quantities of US currency. The Affiant also knows that narcotics dealers commonly maintain dealing records so they may keep track of profits and names of individuals who owe them money.
Appellant‘s App. at A709. Nothing in the affidavit gave (or even tried to give) probable cause that the Hartes used marijuana unrelated to a grow operation. When the deputies discovered a tomato garden, their entire basis for believing that the Hartes used marijuana disappeared—they had no more basis to search the Hartes’ house for marijuana than they had to search any random neighbor‘s house.
The deputies were not free to ignore facts that dissipated probable cause. See Ortiz-Hernandez, 427 F.3d at 574 (probable cause to arrest a suspect for drug trafficking dissipated after agents strip-searched the suspect and found nothing). Instructive on this point is United States v. Bowling, 900 F.2d 926 (6th Cir. 1990). In Bowling, Forest Service agents discovered two marijuana plots on federal land, allegedly maintained by the Bowlings. Id. at 928. While some agents were obtaining a search warrant to search the Bowlings’ trailer, Mr. Bowling gave two remaining agents consent to search the trailer without a warrant. Id. at 928-29. These agents searched the trailer and found nothing, though the parties disputed how thoroughly the agents searched. Id. at 929. Two hours after the consent search, the absent agents returned to the trailer with a search warrant. Id. The magistrate judge didn‘t know about the consent search when he issued the warrant, but the agents executing the search warrant learned soon after entering the trailer that two other agents had already done “a preliminary search of the trailer.” Id. The second search produced marijuana and marijuana residue, plant food, ammunition, and two issues of a marijuana-themed magazine. Id. At trial, the Bowlings moved to suppress the evidence that agents had seized from their trailer during the second search. Id. They argued that the second search was illegal because the consent search had “eliminated” probable cause to issue the warrant for the second search. Id. The Sixth Circuit agreed with the Bowlings. Id.
Another helpful case is United States v. Keszthelyi, 308 F.3d 557 (6th Cir. 2002). There, officers obtained a search and arrest warrant for a defendant based on an undercover investigation that culminated in a series of cocaine sales. Id. at 562. Soon after arresting the defendant, officers searched the defendant‘s home and discovered various incriminating items, including a digital scale, surveillance equipment, two firearms, ammunition, pills, syringes, and $1,000 cash, but no cocaine. Id. at 563. The search lasted about two hours. Id. Feeling that they had missed something, the officers went back to the defendant‘s house the next day and searched it again without obtaining a new search warrant. Id. The second search yielded one ounce of cocaine hidden behind the defendant‘s oven. Id.
The defendant moved to suppress the evidence seized during the searches, arguing in part that the second search wasn‘t a reasonable continuation of the original search. Id. at 567. The Sixth Circuit agreed with the defendant that the second search was unreasonable. Id. at 568. The court noted that a search warrant authorizes only one search, and that “a warrant expires once it has been fully executed” and the fruits of the search secured. Id. at 568-69, 570 (citing United States v. Gagnon, 635 F.2d 766, 769 (10th Cir. 1980)). According to the court, though a search under a lawful warrant may be as long and thorough as necessary, officers may not continue to search once they are satisfied that all the evidence that the warrant authorized them to seize has been located. Id. at 571 (citing United States v. Jackson, 120 F.3d 1226, 1228-29 (11th Cir. 1997); United States v. Menon, 24 F.3d 550, 560 (3d Cir. 1994)). Under this standard, the Sixth Circuit held the second search unreasonable because the government failed to show that “at the time of the second search, the agents possessed a reasonable basis for believing that undiscovered evidence remained in the defendant‘s home.” Id. at 572.
Thus, a search—even under a valid warrant—becomes unreasonable when it‘s no longer supported by probable cause. That is the case here. The deputies searched thoroughly under the search warrant for any sign or remnant of a grow operation and found nothing. And nothing the deputies saw while securing the house gave them probable cause (or even reasonable suspicion) to believe that the Hartes even casually used marijuana.13 Having conclud-
The deputies fail to credibly explain why they continued to search after that time. They claimed to be searching for evidence of a hidden room or another grow operation, but they also admitted that they had never encountered a house with a hydroponic tomato grow and a separate, hydroponic marijuana grow. Moreover, the photos of the Hartes’ hydroponic grow reveal that their basement is unfinished, strongly suggesting that the basement contained no hidden room. The deputies simply ignored strong evidence that their hydroponic marijuana-grow dragnet had ensnared hydroponic vegetable gardeners.
These obstacles meant that the deputies could not continue to search for “any kind of criminal activity” in the house. Appellant‘s App. at A572. Even if the deputies were searching for only marijuana-related criminal activity, their general rummaging through clothing drawers and other personal spaces disregarded the fundamental rule that “when it comes to the
Even though the deputies violated the Hartes’
The Hartes define the right to be free from unreasonable searches and seizures too generally. It‘s axiomatic that the
The Hartes correctly remind us that the “prohibition on ‘wide-ranging exploratory searches’ beyond the scope of the warrant has been clearly established since 1791.” Appellant‘s Opening Br. at 46 (quoting Garrison, 480 U.S. at 84). But Garrison held that an officer reasonably searched an apartment that wasn‘t included in the warrant because he mistakenly believed it was part of the apartment that the warrant did describe. 480 U.S. at 88-89. Here, the warrant particularly described the place to be searched and the things to be seized: the Hartes’ house and evidence of a marijuana-grow operation.
And neither Bowling nor Keszthelyi concerned the question of when probable cause dissipates in the course of a single search under an initially valid search warrant. In both of those cases, officers conducted multiple searches of the same property based on the same probable cause. Bowling, 900 F.2d at 929; Keszthelyi, 308 F.3d at 563. Though they are relevant to the analysis of dissipating probable cause, they don‘t clearly establish that the deputies’ probable cause dissipated after they determined the Hartes were not, and hadn‘t recently been, growing marijuana.
Similarly, though I found a
Here, the warrant didn‘t permit the deputies to search for any and all evidence of any criminal activity (although it did allow them to search for drug paraphernalia used to introduce any type of drug into the body), and the Hartes don‘t allege that the deputies damaged their property or ransacked their house, or even that the deputies searched in places where they couldn‘t find marijuana. So Cassady doesn‘t clearly establish that the deputies’ search was unreasonable.
Though Bowling, Keszthelyi, and Cassady lend some support to the theory underlying the Hartes’ claim, they aren‘t factually similar enough to put the “constitutional question beyond debate.” Mullenix, 136 S. Ct. at 308 (quoting al-Kidd, 563 U.S. at 741). After the deputies realized that the Hartes hadn‘t committed the crime described in the search-warrant affidavit—growing, harvesting, and processing marijuana—they didn‘t immediately stop searching. And despite having secured the house and looked for another grow operation, the deputies had not come across any evidence that the Hartes were using any marijuana, processed or otherwise (or had committed any other crime). But instead of stopping their search, they “switched just a little bit,” and continued searching for evidence of a separate crime for which they did not have probable cause—personal use of marijuana. Appellant‘s App. at A639. But I still can‘t say that every law-enforcement officer would have known that searching for evidence of personal marijuana use or possession was unreasonable when probable cause to search for a marijuana-grow operation had initially existed but dissipated during the search.
To support their unreasonable-detention claim, the Hartes point to Summers. But Summers held that because officers had reasonable suspicion to search a residence for contraband, they had the inherent authority to detain the occupants during the search. 452 U.S. at 705. Though the Court briefly noted that “special circumstances, or possibly a prolonged detention, might” be unconstitutional in some cases, it also said that the “routine detention of residents of a house while it was being searched for contraband pursuant to a valid warrant is not such a case.” Id. at 705 n.21. The Hartes haven‘t presented evidence sufficient to show that their detention wasn‘t “routine,” or that the warrant was unsupported by probable cause.
They also cite Muehler v. Mena, 544 U.S. 93 (2005), to support their claim that a two-and-a-half hour detention is unreasonably long. In Muehler, law-enforcement officers had a valid warrant to search a residence, and they detained its occupants in handcuffs for two to three hours. 544 U.S. at 98. The Court found this detention “plainly permissible.” Id. Though the Court stated that “[t]he duration of a detention can, of course, affect the balance of interests under Graham [v. Connor, 490 U.S. 386 (1989)],” it still concluded that the “2- to 3-hour detention in handcuffs in this case does not outweigh the government‘s continuing safety interests.” Id. at 100. The Court ultimately declined to address whether the detention “extended beyond the time the police completed the tasks incident to the search” because the Ninth Circuit had also declined to address it.17 Id. at 102. But
The Hartes make a colorable claim that the deputies violated clearly established law by unreasonably detaining their young children during the search. Though it‘s clear that the deputies didn‘t violate the
In Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1183-84 (10th Cir. 2001), a SWAT team executing a search and arrest warrant detained at least three children—ages four, eight, and fourteen—at gunpoint. We held that pointing firearms at children and “continuing to hold [them] directly at gunpoint after the officers had gained complete control of the situation ... was not justified under the circumstances at that point. This rendered the seizure of the children unreasonable, violating their
We further concluded that the law prohibiting the officers’ conduct was clearly established: “We can find no substantial grounds for a reasonable officer to conclude that there was legitimate justification for continuing to hold the young people outside the residence directly at gunpoint after they had completely submitted to the SWAT deputies’ initial show of force....” Id. at 1197. Because “the officers’ mistake as to what the law requires was unreasonable under all of the circumstances,” we denied them qualified immunity. Id. But the key to this conclusion was that the officers continued to aim loaded firearms directly at the children rather than “simply holding the weapon in a fashion ready for immediate use.” Id. at 1193.
These cases, though relevant to the Hartes’ claim, do not clearly establish that the deputies’ conduct toward the Hartes violated the
In sum, the Hartes haven‘t presented evidence sufficient to establish that the deputies violated clearly established law by searching for any evidence of marijuana after determining that the Hartes weren‘t growing marijuana, and by detaining the
C. Excessive Force
1. Constitutional Violation
I next address the Hartes’ claim that the agents used excessive force in executing the search warrant. We evaluate excessive-force claims under the
Here, we must ask whether the seven deputies violated the Hartes’
First, I acknowledge that the crime at issue—growing marijuana—can be considered severe. But the Hartes correctly point out that Kansas law makes possessing marijuana a misdemeanor.
Second, the Hartes posed no safety threat. The deputies contend that they couldn‘t have known the Hartes posed no safety threat, and claim that “[f]rom the officer‘s [sic] perspective, they were serving a felony narcotics warrant with little to no knowledge about the occupants other than their names, where they lived, and that they likely grew marijuana.” Appellee Sheriff‘s Office‘s Response Br. at 41-42. But this lack of knowledge was their own fault. The deputies could easily have investigated the Hartes’ backgrounds. They would have learned that the Hartes had no criminal history and were former CIA employees. They would also have learned that Mrs. Harte is a practicing attorney and that Mr. Harte had become a stay-at-home father.
Finally, nothing suggested that the Hartes might resist arrest. As discussed above, they had no criminal history, and, at best, had harvested a small amount of marijuana in three weeks. The deputies had no reason to believe that the Hartes would attempt to flee or actively resist the arrest or search.
The deputies contend that the circumstances justified their actions and that the force they used wasn‘t excessive. Indeed, officers can act to protect themselves. Lawmaster v. Ward, 125 F.3d 1341, 1349
Still, the deputies argue that Holland shows that they didn‘t use excessive force. In Holland, we held that the decision to send a seven-person SWAT team wearing hooded, camouflage clothing, along with three uniformed officers, to execute a nighttime search warrant wasn‘t objectively unreasonable. 268 F.3d at 1183, 1197. But the
I conclude the same here. Taking the facts most favorably for the Hartes, as required, presents an alarming scene. The deputies arrived with a battering ram at the ready, banged and screamed for the Hartes to open the door, forced Mr. Harte to lie down on the floor, held an assault rifle over him,18 “flooded the foyer” of the Hartes’ house, and ordered Mrs. Harte and the Hartes’ two children to sit cross-legged against the wall. Appellant‘s App. at A104. Deputies then restricted the Hartes to their living room under armed guard for the duration of the search. Even though they knew that the Hartes’ children would be home at that time, they nevertheless chose to execute the search warrant before school started. And then they wouldn‘t let either of the Hartes bring the children to school, nor would they let a neighbor take the children to school. Finally, as the deputies were leaving, they told the Hartes they should “have a sit-down” and “just be honest with each other and talk about ... drug use,” implying that their thirteen-year-old son was using marijuana. Appellant‘s App. at A634.
Considering the lack of danger the Hartes posed to the deputies, their tactics were unreasonably extreme. See Graham, 490 U.S. at 396. That the deputies never physically touched or injured any of the Hartes, and that the deputies may not have pointed their guns at any of the Hartes, doesn‘t convince me otherwise. Because the deputies had no reason to think that the Hartes posed a threat, the circumstances simply didn‘t justify the overwhelming force. Indeed, if permitted here, such conduct will be rou-
2. Clearly Established Law
In spite of this holding, I see no existing precedent that would have put it beyond debate that the deputies were using excessive force in executing their search warrant. “[T]he right to arrest an individual carries with it the right to use some physical coercion to effect the arrest.” Holland, 268 F.3d at 1192. The same goes for searches—law-enforcement officers may reasonably display their weapons to gain control of a situation. Id. “The display of weapons, and the pointing of firearms directly at persons ... should be predicated on at least a perceived risk of injury or danger to the officers or others, based upon what the officers know at that time.” Id.
The
The deputies’ conduct didn‘t reach the level of conduct we have condemned in previous cases. In Holland, we emphasized that the deputies had no justification for pointing their weapons at children. Holland, 268 F.3d at 1193. We reached a similar conclusion in Maresca v. Bernalillo County, 804 F.3d 1301, 1313 (10th Cir. 2015). In Maresca, police officers pulled over a family on the side of the highway under the mistaken belief that the family‘s vehicle was stolen. Id. at 1304. They pointed their guns at the vehicle and ordered each family member to step out of the car, walk backwards towards the officers with hands in the air, and lie face-down with feet in the air. Id. at 1305. They handcuffed the family members and kept their guns pointed at each family member, including at least two of the children. Id. at 1305-06.
We held that fact questions remained before we could determine whether the officers had used excessive force. Id. at 1313-14. Specifically, we concluded that the officers would not be entitled to qualified immunity for their conduct of continuing to point their guns directly at the two children even after every single family member (except, perhaps, the nine-year-old daughter) had cooperated with the officers and was lying face-down and handcuffed on the side of the highway. Id. at 1314-15 (“Pointing a firearm directly at a child calls for even greater sensitivity to what may be justified or what may be excessive under all the circumstances.” (quoting Holland, 268 F.3d at 1193)).
Again, the deputies here never pointed their weapons directly at the Harte children. Even if one deputy pointed an assault rifle at Mr. Harte, he must have done so briefly, because Mr. Harte went to the living room with the rest of the family to wait. And though I find it unreasonable to send seven deputies dressed in bulletproof vests, one displaying an assault rifle and the rest displaying pistols, to execute a
III. Monell Claim
The Hartes also claim that Johnson County and Sheriff Denning are liable under
We review de novo the propriety of summary judgment for Johnson County and Sheriff Denning, viewing the evidence in the light most favorable to the Hartes. See Schneider v. City of Grand Junction Police Dep‘t, 717 F.3d 760, 766 (10th Cir. 2013). We must grant summary judgment if these defendants show that there is no genuine dispute on any material fact and they are entitled to judgment as a matter of law. Id. I first address Sheriff Denning‘s liability, and then Johnson County‘s. Because I held above that the Hartes failed to present evidence sufficient to show that the deputies lacked probable cause, the constitutional violations relevant to the Monell claim are the unreasonable search and the use of excessive force.
A. Sheriff Denning
Sheriff Denning didn‘t participate in executing the search warrant, so to succeed on their failure-to-train or failure-to-supervise claims, the Hartes must show more than that Sheriff Denning was in charge of the deputies who investigated the Hartes and searched their house. See Dodds v. Richardson, 614 F.3d 1185, 1194 (10th Cir. 2010). They must show that “(1) [Sheriff Denning] promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.” Id. 1199. We have also phrased these requirements as “(1) personal involvement; (2) sufficient causal connection, and (3) culpable state of mind.” Schneider, 717 F.3d at 767 (quoting Dodds, 614 F.3d at 1195).
Here, the Hartes fail to present evidence sufficient to show that Sheriff Denning caused their constitutional deprivations and “acted with the state of mind required to establish the alleged constitutional deprivation.” Dodds, 614 F.3d at 1199. In his deposition, Sheriff Denning repeatedly testified that he was unaware of the specific details regarding the Harte investigation and search until after the search took place. He also repeatedly explained that his department didn‘t require officers to send field-tested samples to the crime lab because Kansas law provided that KN-reagent field tests were sufficient to establish probable cause during the preliminary stages of investigations and pro
At most, the Hartes could argue that Sheriff Denning is liable for allowing local law-enforcement agencies to target marijuana-grow operations on April 20, failing to review every single “4/20” search warrant and investigation to be sure that it complied with protocol, and permitting law-enforcement officers to apply for search warrants based on two positive field-test results from field-test kits that Kansas law expressly provided were reliable.20 As none of these policies had anything to do with the deputies’ conduct in executing the warrant, the Hartes have failed to show that Sheriff Denning caused the deputies’ use of excessive force or their unreasonable search.
B. Johnson County Sheriff‘s Office
To survive summary judgment on their Monell claim against Johnson County, the Hartes must first “identify a municipal ‘policy’ or ‘custom’ that caused” their injuries. Dodds, 614 F.3d at 1202 (quoting Bd. of Cty. Comm‘rs of Bryan Cty. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). Then they must present evidence sufficient to show that the “municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.” Id. (quoting Brown, 520 U.S. at 404, 117 S.Ct. 1382). The Hartes have a high burden: they must “show that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Schneider, 717 F.3d at 769. And “the challenged policy or practice must be ‘closely related to the violation of the plaintiff‘s federally protected right.‘” Id. at 770 (quoting Martin A. Schwartz, Section 1983 Litigation Claims & Defenses, § 7.12[B] (2013)).
The Hartes have failed to meet either of the two requirements to establish municipal liability. As established above, the only official policies that the Hartes alleged caused them injury were (1) searching suspected marijuana-grow operations on April 20, and (2) allowing the deputies to apply for a search warrant based on the positive results of two field tests of wet vegetation that deputies found in the Hartes’ trash.21 Quite simply, the Hartes didn‘t claim that
IV. State-Law Claims
The Hartes brought several state-law claims in addition to their
A. Trespass
The Hartes claim that the deputies trespassed on their property by entering the house without authorization. See Armstrong v. Bromley Quarry & Asphalt, Inc., 305 Kan. 16, 378 P.3d 1090, 1092 (2016) (“[A] trespasser is one who enters the premises of another without any right, lawful authority, or express or implied invitation or license.“). But the search warrant permitted the deputies to enter the Hartes’ house. Harte, 151 F.Supp.3d at 1195-96 (citing Restatement (Second) of Torts § 210 cmt. h (1965)). Because I agree with the district court that the search warrant was valid, I also agree with its order granting the deputies summary judgment on the trespass claim.
B. False Arrest
The Hartes also claim that the deputies falsely arrested them. “In an action for false arrest ... all that is necessary is that the individual be restrained of his liberty without any sufficient legal cause therefor, and by words or act which the one being restrained fears to disregard.” Thompson v. Gen. Fin. Co., 205 Kan. 76, 468 P.2d 269, 280 (1970). Because I conclude that the deputies’ probable cause dissipated and that their search became unreasonable under Summers, I also conclude that the Hartes’ continued detention became unreasonable under Summers. Therefore, in my view, the Hartes have presented sufficient evidence to meet the elements of false arrest, and I would reverse the district court‘s order granting the deputies summary judgment on this claim.
C. Assault
I conclude above that the Hartes submitted evidence sufficient to show that the deputies used excessive force. But this doesn‘t mean under Kansas law that the deputies assaulted the Hartes. In Kansas, assault is “an intentional threat or attempt, coupled with apparent ability, to do bodily harm to another, resulting in immediate apprehension of bodily harm. No bodily contact is necessary.” Baska v. Scherzer, 283 Kan. 750, 156 P.3d 617, 622
The Hartes’ claim for assault fails because they can‘t show that the deputies intended to threaten them or attempted to injure them. Id. Rather, the deputies intended to take control of the situation and conduct their search.22 The Hartes’ assault claim fails unless we credit their account that overzealous deputies wanted to barge into the Hartes’ house to threaten them or attempt to injure them. But if the deputies believed the Hartes were growing marijuana, then they likely brought their weapons to protect themselves rather than to threaten, harm, or even frighten the Hartes—even though doing so was unreasonable under the circumstances. True, the deputies’ beliefs turned out to be mistaken, and further investigation would have allayed reasonable fears of danger. But this doesn‘t convert their actions into assault. Baska, 156 P.3d at 622. The Hartes didn‘t present evidence sufficient to create a genuine dispute of material fact that the deputies intended to threaten or harm the Hartes. The deputies sought only to uncover a marijuana-growing operation.
Thus, because I conclude that the Hartes failed to present evidence from which a jury could find that the deputies intended to harm or to threaten them, I would affirm the district court‘s order granting summary judgment on this claim.
D. Intentional Infliction of Emotional Distress
To prove intentional infliction of emotional distress, the Hartes must show (1) that the deputies acted intentionally or with reckless disregard for the Hartes’ well-being; (2) that the deputies’ conduct was extreme and outrageous; (3) a causal connection between the deputies’ conduct and the Hartes’ mental distress; and (4) that the Hartes’ mental distress is extreme and severe. Roberts v. Saylor, 230 Kan. 289, 637 P.2d 1175, 1179 (1981). The Hartes have to show that the deputies’ actions were “so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and ... [be] utterly intolerable in a civilized society.” Id.
The district court concluded that, because the defendants violated no constitutional rights in executing the search warrant and that the force they used was reasonable for
The deputies’ conduct here could and did elicit such a response. And Kansas has clarified that “it is for the court to determine, in the first instance, whether the defendant‘s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery ... and [if] reasonable men may differ, the question is for the jury to determine.” Id. at 1028 (quoting Dawson v. Assocs. Fin. Servs. Co. of Kan., Inc., 215 Kan. 814, 529 P.2d 104, 113 (1974))
MORITZ, J.
Seven deputies from the Johnson County Sheriff‘s Office (JCSO) entered and searched the Harte family‘s residence pursuant to a warrant.1 The Hartes brought this action to redress their alleged injuries arising from that incident. In my view, several of the Hartes’ claims involve fact questions that only a jury can decide. Accordingly, I would partially reverse the district court‘s order granting summary judgment in favor of the deputies.
A judge issued a warrant to search the Harte residence based on Deputy Mark Burns’ representations that (1) he “field tested a sample of the plant material” obtained from the Hartes’ trash; and (2) the tests “showed a positive response for the presence of THC.” App. 708. At the summary-judgment stage, the Hartes contested the second fact, asserting that Deputy Burns “falsely reported that the field tests were positive.” Supp. App. 118.
If the Hartes’ version of the facts is true, the deputies violated the
I
During their cursory pre-search investigation of the Hartes’ residence, the deputies retrieved three “clump[s] of green vegetation” from the Hartes’ trash. App. 548. After discarding the first clump, the deputies allegedly conducted field tests on the second and third clumps. In his warrant application, Deputy Burns averred that tests of both clumps “showed a positive response for the presence of THC.” App. 708. Based on those alleged results, Deputy Burns concluded that the green vegetation was “saturated marijuana plant material.” Id. at 709. We now know that the vegetation was nothing more than discarded tea leaves. Nevertheless, a judge issued a warrant in reliance on Burns’ representations.
The Hartes claim that the deputies obtained the warrant through either “deliberate falsehood[s]” or “reckless disregard for the truth.” Franks, 438 U.S. at 171, 98 S.Ct. 2674. Specifically, the Hartes assert three putative Franks violations: (1) the deputies lied about the results of the tests; (2) the deputies misinterpreted the test results, construing negative results as positive; and (3) assuming that the deputies actually received positive results, they
A
The Hartes’ first claim implicates Franks’ deliberate-falsehood prong. The Hartes allege that the deputies generally, and Deputy Burns specifically, lied about the test results. If that allegation is true, the deputies unquestionably violated the Hartes’ clearly established
The parties dispute whether Deputy Burns lied in the warrant affidavit. Thus, it‘s imperative to apply the correct framework for resolving that dispute.
“Because of the underlying purposes of qualified immunity, we review summary judgment orders deciding qualified immunity questions differently from other summary judgment decisions.” Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). At the first step in the analysis, this court must determine whether the facts alleged by the Hartes, when viewed in the light most favorable to them, establish a constitutional violation. See Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015). But mere allegations aren‘t enough; the Hartes’ version of the facts must be “sufficiently grounded in the record.” Cox v. Glanz, 800 F.3d 1231, 1243 (10th Cir. 2015) (quoting Thomson v. Salt Lake Cty., 584 F.3d 1304, 1326 (10th Cir. 2009) (Holmes, J., concurring)); see Quinn, 780 F.3d at 1004 (explaining that “plaintiff‘s factual recitation must find support in the record“). As I discuss below, the Hartes’ allegations of lying are supported by record evidence. And as the previous paragraph demonstrates, that version of the facts gives rise to a clearly established Franks violation.
Accordingly, the burden shifts to the deputies, “who must prove that ‘no genuine issues of material fact’ exist.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002) (quoting Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001)). “In the end, therefore, the defendant still bears the normal summary judgment burden of showing that no material facts remain in dispute that would defeat the qualified immunity defense.” Id.
In setting forth this framework, I‘m mindful of our precedent indicating that “to survive qualified immunity, a [Franks] plaintiff must make a substantial showing of deliberate falsehood.” Snell,
I would find that the Hartes have made the required showing here and that the deputies, in turn, have failed to dispel the existence of a genuine factual dispute. I would further find that the Hartes’ allegations of lying are sufficiently grounded in record evidence, and that same evidence creates a triable issue of fact as to whether the deputies lied about the field-test results.
To begin, the record contains chemical evidence that Deputy Burns didn‘t obtain positive test results for the tea leaves. The Hartes’ retained expert, Michael Bussell, tested the exact same samples—using the exact same type of field test the deputies used—and yet obtained very different results: contrary to the deputies’ alleged results, Bussell stated that the tea leaves tested negative for the presence of THC. A jury could reasonably infer from those negative results that Deputy Burns lied about obtaining positive results.3
The district court disregarded this hard evidence for three reasons. First, the district court noted that the tea leaves were more than three years old when Bussell
Next, the district court noted that Bussell obtained a false-positive result when he tested a batch of freshly brewed tea leaves. In the district court‘s view, this positive result would preclude a reasonable jury from concluding that Deputy Burns lied about obtaining a positive result in 2012. I disagree. First, as the district court conceded, there‘s “no evidence” that the 2012 tea leaves were the same type of tea leaves that Bussell brewed in 2015. App. 117. Second, Bussell obtained a positive result by using a field test made by a different manufacturer and based on a different chemical reagent—from the tests the deputies used in 2012. Notably, when Bussell tested the freshly brewed leaves using the same field test that the deputies used, he obtained a negative result. Perhaps a jury would give some weight to a result obtained from a chemically different field test and a potentially different type of tea. But in my view, that result doesn‘t preclude the jury from crediting the results the Hartes rely on, which involved the same field test and the original tea leaves.
Finally, the district court points to the test results obtained by JCSO‘s Crime Laboratory (the Crime Lab). Four months after the April 20 raids, the Crime Lab retested the original tea leaves, using the same field test that the deputies used, and obtained a positive result. That‘s certainly favorable evidence for the deputies. And perhaps a jury would put more stock in a test conducted four months later—albeit by the deputies’ own Crime Lab—than in one conducted three years later by an expert the Hartes retained. But in the face of directly contradictory test results, I would conclude that we can‘t substitute our judgment for a jury‘s.5
In addition to the Hartes’ direct evidence that the deputies misrepresented
This pressure may explain certain anomalies in the deputies’ investigation. For instance, as Judge Lucero‘s separate opinion notes, the deputies retrieved clumps of green vegetation from the Hartes’ trash on three separate dates. “[O]n April 3, it was identified as innocent plant material and discarded without testing. As the April 20 deadline approached, however, ... the [deputies] determined that this previously innocent material was now suspicious and should be tested for the presence of marijuana.” Id. at 12. And instead of conducting a thorough investigation—e.g., surveilling the Harte residence, conducting background checks, or reviewing the Hartes’ utility usage—the deputies did nothing more than search the Hartes’ trash.6
A jury may conclude that the same pressure that caused a shoddy investigation also motivated the deputies to manufacture false test results. That evidence, in conjunction with Bussell‘s negative test result from the same tea leaves, creates a genuine dispute of material fact as to whether the deputies lied about the field-test results. Therefore, I would conclude that the district court erred in entering summary judgment on the Hartes’ first Franks claim.
B
The Hartes’ second and third Franks claims, in contrast with their first claim, turn on whether the deputies acted with “reckless disregard for the truth” in submitting the warrant affidavit. Franks, 438 U.S. at 171, 98 S.Ct. 2674. Specifically, the Hartes assert that the deputies (1) misinterpreted the test results, construing negative results as positive; and (2) recklessly disregarded the truth—that the leaves were tea, and not marijuana—by relying solely on inaccurate field tests and failing to conduct a thorough investigation.
I would not decide whether these allegations amount to a constitutional violation because the Hartes have failed to demonstrate that the asserted violations are clearly established. See Swanson v. Town of Mountain View, 577 F.3d 1196, 1199 (10th Cir. 2009) (exercising discretion to first determine that the asserted right was not clearly established). True, it has long been clearly established that a warrant is invalid if it contains a “deliberately or reckless[ly] false statement,” so long as probable cause is contingent on that statement. Franks, 438 U.S. at 165, 98 S.Ct. 2674; see Clanton, 129 F.3d at 1154. And in Part I.A, I concluded that the law is clearly established with respect to any deliberately false statements the deputies made. That‘s because every reasonable officer would know that lying in a warrant affidavit is unconstitutional. See Clanton, 129 F.3d at 1154 (“[Plaintiff] has alleged that [defendant] knowingly and intentionally swore to the veracity of [a third party‘s] confession, while knowing that confession to be false: a classic Franks violation.“). Because there‘s little ambiguity as to what kind of conduct constitutes lying, “existing precedent ... placed the statutory or constitutional question beyond debate,” and “[w]e do not require a case directly on point.” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011).
The term “reckless,” on the other hand, is a legal term of art, like “excessive force” or “exigent circumstances.” And the Supreme Court has repeatedly admonished us that those terms don‘t inform reasonable officers what type of conduct is prohibited. See, e.g., Mullenix v. Luna, 577 U.S. 7, 136 S.Ct. 305, 308-09, 193 L.Ed.2d 255 (2015); Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (“It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might ... have a mistaken understanding as to whether a particular amount of force is legal in those circumstances.“). Accordingly, when determining whether an officer has recklessly disregarded the truth in a warrant application, “the result depends very much on the facts of each case.” Brosseau v. Haugen, 543 U.S. 194, 201, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). The Hartes must therefore “identify a case where an officer acting under similar circumstances as [the deputies] was held to have violated the
The Hartes haven‘t done so. Their second Franks claim alleges that the deputies misinterpreted the test results and con
Their third Franks claim fares no better. The Hartes allege that the deputies recklessly disregarded the truth—that the leaves were tea, and not marijuana—by (1) relying solely on inaccurate field tests and (2) failing to conduct a thorough investigation. Regarding their first allegation, the Hartes cite a single case relating to inaccurate drug tests: Eaton v. Lexington-Fayette Urban County Government, 811 F.3d 819 (6th Cir. 2016). There, the court held that “an utterly unreliable—read random—testing procedure might well violate the
As for their second allegation, the Hartes fail to cite a case establishing that an inadequate investigation amounts to a reckless disregard for the truth. In fact, our cases demonstrate quite the opposite: “The failure to investigate a matter fully, to ‘exhaust every possible lead, interview all potential witnesses, and accumulate overwhelming corroborative evidence’ rarely suggests a knowing or reckless disregard for the truth. To the contrary, it is generally considered to be[] token negligence ‘at most.‘” Beard v. City of Northglenn, 24 F.3d 110, 116 (10th Cir. 1994) (quoting United States v. Dale, 991 F.2d 819, 844 (D.C. Cir. 1993)).
Because the Hartes’ second and third Franks claims don‘t assert clearly established constitutional violations, I would hold that the district court correctly entered summary judgment on those claims.
II
A
In light of my conclusion that one of the Hartes’ Franks claims survives summary judgment, I would also conclude that the Hartes’ wrongful search and seizure claims necessarily survive. See Poolaw v. Marcantel, 565 F.3d 721, 732 (10th Cir. 2009). And because the district court entered summary judgment on the Hartes’ state-law claims based, in part, on its conclusion that there were no Franks violations, I would reverse the entry of summary judgment on the four state-law claims at issue on appeal.
B
In his separate opinion, Judge Phillips concludes that the deputies obtained a valid search warrant. Phillips Op. 1175-79. Nevertheless, he concludes that “the deputies violated the
In their opening brief, the Hartes devote a scant two paragraphs to their argument that the deputies’ search exceeded the
III
Regarding the Hartes’ excessive-force claim, I join Part II.C.2 of Judge Phillips’ separate opinion. See Phillips Op. 1192-94. Because I agree that the law in this area isn‘t clearly established, I would decline to decide whether the deputies’ conduct amounts to a constitutional violation. See Swanson, 577 F.3d at 1199.
IV
Finally, the Hartes assert that the department had two policies or customs that give rise to supervisory liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978): (1) JCSO‘s participation in Operation Constant Gardener; and (2) JCSO‘s faulty reliance on the KN reagent field tests. The Hartes argue that these policies or customs caused the alleged constitutional violations. I disagree.
My limited resolution of the alleged constitutional violations simplifies this issue. I would only reverse summary judgment as to the Hartes’ first Franks claim (and the unlawful search and seizure that directly resulted therefrom). That violation is based on the deputies’ alleged lies. But the Hartes haven‘t established “a direct causal link” between the policies or customs they assert and the deputies’ alleged lies. See Bd. of Cty. Comm‘rs of Bryan Cty. v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).
JCSO‘s participation in Operation Constant Gardener has no causal connection to the violations. True, I reasoned above that the operation may be evidence of the deputies’ motivation to lie. But a “direct causal link,” id., requires more than that. In Brown, the Court held that “[w]here a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.” Id. at 405, 117 S.Ct. 1382. Accordingly, “[a] plaintiff must demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision.” Id. at 411, 117 S.Ct. 1382. And in this context, mere “but-for” causation is insufficient. Id. at 410, 117 S.Ct. 1382. It‘s therefore consistent to hold that pressure from the operation may have motivated the deputies to lie, yet didn‘t cause them to lie for Monell purposes.
Nor does JCSO‘s reliance on the KN reagent field tests have any causal connection to the violations. If Deputy Burns obtained a warrant by lying about the
Donnie LOWE, Plaintiff-Appellee,
v.
Rick RAEMISCH, in his individual and official capacities as Executive Director of the Colorado Department of Corrections; and Travis Trani, Warden, Colorado State Penitentiary, in his individual and official capacities, Defendants-Appellants.
No. 16-1300
United States Court of Appeals, Tenth Circuit.
Filed July 25, 2017
Notes
In my view, the field test is always generally inaccurate. Even the Hartes state that the KN-reagent field test yields false positives about 70% of the time. Therefore, the most reasonable inference is that the deputies and the crime lab technician obtained false-positive test results for their KN-reagent tests—they were the 70%—and the Hartes’ expert obtained accurate negative test results for his KN-reagent tests—he was the 30%.