DENVER (CN) — An attorney for a retired CIA couple on Thursday asked the 10th Circuit to strip Kansas sheriff’s officers of qualified immunity for raiding his clients’ house and terrifying their children after mistaking their hydroponic tomato garden for a pot farm.
The case drew national attention when Adlynn and Robert Harte family sued Johnson County, Kansas; its Sheriff Frank Denning and seven deputies in 2013, on their own behalf and for their two minor children. They asked for $7 million damages for the “humiliation, shame, embarrassment and emotional distress” of the early morning raid by a SWAT team “stacked in formation and brandishing firearms and a battering ram.”
The raid came more than seven months after officers saw Robert Harte “leaving a hydroponics store in Kansas City, Missouri with a small bag of merchandise.” Officers then searched through the Hartes’ trash and found what they thought was marijuana, though it “was nothing more than loose tea leaves that had been brewed by Mrs. Harte and discarded in the kitchen trash,” U.S. District Judge John Lungstrum wrote in a Dec. 15, 2015, order in which he granted summary judgment to all the defendants.
After analyzing the used tea leaves, and concluding it was marijuana, a sheriff’s SWAT team raided the Hartes’ house at 7:30 a.m. on April 20, 2012, as the family was preparing to go to work and to school.
“Neither Bob Harte nor Addie Harte has ever used any type of illegal drugs or associated with anyone involved with drug activity. What they did do was attempt to grow a few vegetable plants in an indoor hydroponic garden,” the Hartes said in their Nov. 12, 2013 federal complaint. “Also, Addie Harte liked to brew her favorite teas using loose tea leaves, which she discarded in the kitchen trash.”
The officers held the family under armed guard for 2½ hours, leaving them all, especially the children, “intimidated, accused [and] traumatized.” After searching the entire house, with a drug-sniffing dog, the officers still “insist(ed) the Hartes had ‘narcotics,’ and then, when even a drug dog turned up nothing, suggested that the Hartes’ son, who had just turned 13 years old, should be evaluated for drug use,” according to the complaint.
To top it off, the sheriff already had scheduled a news conference.
“Over the next two days, various news outlets in Kansas City reported on ‘Operation Constant Gardener’ and touted its success. The Sheriff’s Office also conducted a press conference covered by the media in which it announced the success of the operation, including the seizing of drugs, cash and firearms at the homes of ‘average Johnson County families’ in places like ‘Leawood,’” where the Hartes live, according to the complaint.
Their indoor garden contained only a few tomato, melon and squash plants, which the Hartes’ son had started for a school project.
Nonetheless, Judge Lungstrum granted the officers’ motion to dismiss, finding there was no way the deputies could have known that the field tests they used twice to identify marijuana in the Hartes’ trash had yielded false results.
Lungstrom also found the officers were protected by qualified immunity, which protects government officials from civil liabilities.
At the 10th Circuit hearing Thursday morning, the Hartes’ attorney Robert Bernstein urged the federal appeals court to send the case to trial.
Bernstein said that Johnson County knew or should have known that the KN reagent field tests it used yield positive results when exposed to caffeine, making it a dangerously unreliable method for police drug work.
“This test should not have been used,” said Bernstein, an attorney with Kirkland and Ellis in Washington. He said the county’s own crime lab acknowledged that the test was “not very good.”
“The district court committed the cardinal sin of summary judgment,” Bernstein said. He also questioned the validity of the field tests, as no pictures or evidence of the test results were submitted.
“The deputies photograph the results of field tests, but they did not in this case,” Bernstein said, saying the officers showed a “reckless disregard for the truth.”
He called it a “shoot your target first, investigate second” raid.
Lawrence Ferree III, an attorney for Johnson County, acknowledged that the tests did react to caffeine, but said he had not seen a false positive result from such tests in decades.
U.S. Circuit Judge Carlos Lucero seemed skeptical.
“You can’t take a test off the shelf for pregnancy and use it to test for marijuana; that would be reckless, right?” Lucero asked. “If you have a test that reacts to caffeine — it reacted to plaintiffs’ tea leaves — how can that test for marijuana? To me that’s reckless on its face.”
Ferree, of the Overland Park firm Ferree, Bunn, Rundberg, and Ridgway, replied by asking whether it was “up to the deputies to determine what test to use.”
U.S. Circuit Judge Nancy Moritz said she didn’t understand the scrutiny of the Harte family.
“All you have is a man walking into a hydroponic store with his two children, months ago, and you go and pull from this man’s trash,” Moritz said.
“That’s not unusual,” Ferree said. “They have a long history of making many cases out of this sort of investigative path.”
“I don’t know if you want that to be your argument,” Moritz said.
U.S. Circuit Judge Gregory Phillips interjected.
“You have this family, these young children. That’s their impression of how police work. That’s my frustration.”
Ferree acknowledged: “The deputies made a mistake. The question is if they have qualified immunity.”
The Harte family was present at the Thursday hearing. They also are asking for attorney’s fees.