U.S. District Judge Randolph D. Moss allowed five of eight claims to remain, dismissed two only in part, and dismissed in its entirety only one. The 56-page, Sept. 16 ruling in the 2013 case was made available Monday.
The case springs from the Metro Police’s April 18, 2013 nighttime execution of a search warrant in which officers “ransacked” the former home of Shandalyn Harrison, where she lived with her three children and her 19-year-old brother Sterling Harrison.
They challenged “MPD’s practice of seeking search warrants based on an officer’s attestation that, in light of his or her ‘training’ and ‘experience,’ individuals suspected of certain crimes — typically involving the illegal distribution of drugs or unlawful possession of guns — are likely to have evidence of their unlawful activity in their homes.”
According to the amended complaint, officers “ransacked the home … and it took the family days of laboring to clean up their belongings.” The Metro Police did not find any evidence of unlawful activity, according to Moss’s order and memorandum.
The search warrant was carried out 13 days after Metro police Officer Taylor Volpe arrested Mordsen Box, with nearly 5 ounces of marijuana in his car.
The Harrisons say that Volpe should not have been able to obtain the warrant based on his “training” and “experience.”
They say Volpe should have know that Box, who no longer lived at the Harrison residence, held an Ohio driver’s license and drove a car registered there, would not have kept evidence of drug distribution in a home where he had not lived for several years.
“Plaintiffs alleged that the officer who submitted the affidavit knew or should have known, that just the opposite was true and that, in fact, people who are arrested outside their homes on drug or gun charges rarely keep evidence of their illegal activity in their homes,” Moss wrote in summarizing the claims in his order.
When Metro police officers entered Harrison’s home in April 2013 they and found her sitting on the couch watching television with her 7- and 13-year-old daughters. Upon finding Sterling Harrison playing a video game in his bedroom, they pointed a gun at his head and handcuffed him, Moss wrote.
The officers proceeded to the bathroom, where Harrison’s 11-year-old daughter was showering, then “opened the shower curtain, and pointed a gun at her while she stood naked in the shower,” Moss wrote.
Box, the biological father of one child, had not lived with the family for several years and Harrison and her mother had both informed the Metro police of this at least twice before the search.
The Harrisons “challenged virtually every aspect of the search, from whether the MPD had probable cause to search Box’s car in the first place, to the candor of Officer Volpe’s affidavit in support of his application for the search warrant, to the validity and breadth of the warrant, and, finally, to the manner in which the search was conducted. They also challenge the policies and practices of the MPD relating to the training and supervision of its officers,” Moss wrote.
The city sought dismissal for qualified immunity and failure to state a claim.
But Harrison claims that “in the vast majority of cases in which MPD officers execute such warrants after a traffic or street stop based only on their ‘training’ and ‘experience’ and not actual evidence connecting the home to criminal activity, the warrant returns submitted by officers themselves prove that MPD officers do not find the items that they seek.”
Moss dismissed only count 4, regarding reliance on the warrant; dismissed in part count 1, regarding reliance on the warrant; but let charges 2 and 3 stand, also regarding reliance on the warrant; he dismissed only in part a claim regarding use of a nighttime raid; and refused to dismiss claims of excessive use of force and municipal liability.
The Harrisons are represented by Katherine Hubbard, with the Civil Rights Corps, who could not be reached for comment. The Metro Policed do not comment on pending litigation.