One of the truths of law enforcement is that if you give police extra powers that are supposed to be invoked only in extreme situations, they will find ways to use those powers more routinely, either to enrich themselves (as we have seen with civil asset forfeiture) or to show off their power and might, as we seen with the use of surplus military style equipment that has been distributed to local police departments. SWAT team that are supposed to be used in extremely dangerous situations are instead used indiscriminately because police love the drama and visibility of SWAT raids. It looks good on the nightly news.
In Kansas, seven heavily armed members of a SWAT team terrorized Adlynn and Robert Harte and their two young children for over two hours in their home under the misapprehension that tea leaves in their garbage was actually marijuana. Their alleged domestic ‘weed cultivation’ operation turned out to be a hydroponic tomato garden. The couple sued the county for $7 million but a federal district court judge threw out the claim, saying that the police had ‘qualified immunity’, the doctrine that the authorities cannot be sued if they were acting in good faith and which is what the government hides behind. The Harte’s appealed.
Circuit Judge Carlos Lucero of the 10th Circuit Court of Appeals, in his opinion of July 25, 2017, explains what happens when a qualified immunity defense is asserted.
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.
A constitutional right is clearly established when “‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’”
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.
His opinion described what went down on the morning of the raid.
At approximately 7:30 a.m., the seven JCSO officers, clad in “black swat-type uniforms” and brandishing .9 millimeter Glocks, an AR-15 assault rifle, and a battering ram, approached the Hartes’ house. Harte heard pounding on the door and opened it to find an apparent tactical team ready to storm the house. Mrs. Harte recalled hearing “screaming and loud banging, so hard that the walls were rattling and it sounded as though our front door was coming off the hinges.” She ran down the stairs to find a team of officers flooding the foyer, shouting at her to put her hands behind her head, and Harte lying face-down and shirtless, an officer holding an assault rifle over him.
The SWAT team searched the house and found nothing but a hydroponic tomato garden.
So what made the police think that the Hartes were the kinds of dangerous drug dealers that required a SWAT attack? It was based on seeing Harte shopping at a hydroponic garden store and examining their trash and finding some wet green vegetation that their field tests suggested contained THC, the active ingredient of marijuana, even though those field tests supposedly have a 70% false positive rate. They did not follow up with more definitive laboratory tests.
Lucero said that the Hartes had met the standard to overcome the qualified immunity defense. He was bitingly sarcastic, heaping withering scorn on the police.
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.
The “investigation” of the Hartes was nominal at best: Despite believing the Hartes had a marijuana grow operation somewhere in their home, the JCSO did not conduct surveillance, check utility records, look for fans or other alterations typically used to conceal grow operations, or notice the tomato garden readily visible through a front-facing basement window. There is also no evidence, aside from the apparent discovery of a traffic ticket, that anyone at the JCSO even conducted a background check on the Harte family. If they had, the record tells us that they would have learned that Robert and Adlynn Harte were both former CIA employees with the highest level of security clearance; Mrs. Harte worked as an attorney at Waddell and Reed Financial and was a graduate of the Leawood Citizens Police Academy; her brother was also an attorney, formerly for the Navy JAG Corps, and an ex-New York City police officer trainee; the Hartes had a son in seventh grade and a daughter in kindergarten; and they had no criminal record other than the aforementioned undesignated traffic ticket. [My italics-MS]
Lucero was scathing about the indiscriminate use of such tactics.
The defendants in this case caused an unjustified governmental intrusion into the Hartes’ home based on nothing more than junk science, an incompetent investigation, and a publicity stunt. The Fourth Amendment does not condone this conduct, and neither can I.
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 any presumed results to a laboratory for analysis. Full stop.
Far too often, law enforcement uses the qualified immunity defense for indefensible actions because it makes the plaintiff’s case harder. We saw how the Ninth Circuit Court of Appeals denied this same defense in the outrageous case of a 70-year old widow of a NASA engineer who, needing money to meet health expenses for her family, was cruelly treated by federal agents when she merely asked NASA whether she could sell some memorabilia that had been given to her late husband by Neil Armstrong.
I hope more courts strike down the cavalier use of the qualified immunity provision that can be used to try and excuse reckless behavior by law enforcement.