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Harte v. Board of Commissioners of County of Johnson County

United States District Court, D. Kansas

November 3, 2017

Adlynn K. Harte et al., Plaintiffs,
v.
Board of Commissioners of the County of Johnson County, Kansas et al., Defendants.

          MEMORANDUM & ORDER

          JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.

         In December 2015, this court granted summary judgment in favor of defendants on plaintiffs' claims. In July 2017, the Tenth Circuit affirmed in part and reversed in part this court's judgment. After the Circuit issued its mandate remanding the case to this court for further proceedings, the court set the case for jury trial beginning December 4, 2017. Defendants then filed a motion to stay the case pending the filing and resolution of a petition for writ of certiorari to the United States Supreme Court.

         On October 19, 2017, the court issued a Memorandum and Order (doc. 375) in which it denied defendants' motion to stay the case; described the specific claims it believed remained for trial in light of the Circuit's opinion; and requested additional briefing regarding the effect of the Circuit's opinion on certain issues raised by defendants in their summary judgment motion that the court had not previously addressed. The parties have now filed those supplemental briefs and, in addition, have filed motions to reconsider certain portions of the court's Memorandum and Order. Plaintiffs seek reconsideration of the court's conclusion that no § 1983 claims or theories relating to the unreasonable execution of the search warrant remain for trial. Defendants seek reconsideration of the court's conclusion that the Circuit's opinion forecloses the court from reinstating its summary judgment rulings as to the remaining state law claims if the jury finds that no Franks violation occurred. As will be explained, the court denies both motions to reconsider; denies summary judgment as to the remaining state law claims; concludes that only defendants Reddin, Burns and Blake will proceed to trial on plaintiffs' § 1983 claim; and concludes that all defendants, including the Board, will proceed to trial on the state law claims.

         The court begins with plaintiffs' motion to reconsider. In its October 19, 2017 Memorandum and Order, the court concluded that only one § 1983 claim remains for trial after the Circuit's opinion, a claim based on the limited theory that one or more of the remaining defendants lied about the results of the field tests conducted in April 2012 such that the warrant was invalid and the resulting search and seizure was therefore unconstitutional (hereinafter, the “Franks” claim). In their motion to reconsider, plaintiffs contend that the court misconstrued the Circuit's opinion and that two additional search-and-seizure theories remain in the case- that the deputies acted as if they possessed a “general warrant” to search for any and all criminal activity (hereinafter, the “general warrant” theory); and that the defendants detained plaintiffs for too long (hereinafter, the “prolonged detention” theory). The court disagrees.

         Defendants moved for summary judgment on Count II of the pretrial order. Count II of the pretrial order reads as follows: “Violation of Plaintiffs' rights under the Fourth and Fourteenth Amendments for unreasonable execution of the search warrant and by continuing the detention and arrest of Plaintiffs and the search of their home after it was clear that probable cause had vanished.” Count II also refers back to plaintiffs' second amended complaint. Notably, Count II of the second amended complaint relates only to the dissipation of probable cause. That count is captioned as a claim for “Unreasonable Execution of Search Warrant by Continuing the Detention or Arrest of Plaintiffs and the Search of their Home After it was Clear that any Claim to Probable Cause Had Vanished.” The second amended complaint contains no theory based on “prolonged detention” aside from the dissipation theory and no “general warrant” theory. In their motion for summary judgment, then, defendants reasonably construed Count II as limited to a dissipation theory. In their response to the motion, plaintiffs did not challenge defendants' construction of Count II. Nowhere in plaintiffs' summary judgment submissions did they articulate a theory of “prolonged detention” apart from the dissipation of probable cause. Plaintiffs' summary judgment arguments regarding the prolonged detention were clearly tied only to the “erosion” or “withering away” of probable cause. See doc. 324, pp. 66-68. Tellingly, in their motion to reconsider, plaintiffs identify one page in their summary judgment response where they allegedly raised the “prolonged detention” theory. That page, page 96 of plaintiffs' summary judgment response, relates solely to the state law claim for false arrest rather than the § 1983 search-and-seizure claim. And the single sentence plaintiffs highlight was not an “argument” about the facts of this case, but a quotation from a Tenth Circuit case. Suffice it to say, the court is satisfied that the “prolonged detention” theory was not asserted in plaintiffs' summary judgment response and has never been asserted in this case.

         Moreover, the Circuit never recognized or addressed a separate “prolonged detention” theory. In fact, the court is not convinced that the Circuit was even aware that plaintiffs were pressing that theory. Plaintiffs argue in their motion to reconsider that Judge Phillips expressly recognized a distinct theory of liability based on the “unreasonable detention” of plaintiffs, but the court's reading of Judge Phillips' opinion reveals no acknowledgement that plaintiffs intended to assert a separate “prolonged detention” theory in this case. Judge Phillips discussed the prolonged detention of plaintiffs in the opening paragraph of section II.B.1 of his opinion, but that discussion tied the prolonged detention of plaintiffs to the dissipation of probable cause. And while Judge Lucero referenced a triable issue of fact as to whether the officers unnecessarily prolonged the detention of the children, that statement was limited to the context of plaintiffs' unreasonable force claim. Judge Moritz never acknowledged the existence of a “prolonged detention” theory apart from the dissipation of probable cause.

         Despite the fact that the Circuit never recognized or discussed a separate “prolonged detention” theory of liability, plaintiffs assert that the Circuit's “broad reversal” of the search-and-seizure claims (in the panel's opening summary of the disposition of the claims) controls and requires the “reversal” of this court's opinion as to all search-and-seizure theories. Even if the court were to accept that principle, it would not apply to the prolonged detention theory. Because that theory was not asserted in the pretrial order (or, by reference, in the second amended complaint) or in connection with the summary judgment motion, there is no ruling on that theory for the Circuit to have reversed. Any theory of liability that the deputies, irrespective of the dissipation of probable cause, prolonged the detention of plaintiffs is simply not a theory in this case.

         Plaintiffs' general warrant theory requires a slightly different analysis. Unlike their prolonged detention theory, plaintiffs did raise a general warrant theory in their summary judgment response, albeit briefly. See doc. 324, p. 70-71. The court granted summary judgment on the merits of this theory on the grounds that no evidence existed that any deputy conducted a general exploratory search of the residence or searched for criminal conduct unrelated to marijuana. See doc. 340 at 29 n.11. Plaintiffs assert that this theory was preserved and asserted on appeal. Nonetheless, Judge Moritz is the only panel member who mentioned a general warrant theory and she did so only in the context of explaining her belief that plaintiffs had abandoned their dissipation theory. So while Judge Moritz perhaps recognized a general warrant theory, she never expressed an opinion on the viability of that theory or addressed this court's treatment of it. In fact, she expressly declined to address whether the deputies properly executed the search in light of her holding that the warrant was invalid under Franks. Here, plaintiffs again assert that the Circuit's “broad reversal” of the search-and-seizure claims controls and requires the “reversal” of this court's opinion as to the general warrant theory.

         The court rejects this argument. Plaintiffs direct the court to no authority-and the court has uncovered none-suggesting that the Circuit's opening summary of the disposition of the claims controls over the specific opinions authored by the panel judges.[1] In fact, that opening summary expressly remanded the claims “for further proceedings not inconsistent with these opinions.”[2] If the court were to conclude that plaintiffs' general warrant theory survived the Circuit's opinion and permitted that claim to proceed to trial, then the court would be conducting proceedings inconsistent with the Circuit's opinions. In that regard, there is no panel judge who reversed the court's grant of summary judgment on the general warrant theory. And despite plaintiffs' insistence that Judge Moritz recognized the theory, she asserted in her opinion that she would “only reverse summary judgment as to the Hartes' . . . Franks claim (and the unlawful search and seizure that directly resulted therefrom.” It is beyond dispute, then, that Judge Moritz did not reverse-expressly or by implication-the court's grant of summary judgment on the general warrant theory. Because no judge reversed summary judgment on the general warrant theory, the court's grant of summary judgment on that theory is undisturbed. Plaintiffs cannot proceed to trial on this theory. See Young v. Kemp, 760 F.2d 1097, 1103 (11th Cir. 1985) (where Circuit fails to reach an issue on appeal despite the fact that the issue is argued, the district court's holding is undisturbed and the effect of leaving the district court's holding undisturbed is “the same as if there had been no appeal at all”). Plaintiffs' motion to reconsider is denied in its entirety.

         Defendants' motion to reconsider is also denied. In their motion to stay, defendants had argued that this court could simply re-enter summary judgment on the state law claims if the jury finds no Franks violation. This court, in its October 19, 2017 Memorandum and Order, rejected that argument and concluded that the state law claims would proceed to trial regardless of the jury's determination on the Franks claim because the state law claims were not dependent the Circuit in King explained that courts of appeal have wide latitude in their decisions as to “whether or how” to write opinions and are not necessarily required to provide a written opinion accompanying a decision. Because each of the panel judges authored a detailed opinion in this case, King is not persuasive in this context.

         on a Franks violation. In so concluding, the court stated that the Circuit's opinion “foreclosed” the re-entry of summary judgment on the state law claims in light of factual issues identified by Judges Lucero and Phillips (in connection with plaintiffs' § 1983 claims) regarding the deputies' use of unreasonable force and the deputies' continued search of the home and detention of plaintiffs after the dissipation of probable cause. To clarify, the court did not mean to suggest that the Circuit in fact reversed the grant of summary judgment on the state law claims based on those factual issues. It clearly did not. Nor did the court mean to suggest that it was precluded by the mandate from re-entering summary judgment on the state law claims in the event the jury finds no Franks violation. The court's reference to the factual issues identified by Judges Lucero and Phillips was intended to demonstrate that a reasonable jury could conclude-as did two Circuit judges-that the deputies utilized unreasonable force in connection with their entrance into the residence and the manner in which they detained plaintiffs. While Judges Lucero and Phillips discussed those factual issues only in connection with plaintiffs' § 1983 claim, those facts would be pertinent to a jury's resolution of plaintiffs' claims for assault and intentional infliction of emotional distress. Similarly, the factual issues identified by Judges Lucero and Phillips with respect to the dissipation of probable cause as to plaintiffs' § 1983 claim are the same factual issues which would permit a reasonable jury to conclude that the deputies unnecessarily prolonged the search of the home and the detention of plaintiffs after the dissipation of probable cause-facts that are pertinent to the resolution of plaintiffs' claims for trespass and false arrest. This aspect of the court's October 19, 2017 Memorandum and Order, then, was intended to relay only that the court will not re-enter summary judgment on the state law claims if the jury finds no Franks violation because a reasonable jury, even in the absence of a Franks violation, could find in favor of plaintiffs on the state law claims. Thus, because defendants' motion to reconsider is based on a misunderstanding of the court's ruling, it is denied.

         Having denied the parties' motions to reconsider, the court turns to the parties' supplemental briefs and, more specifically, the remaining alternative summary judgment arguments that it did not address in its December 2015 Memorandum and Order.

         Whether the Warrant Affidavit Supports a Finding of Probable Cause in the Absence of the Alleged False Statements

         In their motion for summary judgment, defendants assert that the warrant affidavit supports a finding of “arguable” probable cause even in the absence of the alleged false statements concerning the positive field test results. In support of this argument, defendants highlight the “probative value” of shopping at the Green Circle and the deputies' visual inspection of the plant material from plaintiffs' trash. Relying solely on the Circuit's opinion in Stonecipher v. Valles, 759 F.3d 1134 (10th Cir. 2014), defendants contend that this evidence “easily forms a sufficient basis for arguable probable cause.” But the doctrine of “arguable probable cause” applies only in the context of qualified immunity and only in assessing whether an officer should be excused for making “reasonable mistakes” of law or fact. See id. at 1142. As explained in Stonecipher, when the evidence demonstrates that an officer had an “objectively reasonable, even if mistaken belief” that probable cause exists, then the officer is entitled to qualified ...


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