Harte et al v. Denning et al

Filing 375

MEMORANDUM AND ORDER denying 370 Defendants' Motion to Stay Case Pending Petition for Writ of Certiorari. It is further ordered that the parties may file supplemental brief, as specifically described in this order, no later than 10/26/2017. Signed by District Judge John W. Lungstrum on 10/19/2017. (ses)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Adlynn K. Harte et al.,
Plaintiffs,
v.

Case No. 13-2586-JWL

Board of Commissioners of the
County of Johnson County, Kansas et al.,
Defendants.
MEMORANDUM & ORDER
On September 13, 2017, the court, consistent with the Circuit’s recent mandate
remanding the case to this court for further proceedings, issued a trial order setting this case for
trial beginning Monday, December 4, 2017. The court also asked the parties to submit short
statements regarding the specific claims remaining for trial in light of the Circuit’s opinion.
Those statements have been filed. Shortly thereafter, defendants 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. According to defendants, a stay is appropriate because the Circuit identified just a single
issue of fact for trial (i.e., whether one or more of the remaining defendants lied about the results
of the field tests) and that issue directly implicates defendants’ qualified immunity, which the
defendants will effectively lose if they are required to proceed to trial before resolution of the
petition. In a related vein, defendants propose bifurcating the trial of this case to focus initially
on the narrow factual issue, asserting that the resolution of that issue “is the cornerstone of all
other issues on remand.”
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Before turning to the merits of defendants’ motion to stay, it is useful to consider what
specific claims remain for trial. The parties agree in their statements that the Circuit’s opinion
preserves a Fourth Amendment claim under § 1983 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.
The parties dispute whether the Circuit’s opinion preserves a search and seizure claim based on
the theory that, even if the warrant was valid, the Fourth Amendment was violated when one or
more of the defendants continued to detain plaintiffs and search their residence after probable
cause had dissipated. As this court understands the Circuit’s opinion, no such theory can
proceed. This court granted summary judgment on that theory. On appeal, all of the judges
expressly addressed plaintiffs’ “dissipation theory” and two of the three judges refused to
disturb the court’s judgment in favor of defendants on that theory—Judge Phillips found that the
deputies did not violate clearly established law by continuing to search for evidence of
marijuana and detaining the family and Judge Moritz found that plaintiffs had abandoned their
“dissipation” claim. There is no majority opinion, then, finding that the court’s summary
judgment ruling as to the dissipation theory was improper. Plaintiffs highlight language in the
Circuit’s opinion that the Circuit “reverses . . . summary judgment on the unlawful search and
seizure claims.” The court does not read that language to suggest that a dissipation theory
survives for trial, particularly where the language of the opinion as a whole reflects that the only
search and seizure “claims” that remain are those that flow directly from the allegedly invalid
warrant.1 The court, then, reads the Circuit’s opinion as preserving only one federal claim and
1

In their statement, plaintiffs vaguely suggest that some generic “unlawful execution of the
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that claim (or “claims” to the extent it is asserted against several defendants) is based on the
theory that one or more of the defendants lied about the results of the field tests in obtaining the
warrant. Thus, if the jury resolves that issue in favor of defendants, then the resulting search and
seizure was lawful and plaintiffs cannot recover any damages under § 1983.
In addition to the limited federal claim that remains for trial, the Circuit’s opinion
preserves four state law claims—trespass, false arrest, assault and intentional infliction of
emotional distress. Defendants contend that the Circuit’s opinion leaves open the possibility
that this court can simply reinstate its summary judgment rulings as to the state law claims if the
jury finds no Franks violation. In support of this argument, defendants highlight that Judge
Moritz and Judge Lucero reversed the grant of summary judgment on the state law claims solely
because this court had granted summary judgment based, in part, on its conclusion that no
Franks violation had occurred. According to defendants, then, if the jury determines that no
Franks violation occurred, the court can simply enter summary judgment on the state law
claims. The court disagrees and concludes that the Circuit’s opinion forecloses the re-entry of
summary judgment on the state law claims. With respect to the trespass and false arrest claims,
this court held that summary judgment was appropriate because no Franks violation occurred
and because there was insufficient evidence that the defendants exceeded the scope of the valid
warrant by prolonging their search and detention of plaintiffs. But Judges Lucero and Phillips
concluded that factual questions exist as to whether the defendants, regardless of the validity of
warrant” claim might survive for trial. While plaintiffs preserved in Count II of the pretrial
order a claim for “unreasonable execution of the warrant,” plaintiffs have never asserted or
developed a theory of “unreasonable execution” aside from their dissipation theory. Certainly,
the Circuit’s opinion does not identify any theory other than the Franks theory and the
dissipation theory.
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the warrant, violated the Fourth Amendment by remaining in the house, continuing to search the
house, and detaining plaintiffs after probable cause had dissipated.

These same factual

questions, then, preclude summary judgment on the trespass and false arrest claims. With
respect to the assault claim, this court granted summary judgment because the warrant was valid
and, accordingly, the defendants were authorized to use reasonable force. Judges Lucero and
Phillips determined that plaintiffs presented sufficient evidence to show that defendants used
unreasonable force in executing the warrant. Summary judgment on the assault claim, then, is
clearly not appropriate even if the jury finds no Franks violation. Finally, this court granted
summary judgment on plaintiffs’ claim for intentional infliction of emotional distress based on
its conclusion that no constitutional violations had occurred. Because the Circuit found factual
disputes on whether plaintiffs’ constitutional rights were violated, summary judgment on that
basis is not permissible even if the jury finds a valid warrant. Thus, the state law claims are not
dependent on the issue of whether one or more defendants lied about the result of the field tests
and would proceed regardless of the jury’s determination on that factual question. For this
reason, bifurcation of the “whether the officers lied” issue is not appropriate and that suggestion
is rejected.
While the parties’ statements concisely set forth the claims that the parties believed
remained for trial, those statements did not flesh out which of the numerous defendants might be
held liable on the specific claims remaining for trial. The Circuit’s opinion sheds little light on
this issue. A review of the parties’ summary judgment submissions reveals that the issue was
raised by defendants at that juncture but that the court did not reach that issue because it granted
summary judgment to all defendants on an alternative basis. Specifically, defendants asserted
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that defendants Reddin, Burns and Blake are the only proper defendants on plaintiffs’ Franks
claim because no other defendant could reasonably be expected to know that the warrant was
defective (doc. 286, pp. 22-23); and that defendants Reddin, Denning, Burns and Pfannenstiel
cannot be liable on plaintiffs’ state law claims because they were not present during the
execution of the warrant and no claims of respondeat superior were made against them (doc.
286, nn. 12, 16, 18 & 22). Although plaintiffs responded to defendants’ argument on the Franks
claim (doc. 324, p. 64), it does not appear to the court that plaintiffs responded to defendants’
argument concerning the state law claims. Moreover, the parties appear to dispute whether the
Board of County Commissioners remains a defendant in this case after the Circuit’s opinion.
These issues should be resolved to the extent possible prior to trial through the lens of the
Circuit’s opinion and the specific claims remaining in this case. Toward that end, the court will
permit the parties to file supplemental briefs (as more fully described below) on the issue of
which defendants may be held liable to plaintiffs on the remaining claims.2
The court’s review of the parties’ summary judgment submissions further reveals that
additional arguments were raised by defendants that the court did not address and that are not
necessarily foreclosed by the Circuit’s opinion. To the extent defendants intend to pursue these
arguments, they should be resolved prior to trial. Those issues are whether the warrant affidavit
supported a finding of arguable probable cause in the absence of the alleged false statements
concerning the field test results; whether defendants are entitled to summary judgment on

2

In their reply brief, defendants contend that their petition for certiorari has merit because the
Circuit did not analyze whether those defendants who had no knowledge of any alleged
deliberate falsehood should be dismissed. To the extent defendants believe a stay is warranted
on that basis, the court disagrees because it intends to resolve that issue prior to trial.
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plaintiffs’ trespass, assault and false arrest claims by virtue of the discretionary function
exemption of the Kansas Tort Claims Act; whether defendants are entitled to summary judgment
on the trespass claim under the doctrine of quasi-judicial immunity; and whether defendants are
entitled to summary judgment on the assault claim because there is no evidence from which a
jury could conclude that the defendants intended to harm plaintiffs.3 These arguments have
already been fully briefed on summary judgment. Thus, any supplemental briefs that the parties
wish to file on these arguments must be strictly limited to the effect, if any, that the Tenth
Circuit’s opinion has on those arguments.4
The court turns, then, to the motion to stay. Defendants urge that a stay is appropriate
because eleven (11) individual defendants will “potentially face the burden of trial on the
subjective inquiry as to whether the investigating deputies knowingly lied about field test results
in order to obtain a search warrant.” Defendants contend that their “legal right not to stand trial
at all” will be irretrievably lost if trial is allowed to proceed before their petition has been

3

Defendants raised other arguments in their motion for summary judgment that the court did not
reach in light of its ultimate holding. Those arguments are either foreclosed by the Tenth
Circuit’s opinion (e.g., defendants’ argument that they are entitled to summary judgment on
plaintiffs’ claim for punitive damages) or can be resolved after trial (e.g., defendants’ argument
that plaintiffs cannot recover in this action fees that they incurred in their Kansas Open Records
Act litigation in state court).
4
To be clear, each side is permitted to file one brief encompassing all issues described herein.
The brief should not exceed 10 pages in length and need not include any extraneous factual or
procedural information. Because plaintiffs did not respond to certain arguments in their
summary judgment response concerning which defendants may be liable for certain claims, the
parties need not limit their arguments on that issue to the effect of the Circuit’s opinion. But
because all other issues have been fully briefed, the parties’ supplemental briefing on those
issues, if any, must be limited to the effect, if any, of the Circuit’s opinion on those issues. It is
the court’s intention to issue a Memorandum & Order on the issues enumerated herein well in
advance of the deadline for filing witness and exhibit lists set out in the Trial Order (doc. 364).
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adjudicated.

They further contend that because this case raises critical issues of national

importance for law enforcement, the Supreme Court might well be inclined to grant certiorari.
Plaintiffs assert that 28 U.S.C. § 2101(f) precludes the court from granting a stay; that a stay
would violate the “mandate rule”; and that a stay is not justified in any event.
Regardless of whether § 2101(f) or the mandate rule precludes the court from granting a
stay pending defendants’ certiorari petition, the court agrees with defendants that the court,
without deviating from the Circuit’s mandate, has the inherent authority to manage its trial
docket and to schedule the trial of this case at its discretion—even if that trial setting occurred
after resolution of the defendants’ anticipated certiorari petition. Nonetheless, after balancing
the rights of defendants to be immune from trial with the rights of plaintiffs to have their claims
heard by a jury, the court believes that further delay in the trial of this matter is inconsistent with
the interests of justice. By the time trial starts on December 4, 2017, plaintiffs in this case will
have waited more than 4 years to have their case heard by a jury. Four years is long enough. 5
In so holding, the court considers several significant factors.

First, as defendants

acknowledge, there is a statistically small chance that the Supreme Court will grant any
certiorari petition. And the petition described by defendants, in the court’s mind, does not
present a substantial question sufficient to qualify for the extraordinary review granted by the
Supreme Court to only a few select cases. Defendants suggest that the Supreme Court might be
inclined to hear this case because it has never addressed the Franks v. Delaware “substantial
showing” standard in a civil case in the context of an assertion of qualified immunity. But
defendants have never suggested to this court that Franks might not apply in this context or that
5

Of course, defendants remain free to seek a stay from the Circuit or the Supreme Court.
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the standard should be modified in this context. Thus, because that issue has not been developed
below, it is unlikely that the Supreme Court would grant certiorari on that issue. Defendants
also contend that the Circuit’s opinion raises “far-reaching Fourth Amendment issues”
concerning the “reliability of field tests” and the type and amount of evidence required to make
a substantial showing of deliberate falsehood. They contend that the Circuit’s opinion, in
conflict with other Circuits, holds that an inference of lying is appropriate when a field test is
contradicted by subsequent testing.

The Circuit did not deem any questions sufficiently

substantial to warrant rehearing en banc. The Circuit’s failure to hear this case en banc is not
entirely surprising. In the court’s mind, the decision does not stand for the sweeping statements
set forth by defendants but is simply a result of the totality of the unique facts present in the
case—facts which included not only contradictory subsequent testing but, according to the
panel, the “enormous pressure” of the anticipated April 20 raids. Because the Circuit’s opinion
turns largely on the factual issues presented, the court believes that defendants’ petition is
unlikely to succeed.6 And while defendants criticize the panel for failing to address whether
arguable probable cause existed absent the alleged false statements, there is no reason to believe
that the Supreme Court would grant certiorari based on that alleged oversight.
Second, defendants have not alleged any particularized harm in proceeding to trial at this
juncture other than the loss of their right not to stand trial. That right, of course, is not absolute
and, in this case, the Circuit has rejected defendants’ qualified immunity defense with respect to
the limited claim that remains under § 1983. Defendants direct the court to no authority

6

Of course, if the court is incorrect and the Supreme Court grants the petition, defendants may
still be vindicated regardless of the jury’s verdict in this case.
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suggesting that at this procedural juncture their right not to stand trial shields them from trial
until they have exhausted all available avenues of relief, including the filing and resolution of a
certiorari petition.
Finally, the majority of the individual defendants will be required to stand trial in any
event.

Despite defendants’ suggestion that the Circuit identified only one issue of fact

remaining for trial (the issue at the heart of their petition), the reality is that the Circuit identified
one factual issue pertinent to the remaining claim under § 1983. That issue—whether one or
more of the defendants lied about the results of the field tests—is not determinative of plaintiffs’
remaining state law claims. In other words, the majority of the individual defendants (at a
minimum, the seven deputies who executed the search) will be required to proceed to trial
regardless of the issues raised in the certiorari petition. Conversely, depending on the court’s
further ruling, it may well be that the majority of the defendants will not stand trial on plaintiffs’
§ 1983 claim in any event. Thus, because the bulk of plaintiffs’ case on remand are state law
claims that are unaffected by the anticipated certiorari petition, the interests of justice are better
served by proceeding without delay to a trial of plaintiffs’ claims.

IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ motion to stay
case pending petition for writ of certiorari (doc. 370) is denied.

IT IS FURTHER ORDERED BY THE COURT THAT the parties may file a
supplemental brief, as specifically described herein, no later than Thursday, October 26, 2017.

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IT IS SO ORDERED.

Dated this 19th day of October, 2017, at Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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