Harte et al v. Denning et al
MEMORANDUM AND ORDER denying 467 Plaintiffs' Renewed Motion for Judgment as a Matter of Law; and denying 469 Plaintiffs' Motion for New Trial. Signed by District Judge John W. Lungstrum on 03/29/2018. (ses)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Adlynn K. Harte et al.,
Case No. 13-2586-JWL
Board of Commissioners of the
County of Johnson County, Kansas et al.,
MEMORANDUM & ORDER
In April 2012, law enforcement officials from the Johnson County, Kansas Sheriff’s
Office obtained a search warrant to search plaintiffs’ home for marijuana. That warrant was
issued based on certain facts set forth in an underlying affidavit, including that plaintiff Robert
Harte had made a purchase at a local hydroponic store and that wet, vegetative material
subsequently obtained from plaintiffs’ trash on two occasions field-tested positive for marijuana.
On April 20, 2012, law enforcement officials executed the warrant, searched plaintiffs’ home
and detained plaintiffs for the duration of the search. No evidence of marijuana in any form was
found during the search.
Thereafter, plaintiffs filed this lawsuit against the Board of County Commissioners of
Johnson County, Kansas and eleven law enforcement officials from the Johnson County
Sheriff’s Office alleging violations of 42 U.S.C. § 1983 for unlawful search and seizure and
excessive force in violation of the Fourth and Fourteenth Amendments. Plaintiffs also asserted a
claim for municipal liability under Monell v. Department of Social Services, 436 U.S. 658
(1978) as well as state law claims of trespass, assault, false arrest, abuse of process, outrageous
conduct causing severe emotional distress and false light/invasion of privacy.
In December 2015, this court granted summary judgment in favor of defendants on
plaintiffs’ 1983 claims on qualified immunity grounds and on the merits of plaintiffs’ state law
claims. In July 2017, the Tenth Circuit affirmed in part and reversed in part this court’s
judgment in a fractured decision that resulted in three separate opinions. But in the end, a twojudge majority resolved each of the pertinent issues. Specifically, the Circuit affirmed this
court’s grant of summary judgment as to plaintiffs’ excessive force and Monell liability claims
and this court’s grant of summary judgment to one defendant, Jim Wingo, a sergeant with the
Missouri State Highway Patrol. The Circuit reversed this court’s grant of summary judgment as
to plaintiffs’ unlawful search and seizure claims because it held that the defendants were not
entitled to qualified immunity. The Circuit also reversed the grant of summary judgment as to
the four state law claims pursued by plaintiffs on appeal—trespass, assault, false arrest and
outrageous conduct causing severe emotional distress. With respect to plaintiffs’ unlawful
search and seizure claims, this court subsequently held that the Circuit’s decision left only one §
1983 claim for trial—a claim based on the limited theory that defendants Blake, Burns and/or
Reddin 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.
Plaintiffs’ remaining claims were tried to a jury beginning on December 4, 2017. The
jury returned its verdict on December 12, 2017 and found in favor of defendants on all issues
and claims. Specifically, the jury found that plaintiffs failed to prove by a preponderance of the
evidence that any of the defendants who participated in obtaining the warrant (defendants Blake,
Burns and Reddin) lied about the results of any field tests to obtain the warrant. Under the
Circuit’s decision and the court’s instructions to the jury, this finding was fatal to plaintiffs’ §
1983 claim. The jury also found that probable cause did not dissipate at any time during the
search of plaintiffs’ residence. Consistent with Kansas law and the court’s instructions to the
jury, this finding was fatal to plaintiffs’ trespass and false arrest claims and obviated the need for
the jury to otherwise resolve plaintiffs’ trespass and false arrest claims. Finally, the jury found
that plaintiffs failed to prove by a preponderance of the evidence their claims of assault or
outrageous conduct causing severe emotional distress against any defendant.
This matter is now before the court on plaintiffs’ renewed motion for judgment as a
matter of law pursuant to Federal Rule of Civil Procedure 50(b) (doc. 467) and plaintiffs’
motion for a new trial pursuant to Federal Rule of Civil Procedure 59(a) (doc. 470). Plaintiffs’
motion for judgment as a matter of law is limited to just two claims asserted by plaintiffs and
relates only to one issue in the case—the dissipation of probable cause. Because that motion
misconstrues the Circuit’s earlier decision in this case and asks the court to weigh the evidence
and make credibility determinations, it is denied. Plaintiffs’ motion for a new trial is more
expansive and asserts errors beginning with the jury selection process and ending with the
court’s instructions to the jury after the close of the evidence. Discerning no error at any point
during the trial of this case, the court denies that motion as well.
Judgment as a Matter of Law
Plaintiffs have renewed their motion for judgment as a matter of law on their trespass and
false arrest claims. Plaintiffs’ argument in support of their motion rests on their contention that
the Tenth Circuit in this case held, as a matter of law, that probable cause dissipated as soon as
the deputies learned that plaintiffs had no marijuana grow operation and, more specifically, as
soon as the deputies discovered a tomato garden in plaintiffs’ basement. According to plaintiffs,
then, they are entitled to judgment as a matter of law because no reasonable jury could have
concluded based on the evidence at trial that defendants had probable cause, for the duration of
their two-and-a-half hour search, to believe that a marijuana grow operation existed in plaintiffs’
home. As will be explained, the court disagrees. Contrary to plaintiffs’ arguments, the Circuit’s
statements about dissipation are not legal conclusions that were binding on the jury; a reasonable
jury could conclude based on the evidence at trial that probable cause continued for the duration
of the search because the deputies had reason to believe for the duration of the search that
evidence of a past grow operation existed in plaintiffs’ home; and, in any event, plaintiffs would
not be entitled to judgment as a matter of law on their trespass and false arrest claims in light of
remaining factual disputes that would require resolution by a jury. The motion is denied.
In resolving plaintiffs’ renewed motion for judgment as a matter of law, the court draws
all reasonable inferences in favor of defendants, the nonmoving parties.
See In re Cox
Enterprises, Inc., 871 F.3d 1093 1096 (10th Cir. 2017). The court may grant judgment as a
matter of law only when “a party has been fully heard on an issue during a jury trial and the
court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for
the party on that issue.” See id. (quoting Fed. R. Civ. P. 50(a)(1)). Stated another way,
“judgment as a matter of law is appropriate only if the evidence points but one way and is
susceptible to no reasonable inferences which may support the nonmoving party’s position.” Id.
(citations and quotations omitted).
The court begins with plaintiffs’ contention that the Circuit held, as a matter of law, that
probable cause dissipated as soon as the deputies learned that plaintiffs had no marijuana grow
operation and, more specifically, as soon as the deputies discovered a tomato garden in
plaintiffs’ basement. According to plaintiffs, the Circuit’s conclusion as to the specific point at
which probable cause dissipated was binding as the “law of the case.” The court disagrees. To
be sure, Judge Phillips makes numerous statements about the dissipation of probable cause
without making reference to the summary judgment standard, but those statements are consistent
with the procedural posture of the case on appeal—this court’s grant of summary judgment on
qualified immunity. While plaintiffs highlight that Judge Phillips’ opinion does not contain the
“magic” language typically utilized on summary judgment concerning reasonable inferences and
the existence of material factual disputes, that fact is not surprising given that such questions
arise differently in the qualified immunity context than in other settings. See Pauly v. White,
874 F.3d 1197, 1224 (10th Cir. 2017) (the “question of whether a genuine issue of material fact
exists is largely irrelevant” in qualified immunity analysis and arises if, and only if, the plaintiff
first demonstrates that the defendant’s alleged conduct violated clearly established law) (Moritz,
J., concurring) (emphasis added); see also Gutteridge v. Oklahoma, 878 F.3d 1233, 1238 (10th
Cir. 2018) (when a defendant asserts qualified immunity at summary judgment, the burden shifts
to plaintiff, who “must clear two hurdles” to defeat the motion, including demonstrating that the
facts alleged show a constitutional violation). The Circuit, then, was analyzing only whether, if
one assumes the validity of plaintiffs’ alleged facts, plaintiffs had demonstrated a constitutional
violation. Berglund v. Pottawatomie County Bd. of County Comm’rs, 350 Fed. Appx. 265, 268
(10th Cir. Oct. 22, 2009); Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009) (in the
qualified immunity context the Circuit generally accepts the facts as the plaintiff alleges them).
Because the evidence presented at trial was different from the record reviewed by the Circuit in
the context of its qualified immunity analysis,1 the Circuit’s decision concerning the timing of
any dissipation of probable cause was not binding on the jury as the law of the case. See
Vaughn v. Ruoff, 304 F.3d 793, 796 (8th Cir. 2002) (Circuit’s earlier opinion on qualified
immunity issues in which Circuit described possible procedural due process violation was not
binding law of the case); Oladeinde v. City of Birmingham, 230 F.3d 1275, 1289-90 (11th Cir.
2000) (Circuit’s earlier opinion on qualified immunity issues presented no binding conclusion of
law but simply allowed case to proceed to jury, where new and substantially difference evidence
In any event, even assuming that probable cause dissipated when the deputies learned that
no evidence existed of a marijuana grow operation, a reasonable jury could have found that
probable cause did not dissipate at any time during the search of plaintiffs’ home. Viewed in the
light most favorable to defendants, the evidence at trial was sufficient to demonstrate that the
searching deputies, throughout the duration of the search, had a reasonable basis to believe that a
marijuana grow operation existed in the home. While the searching deputies realized within
twenty or thirty minutes of entering the home that no active grow operation existed in the home,
Nothing more clearly demonstrates the difference between the evidence presented at trial and
the record reviewed by the Circuit than Trial Exhibit 259.2, an email exchange between
Lieutenant Reddin and Lieutenant Pfannenstiel. One of the panel judges relied on this email as
evidence that defendant Reddin was “furious” that the “raid” on plaintiffs’ home yielded
“nothing but tomato plants.” In that email, defendant Reddin wrote “SON-OF-A-BITCH!!!” to
defendant Pfannenstiel, who replied, “Nothing?????????????????????????” At trial, it was
undisputed that this email exchange did not relate to the search at plaintiffs’ home, but to
another search executed by Sheriff’s deputies later that same day.
ample evidence was presented to the jury that the searching deputies had a reasonable basis to
believe that evidence of a dismantled grow operation or evidence of recently harvested
marijuana existed in the home.
As Judge Phillips noted in his separate opinion in this case, to determine whether and
when probable cause dissipated, it is necessary to examine “what the deputies knew and when.”
Not surprisingly, the evidence about “what the deputies knew and when” was substantially
different at trial than it was before the Circuit. In concluding for purposes of the qualified
immunity analysis that probable cause dissipated at some point prior to the end of the search,
Judge Phillips appropriately credited plaintiffs’ evidence that, prior to the search, the deputies
knew only that Mr. Harte had shopped at the Green Circle on one occasion and had received two
positive field test results on wet, green vegetative material pulled from plaintiffs’ trash. At trial,
however, Deputy Blake testified, based on his experience with narcotics investigations, to his
knowledge that the Sheriff’s Department—for good or for ill—had engaged in numerous
successful narcotics investigations that started with tips from surveillance conducted at the
Green Circle on individuals purchasing items for hydroponic grows used to grow marijuana.
According to Deputy Blake, then, this knowledge—in addition to his knowledge about the two
positive field tests and the Green Circle tip—was in his mind when his search team discovered
the hydroponic garden in plaintiffs’ basement.
Judge Phillips concluded, again crediting plaintiffs’ proffered evidence, that probable
cause dissipated based on “what the deputies learned early on in the search.” That evidence
included only two empty cups in the hydroponic garden; a finding that Deputy Shoop “helped in
the search;” and Deputy Shoop’s “admission” that the deputies knew within 15 or 20 minutes
that the deputies “wouldn’t have a massive grow operation, as we had speculated.” Judge
Phillips also emphasized in reaching his conclusion that the deputies “don’t explain why they
needed so much time” to conclude that there was no active or dismantled grow operation. But at
trial, the jury heard that there were 9 empty cups in the garden; that while Deputy Shoop agreed
that the deputies knew within 20 minutes that they would not find a “massive” grow operation,
he nonetheless believed for at least 90 minutes that they would find evidence of a dismantled
grow operation; and that Deputies Blake and Kilbey were searching for evidence of a dismantled
grow or harvested marijuana until the conclusion of the search.
The jury also heard an
explanation from the deputies as to “why they needed so much time” to conduct that search—
the size of the house; the fact that the house was messy; and the fact that harvested marijuana
could be hidden almost anywhere. The jury, then, clearly had access to much different evidence
than what the Circuit had before it and the jury was entitled to weigh that evidence in finding
that probable cause did not dissipate during the search.
The jury heard additional testimony about what the searching deputies knew at various
points in the search.
Deputy Shoop testified that his first impression when he saw the
hydroponic garden in the basement was that it was a “non-active” marijuana grow and that
plaintiffs were “between a harvest.” Deputy Shoop testified that the amount of time, effort and
money invested in the garden, coupled with the fact that several empty pots were found in the
garden, led him to believe that the searching deputies would find some kind of processed
marijuana in the house that had been harvested from the grow operation. Deputy Farkes also
testified, based on his experience, that the empty cups from the hydroponic garden indicated to
him (coupled with his knowledge that material from the house had tested positive for marijuana)
that someone had harvested marijuana from the grow operation in the basement and stored the
marijuana somewhere in the house.2 Similarly, Deputy Blake testified that, in his mind, the
significance of observing the hydroponic garden with at least 9 empty pots indicated to him that
someone had harvested marijuana and moved it somewhere else in the home, which caused the
deputies to continue searching the home. According to Deputy Blake, harvested marijuana
could be hidden almost anywhere. Under these facts, coupled with evidence that these deputies
knew that vegetative material from the house had tested positive for marijuana, a reasonable jury
could conclude that probable cause did not dissipate prior to the end of the search and that the
deputies were reasonably still searching for evidence of a past grow operation during that time.
Even plaintiffs concede that defendants’ evidence supports the conclusion that 90
minutes into the search, the deputies still had probable cause to believe that evidence of a past
grow operation existed in the home. But they contend that probable cause dissipated at the 90minute mark and that it was unreasonable for the jury to conclude that probable cause continued
after the 90-minute mark.
This argument is based exclusively on the testimony of Deputy
Shoop. Indeed, Deputy Shoop’s testimony could be construed as evidence that the deputies, at
roughly the 90-minute mark, “switched” from a search for evidence of a past grow operation to
a search for evidence of “personal use” marijuana. But Deputy Shoop was, at most, offering his
views based on a limited perspective. He was the photograph/video officer during the execution
of the warrant. The jury could reasonably have credited the more specific testimony of Deputies
Plaintiffs assert that they impeached Deputy Farkes with respect to this testimony. That, of
course, was for the jury to decide. The court cannot weigh the credibility of a witness on a
motion for judgment as a matter of law. See Elm Ridge Exploration Co. v. Engle, 721 F.3d
1199, 1216 (10th Cir. 2013).
Blake and Kilbey on this point. Both of these defendants personally searched the home and both
testified that, for the duration of the search, they were searching for marijuana in “all forms,”
including but certainly not limited to personal use marijuana. On this motion, the court may not
credit the testimony of Deputy Shoop over the testimony of other witnesses.
Finally, plaintiffs have not demonstrated that they are entitled to the relief they seek—
judgment as a matter of law—even if the court accepted their argument that no reasonable jury
could have concluded that probable cause did not dissipate during the search of plaintiffs’ home.
Based on the format of the verdict form, the jury’s threshold finding that no dissipation occurred
obviated the need for the jury to address plaintiffs’ trespass and false arrest claims. Consistent
with the court’s directions on the verdict form, the jury “skipped” over the trespass and false
arrest questions based on their finding that no dissipation occurred. Plaintiffs did not object to
the approach utilized by the court in drafting the verdict form. Had the jury found dissipation,
then the jury would have continued to resolve the trespass and false arrest claims as to each
plaintiff and each defendant. Plaintiffs do not suggest that no factual disputes existed as to these
claims and, in fact, the record at trial clearly reflects such disputes.
With respect to plaintiffs’ trespass claims, defendants’ evidence was sufficient to support
a reasonable inference that the continued presence of the deputies in plaintiffs’ home after the
90-minute mark was justified (or even, in the absence of evidence that plaintiffs asked the
deputies to leave, that plaintiffs consented to it) for the reasonable amount of time that it took for
deputies to complete specific tasks necessarily associated with executing the valid warrant, such
as taking a “post search” video of the house (to establish that deputies were leaving the home in
the same condition in which it was found) and completing paperwork.3
With respect to
plaintiffs’ false arrest claims, defendants’ evidence demonstrated that plaintiffs were free to
leave the home, a finding that would have been fatal to plaintiffs’ false arrest claims had the jury
made it. These disputes, then, would have to be resolved by a jury. Judgment as a matter of law
is not appropriate.
Motion for New Trial
Rule 59(a) authorizes a court to grant a new trial on all or some of the issues for “any
reason for which a new trial has heretofore been granted in an action at law in federal court.”
Fed. R. Civ. P. 59(a). Plaintiffs’ motion for a new trial is based on several asserted errors,
including the court’s denial of four for-cause challenges during jury selection; the court’s failure
to instruct the jury that probable cause dissipated when the defendants learned that plaintiffs had
no marijuana grow operation in their home; the court’s refusal to admit into evidence
communications between defendants and their counsel after the attorney-client privilege was
waived; the court’s refusal to permit plaintiffs to present evidence of their “general warrant”
theory to the jury; and improper comments allegedly made by defense counsel to the jury
concerning plaintiff’s expert witness. Discerning no error relating to any of these issues, the
court denies the motion in its entirety.
Interestingly, Judge Phillips, despite his conclusion for purposes of qualified immunity that
probable cause dissipated such that the continued search became unreasonable, found that
summary judgment in favor of defendants was appropriate on plaintiffs’ trespass claim.
According to Judge Phillips, the valid warrant permitted the deputies to enter plaintiffs’ home
such that no trespass occurred.
Plaintiffs first assert that three prospective jurors and one seated juror should have been
deemed actually and/or impliedly biased and struck for cause. The court denied plaintiffs’ forcause challenge as to each of these jurors and plaintiffs utilized their peremptory challenges to
strike three of them.4 The evaluation of a juror’s actual bias is based upon “determinations of
demeanor and credibility that are peculiarly within a trial judge’s province.” Zia Shadows, LLC
v. City of Las Cruces, 829 F.3d 1232, 1243 (10th Cir. 2016). Actual bias is a question of fact
reviewed only for clear error, United States v. Powell, 226 F.3d 1181, 1188 (10th Cir. 2000),
and is shown by the “express admission of the juror of a state of mind prejudicial to a party’s
interest.” United States v. Brooks, 569 F.3d 1284, 1289 (10th Cir. 2009). The trial court’s
function in assessing actual bias is to rely on its own evaluation of “demeanor evidence and of
responses to questions” to reach a conclusion as to impartiality and credibility. Powell, 226
F.3d at 1188.
Implied or presumed bias is a legal determination dependent “on an objective evaluation
of the challenged juror’s experiences and their relation to the case being tried.” Zia Shadows,
829 F.3d at 1243 (quotations and citations omitted). A “finding of implied bias is appropriate
where the juror, although she believes that she can be impartial, is so closely connected to the
circumstances at issue in the trial that bias is presumed.” Id at 1244. The Tenth Circuit has held
Because plaintiffs utilized their peremptory challenges to remove prospective Jurors 01-0072;
01-0014; and 01-0026, any error stemming from the court’s refusal to strike these jurors for
cause would be harmless in any event. See Getter v. Wal-Mart Stores, Inc., 66 F.3d 1119, 112223 (10th Cir. 1995) (erroneous denial of for-cause challenge was harmless where party removed
juror with peremptory challenge; rejecting argument that loss of peremptory challenges violates
Fifth or Seventh Amendment rights).
that the implied-bias doctrine “is not to be lightly invoked, but must be reserved for those
extreme and exceptional circumstances that leave serious question whether the trial court
subjected [a party] to manifestly unjust procedures resulting in a miscarriage of justice.” Id.
(quoting Powell, 226 F.3d at 1188). Accordingly, the Circuit requires claims of implied bias to
meet a “high threshold.” Id. (quoting Powell, 226 F.3d at 1188).
1. Actual Bias
Plaintiffs assert that prospective Juror 01-0026, who was struck by plaintiffs on a
peremptory challenge, was actually biased against them. During voir dire, Juror 01-0026 related
what could be construed as a negative experience that she had with law enforcement nearly 20
years ago. When the court asked Juror 01-0026 whether that experience would affect her ability
to be fair and impartial, Juror 01-0026 responded “I would hope not.” When pressed by the
court about her ability to be fair and impartial, Juror 01-0026 further responded “As a matter of
fact, I actually am in more support of the police than not.” Based on this statement, and certain
additional remarks made by Juror 01-0026 during plaintiffs’ counsel’s voir dire, plaintiffs
maintain that Juror 01-0026 maintained an actual bias and should have been struck for cause.
During his portion of the voir dire questioning, plaintiffs’ counsel asked Juror 01-0026
why she felt “more in support of the police than not.” Juror 01-0026 responded as follows:
Quite honestly, I believe that the police have a very unenviable position now.
They are the people we go to when we have problems. They’re the people that
step in whenever there’s any issue at all that we can’t take care of and yet they are
the first to be accused of all kinds of problems, issues, as evidenced in every—
almost every city across the country. So, I feel—I believe that we are—that they
get a bum rap for a job that is extremely difficult.
Shortly thereafter, in response to plaintiffs’ counsel’s question as to whether his clients would
“start out a little behind the police simply because they’re accusing the police of doing
something wrong,” Juror 01-0026 stated:
I would hate to be in their spot and listen to someone say this, but—but if I’m
going to be honest, I believe that actually is probably true. But, again, I don’t
think that I would—I would—I would like to believe that I would be able to listen
to what is being evidenced and make a decision based on that.
At that juncture, the court explained to Juror 01-0026 and the rest of the panel that the key issue
for purposes of jury selection was whether each prospective juror, including Juror 01-0026,
would be able to put aside any positive feelings about law enforcement and listen to the
evidence in the case and decide the case “solely on the evidence and the law.” In response to
that question, Juror 01-0026 responded: “I believe I could—being truthful about how I feel, I
still believe that I would be able to render a decision based on facts.”
Despite Juror 01-0026’s expression of positive views about law enforcement, the court is
persuaded—as it was at trial—that Juror 01-0026 was not prejudiced against plaintiffs or biased
in favor of defendants. Significantly, Juror 01-0026 also expressed that she supported the
individual rights of citizens under the Constitution and she affirmed to the court that she would
be able to decide the case based on the evidence presented in the court room rather than on her
general views about law enforcement or the constitutional rights of citizens. Juror 01-0026
unequivocally testified to her belief that she could be an impartial juror and the court found as a
matter of fact that Juror 01-0026, if selected, would render an impartial verdict on the evidence.
Nothing in plaintiffs’ submissions suggests to the court that it should not have accepted Juror
01-0026’s clear statements of impartiality.5
Plaintiffs also contend that potential Juror 01-0072, whom plaintiffs also struck, harbored
an actual bias against plaintiffs and in favor of defendants. They assert four separate bases for
this argument, three of which completely lack merit and will be addressed in short order.
Plaintiffs assert that Juror 01-0072 was somehow biased because he was a reserve police officer
years ago in Ottawa, Kansas; he was experiencing problems in a personal relationship that
caused him to doubt his ability to focus; and he expressed a belief that marijuana was “not a
good thing.” Plaintiffs’ counsel did not follow up with Juror 01-0072 on any of these topics.
Thus, there is nothing in the record about whether Juror 01-0072’s experience as a reserve police
officer was positive or negative that might indicate a bias one way or the other. The court
confirmed with that juror, however, that his experience would not impair his ability to decide the
case based upon the evidence and the law. The court also confirmed with Juror 01-0072 that his
relationship problems (which, of course, do not reflect a bias of any kind) had not impaired his
ability to participate in the voir dire process and would not interfere with his ability to serve on
the jury if selected. Finally, with respect to the statement about marijuana, the court explained
to Juror 01-0072 that the case was “not about whether marijuana is good or bad” and asked Juror
01-0072 whether he could “decide this on the evidence and the law despite the fact that you
To the extent Juror 01-0026 made equivocal remarks about her impartiality prior to the court’s
explanation, the court believes that those remarks stemmed from an unfamiliarity with the nature
of the voir dire process, when “potential jurors often make ambiguous and inconsistent
statements regarding partiality” on issues that are presented only in the abstract. See Goss v.
Nelson, 439 F.3d 621, 633 (10th Cir. 2006). When the core question was presented to Juror 010026, the court believes her response unequivocally demonstrated her impartiality.
don’t like marijuana?”
Juror 01-0072 responded that he could do so.
Having had the
opportunity to view the demeanor of Juror 01-0072 and to listen to his responses on these issues,
the court has no doubts about Juror 01-0072’s ability to render an impartial verdict if he had
been selected to serve.
Plaintiffs’ primary concern with Juror 01-0072 is that he managed an appliance and
electronics company that supplies various products to offices in Johnson County, including the
Sheriff’s Department. The court asked the juror whether “anything about that . . . would get in
the way of your deciding this case just on the evidence and the law?” Juror 01-0072 responded,
“I guess in total honesty, it would be iffy. I guess maybe the only way I could put it is business
is business and stuff. So it could be difficult, yes.” The court then asked the juror whether that
business relationship would affect his deliberations and whether he would be “sitting there
thinking I could get in trouble with my business.” To that question, Juror 01-0072 responded,
“Maybe, not necessarily, no.” The court then asked three separate follow-up questions which
confirmed Juror 01-0072’s impartiality:
Q: Is it something that if the evidence in this case persuaded you that the Hartes
had met their burden of proof, as I’ll describe that to you, to prove what I will
explain to you the law would require for them to obtain a verdict, would you be
able to render a verdict in favor of the Hartes irrespective of that business
relationship that you’ve just described?
A: I believe I could, yes.
Q: And would you be able to listen to the testimony from the people that are
brought forth by the Hartes as well as the people brought forth by the defendants
and give them equal credit and attention, depending upon what you make of what
they say from the witness stand and not from some other reason?
A: I believe so, yes.
Q: Okay. All right. Conversely, if the evidence demonstrated that the Hartes had
not met their burden of proof, would you be able to render a verdict in favor of
Contrary to plaintiffs’ assertion, then, Juror 01-0072 never “admitted to actual bias” and, at
most, expressed uncertainty about what affect the relationship between his employer and
Johnson County might have on his impartiality until the court focused the juror on the pertinent
issue—whether the juror would be able to decide the case based solely on the evidence and the
law. After evaluating the juror’s credibility and demeanor, the court was satisfied—and remains
satisfied—that the prospective juror would have been impartial and harbored no actual bias.
Juror 01-0017 is the only seated juror challenged by plaintiffs.6 Plaintiffs contend that
Juror 01-0017 expressly admitted actual bias that rendered her unable to decide the case fairly.
Juror 01-0017 never admitted actual bias. As an initial matter, Juror 01-0017 did not raise her
hand when the court asked the panel if anyone “would simply have a problem finding that the
Hartes met their burden of proof just because of your feelings about law enforcement, your
positive relationships with law enforcement that you may have had?” This, of course, is a clear
indication that Juror 01-0017 harbored no actual bias in favor of law enforcement.7 Later, Juror
Even assuming that Juror 01-0017 was biased, plaintiffs have not shown that the presence of
this juror on the panel had a “substantial influence” on the outcome of the trial and did not
object to the composition of the jury as seated. Any error, then, would be harmless. See
Hatfield v. Wal-Mart Stores, Inc., 335 Fed. Appx. 796, 802 (10th Cir. July 2, 2009).
To assist the jurors in understanding the specific question posed to them by the court, the court
explained the impartiality issue by using the example of a person who supports a local sports
team. As explained by the court, the key question was whether that sports fan, who might tend
to think that his or her team can “do no wrong,” could nonetheless put aside the fact that he or
she supports that team and decide the issues based on the evidence rather than based on
generalized “feelings” that he or she maintained about the team.
01-0017, in response to the court’s question to the panel as to whether anyone had been the
subject of a law enforcement investigation, stated that she had pled guilty to the crime of
misdemeanor burglary roughly 10 years earlier and “paid the price” by serving a term of
probation. Juror 01-0017 confirmed that her experience would not affect her ability to serve as a
fair and impartial juror. While Juror 01-0017 did not provide any positive or negative
assessment about her experience, it is not the type of experience that would suggest a bias in
favor of law enforcement.
The specific comments made by Juror 01-0017 that plaintiffs contend show bias came
later in the voir dire process after plaintiffs’ counsel’s questioning of prospective Juror 01-0026
and, more specifically, this court’s discussion with Juror 01-0026 about whether she could set
aside her positive feelings about law enforcement and decide the case based solely on the
evidence and the law. Plaintiffs’ counsel then asked the panel whether anyone felt similarly to
Juror 01-0026 that plaintiffs “will start a step or two behind because they’re suing the police.”
Juror 01-0017 responded, “To be honest with you, yes.” When asked to explain, she responded,
“That’s the way I was raised. There’s right and wrong, and you always call the police. I mean,
they’re the keepers—they’re the—and I can’t help—I’m being honest.” At that point, the court
had the following exchange with Juror 01-0017:
Court: Now, we all have—we all come to this with—with preconceived feelings
and beliefs and life experience and—and it is totally impossible to just walk in the
door of a courtroom and flush out all those ideas. But to be able to sit as a juror on
the case, you must be able to say those are my ideas, those are my beliefs. I think
something is good or I think something should happen in general, that’s just how I
feel about things. But I’m going to take a look at the evidence here, decide what I
think really happened, and then look at the rules that the Court tells me applies,
and then I’m going to decide whether this is a case that should come out one way
or the other. This case is not about whether marijuana is good, whether law
enforcement is good, whether the Constitution is good. None of this is about that.
This is about what happened or didn’t happen and what the rules are that would
then bring about a result from what happened or didn’t happen. Now, do you
believe that you could set aside your personal views and decide this case just on
the law as it is? If you don’t think you could do that, I’ll excuse you—
A: No, that’s—
Court: --and nobody is going to be mad at you.
A: If you define it, then yes.
Court: I’ll define the rules. You just have to decide what happened and apply it.
A: Okay. Yes, I think I could.
Court: Do you think you could do that? Okay.
Plaintiffs’ counsel asked nothing further of Juror 01-0017 nor objected to the form of the court’s
explanation. Thus, when asked a direct question by the court about her ability to set aside her
personal beliefs and to decide the case based on the evidence and the law as provided by the
court, Juror 01-0017 gave an answer which assured the court that she could do that so long as
the court explained the law to the jury. The court had the opportunity to evaluate Juror 010017’s responses and demeanor and was convinced that she was not biased against plaintiffs or
in favor of defendants.
2. Implied Bias
Plaintiffs assert that prospective Jurors 01-0072 and 01-0014, both of whom were struck
by plaintiffs, were impliedly biased in favor of the defendants. The implied-bias doctrine “asks
whether an average person in the juror’s position would be partial, not whether the juror was, in
fact, partial to one side.” Zia Shadows, 829 F.3d at 12146 n.9. Thus, when examining the issue
of implied bias, the juror’s “voir dire statements do not meaningfully illuminate” the issue. Id.
According to plaintiffs, prospective Juror 01-0072 should have been deemed impliedly
biased and struck for cause based on his “business relationship with defendants.” As noted
earlier, that juror managed an appliance and electronics company that supplies various products
to offices in Johnson County, including the Sheriff’s Department. Clearly, then, Juror 01-0072
did not maintain any business relationship of any kind with any of the individual defendants. To
the extent he maintained some form of business relationship with the Board of County
Commissioners, there is no indication that Juror 01-0072 had a direct financial interest in the
trial’s outcome as contemplated by Tenth Circuit law. Compare Getter v. Wal-Mart Stores, Inc.,
66 F.3d 1119 (10th Cir. 1995) (district court erred by refusing to excuse juror who held stock in
the defendant corporation and whose wife worked for the defendant) with Vasey v. Martin
Marietta Corp., 29 F.3d 1460 (10th Cir. 1994) (district court did not abuse its discretion in
declining to excuse for cause a juror who was employed by a company that had a consulting
contract with the defendant; the juror’s status as an employee of a company that performed work
for the defendant was too “remote” to constitute an exceptional circumstance warranting a
presumption of bias). In short, the record fails to demonstrate that Juror 01-0072 was impliedly
In their reply, plaintiffs assert that Juror 01-0072 was “not merely an employee of a company
whose business might be impacted by the verdict.” This assertion is curious, as Juror 01-0072
first testified that he “worked for” an appliance and electronics company and later testified that
he “managed” that company. Both responses indicate an employee relationship with the
business. There was no indication that the prospective juror had an ownership interest in the
Plaintiffs contend that prospective Juror 01-0014 should have been struck for cause based
on his personal friendship with one member of the Board of County Commissioners. The record
is devoid of any information concerning the length and depth of that friendship, as plaintiffs’
counsel declined to explore that issue further in voir dire. Nonetheless, plaintiffs direct the court
to no case law indicating that a juror’s personal friendship with one member of a governing
board who is named as a defendant constitutes an exceptional circumstance warranting a
presumption of bias. The court has uncovered no case supporting plaintiffs’ argument. And in
light of the relationship identified here—where the juror’s friendship was not with an individual
defendant or witness in the case—the Tenth Circuit’s cases relating to implied bias of jurors are
not helpful to plaintiffs. See Skaggs v. Otis Elevator Co., 164 F.3d 511, 517 (10th Cir. 1998)
(bias may be found where the juror is a “close relative” of one of the participants); United States
v. Bradshaw, 787 F.2d 1385, 1390 (10th Cir. 1986) (declining to presume bias when jurors were
personally acquainted with government witnesses); see also Sedillo v. Hatch, 445 Fed, Appx.
95, 104-05 (10th Cir. Oct. 24, 2011), citing with approval Ray v. Johnson, 1999 WL 800173, at
*1 (5th Cir. Sept. 20, 1999) (a “friendship with the victim, even a close friendship, is not
sufficient to imply bias to a juror”). Cases from other Circuit Courts of Appeal are similarly
unhelpful. See United States v. Ervin, 517 Fed. Appx. 734, 743 (11th Cir. 2013) (juror’s bias
may be implied if the juror has a “special relationship” with a party, such as a familial or masterservant relationship); United States v. Calabrese, 942 F.2d 218, 224-25 (3d Cir. 1991) (“A juror
who merely had a passing acquaintance with one of the defendants would not, on the basis of
company or that his compensation would in any way be affected by a judgment against
defendants. Thus, there was no showing of a direct financial interest in the outcome of the case.
acquaintance alone, be rendered incompetent to serve in this case.” (listing cases of non-bias
based on juror relationships with the defendant’s family, the defendant, the victim, or other
participants in the proceedings, such as a prosecutor, investigator, or social worker)). Plaintiffs
have not demonstrated that prospective Juror 01-0014 was so “closely connected” to this case by
virtue of his friendship with a Board member that he was biased as a matter of law.
For the foregoing reasons, the court discerns no error during the jury selection process
that rendered the trial unfair in any respect. This aspect of plaintiffs’ motion is denied.9
According to plaintiffs, the court erred in failing to instruct the jury for purposes of
plaintiffs’ trespass and false arrest claims that, as a matter of law, probable cause dissipated
when defendants learned that plaintiffs had no marijuana grow operation in their home.
Plaintiffs’ argument is based on the Tenth Circuit’s decision in this case, Harte v. Board of
Comm’rs, 864 F.3d 1154, 1182 (10th Cir. 2017) and is presented as an alternative to their
motion for judgment as a matter of law. Essentially, plaintiffs contend that even if the court
Plaintiffs also seem to challenge, on the grounds that defendants were “saved” from using a
peremptory strike, the court’s decision to excuse a juror who expressed a bias against
defendants. Unlike any of the jurors that plaintiffs sought to remove for cause, Juror 01-0042
stood up in the middle of the proceedings, unprompted, and expressly announced that he had “a
personal bias against Johnson County” and his belief that he would not be “unbiased” in the
case. Plaintiffs assert that the court erred by not asking that juror the “do or die” question on
impartiality. After observing this juror’s demeanor and hearing the juror’s clear and emphatic
expression of bias, the court concluded that any effort at rehabilitation or explanation was both
futile and an inefficient use of the court’s time and the jury’s time. No error occurred when the
court excused this juror without further questioning.
denies their motion for judgment as a matter of law, it should nonetheless grant a new trial on
trespass and false arrest with the following instruction to the jury:
Probable cause dissipated when Defendants learned that Plaintiffs had no
marijuana-grow operation. Accordingly, if you find that Defendants continued to
search Plaintiffs’ residence after dissipation of probable cause, they lacked a legal
privilege to remain in the residence.
This argument is rejected. As fully explained above in connection with plaintiffs’ motion for
judgment as a matter of law, the court does not believe that the Circuit’s statements about the
dissipation of probable cause were legal conclusions that were binding on the jury. Rather, the
jury was appropriately permitted to decide, based on the evidence presented at trial concerning
what the deputies knew and when they knew it, whether probable cause dissipated at any time
during the search.
Toward that end, the court instructed the jury on probable cause and
dissipation in accordance with the applicable law. Plaintiffs’ proposed instruction, then, simply
sets forth plaintiffs’ theory on whether and when dissipation occurred—a theory that plaintiffs’
advanced during the trial and argued at the conclusion of the evidence. Because the jury was
permitted but not obliged to find that dissipation occurred “when Defendants learned that
Plaintiffs had no marijuana-grow operation,” that issue was appropriately left to the argument of
Had the court been inclined to include a dissipation instruction that mirrored the language
of the Circuit, it would not have utilized plaintiffs’ proposed instruction because it is vague and
The phrase “when Defendants learned that Plaintiffs had no marijuana-grow
operation” is ambiguous and undoubtedly would have raised more questions than it answered.
Does it mean when defendants realized that no active grow existed? When defendants realized
that no evidence of a dismantled grow operation existed? Or when defendants realized that no
evidence of harvested marijuana from a past grow operation existed? Thus, plaintiffs have not
shown any prejudice by the court’s failure to give the instruction, particularly in light of the
ambiguous nature of the phrase “no marijuana-grow operation.”
See McInnis v. Fairfield
Communities, Inc., 458 F.3d 1129, 1140 (10th Cir. 2006) (explaining that failure to give jury
instruction is reversible only if prejudicial).
Moreover, the jury could have found dissipation
under the instruction the court gave. As noted earlier, however, there was ample evidence from
which the jury could have concluded that probable cause did not dissipate at any time during the
search even under plaintiffs’ theory. Finally, the proposed instruction does not speak to the false
arrest claim in any respect and, thus, plaintiffs have not demonstrated that the result on that
claim would be different if the proposed instruction had been given.
Exclusion of Evidence
Plaintiffs contend that the court erred in excluding two categories of evidence at trial.
First, the court refused to admit into evidence communications between Sheriff Denning (and
his office) and defense counsel after Sheriff Denning testified that he relied on the advice of
counsel in rejecting plaintiffs’ request for records under the Kansas Open Records Act
(KKORA). Second, the court refused to permit plaintiffs to present to the jury evidence of a
“general warrant” theory of liability under § 1983.
1. Communications Regarding Advice of Counsel
Part of plaintiffs’ claim in this case is that the conduct of Sheriff Denning and other
defendants after the raid was outrageous because the defendants did not disclose to plaintiffs the
facts and circumstances which led to the raid. During his direct examination, Sheriff Denning
was asked by plaintiffs’ counsel about the basis for his decision, in August 2012, not to provide
plaintiffs with a copy of the search warrant affidavit in response to plaintiffs’ request pursuant to
the Kansas Open Records Act. Upon further questioning, Sheriff Denning testified that his
decision not to provide any records to plaintiffs was based on the “advice of counsel.” When
plaintiffs’ counsel asked a follow up question as to whether defense counsel had advised Sheriff
Denning not to provide any records to plaintiffs, defense counsel objected to the question based
on the attorney-client privilege. The court overruled the objection, stating that “To the extent
Sheriff Denning is relying on advice of counsel, that waives the privilege to that particular
reliance.” Ultimately, Sheriff Denning testified that he refused to provide a copy of the warrant
after discussions with defense counsel and the Johnson County District Attorney because the
release of the warrant would disclose the name of an undercover narcotics officer (defendant Jim
Wingo, a sergeant with the Missouri State Highway Patrol); would disclose that officer’s
investigative techniques pertinent to Operation Constant Gardener (surveilling hydroponic stores
and conducting trash pulls); and would disclose the fact that Johnson County was obtaining
information about potential suspects from Sergeant Wingo.
At the end of that trial day,
outside the presence of the jury, plaintiffs’ counsel asked for the production of documents
related to Sheriff Denning’s testimony that he relied on the advice of counsel when he refused to
provide the search warrant to plaintiffs in response to their Open Records request. Because the
court believed that it would be relevant for plaintiff to attack Sheriff Denning’s credibility by
showing that he had not received such advice, at least in writing, the court directed defense
counsel to verify whether any written communications existed concerning advice to Sheriff
Denning or Lieutenant Pfannenstiel about not disclosing the warrant in response to plaintiffs’
request and, if so, to provide a copy of those communications to the court the following morning
for in-camera review.
After reviewing the communications received in camera from defense counsel, the court
ordered that the communications be produced to plaintiffs’ counsel. While the court found
“nothing particularly remarkable” in those communications, the court did indicate that the
communications did not specifically mention the idea of protecting a confidential source or
investigative techniques such that the issue was “fair game for cross examination.” The court
cautioned, however, that it questioned whether it would permit the admission of those
communications into evidence because the communications did not add anything to that one
salient point—the lack of a specific reference to protecting a source or technique. Shortly
thereafter, plaintiffs’ counsel continued his direct examination of Sheriff Denning during which
the court admitted Exhibit 1200 (an August 15, 2012 email from defense counsel to Sheriff
Denning’s records custodian) for the purpose of exploring the notion that Sheriff Denning had
relied on the advice of counsel in refusing plaintiffs’ Open Records request. Plaintiffs’ counsel
then displayed that email to the jury and asked Sheriff Denning: “And Mr. Ridgeway told Miss
Whacker with respect to the Hartes’ August 10th, 2012 KORA request, ‘seeing as this is from
[plaintiffs’ counsel], we’ll need to nip this in the bud, ASAP;” correct?” Before Sheriff Denning
could respond, the court interjected as follows:
That is not probative on the issue of whether or not Mr. Denning was told specific
reasons why he should not turn things over. That particular reference, whether or
not somebody said “nip it in the bud,” I’m going to—I’m going to strike that. I’m
going to strike that exhibit if that’s all you’re trying to put in here.
The issue is did Mr. Denning receive a written correspondence from the Ferree
law firm that told him that he should reject the KORA request because of
disclosing a confidential source or the means of the investigation.
The fact is if there’s nothing in those e-mails that supports that, that’s fine. But
going into what language the lawyers used to discuss the handling of it is not
relevant for the purpose for which you asked to have those e-mails made available.
So as it stands right now, take that—take that email down.
The court then struck the exhibit from the record and instructed the jury to disregard it.
Plaintiffs’ counsel then requested a side-bar with the court during which the court further
explained that it ordered the documents be produced for only one reason and that they were
I’m not going to let them be used for any purpose other than to refute [Sheriff
Denning’s] particular claim. That’s a narrow reading of waiver, I appreciate that,
but I think that’s an appropriate reading here. Under Rule 403 I would not permit
any additional inquiry into those e-mails about the “need to nip this in the bud.”
Who knows what that means. That means Mr. Ridgeway would need to come
testify. What it means is we need to resolve this with a nice apology tomorrow or
whatever, or we need to go litigate this to the walls. But that absolutely, under
403, asserts a bunch of stuff that takes us on a course that’s not appropriate.
The court also rejected plaintiffs’ counsel suggestion that they be permitted to ask questions
about documents in which defense counsel advised Sheriff Denning to apologize to plaintiffs.
As noted by the court, that issue was a “collateral matter” concerning “public relations” advice
wholly distinct from the issue of legal advice on the KORA request and, accordingly, those
documents were irrelevant.
After Sheriff Denning was excused and outside the presence of the jury, plaintiffs’
counsel asserted their belief that the emails and communications produced by defendants
contradicted Sheriff Denning’s testimony regarding the reasons the KORA request was denied
and that those communications “go to Denning’s motive, bias, credibility” and made an offer of
proof regarding Exhibit 1300, which consisted of the documents that had been produced by
defendants in response to the court’s order on the privilege issue.
In their motion for new trial, plaintiffs assert that the court erred in refusing to admit the
communications produced by defendants (collectively Exhibit 1300) because those
communications were relevant not only for impeachment purposes but also “to the
outrageousness of defendants’ conduct.” In their motion, plaintiffs’ highlight only two specific
emails—the “nip it in the bud” email from defense counsel and one in which defense counsel
suggests to Lieutenant Pfannenstiel that, if the field tests are deemed faulty, “we may want to do
damage control and advise the Hartes of the wherefores and whys; and if they feel necessary,
explain to neighbors what caused the situation, etc.” Presumably, plaintiffs have highlighted
these two emails because plaintiffs have deemed these emails the most helpful to their theory of
While the “nip it in the bud” email was within the scope of Sheriff Denning’s waiver as it
related to defense counsel’s advice regarding the KORA request, the “damage control” email
from defense counsel cannot reasonably be said to fall within the scope of Sheriff Denning’s
waiver. See Sprint Communications Co. v. Comcast Cable Communications LLC, 2014 WL
3611665, at *3-4 (D. Kan. July 22, 2014) (subject matter waiver is reserved for those “unusual”
situations in which fairness requires a further disclosure of related, protected information to
prevent a selective, misleading presentation of evidence). Plaintiffs have demonstrated no
relationship between this email and Sheriff Denning’s decision to reject plaintiffs’ KORA
request. Sheriff Denning testified that he refused the KORA request based on the advice of
counsel. The “damage control” email has no demonstrable relationship to the KORA request
and the only advice therein is, as noted by the court at trial, “public relations” advice (rejected
by Sheriff Denning rather than relied upon by him) suggesting that the Sheriff’s Department
should consider an apology to plaintiffs and an explanation that the field tests were faulty. In
fact, if the court had had more time to review in camera the submissions by defense counsel, it
would have concluded that this email did not fall within the scope of the waiver and need not be
produced to plaintiffs.
Plaintiffs are correct that the “nip it in the bud” email was relevant to the impeachment of
Sheriff Denning’s testimony regarding his reason for rejecting plaintiffs’ KORA request. That,
of course, is why the court initially admitted the email into evidence, because it lent no support
to Sheriff Denning’s claim of advice of counsel. But plaintiffs’ counsel declined to utilize the
email for impeachment purposes, instead choosing to focus the jury’s attention on the specific
language used by the lawyer in discussing the issue with Sheriff Denning’s office. Plaintiffs,
then, had the opportunity to impeach Sheriff Denning with the email (by noting that the email,
contrary to Sheriff Denning’s testimony, did not include any specific advice about refusing the
KORA request) but declined to do so. The “damage control” email, in contrast, was not relevant
to the impeachment of Sheriff Denning’s testimony. Nothing in that email contradicts Sheriff
Denning’s testimony about his decision to reject the KORA request and, thus, the email could
not be singled out for impeachment purposes. Plaintiffs, then, have identified no error in
connection with their ability to impeach Sheriff Denning’s testimony on this issue.10
Plaintiffs further suggest that the emails, regardless of impeachment purposes, were
relevant to plaintiffs’ Franks claim and outrageous conduct claims. The record establishes
otherwise. According to plaintiffs, the emails suggest that defendants “engaged in a cover up”
after the search of plaintiffs’ home to “hide” underlying misconduct such as a deliberate
falsehood used to obtain the warrant. While plaintiffs freely explored and advanced this “cover
up” theory at trial, nothing in the emails produced by defendant in response to the waiver issue
remotely supports that theory.
Plaintiffs’ Franks claim was strictly limited to whether
defendants Burns, Blake and/or Reddin lied about the results they obtained on field tests they
conducted. Sheriff Denning’s denial of the KORA request (or, more specifically, whether he
relied on counsel in making that decision or whether counsel suggested more transparent public
relations efforts) does not suggest that one of those individual defendants might have lied to
obtain the warrant. It defies logic to believe that Sheriff Denning refused the KORA request to
“hide” department misconduct when the warrant and the information underlying the warrant
would undoubtedly be produced in litigation at some point. Moreover, regardless of the emails,
plaintiffs presented their “cover up” theory to the jury in connection with the Franks claim and
the jury clearly rejected that theory. Plaintiffs have not demonstrated (or even argued) that the
Plaintiffs’ counsel did utilize the entirety of the documents proffered as Exhibit 1300 to ask
Sheriff Denning whether anything in that stack of documents contained specific advice from
counsel to refuse the KORA request based on the need to protect Sergeant Wingo’s identity or
investigative techniques. Sheriff Denning testified that the documents contained no such advice.
Therefore, admission of the exhibit itself would merely have been cumulative for its proper
admission of any specific email would have tipped the scales on that claim. At most, the emails
would have been cumulative and at worst, because the “damage control” email involves an
acknowledgment by the manufacturer of the field tests utilized by the deputies that the tests
react positively when mixed with caffeine, would have actually buttressed the credibility of the
deputies who conducted the tests. See Exhibit 1300 at 1300.32, 1300.34, 1300.36, 1300.38-.39,
1300.40 & 1300.42-43.
The court also rejects plaintiffs’ argument that the “damage control” email is probative of
their outrageous conduct claim. According to plaintiffs, Sheriff Denning’s refusal to apologize
to plaintiffs—despite counsel’s advice that he consider issuing an apology—somehow
demonstrates outrageous conduct on the part of Sheriff Denning. But plaintiffs introduced
ample evidence in support of their outrageous conduct claim that Sheriff Denning steadfastly
refused to apologize to plaintiffs.
The jury concluded that Sheriff Denning’s refusal to
apologize did not constitute outrageous conduct. There is simply no basis to conclude that the
jury would have concluded otherwise had they known that defense counsel, at one time, had
suggested that Sheriff Denning consider an apology. The probative value, then, of the “damage
control” email is low.
Finally, any marginal relevance of the emails was substantially outweighed by Rule 403
considerations, including wasting the jury’s time on collateral issues (such as exploring the
meaning of various phrases utilized by counsel in the emails) and potentially confusing the jury
on the significance of Sheriff Denning’s rejection of the KORA request.
For the foregoing reasons, plaintiffs have not shown any error in the court’s refusal to
admit the communications produced by defendants relating to Sheriff Denning’s reliance on the
advice of counsel in rejecting plaintiffs’ KORA request.
2. General Warrant Theory
Plaintiffs contend that the court erred when it refused to permit plaintiffs to present
evidence at trial supporting a “general warrant” theory of liability under § 1983. This is an issue
that the parties fully briefed and the court resolved in writing after the Tenth Circuit’s mandate
issued and prior to the start of trial. In short, this court granted summary judgment on plaintiffs’
general warrant theory in December 2015 because the record contained no evidence that any
deputy conducted a general exploratory search of the residence or searched for criminal conduct
unrelated to marijuana. Despite plaintiffs’ insistence that the Circuit’s decision reversed that
ruling such that their general warrant theory survived for trial, no judge on the panel reversed
summary judgment on the general warrant theory. This court, then, held that plaintiffs were not
entitled to proceed to trial on that theory because this court’s summary judgment ruling
In their motion for new trial, plaintiffs contend that the court’s failure to permit them to
proceed to trial on their general warrant theory is grounds for a new trial. Plaintiffs incorporate
by reference their prior submissions on this issue and defendants have done the same. Because
none of the parties have offered any new arguments or authorities pertinent to this issue but
simply reference their prior submissions, the court follows suit and denies plaintiffs’ motion for
the reasons set forth in its November 3, 2017 memorandum and order (doc. 385).
Improper Comment by Defense Counsel
At trial, plaintiffs called their sole expert witness, Michael Bussell, to testify that the KN
reagent utilized by the deputies in field-testing the material found in plaintiffs’ trash in fact
yields negative test results when performed on the type of tea brewed by Ms. Harte. According
to plaintiffs, this testimony was essential to plaintiffs’ theory that defendants Burns, Blake
and/or Reddin lied about obtaining a positive test result in April 2012. In their motion for new
trial, plaintiffs assert that defense counsel improperly suggested to the jury that Mr. Bussell’s
police career ended because of misconduct. Plaintiffs contend that defense counsel’s improper
comment eroded Mr. Bussell’s qualification as an expert and cast doubt on Mr. Bussell’s
By way of background, defense counsel notified the court during a sidebar that he
intended to ask Mr. Bussell about his reasons for leaving the Lenexa Police Department, arguing
that he had reason to believe that Mr. Bussell, contrary to a statement made in his resume
indicating that retired because of an injury, resigned because he knew that termination for
misconduct was imminent. Plaintiffs’ counsel represented to the court that the official records
of the police department demonstrated that Mr. Bussell resigned due to a knee injury. The court
advised defense counsel that he could ask Mr. Bussell why he left the police department because
plaintiffs, on direct examination, had elicited testimony about Mr. Bussell’s employment history
and the question proposed by defense counsel directly related to Mr. Bussell’s credibility.
Nonetheless, the court cautioned defense counsel that if Mr. Bussell testified, consistent with the
official documentation described by plaintiffs’ counsel, that he resigned due to a knee injury,
then defense counsel could not inquire further without permission from the court. As explained
by the court:
If what [plaintiffs’ counsel] says is true, I’m assuming it is, that there is some
official document that says you’re retiring for this particular reason, [and] that’s
what he says he did, then you’re stuck with that. Because that’s—there’s no basis
then to undercut that without going way off into the weeds.
At plaintiffs’ counsel’s request, the court clarified that it would be improper for defense counsel
to refer to the underlying misconduct in front of the jury.
At the conclusion of the sidebar, defense counsel began his cross-examination of Mr.
After confirming that Mr. Bussell had been employed with the Lenexa police
department for approximately 15 years and had left that employment in 2013, defense counsel
asked Mr. Bussell why he left that employment. Mr. Bussell responded, “I sought a medical
retirement because of my knee.” The following exchange then occurred:
Q: Well, there were other reasons, weren’t there?
A: No. That’s what I sought was a medical retirement for my knee.
Q: I think there were other reasons that are documented, sir.
Plaintiffs’ counsel then objected and the court sustained that objection, instructing defense
counsel not to inquire further. Defense counsel then proceeded to follow a different line of
Plaintiffs now assert that defense counsel’s comment suggesting that “other reasons”
existed for Mr. Bussell’s decision to leave his employment is sufficient to require a new trial.
The court disagrees. To begin, defense counsel did not indicate the substance of any other
reasons that might have existed for Mr. Bussell’s decision to leave his employment. While his
comment may have carried a negative implication, defense counsel stopped well short of
identifying any misconduct on the part of Mr. Bussell. Moreover, while the court sustained
plaintiffs’ objection, plaintiffs did not seek a contemporaneous instruction for the jury to
disregard defense counsel’s comment nor did they seek any other curative instruction at that
time. Of course, the court had instructed the jury before opening statements in the course of its
preliminary instructions that statements, arguments and questions by lawyers are not evidence
and could not be considered by the jury. That instruction was repeated in the court’s final
instructions. Because the court presumes that the jury followed the instructions given to it, see
Cavanaugh v. Woods Cross City, 718 F.3d 1244, 1250 (10th Cir. 2013), the court cannot
conclude that the remark made by defense counsel was prejudicial.
To be sure, the jury’s verdict demonstrates that they were not persuaded by Mr. Bussell’s
opinion that a field test performed on the type of tea brewed by Ms. Harte would not or could
not yield a false positive result. But there were several reasons why the jury might have
discounted the testimony of Mr. Bussell, none of which had anything to do with defense
counsel’s isolated comment. For example, during defense counsel’s voir dire of Mr. Bussell
regarding his testimony, Mr. Bussell agreed that the temperature at which tea is brewed has a
significant effect on the amount of caffeine that is extracted from those tea leaves and then
candidly admitted that he did not know or measure the temperature he utilized when he brewed
the samples for his tests. Because defendants’ theory of the case was that the caffeine levels in
Ms. Harte’s tea caused the false positive test results, that testimony undoubtedly undercut the
persuasiveness of Mr. Bussell’s opinion.11
For the foregoing reasons, the court is not persuaded that the comment made by defense
counsel prejudiced plaintiffs. A new trial is not warranted on this basis. See Rios v. Bigler, 67
F.3d 1543, 1550 (10th Cir. 1995) (district court is in the best position to assess whether remark
was prejudicial for purposes of motion for new trial); Ryder v. City of Topeka, 814 F.2d 1412,
1425 (10th Cir. 1987) (misconduct of trial counsel justifies new trial only upon showing of
Lastly, plaintiffs assert reversible error under the cumulative error doctrine. Under a
cumulative-error analysis, the court “aggregates all the errors that individually have been found
to be harmless, and therefore not reversible, and . . . analyzes whether their cumulative effect on
the outcome of the trial is such that collectively they can no longer be determined to be
harmless.” Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 860 (10th Cir.
2005) (citing United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir.1990)).
harmless-error analysis is utilized only to determine whether actual error should be disregarded,
a cumulative-error analysis aggregates only actual errors to determine their cumulative effect.”
In addition, Mr. Bussell testified during his direct examination that every KN reagent field test
he performed on the type of tea brewed by Ms. Harte “came back negative” for marijuana. On
cross-examination, Mr. Bussell admitted that he had obtained a false positive result on a type of
tea brewed by Ms. Harte using another type of field test. By failing to disclose that he utilized
multiple types of field tests and obtained a false positive with one of those tests, Mr. Bussell
could have left the impression with the jury that he was not being totally forthcoming.
Id. (quoting Rivera, 900 F.2d at 1470). Because plaintiffs have failed to demonstrate the
existence of any errors during the course of the trial, their cumulative-error argument necessarily
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiffs’ renewed motion
for judgment as a matter of law (doc. 467) is denied and plaintiffs’ motion for a new trial (doc.
470) is denied.
IT IS SO ORDERED.
Dated this 29th day of March, 2018, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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