Harte et al v. Denning et al

Filing 519

SUPPLEMENTAL PRETRIAL ORDER - (SEE ORDER FOR FURTHER DETAILS) It is ordered that plaintiffs' claims against defendant James Cossairt are dismissed with prejudice and that former Sheriff Denning is no longer a defendant in this case because pla intiffs have not named former Sheriff Denning as a defendant in Count II. plaintiffs' motion to compel mediation 507 is denied but the parties shall contact Magistrate Judge James's chambers no later than February 25, 2020 to schedule a settlement conference with her. Signed by District Judge John W. Lungstrum on 02/18/2020. (ses)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Adlynn K. Harte; Robert W. Harte;
J.H., a minor, by and through his parents
and next friends, Adlynn K. Harte
and Robert W. Harte; L.H., a minor,
by and through her parents and next friends,
Adlynn K. Harte and Robert W. Harte,
Plaintiffs,
v.

Case No. 13-2586-JWL

Mark Burns; Edward Blake;
Michael Pfannenstiel; Larry Shoop;
Lucky Smith; Christopher Farkes;
Thomas Reddin; Tyson Kilbey; and
Laura Vrabac,
Defendants.
SUPPLEMENTAL PRETRIAL ORDER
In October 2019, the Tenth Circuit remanded for further proceedings the following
federal search and seizure claims: (1) whether defendants properly executed the warrant; (2)
whether defendants exceeded the scope of the warrant by searching for evidence of general
criminal activity; and (3) whether defendants prolonged Plaintiffs’ detention, thus subjecting
them to an illegal arrest. Harte v. Bd. Of Comm’rs of the Cty. of Johnson, Kansas, 940 F.3d 498
(10th Cir. 2019) (Harte II). Thereafter, the court set this case for jury trial beginning Monday,
March 30, 2020 and, in preparation for that trial and to assist the court in determining what
specific issues the jury will be asked to decide, requested that the parties file certain submissions

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and responses on certain topics identified by the court. The parties filed their submissions and
plaintiffs also filed a motion to compel defendants to participate in mediation.
The court then held a telephone status conference on January 24, 2020. During that
conference, the court confirmed with the parties that the three discrete claims identified by the
Circuit in Harte II would be tried to a jury. After discussions with the parties, the court also
directed the parties to file additional submissions and responses. Specifically, the court ordered
defendants to respond to plaintiffs’ motion to compel mediation and ordered plaintiffs to file a
brief addressing whether the Board of Commissioners, former Sheriff Denning, Mark Burns,
and James Cossairt are proper defendants in the case at this juncture. The court also ordered
plaintiffs to explain why they disagree that the jury should be advised that an investigation was
conducted that resulted in the issuance of a valid search warrant; that the warrant authorized the
deputies to search for marijuana in any form, including personal use and paraphernalia; and that
the deputies’ authority to search for those items did not dissipate at any point during the duration
of the search. Defendants have filed a response to plaintiffs’ submission. In the meantime, the
court issued a trial order establishing certain deadlines for trial. Consistent with that order, the
parties have now filed their witness lists, including the subject matter of expected testimony and
a brief synopsis of the facts to which each witness is expected to testify.
After reviewing the parties’ submissions and responses, including the parties’ witness
lists, the court hereby enters this supplemental pretrial order clarifying the proper parties in the
case at this juncture and clarifying the issues that remain for trial.1

1

The caption of the case now reflects that the Board of Commissioners, James Cossairt and
former Sheriff Denning are no longer parties in the case. It also appears to the court that Jack
2

Claims Remaining for Trial
As noted earlier, three federal search and seizure claims remain for trial. The first claim
is that defendants improperly or unreasonably executed the search warrant. As explained by
plaintiffs in their submissions, plaintiffs intend to prove this claim with evidence that defendants
decided to execute the warrant while the children were home; failed to replace firearms that had
been removed from a gun safe; and unreasonably accused plaintiff Jack Harte of using
marijuana after the search revealed no evidence of marijuana in the home. See Doc. 504, p. 1214. The second claim is that defendants conducted an unauthorized exploratory search for
evidence of criminal activity beyond what was specifically authorized in the search warrant.
Plaintiffs assert that evidence of the media frenzy surrounding Operation Constant Gardener
motivated defendants to search for any evidence of criminal activity in the hopes that they could
show the fruits of their search at a scheduled press conference touting the success of Operation
Constant Gardener. See id. p. 4-5. Based on plaintiffs’ witness list, it appears that plaintiffs
may also seek to introduce evidence of the initial investigation to show that defendants Burns
and Blake knew that the search was unlikely to turn up evidence of marijuana such that those
defendants instructed defendants to find any evidence of criminal activity.2 The third claim is
that defendants subjected plaintiffs to prolonged detentions. Plaintiffs submit two theories in
support of this claim—that if defendants in fact were searching for evidence of any criminal
Harte is no longer a minor and that the caption can be amended to reflect that change in his
status. If any party objects to that change, they should notify the court by February 25, 2020.
Otherwise, the court will amend the caption accordingly.
2
Any questions as to the relevance of that evidence with respect to this claim will be resolved in
connection with any limine motion on that issue.
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activity beyond what was authorized in the warrant,3 then any detention during that unauthorized
search was unreasonable; and that even if defendants were conducting a proper search at all
times, “special circumstances” made the otherwise lawful detention of plaintiffs unreasonable.
See id. p. 9-11.
After reviewing the parties’ submissions, the court now narrows the scope of plaintiffs
Adlynn and Robert Harte’s prolonged detention claims to the extent those claims are based on
the “special circumstances” theory. In their submissions, Adlynn and Robert Harte identify two
“special” circumstances to support their theory that an otherwise lawful detention was
unreasonable: (1) that there was no reason to detain plaintiffs at all after the initial detention
because it quickly became clear, particularly in light of “just how little justification there was for
the raid to begin with,” see Doc. 510, that plaintiffs were not flight risks, posed no safety threat
and were not “dug-dealing felons”; and (2) the nature of the detention was humiliating in that
plaintiffs were held under armed guard near a large front-facing window in plain view of
plaintiffs’ neighbors.
The first circumstance identified by plaintiffs Adlynn and Robert Harte is foreclosed by
the Supreme Court’s decision in Muehler v. Mena, 544 U.S. 93 (2005), wherein the Court held
that an officer’s authority to detain incident to a lawful search is “categorical” and did not

3

In their submissions to the court, see Doc. 504, p. 6, plaintiffs suggest that they can prevail on
this claim if the jury finds that plaintiffs were detained after defendants realized that the Harte
family was not “growing marijuana.” This theory is clearly foreclosed by the prior jury verdict
in this case and the Circuit’s opinion in Harte II. Harte II, 940 F.3d 498, 524-25 (10th Cir.
2019) (jury reasonably concluded that probable cause to search existed even after defendants
realized that no active grow operation existed because evidence viewed in light most favorable
to defendants showed that they properly continued to search for evidence of past grow operation
until the end of the search).
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depend on the “quantum of proof justifying detention.” In Muehler, the Supreme Court reversed
the Ninth Circuit’s decision that officers should have released a female resident who was present
at the home during the execution of a lawful warrant as soon as it became clear that she posed
no immediate threat. Id. at 98. The Tenth Circuit has similarly recognized that whether a
detention in fact facilitates one of the governmental interests acknowledged in Summers—
preventing flight, minimizing risk or completing the search in an orderly manner—is irrelevant.
United States v. Johnson, 414 Fed. Appx. 176, 179 (10th Cir. 2011). Thus, the first “special
circumstance” advanced by plaintiffs Adlynn and Robert Harte is no different than the
arguments made and rejected in Muehler. As a matter of law, it is not the type of “special
circumstance” or “unusual case” mentioned by the Court in Summers. See also Bailey v. United
States, 586 U.S. 186, 193 (2013) (Summers “does not require law enforcement to have particular
suspicion that an individual is involved in criminal activity or poses a specific danger to the
officers.”).
The second “special circumstance” identified by plaintiffs goes to the manner of the
detention, not the length of it. There is no separate claim in this case that the manner in which
the detention was carried out was unnecessarily degrading. Nonetheless, if plaintiffs can show
that the specific manner of the detention is relevant to the inquiry of whether plaintiffs’
continued detention was unreasonable, then this specific theory would not be foreclosed. See
Harman v. Pollock, 446 F.3d 1069, 1082 n.1 (10th Cir. 2006). In other words, if holding
plaintiffs under armed guard near a large front-facing window in plain view of their neighbors
arguably rendered their detention unreasonably prolonged, then plaintiffs may proceed to make
that showing.
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Proper Defendants
Plaintiffs do not object to the dismissal of the Board of Commissioners of Johnson
County. Indeed, the court has already terminated the Board as a defendant in this case based on
the fact that the Circuit in Harte I affirmed the dismissal of the Board as a defendant and it had
remained in the case only for purposes of vicarious liability under plaintiffs’ state law claims
against the individual defendants. Plaintiffs further state that they do not object to the dismissal
of defendant James Cossairt, now deceased, in “recognition of defendants’ assurance that they
will not use an empty-chair defense at trial or blame [Mr.] Cossairt for the actions of other
defendants.” The court, then, dismisses plaintiffs’ claims against defendant James Cossairt.4
Plaintiffs contend that Mark Burns, who was named as a defendant in Count II of the
pretrial order, remains a proper defendant with respect to the three claims that remain for trial.
While Mr. Burns was not present at plaintiffs’ residence for the execution of the warrant,
plaintiffs contend that there is evidence from which a reasonable jury could conclude that Mr.
Burns “set in motion a series of events” that he knew or reasonably should have known would
cause a violation of plaintiffs’ constitutional rights. Specifically, plaintiffs highlight that Mr.
Burns attended an early morning planning meeting on the day of the search and that Mr. Burns
instructed the deputies who were searching plaintiffs’ residence to “keep searching” when they
called to inform him that they did not find marijuana in plaintiffs’ hydroponic garden. The court

4

In light of this assurance, defendants will be prohibited from using an empty chair defense at
trial or otherwise blaming Mr. Cossairt for the actions of any defendants in this case.
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agrees with plaintiffs that these facts are sufficiently tied to one or more of the claims in Count
II and that Mark Burns remains a proper defendant in the case.
The court turns, then, to whether former Sheriff Denning is a proper defendant in the case
at this juncture. All that remains in this lawsuit are three discrete claims set forth in Count II of
the pretrial order. Sheriff Denning is not identified as a defendant in Count II of the second
amended complaint or in the pretrial order, despite the fact that plaintiffs, appropriately,
specifically identified each individual defendant that they intended to hold liable for each
specific claim. Plaintiffs’ failure to name former Sheriff Denning as a defendant in Count II is
fatal to plaintiffs’ attempt to hold former Sheriff Denning liable on Count II at this late stage of
the litigation. Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002) (claims or theories not
included in pretrial order are waived). While plaintiffs assert in their submissions that former
Sheriff Denning “set in motion a series of events” that ultimately led to a violation of plaintiffs’
constitutional rights, that specific theory was clearly set forth in the pretrial order, but plaintiffs
identified only defendants Pfannenstiel, Reddin, Cossairt, Blake and Burns under that theory of
liability.
Plaintiffs concede that they never named former Sheriff Denning as a defendant for
purposes of Count II, but assert that “manifest injustice” will result from “continuing to
exclude” former Sheriff Denning.

To be clear, the court is not excluding former Sheriff

Denning from the case. Plaintiffs simply never included Sheriff Denning in Count II at any time
in this lawsuit. They never sought to amend the complaint or the pretrial order at any time in the
last seven years to include Sheriff Denning in Count II. In support of their “manifest injustice”
argument, plaintiffs contend that former Sheriff Denning will suffer no prejudice if he is a
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defendant because he is “fully on notice of the litigation and relevant facts.” Clearly, former
Sheriff Denning would suffer prejudice if plaintiffs were permitted to amend the pretrial order to
add him as a defendant in Count II roughly six weeks before the second trial in this case and
long after a trial on the merits of those claims in which Sheriff Denning was named as a
defendant and on which he obtained a verdict in his favor. When that verdict was affirmed in
October 2019, former Sheriff Denning no longer had any exposure with respect to plaintiffs’
claims. Plaintiffs cannot reasonably assert for the first time on January 28, 2020 that Sheriff
Denning should be included as a defendant on Count II and that he will suffer no prejudice as a
result.
Plaintiffs further assert that amendment of the pretrial order is appropriate to prevent
manifest injustice because, according to plaintiffs, they did not discover until trial “critical
information” pertinent to Sheriff Denning’s response to plaintiffs’ post-search request for
information as to why they were targets of the search. Specifically, plaintiffs assert that they
learned at trial that former Sheriff Denning “relied on the advice of counsel in denying the
family’s request for information, which in turn resulted in the production of emails that
contradicted his story.” But plaintiffs have failed to tie this evidence to any claim in Count II
and the court discerns no connection whatsoever between former Sheriff Denning’s response to
plaintiffs’ post-search request for information, his reliance at trial on the advice of counsel in
denying plaintiffs’ request, the existence of emails contradicting that statement and the deputies’
execution of the warrant or detention of plaintiffs. Plaintiffs, then, cannot establish manifest
injustice by the court’s refusal to amend the pretrial order. Simply put, we are well past the time
for plaintiffs to expand the scope of the claims articulated in Count II to include a party who has
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never been named as a defendant in that count. See Monfore v. Phillips, 778 F.3d 849, 851-52
(10th Cir. 2015) (no abuse of discretion in refusing to permit party to amend pretrial order on the
eve of trial to change trial strategy; change would have required other party to prepare for an
entirely different trial on a few days’ notice); Arias v. Pacheco, 380 Fed. Appx. 771, 775-76
(10th Cir. 2010) (no abuse of discretion in refusing to permit amendment of pretrial order on eve
of trial to add new theory of liability in search and seizure case where there was “no need” for
plaintiffs to wait that long to seek amendment); Wright v. City of St. Francis, Kansas, 95 Fed.
Appx. 915, 926 (10th Cir. 2004) (no abuse of discretion in refusing to permit amendment of
pretrial order to assert individual capacity claims against police officers and police chief at
summary judgment stage); Jeffries v. Tulsa County Board of County Commr’s, 17 Fed. Appx.
952, 954 (10th Cir. 2001) (no abuse of discretion in refusing to permit amendment of pretrial
order to assert new claim at trial where underlying facts and issues were within counsel’s
knowledge at the time of the pretrial conference); Trierweiler v. Croxton & Trench Holding
Corp., 90 F.3d 1523, 1543 (10th Cir. 1996) (no abuse of discretion in refusing to permit
amendment of pretrial order to assert fraud claim against defendant where only negligent
misrepresentation claim had been asserted against that defendant but both claims were asserted
against other defendants).

Matters Resolved by First Jury
During the January 24, 2020 telephone status conference with the parties, the court
expressed its belief that the jury should be advised that that the search warrant in this case was
valid; that the warrant authorized the deputies to search for marijuana in any form, including
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personal use and paraphernalia; and that the deputies’ authority to search for those items did not
dissipate at any point during the duration of the search. Plaintiffs assert that the first and third
statements are not correct.5

Plaintiffs contend that the jury did not specifically find that the

warrant was valid, only that plaintiffs did not meet their burden to prove that no one lied to
procure it.

Plaintiffs’ argument, however, ignores that there are simply no other theories

available to plaintiffs at this juncture to support any contention that the warrant is invalid.
Because the first jury flatly rejected the one remaining theory that the warrant was invalid, this
case must proceed with the understanding that the jury determined that the warrant was valid. In
fact, the Circuit has construed the remaining claims with that understanding. See Harte II, 940
F.3d 498, 513 (10th Cir. 2019) (“[W]e believe that Judge Moritz’s and Judge Lucero’s opinions
. . . permitted Plaintiffs to proceed to trial on the following federal claims if the jury determined
the warrant was valid: . . . “).
Similarly, plaintiffs contend that the first jury did not find that the deputies’ authority to
search for items identified in the warrant did not dissipate at any point during the duration of the
search. According to plaintiffs, the jury simply found that plaintiffs did not sustain their burden
of proof to show that probable cause dissipated. Again, the Circuit’s opinion in Harte II
forecloses this argument. See id. at 522 (“At trial, the jury concluded that probable cause had
not dissipated, but had instead existed for the duration of the search of Plaintiffs’ home.”).

Plaintiffs also contend that the court’s proposed instructions would confuse the jury. To the
contrary, the court believes that jury will be confused if the court does not clarify these issues
and the court is confident that it will be able to draft instructions that will appropriately and
accurately clarify the issues that they are asked to decide and that will minimize any risk that the
jury returns a verdict that is inconsistent with the first jury’s verdict.
5

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The trial of the remaining claims, then, will proceed with the understanding that the
search warrant in this case was valid; that the warrant authorized the deputies to search for
marijuana in any form, including personal use and paraphernalia; and that the deputies’ authority
to search for those items did not dissipate at any point during the duration of the search. Those
matters were established in the first trial and the jury in the next trial is bound by them.
Laboratory Corp. of Am. Holdings v. Metabolite Laboratories, Inc., 410 Fed. Appx. 151, 159
(10th Cir. 2011) (defendant bound by jury’s findings at trial and collateral estoppel precludes
reexamining wisdom of that determination).6 The parties’ voir dire examinations of the jury,
opening statements, questioning of witnesses, presentation of evidence and closing arguments
should proceed with the understanding that these matters have been resolved and are not open
for reexamination. The court will also instruct the jury as to these matters, but will consult with
the parties as to the form and substance of those specific instructions.

Other Evidentiary Issues
Plaintiffs’ witness list reflects an intent to elicit testimony at trial concerning plaintiffs’
post-search efforts to determine why their residence was searched and their related requests for
information concerning the same. Plaintiffs should be prepared to explain to the court in
connection with the anticipated limine motions how such evidence relates to the three discrete
claims in this case. Similarly, the parties should be prepared to explain to the court how
evidence concerning defendants’ initial arrival at the scene, initial entry into the residence
The court declines plaintiffs’ invitation to defer ruling on this issue (an issue that, in the court’s
mind, is subject to very little, if any, dispute) until the limine conference because the parties
need to utilize these rulings in framing their motions in limine and preparing for trial.
6

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(including the fact that plaintiff Robert Harte was ordered to the floor with an assault rifle
pointed at or near him), and the type of apparel worn by defendants is relevant to the remaining
claims. These facts have already been considered in connection with plaintiffs’ excessive force
claim and that claim is no longer part of this case.

Settlement Conference
That leaves plaintiffs’ motion to compel defendants to participate in mediation.
Defendants oppose the motion primarily on the grounds that mediation at this point would likely
be futile. The court does not think it would be appropriate to require the parties to engage in
private mediation when a mediator would necessarily spend a great deal of time—at significant
expense to the parties—familiarizing himself or herself with the lengthy factual and procedural
history of this case. As a result, the motion is denied. Nonetheless, the court is persuaded that a
settlement conference with a magistrate judge might be beneficial at this point, particularly as
the court has now clarified what parties remain in the case and what issues remain for trial.
Toward that end, the parties are directed to contact Magistrate Judge Teresa J. James’s chambers
no later than February 25, 2020 for the purpose of scheduling a settlement conference with her.

IT IS THEREFORE ORDERED BY THE COURT THAT plaintiffs’ claims against
defendant James Cossairt are dismissed with prejudice and that former Sheriff Denning is no
longer a defendant in this case because plaintiffs have not named former Sheriff Denning as a
defendant in Count II.

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IT IS FURTHER ORDERED BY THE COURT THAT plaintiffs’ motion to compel
mediation (doc. 507) is denied but the parties shall contact Magistrate Judge James’s chambers
no later than February 25, 2020 to schedule a settlement conference with her.

IT IS SO ORDERED.

Dated this 18th day of February, 2020, at Kansas City, Kansas.

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

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