CA10: When an appellate decision is split, district courts must keep their eyes on the result

The case of Adlynn and Robert Harte generated widespread attention a couple of years ago. Mr. Harte attracted police attention by visiting a garden store to obtain supplies for growing tomatoes in the family’s basement. (Evidently, people sometimes visit garden stores to buy supplies for growing marijuana). Police searched the family’s trash, and discovered plant matter, which they thought was marijuana, but which turned out to be loose tea leaves discarded by Ms. Harte, an avid tea-drinker.

Unfortunately, the police’s mistake led to an early-morning SWAT raid on the Hartes’ home outside of Kansas City, which, of course, turned up no evidence of criminal activity. The Hartes sued under Section 1983, and in July 2017 the result was a 100-page 10th Circuit opinion (Harte v. Board of Commissioners) in which each panelist wrote a separate opinion. The case was sent back for trial on some of the claims.

On remand, the parties sorted through the split opinions with the district court, and while they agreed on much, they disagreed on whether the Hartes’ dissipation-of-probable-cause claim should be tried. The district court decided it could not.

Last week, in Harte v. Board of Commissioners (opinion by Judge Joel Carson), reversed this decision. The first paragraph explains what happened:

“[I]n this case, Plaintiffs allege that probable cause dissipated during the search of their home. One judge on the prior panel held that Plaintiffs abandoned the issue on appeal. Two judges agreed that probable cause dissipated, but one of those two judges voted to grant qualified immunity because he believed the law was not clearly established. Thus, we are left with a panel opinion where two judges employed common reasoning to conclude probable cause dissipated, but a different combination of two judges believed Defendants were entitled to summary judgment on that issue, albeit for different reasons. Which is our holding that the district court must follow: allow the dissipation claim to proceed based on the common reasoning or dismiss the dissipation claim based on the common result? For the reasons that follow, we hold that, in applying a fractured panel’s holding, the district court need look only to and adopt the result the panel reached. To hold otherwise would be to go against the result expressed by two of the three panel members. That we cannot do.

On that issue, the opinion makes for good reading for appellate law nerds. The remainder of the opinion deals with jury voir dire and evidentiary issues, and serves as a reminder that trying to get a jury verdict reversed because an allegedly biased juror was seated is a steep uphill climb on appeal.

Judges Lucero (who was also on the previous opinion in this case) and Hartz joined the opinion in full.

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