Some loose tea leaves in the kitchen garbage and one visit to a garden store. That's all it took for the Johnson County, Kansas Sheriff's Office to tag the Harte family as suspected marijuana growers, bashing in their front door in SWAT-style raid.

For two-and-a-half hours, the suburban family (whose only other brush with the law had been a parking ticket) cowered on the floor while police tore their house apart looking for drugs—and found hydroponic tomatoes growing in the basement. 

I wrote about the case in 2017, when Kirkland & Ellis associate Rob Bernstein convinced the firm to represent the family pro bono on appeal. 

The Hartes sued the police for $7 million, claiming unlawful search and seizure and excessive force, as well as related state law claims. The district court judge in Kansas dismissed their case on summary judgment. 

On appeal, Bernstein succeeded in convincing the U.S. Court of Appeals for the Tenth Circuit to reverse in part, affirm in part and remand the case for trial. 

It seemed like justice was being served—but it turns out, it wasn't so simple.

As a new Tenth Circuit panel pointed out on Friday, the appellate court's original holding was…complicated. 

"[N]o judge on the prior panel could agree on a common disposition," wrote Judge Joel Carson in the new opinion, which is (mercifully) unanimous.  "As a result, we issued a one-paragraph per curiam opinion followed by three separate opinions. The district court, plaintiffs, and defendants all interpreted our per curiam opinion differently."

Uh-oh.

Bernstein left Kirkland to take a job at the U.S. Department of Labor, but Kirkland stuck with the case on remand, with partner R. Allan Pixton leading the charge. Pixton declined comment.

It went to trial in late 2017 before a federal jury in Kansas, with U.S. District Judge John Lungstrum presiding.

The Hartes lost. Badly. Not only did the jury side with law enforcement across the board, but the Hartes were also ordered to pay the defense's legal costs. (Which c'mon really?)

Now, the appellate court has once again remanded the case—and given the Hartes another shot at winning compensation for their ordeal.

To appreciate just how badly the police bungled everything, we have to back up to April 20, 2012, when the sheriff's deputies conducted a raid designed to coincide with "Weed Day." 

The cops were under pressure to find some marijuana growers to bust —a 4/20 press conference was already scheduled and they had only a few weeks to come up with wrongdoers.

For leads, they turned to a Missouri Highway Patrol trooper who liked to stake out a local hydroponic garden supply store on the theory that pot growers would go there for supplies. 

As would gardeners, but whatever. Details. 

Stay-at-home dad Robert Harte, who like his wife is a former CIA employee with the highest level security clearance, was doing an indoor gardening project with their two kids. They went to the store for supplies, and the trooper noted Harte's license plate.

Based on the garden store visit, the sheriff's deputies searched the family's trash three times (which can be done without a warrant).

The first time, they found wet vegetation that they determined was "innocent plant material." A week later, they came back and found the same stuff. 

But now, with only 10 days before the big press conference on April 20 and a dearth of potential suspects, they decided it actually looked like marijuana that was processed to extract the THC.

They said they did a field test—though there's no record of it—and the substance tested positive for THC. They did not send the leaves to the crime lab for testing. The deputies came back a few days later, found the same stuff and allegedly did another field test. Once again, the test was positive, though the Kirkland lawyers noted the test is notoriously unreliable.

The plant matter wasn't marijuana. It was loose leaf tea that Adlynn Harte enjoyed drinking. Apparently the deputies didn't know the difference—even though the little bits of flowers and fruit mixed in might have been a clue.

The deputies prepared an affidavit relying solely on the vegetation found in the garbage and the shopping trip to a garden store eight months earlier, and obtained a search warrant. 

At 7:30 a.m. on April 20, the Hartes awoke to a team of seven SWAT officers brandishing guns, an assault rifle and battering ram.

It was soon obvious that tomato plants were not marijuana, but the officers kept searching for contraband. One said he smelled a faint odor of marijuana. While they searched, they kept the whole family on the couch under guard and refused to let a neighbor take the children.

They found nothing. 

At trial, Judge Lungstrum concluded that the Tenth Circuit remand only covered one question—Did the deputies lie about conducting the field test on the tea leaves? Not an easy sell, especially to an all-white jury (Kirkland lawyers on appeal complained unsuccessfully that every minority juror was struck).

The judge refused to allow the second count, which alleged that the deputies unreasonably executed the search warrant in violation of the Fourth and Fourteenth Amendments.

The new Tenth Circuit panel concluded Lungstrum got the remand instructions wrong. "[W]e believe that Judge [Nancy] Moritz's and Judge [Carlos] Lucero's opinions, when read together with the controlling per curiam opinion, permitted plaintiffs to proceed to trial."

Which means that if the jurors determine the warrant was in fact valid, they could still consider "whether defendants properly executed the warrant; (2) whether the deputies exceeded the scope of the warrant by searching for evidence of general criminal activity; and (3) whether the deputies prolonged plaintiffs' detention, thus subjecting them to an illegal arrest."

Almost certainly, those are better claims for the plaintiffs than trying to convince a jury that the deputies lied about doing the field tests. 

After all, if a raid like this could happen with impunity to the Hartes, it could happen to anyone who drinks tea and gardens.