Harte v The Board of Commissioners of the County of Johnson, Kansas et al.

Harte appealed summary judgment tot eh defendants on his family’s 4th Amendment claims. The panel, with each judge writing separately, affirmed in part, reversed in art and remanded. Lucero argued that the record created a triable issue of whether two of the officers who participated in the investigation or raid lied about tests of plant material given they did not photograph the results or send the plants for confirming tests at a lab, the officers chose the date of the raid as a publicity stunt, there was no probable cause for the search of Harte’s house, no justification for a SWAT team holding the Harte family for two and half hours despite finding nothing related to drug cultivation or trafficking and despite the complete lack of a criminal record, Harte’s background as CIA employee with security clearance, and the presence of young children and argued that County should be liable for creating the publicity stunt and thus incentivizing corner cutting and fabrication of evidence and the policy of allowing use of field tests with a 70% failure rate. Phillips argued that the record does not support an inference of officers lying to get a search warrant as they did get positive results on the field test albeit a false positive and accurately related these facts to the magistrate in the warrant application and failure to conduct  better investigation does not change the reality the warrant here was supported by apparent probable cause and any event no clearly established law as of the date of the search recognized a constitutional violation on similar facts involving false positive field tests. As to the search, Phillips argued that the officers knew within 20 minutes that there was no marijuana grow operation and thus the remaining time of the search was unreasonable and unconstitutional, but, again found no clearly established law to overcome qualified immunity. He argued the excessive force claim here should not proceed despite the alleged crime being minor, the Hartes were not a safety risk, and there was no evidence the Hartes would resist arrest and pointing an assault rifle at Harte while he was on the floor, ordering Mrs. Harte and two minor children to sit backs against the  wall and refusing to allow anyone to leave was clearly excessive under the circumstances, because he argued no clearly established law existed as of the date of the search to overcome qualified immunity. He argued the claims against the sheriff failed for lack of knowledge of the violations by the officers involved and County had no polices which contributed to the violations. He finally argued the state law claim for trespass failed because of eth warrant and the assault claim failed for lack of intent threaten the Hartes, but the false arrest claim and intentional infliction of emotional distress were supported by the record and should proceed. Moritz argued that there is a genuine issue of fact as to whether the officers lied about test results but no clearly established law to allow Harte’s claims about reckless disregard based on misinterpretation of results or using only field tests without a thorough investigation to proceed. She argued the search and seizure claims survive and do all four state law claims, but argued that a dissipation of probable cause argued was waived, the excessive force claim lacked any clearly established law to survive and the alleged County policy claims failed for lack of causal connection. Based on the three opinions, the panel affirmed as to excessive force and municipal liability, reversed on the search warrant application claim based solely on the alleged lies and reversed as to the four state law claims.

Murphy v Royal

Murphy appealed the denial of his habeas petition arguing Oklahoma lacked jurisdiction in his death penalty case as Murphy is an Indian and the crime alleged occurred in Indian country. The panel agreed, reversed and remanded with instructions to grant habeas corpus vacating Murphy’s conviction and death sentence. The panel assumed ADEPA deference applied here, but, found the Oklahoma state court decision that it had jurisdiction was wrong and reversible as it is contrary to the United States Supreme Court Solem decision because the Oklahoma Court of Criminal Appeals did not cite Solem and applied analysis contrary to the three step test in Solem to determine if a crime is committed in Indian country and recent circuit precedent on the issue and the Creek reservation where the crime scene is located has not been disestablished because none of the 8 statutes passed in the 1890s and early 1900s relied upon by Oklahoma disestablished the reservation as they lack any language indicating disestablishment or diminishment and contain language which recognizes the continuance of the reservation, evidence concerning title to land inside the reservation or Creek Nation governance is irrelevant, none of the historical documents submitted by Oklahoma or Murphy from the 1890s and early 1900s unequivocally demonstrates that the reservation was disestablished and more recent treatment of the reservation by Congress, the federal executive and federal and state courts is conflicting and ambiguous and thus does not overcome the lack of statutory language disestablishing the reservation. Panel rehearing was denied with Tymchovich concurring arguing that Supreme Court review might be proper as the Solem approach may be inappropriate when de facto disestablishment is involved particularly as Tulsa is inside the reservation boundaries and the decision here could impact tax, regulation and law enforcement throughout northeastern Oklahoma.