January 13th, 2016
(written by lawrence krubner, however indented passages are often quotes). You can contact lawrence at: firstname.lastname@example.org
From the Hartes’ perspective, the headline covers precisely what happened to them. They were raided by a tactical team. The only things they did to cause that raid were shop at a hydroponic gardening store and drink loose-leaf tea. Those two actions are why the police began to investigate them (in a half-hearted sort of way), conducted field tests on the tea for which the officers had little training, and procured a search warrant. Those two actions are why a local judge signed off on the search warrant. It’s why a raid team was sent to the Harte home. And after the fact, it’s why a federal judge determined that the police had probable cause for the search, that the use of a tactical team was reasonable under the Fourth Amendment, and that the police didn’t violate the rights of the Hartes or their children.
I didn’t include information about the field tests in the headline because it would have made for a cumbersome headline, because they’re discussed in the post itself, and because I don’t think they diminish or substantially qualify what I stated in the headline. Yes, someone viewing this case through the perspective of the police could have written a headline like, “Federal judge: Police not liable for relying on faulty field tests.” That would have been quite a bit different from my headline. And like my headline, it would also have been accurate. I chose to emphasize what happened from the Hartes’ perspective, because I find what happened to them to be outrageous, and that’s what I think is important about this story. My point was to emphasize just how little oversight there is when it comes to these raids, how few protections are afforded to potentially innocent people on the receiving end of them, and how when things go wrong the victims of mistaken raids have little recourse, and the cops who wrongly raided them face little accountability.
The disagreement here also reflects how differently legal academics sometimes see these cases than the rest of us. In his initial post Kerr, a self-described “Fourth Amendment geek,” was so focused on his very technical legal issue that he neglected to even acknowledge what happened to the Hartes, or the utter incompetence of the Johnson County Sheriff’s Department. After some criticism from his commenters, he later conceded both points in an update. But until that update, you could be forgiven for thinking that Kerr believed the only real outrage in this story was my headline, and the only real victim was Judge Lungstrum. It was a classic example of missing the forest for the trees, only I’m not at all convinced he was right about the trees.