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Growing tomatoes in Kansas led to SWAT-style weed raid. Judge says gardeners can sue

WICHITA, Kan. — A SWAT-style raid to search for marijuana at the home of a Kansas City couple was an unjustified government intrusion based on nothing more than junk science, an incompetent investigation and a publicity stunt, a federal appeals court judge wrote Tuesday in a decision that reinstated their lawsuit.

Robert and Adlynn Harte sued the Johnson County Sheriff’s Office after the 2012 raid at their Leawood home. Authorities targeted the Hartes, both former CIA employees, after seeing Robert Harte leaving a store that sold hydroponic gardening equipment.

Officers armed with assault rifles raided the couple’s home, finding only tomato plants the family was growing with the hydroponic equipment.

A federal judge dismissed the lawsuit in 2015 but a three-judge panel of the 10th U.S. Circuit Court of Appeals reinstated parts of it. Each of the appeals judges wrote separate opinions outlining their reasoning, and Judge Carlos Lucero had an unusually passionate and colorful one.

“Law-abiding tea drinkers and gardeners beware: One visit to a garden store and some loose tea leaves in your trash may subject you to an early-morning, SWAT-style raid, complete with battering ram, bulletproof vests, and assault rifles,” Lucero wrote.

“Perhaps the officers will intentionally conduct the terrifying raid while your children are home, and keep the entire family under armed guard for two and a half hours while concerned residents of your quiet, family-oriented neighborhood wonder what nefarious crime you committed,” the judge said.

The “Operation Constant Gardener” raids on April 20, 2012, involved about 30 agencies targeting suspected marijuana growers across Johnson County. The judge cited emails following that operation that officials had discussed plans for “a telethon-type billboard with a large green marijuana plant filling up as pledges came in, making T-Shirts and whatnot.”

“This is too rich for fiction,” Lucero wrote in his ruling.

The Johnson County Sheriff’s Office said in an email from its spokeswoman that it’s unable to comment because of the pending litigation.

The Hartes’ attorney, Cheryl Pilate, said in an emailed statement that the appeals court decision is “a huge and significant victory, both for the Hartes and the Fourth Amendment.” The Hartes are elated with the outcome of the appeal, and look forward to presenting the facts of the case to a jury, Pilate said.

The couple went on a crusade to find what led to the search, which turned up no evidence and produced no charges. They spent thousands in legal costs just to get a probable-cause affidavit, a document typically used to justify arrests or searches.

Their efforts spurred Kansas lawmakers to make it easier for the public to access police investigative records.