ADLYNN K. HARTE; ROBERT W. HARTE; J.H., a minor, by and through his parents and next friends, Adlynn K. Harte and Robert W. Harte; L.H., a minor, by and through her parents and next friends, Adlynn K. Harte and Robert W. Harte, Plaintiffs-Appellants,
THE BOARD OF COMMISSIONERS OF THE COUNTY OF JOHNSON, KANSAS; FRANK DENNING; MARK BURNS; EDWARD BLAKE; MICHAEL PFANNENSTIEL; JAMES COSSAIRT; LARRY SHOOP; LUCKY SMITH; CHRISTOPHER FARKES; THOMAS REDDIN; TYSON KILBEY; LAURA VRABAC, Defendants-Appellees,
from the United States District Court for the District of
Kansas (D.C. No. 2:13-CV-02586-JWL)
Allan Pixton, Kirkland & Ellis LLP, Chicago, Illinois
(Cheryl A. Pilate, Morgan Pilate LLC, Kansas City, Missouri,
Mark J. Nomellini, Kirkland & Ellis LLP, Chicago,
Illinois, and Subash S. Iyer, Kirkland & Ellis LLP,
Washington D.C., with him on the briefs), for Plaintiffs -
Lawson Hester, Pettis, Barfield & Hester, P.A., Jackson,
Mississippi (Lawrence L. Ferree, III, Kirk T. Ridgway, and
Brett T. Runyan, Ferree, Bunn, Rundberg & Ridgway, Chtd.,
Overland Park, Kansas, with him on the brief), for Defendants
LUCERO, HARTZ, and CARSON, Circuit Judges.
CARSON, CIRCUIT JUDGE.
we strive to ensure that the parties, the district courts,
and the public understand our decisions, sometimes we falter.
Plaintiffs previously appealed the district court's
rulings on summary judgment and qualified immunity. We
affirmed in part, reversed in part, and remanded. That sounds
straightforward enough. But no judge on the prior panel could
agree on a common disposition. 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.
we must decide, among other things, how to proceed where two
of the three panel judges share some common rationale, yet
ultimately reach different outcomes, and a different
combination of two judges reach a common outcome by using
different rationales. Such a situation is rare. Specifically,
in 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 only look 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. Accordingly,
we exercise jurisdiction pursuant to 28 U.S.C. § 1291,
affirm in part, reverse in part, and remand for further
working many years in a United States intelligence agency in
Washington D.C., Plaintiffs Adlynn Harte ("Addie")
and Robert Harte ("Bob") sought a quiet,
family-oriented neighborhood in which to raise their two
children. Ultimately, they decided on Leawood, Kansas-a
suburb of Kansas City. Bob, a stay-at-home father, began
growing an indoor vegetable garden with his son, L.H., as
part of an educational project. This fateful decision-along
with Addie's enjoyment of loose-leaf tea-led to Johnson
County, Kansas law enforcement officers surprising Plaintiffs
with a SWAT-style raid on their suburban home just before
7:30 a.m. on April 20, 2012. Armed with a battering ram,
firearms, and a disputed warrant, Johnson County
Sheriff's Deputies detained Plaintiffs for over two hours
while they searched Plaintiffs' residence from stem to
stern. Before turning to Plaintiffs' claims against
Defendants, we explain how this suburban family with no
criminal record other than a traffic ticket became embroiled
in a marijuana raid.
August 9, 2011, Bob and his children went shopping at Green
Circle Garden Center. While sitting in his police cruiser in
the parking lot, Missouri Highway Patrol officer Jim Wingo
observed Bob leave the store with a small bag. This was no
accident. Trooper Wingo was spending three to four hours per
day watching this garden store. He kept meticulous notes on
the store's customers, noting their sexes, ages, vehicle
descriptions, license plate numbers, and what they had
purchased. Wingo never saw Mr. Harte at the store again.
previous April, Wingo initiated "Operation Constant
Gardener" to round up people he had seen visiting local
hydroponic gardening stores. He partnered with local law
enforcement agencies that investigated the individuals on his
list. Sergeant Tom Reddin of the Johnson County Sheriff's
Office contacted Wingo about conducting a similar operation
on April 20, 2012. Wingo informed Reddin that he did not
gather enough information to justify a full throttle April 20
operation. Nevertheless, Reddin wanted to "at least
mak[e] a day of it." Wingo sent Reddin a list of car
license plates he had seen in the garden store parking lot
and the names of their registered owners. Bob's name was
on the list.
then ordered his deputies to investigate the Hartes. The
deputies did not look into the Hartes' backgrounds.
Rather, they merely collected and searched the Hartes'
trash on three different occasions. During the first search
on April 3, 2012, Deputies Edward Blake and Mark Burns found
a small amount of wet, green vegetation dispersed throughout
the trash. They did not find it suspicious, however, and
declined to photograph it. One week later, on April 10,
Deputy Burns again searched the Hartes' garbage. He again
found green vegetation, which he thought looked like
"wet marijuana plant material." In his notes, he
mentioned that he had found "[a] similar quantity of
plant material of the same nature" in the Hartes'
trash a week earlier, but also stated that he had disregarded
it because "it was found among other innocent plant
material and was misidentified." Again, Deputy Burns
declined to take photographs of the wet plant material. His
field-test of the substance, though, was positive for
tetrahydrocannabinol ("THC"), which is one of the
main chemical compounds found in marijuana. Finally, on April
17, Deputies Burns and Blake searched for the third and final
time. They found more green vegetation, which again tested
positive for THC. The deputies did not photograph any of the
substances, nor did they send them to a crime lab for
to the deputies, Addie enjoyed loose-leaf tea. If the
deputies would have sent the wet vegetation to a crime lab
for testing, they would have discovered that the wet
vegetation was not marijuana but instead was Addie's
loose-leaf tea. Rather than conducting further investigation,
the deputies prepared a search warrant affidavit relying
solely on the loose-leaf tea found in the garbage and
Bob's shopping trip to a garden store eight months
earlier. A state judge issued the search warrant.
with the search warrant, the deputies-clad in bullet proof
vests and guns-raided the Hartes' home just before 7:30
a.m. on April 20, 2012. Bob opened the front door and the
deputies flooded in the foyer. Bob ended up on the ground
with an assault rifle pointed at or near him. The deputies
ordered Addie and the couple's two young children to sit
cross-legged against a wall. A deputy eventually allowed the
family to move to the living room couch where an armed deputy
kept watch over them.
searching the home for about fifteen to twenty minutes, the
deputies found the hydroponic tomato garden that was readily
visible from the exterior of the home through a front-facing
basement window. And after ninety minutes of extensive
searching, a couple of the deputies claimed to smell the
"faint odor of marijuana" at various places in the
residence. A drug-detection dog showed up, but did not alert
the officers to any other areas of the house requiring
further searches. The dog's handler also did not smell
leaving the residence empty-handed, the deputies
"strongly suggested" to the Hartes that their
13-year-old son was a drug user. The deputies recommended the
Hartes drug test him and have a family meeting to discuss
their family problems.
and a half later Plaintiffs sued Defendants. Count I of
Plaintiffs' operative complaint challenged the search
warrant under Franks v. Delaware, 438 U.S. 154,
171-72 (1978), which held if substantial evidence exists to
support deliberate falsehood or reckless disregard for the
truth, and the exclusion of false statements would undermine
the existence of probable cause, a warrant is invalid.
Specifically, Plaintiffs asserted: (1) the deputies lied
about the results of the field tests they performed on the
wet vegetation they found in the trash; (2) the deputies
misinterpreted the test results of the vegetation, construing
negative results as positive; and (3) assuming that the
deputies actually received positive results, they recklessly
disregarded the truth-that the vegetation was tea-by relying
solely on inaccurate field tests and failing to conduct a
II alleged that the deputies unreasonably executed the search
warrant in violation of the Fourth and Fourteenth Amendments.
Specifically, Count II raised the following issues: (1)
whether Defendants properly executed the warrant, (2) whether
probable cause dissipated after the deputies found and tested
the hydroponic tomato garden, (3) whether the deputies
exceeded the scope of the warrant by searching for evidence
of general criminal activity, and (4) whether the deputies
unreasonably prolonged Plaintiffs'
the first two claims, Plaintiff brought Count III pursuant to
42 U.S.C. § 1983, alleging that law enforcement used
excessive force in violation of the Fourth and Fourteenth
Amendments. Plaintiffs also brought a claim for municipal
liability under Monell v. Department of Social
Services, 436 U.S. 658 (1978). Finally, Plaintiffs
asserted state-law claims against Defendants for trespass,
assault, false arrest and imprisonment, abuse of process,
intentional infliction of emotional distress, and false light
invasion of privacy.
December 2015, the district court granted summary judgment on
all claims, concluding that: (1) Plaintiffs did not show that
the warrant lacked probable cause and, thus, Defendants'
search of Plaintiffs' residence was lawful and no
constitutional violation occurred; (2) even assuming that
probable cause dissipated at some point during the
deputies' search of Plaintiffs' residence, Defendants
did not violate clearly established law; (3) Defendants'
use of force on the scene was objectively reasonable and not
excessive; and (4) because no underlying constitutional
violation by any individual was present, Plaintiffs'
Monell and state-law claims failed because the
warrant entitled Defendants to enter the home, search it, and
detain Plaintiffs during the search.
appealed to this Court. Harte v. Bd. of Comm'rs of
the Cty. of Johnson, Kan., 864 F.3d 1154');">864 F.3d 1154 (10th Cir.
2017) ("Harte I"). We issued a per curiam
opinion in Harte I, with which two judges concurred.
We reached the following disposition of the claims:
We AFFIRM the district court's grant of
summary judgment on all claims asserted against defendant Jim
Wingo. We similarly AFFIRM as to the
plaintiffs' excessive force and Monell liability
claims. However, we REVERSE the district
court's grant of summary judgment on the unlawful search
and seizure claims asserted against the remaining defendants.
On remand, plaintiffs' claim under Franks v.
Delaware, 438 U.S. 154 (1978), is limited to their
theory that one or more of the remaining defendants lied
about the results of the field tests conducted in April 2012
on the tea leaves collected from the plaintiffs' trash.
We further REVERSE the grant of summary
judgment as to the four state-law claims raised on appeal. We
REMAND these claims to the district court
for further proceedings not inconsistent with these opinions.
Id. at 1158.
per curiam opinion resulted from the panel-Judge Lucero,
Judge Phillips, and Judge Moritz-issuing three separate
Judge Lucero's Opinion
Lucero first concluded as to Count I-Plaintiffs'
challenge to the search warrant under Franks-that
the record evidence created a triable issue of fact as to
whether Deputies Burns and Blake lied about having conducted
the field tests on Plaintiffs' trash, or about having
obtained positive results for THC. Id. at 1162.
After analyzing the record evidence, Judge Lucero stated that
the facts, when viewed together, were sufficient to permit a
conclusion that the officers fabricated the positive field
tests and that the district court erred in granting summary
judgment on Count I. Id. at 1163.
Count II-Plaintiffs' claims for unreasonable execution of
the search warrant-Judge Lucero believed that the record was
sufficient to support all of Plaintiffs' § 1983
claims, including their allegations of an unlawful seizure.
Although Judge Lucero did not specifically mention each
sub-claim for the unreasonable execution of the search
warrant, he unambiguously voted to deny qualified immunity as
to Plaintiffs' unlawful seizure claims. Id. at
1161-62. He stated that because a genuine dispute of material
fact existed regarding the validity of the search warrant, he
voted to reverse summary judgment as to Plaintiffs'
unlawful seizure claim. Id. at 1163. He also stated
that if the search was illegal and not supported by probable
cause, then the justification for using the search as the
foundation for the seizure disappeared. Id. He
further stated that the deputies had no probable cause at
any step of the investigation and that "[a]ny
further search of the home," for whatever reason,
"or detention of the Hartes" after probable cause
had "dissipated . . . was a violation of the Fourth
Amendment." Id. at 1164 n.5.
both Count III-excessive force-and Count IV-municipal
liability- Judge Lucero voted to deny qualified immunity.
Finally, Judge Lucero concluded the district court
inappropriately entered summary judgment on all four
Judge Phillips' Opinion
contrast to Judge Lucero, Judge Phillips believed none of
Count I survived. Judge Phillips believed that the record did
not support Plaintiffs' claim that Deputy Burns lied in
his affidavit. Id. at 1174. He said that he could
not reasonably infer from the facts in the record that the
officers lied about field-testing the vegetation or about the
test results. Id. at 1175. Judge Phillips also
concluded that Deputy Burns did not omit material information
or include material misstatements in his search warrant
affidavit. Id. at 1176. Because, in Judge
Phillips' view, the evidence did not support
Plaintiffs' claim that the deputies lied or recklessly
misrepresented information in the search warrant affidavit,
he concluded the search warrant complied with the Fourth
Amendment. Id. at 1179. But even if it did not,
Judge Phillips still could not conclude that the deputies
violated clearly established law; thus concluding that the
deputies were entitled to qualified immunity. Id.
Count II, Judge Phillips agreed with Judge Lucero that
probable cause had dissipated when the deputies had learned
that Plaintiffs had not been growing marijuana. Judge
Phillips also agreed that, at that point, the deputies were
no longer permitted to rummage for any evidence of marijuana
or drug paraphernalia and detain Plaintiffs while doing so.
Id. at 1182. Specifically, Judge Phillips believed
that discovering tomato plants and other vegetables in the
basement dispelled any probable cause the deputies may have
had that Plaintiffs were steadily harvesting and growing
marijuana. Id. at 1184. He further determined that
the absence of sealed or blacked-out windows, fans,
ventilators, drying racks, and scales supported this.
Id. Relatedly, Judge Phillips concluded that the
tenuous probable cause that Plaintiffs might have used
marijuana depended on their growing marijuana. Id.
Thus, when the probable cause for growing marijuana
dissipated, Judge Phillips reasoned, the already weak
probable cause of personal use also dissipated. Accordingly,
by ignoring everything they learned and rummaging for
marijuana, Judge Phillips determined that the deputies
violated the Fourth Amendment. Of note, he said that the
deputies failed to credibly explain why they continued to
search after having concluded that Plaintiffs had not been
growing marijuana. Id. at 1187. He also said that
the deputies could no longer search for "any kind of
criminal activity" in the house. Id. With that
said, even though Judge Phillips determined that the deputies
violated Plaintiffs' Fourth Amendment rights by
unreasonably continuing to search after probable cause had
dissipated and by unreasonably extending Plaintiffs'
detention, he did not believe that the deputies violated
clearly established law. Id. at 1188. Accordingly,
Judge Phillips would have affirmed summary judgment on Count
II on that basis.
Count III-Plaintiffs' excessive force claim-Judge
Phillips said that the law in this area was not clearly
established and voted to affirm summary judgment.
Count IV-the supervisory liability claim-Judge Phillips
posited that the claim lacked merit and voted to affirm the
district court's entry of summary judgment.
as to the state law claims, Judge Phillips, would have upheld
summary judgment on Plaintiffs' trespass and assault
claims, but reversed on Plaintiffs' intentional
infliction of emotional distress and false arrest claims.
Judge Moritz's Opinion
Moritz staked a position between Judge Lucero's view that
Count I survived in its entirety and Judge Phillips' view
that Count I failed in its entirety. Judge Moritz believed
that a jury may conclude that the same pressure that caused a
shoddy investigation also motivated the deputies to
manufacture false test results. Id. at 1202. That
evidence, in conjunction with a negative test result from the
same tea leaves, created a genuine dispute of material fact
as to whether the deputies lied about the field test results.
Id. Judge Moritz therefore concluded that the
district court erred in entering summary judgment on
Plaintiffs' first Franks claim. Id. On
the other hand, she concluded that Plaintiffs failed to
demonstrate that the second and third Franks
claims-that the deputies misinterpreted the test results of
the vegetation, construing negative results as positive and
assuming that the deputies actually received positive
results, they recklessly disregarded the truth-were clearly
established violations. Id. Judge Moritz, however,
refused to consider the new Franks claim Plaintiffs
asserted on appeal because Plaintiffs did not make the
argument to the district court and did not request plain
error review. Id. at 1199 n.2.
with respect to Count II, Judge Moritz forged a different
path from her colleagues. In light of the one Franks
claim surviving summary judgment, she stated that she would
also conclude that Plaintiffs' wrongful search and
seizure "claims" survive. Id. at
1203 (making "claims" plural, signifying more than
one claim). She declined to decide whether the deputies had
properly executed the warrant on appeal because she believed
that the warrant was invalid under Franks. She also
believed that Plaintiffs abandoned the dissipation theory on
appeal but nonetheless opined that the deputies had exceeded
the scope of the warrant by searching for evidence of general
Count III-Plaintiffs' excessive force claim-Judge Moritz
agreed with Judge Phillips that the law in this area was not
clearly established and voted to affirm summary judgment.
Count IV-the supervisory liability claim-Judge Moritz agreed
with Judge Phillips that the claim lacked merit and voted to
affirm the district court's entry of summary judgment.
Judge Moritz agreed with Judge Lucero that the district court
inappropriately entered summary judgment on all four
The District Court's Actions on Remand
remand, the district court issued an order delineating which
specific claims remained for trial. It acknowledged the
Franks claim based on the limited theory that one or
more of the remaining Defendants lied about the results of
the field tests, which meant that the warrant was invalid
and, in turn, that the resulting search and seizure was
unconstitutional remained. The district court, over
Plaintiffs' objections, declined to read our opinion as
requiring any other federal law claim to proceed to
trial. It did, however, recognize that the four state-law
tried their case to a jury. The jury returned its verdict in
favor of Defendants on all issues and claims. Specifically,
the jury found that Plaintiffs failed to prove by a
preponderance of the evidence that any of the Defendants who
participated in obtaining the warrant lied about the results
of the field tests. The jury also found that probable cause
did not dissipate at any time during the search of the
residence. Accordingly, pursuant to the court's
instructions, the jury did not need to decide the trespass
and false arrest claims. Finally, the jury found that
Plaintiffs failed to prove by a preponderance of the evidence
their claims of assault or outrageous conduct causing severe
emotional distress against any Defendant. The district court
ordered Plaintiffs to pay Defendants' costs and denied
Plaintiffs' motion for a new trial.
now appeal, arguing that the district court: (1) violated the
"mandate rule"-that is, the rule stating a lower
court lacks the authority to deviate from the mandate issued
by an appellate court-by prohibiting them from proceeding to
trial on their federal search and seizure claim (Count II);
(2) violated their right to an impartial jury and
nondiscriminatory juror selection process by overseeing the
creation of an all-white jury that contained two jurors who
were biased against Plaintiffs; (3) erred by refusing to
order a new trial after defense counsel had violated the
district court's order by making improper and prejudicial
comments that had been intended to inappropriately call into
question the credibility of one of Plaintiffs' expert
witnesses; (4) erred by excluding "damning emails"
Defendants produced after a Defendant had waived privilege
during trial; (5) erred by refusing to adhere to what
Plaintiffs believe was the prior panel's majority holding
that permitted Defendants to search and detain only until
they learned that no marijuana-grow operation existed and
refusing to enter judgment as a matter of law for Plaintiffs
on their trespass and false arrest claims; and (6) erred by
refusing to instruct the jury that probable cause had
dissipated when Defendants had learned that Plaintiffs did
not have a marijuana grow operation.
the law of the case doctrine, "once a court decides an
issue, the same issue may not be relitigated in subsequent
proceedings in the same case." Ute Indian Tribe of
the Uintah & Ouray Reservation v. Utah, 114 F.3d
1513, 1520 (10th Cir. 1997). The "mandate rule," an
important corollary of the law of the case doctrine,
"provides that a district court must comply strictly
with the mandate rendered by the reviewing court."
Id. (internal quotation marks omitted). The mandate
rule "generally requires trial court conformity with the
articulated appellate remand." United States v.
Shipp, 644 F.3d 1126, 1129 (10th Cir. 2011) (internal
quotation marks omitted). "Interpretation of the mandate
is an issue of law that we review de novo." Id.
recognize that the district court faced the unenviable task
of analyzing three separate opinions on remand. Although none
of these individual opinions carries binding precedential
effect, our per curiam "mandate" had the
concurrence of two judges and is therefore the law of the
case. See AUSA Life Ins. Co. v. Ernst & Young,
39 Fed.Appx. 667, 669 (2d Cir. 2002) (cited for persuasive
value only); cf. Marks v. United States, 430 U.S.
188, 193 (1977) ("When a fragmented [Supreme] Court
decides a case and no single rationale explaining the result
enjoys the assent of [a majority], 'the holding of the
Court may be viewed as that position taken by those Members
who concurred in the judgment on the narrowest
grounds.'" (quoting Gregg v. Georgia, 428
U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and
Stevens, JJ.))). The per curiam portion of the opinion,
however, has generated strong debate and disagreement among
Plaintiffs, Defendants, and the district court.
parties agree as to the scope of the mandate regarding Counts
I, III, IV, and the supplemental state-law claims. Plaintiffs
and Defendants agree that as to Count I, which challenged the
validity of the warrant, the per curiam opinion allowed only
the Plaintiffs' first argument to proceed to trial-that
the deputies lied about the results of the field tests they
performed on the wet vegetation they found in the trash. As
to Count III-Plaintiffs' excessive force claim-Plaintiffs
and Defendants agree that we held this area of law was not
clearly established. As to Count IV-the supervisory liability
claim- Plaintiffs and Defendants agree that we held
Plaintiffs' claim lacked merit. Regarding the state-law
claims, Plaintiffs and Defendants agree that we concluded the
district court inappropriately entered summary judgment on
all four claims.
disagreement and confusion revolve around Count II.
Plaintiffs contend the district court violated the mandate
rule by prohibiting them from proceeding to trial on Count
II-their federal search and seizure claims. Defendants
respond that the district court complied with the prior
panel's mandate because the prior panel rejected each
search and seizure theory. Both Defendants and the district
court believed the search and seizure claim did not survive
independently of the Franks claim.
begin with the proposition that "only the per
curiam opinion is the court's holding."
McClatchy Newspapers, Inc. v. NLRB, 131 F.3d 1026,
1029 (D.C. Cir. 1997). Indeed, where only one judge endorses
a theory, that theory "cannot be viewed as the rationale
of the court." United States v. Sariles, 645
F.3d 315, 318 (5th Cir. 2011) (quoting United States v.
Duggan, 743 F.2d 59, 84 (2d Cir. 1984)); see also
Int'l Union of Operating Eng'rs, Local 139, AFL-CIO
v. J.H. Findorff & Son, Inc., 393 F.3d 742, 747 (7th
Cir. 2004) ("the three members of the panel wrote
separately, and none spoke for a majority").
analogous context of a fragmented Supreme Court decision
where five Justices do not assent to a single rationale,
"the holding of the Court may be viewed as that position
taken by those Members who concurred in the judgments on the
narrowest grounds." Large v. Fremont Cty., Wyo.,
670 F.3d 1133 (10th Cir. 2012) (quoting Marks, 430
U.S. at 193). We have held that "[i]n practice, however,
the Marks rule produces a determinative holding only
when one opinion is a logical subset of other, broader
opinions." Id. (quoting United States v.
Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir. 2006))
(internal quotation marks omitted). So, "for example,
one inquiry under Marks might be whether the
concurrence posits a narrow test to which the plurality must
necessarily agree as a logical consequence of its
own, broader position." Id. (internal quotation
marks omitted). "When, however, one opinion supporting
the judgment does not fit entirely within a broader circle
drawn by others, Marks is problematic."
Id. Thus, "[w]e do not apply Marks
when the various opinions supporting the Court's decision
are mutually exclusive." Id.; see also
Ass'n of Bituminous Contractors, Inc. v. Apfel, 156
F.3d 1246, 1253-54 (D.C. Cir. 1998) (providing that the rule
that "the opinion of the Justices concurring in the
judgment on the 'narrowest grounds' is to be regarded
as the Court's holding, does not apply unless the
narrowest opinion represents a common denominator of the
Court's reasoning and embodies a position implicitly
approved by at least five Justices who support the
judgment" (internal quotation marks and brackets
interpreting the prior panel's holding as to Count II, we
look to the language of the per curiam opinion. The per
curiam opinion reversed the district court's grant of
summary judgment on the unlawful search and seizure
claims. The judges did not delineate the four issues
Plaintiff raised in Count II. Accordingly, Plaintiffs argue
that the prior panel intended for Count II to proceed in its
entirety while Defendants contend the individual opinions
foreclose that argument.
first theory- whether Defendants properly executed the
warrant- is tied to the Franks claim contained in
Count I. Judge Lucero stated that because a genuine dispute
of fact existed regarding the validity of the search warrant,
the Court also had to reverse the unlawful seizure claim.
Judge Moritz reasoned that because she would hold that the
warrant was invalid under Franks, she would decline
to decide whether the deputies properly ...