April 28, 2016 10:08AM

Cato Beats Back Attempt to Stop Our Brief from Even Being Filed

By Ilya Shapiro and Randal John Meyer

It’s quite rare that a counsel denies Cato (or anyone) consent to file an amicus brief. That just forces us to file a perfunctory motion, thereby drawing more court attention to our brief than it otherwise would've received. Experienced lawyers know that there's really no point objecting to these briefs; the court will itself reject any bizarre or disrespectful ones, and judges are free to disregard (or not even read) amicus briefs anyway.

In the case of Harte v. Board of Commissioners, however, counsel representing some (but not all) of the defendants in a civil suit made just such an objection. As you'll recallHarte is the case where police officers are accused of using excessive force and pursing an unreasonable search for their military-style raid of a private home in Johnson County, Kansas. The evidence that led to the raid was that the Hartes had visited a gardening store and thrown out wet tea leaves that were misidentified as marijuana.

Cato thus moved for permission to file before the U.S. Court of Appeals for the Tenth Circuit, arguing simply that the case implicates the constitutional safeguards that exist to preserve person and property from unnecessary harms. Our brief advances unique and helpful arguments about Fourth Amendment common law and the systemic use of military-style raids by police. Had law enforcement in this case done routine police work, an armed raid need not to have taken place.

Counsel for Johnson County, perhaps seeing an opportunity to bill his clients for more (taxpayer-funded) hours, disagreed. To Lawrence L. Ferree III, our brief is “simply a lame attempt to morph this case into Cato’s libertarian mantra” on a case of “narrow issues.” Credit is due to Mr. Ferree for his rhetorical flare, but his arguments fall flat. 

Ferree tried to argue that our brief would not be helpful to the court because the search of the Harte’s residence wasn’t a “raid,” our brief is “boilerplate,” and that the case does not implicate Fourth Amendment common law. Well, it takes a certain degree of mental gymnastics to argue that a seven-person team armed with AR-15s, trained dogs, and a battering ram isn't a raid team. It's also curious that Ferree’s legal argument against our filing contained some of the exact same language he used to oppose the Marijuana Policy Project’s brief -- “boilerplate” arguments, indeed.

Cato’s arguments have never been made in this court before, let alone in the same case. It takes chutzpah to accuse another counsel for using boilerplate language -- as if we file briefs by cutting and pasting tired tropes from previous briefs -- by using boilerplate language.

The most unique part of Mr. Ferree’s arguments was that they actually boiled down to a reason for the court to grant Cato’s motion. He spends most of his time responding to Cato’s substantive Fourth Amendment arguments. Ferree is certainly free to tell the court why Cato is wrong -- that would be good lawyering -- but such arguments have no bearing on whether Cato’s arguments are helpful or useful or non-duplicative, the applicable legal standard that justifies amicus filings.

And that's why a Tenth Circuit motions panel earlier this week granted Cato’s motion, subject to reconsideration by the panel that will hear the case (a formality). So that's a win on the sort of nuts-and-bolts litigation that we rarely get to pursue.

We can only hope that the court sees our arguments on the merits in a similarly favorable light.