JAMES O. BROWNING, District Judge.
This case involves the investigation into the August 6, 2005, shooting of the Bernalillo County Sheriff's Department's helicopter, Metro One, which crashed into the backyard of a residence near the intersection of Golf Course Road and Paradise Boulevard in Albuquerque, New Mexico. The Bernalillo County Sheriff's Department arrested Plaintiff Jason Kerns on August 15, 2005 and a federal grand jury indicted him on federal charges. On May 10, 2006, the United States Attorney dismissed the charges against J. Kerns.
On or about August 6, 2005, at approximately 12:00 a.m., retired Deputy Chief Ed Sauer observed the Bernalillo County Sheriff's Department Metro One helicopter hovering in the area of Paradise Boulevard and Golf Course Road in Bernalillo County, New Mexico, after he pulled into his driveway and exited his vehicle. See Deposition of Edward Sauer 5:5-9 (October 22, 2008), filed February 17, 2009 (Doc. 117-2); MSJ ¶ 1, at 2 (setting forth this fact); Plaintiffs' Response to City Defendants Drew Bader, Matthew Thompson, and Russell Carter's Motion for Summary Judgment Requesting Dismissal of Counts I, X, and XIII of Plaintiffs' First Amended Complaint ¶ 1, at 2, filed May 1, 2009 (Doc. 156)("MSJ Response")(not disputing this fact). As Sauer entered his residence, he heard a loud crack that sounded like a rifle shot. See Sauer Depo. at 5:17-7:8; MSJ ¶ 2, at 2 (setting forth this fact); MSJ Response ¶ 2, at 2 (not disputing this fact). Sauer observed the Metro One helicopter go straight down to the ground after he heard the shot. See Sauer Depo. at 10:14-19; MSJ ¶ 3, at 2 (setting forth this fact); MSJ Response ¶ 3, at 2 (not disputing this fact).
Sauer drove to the intersection where he believed the helicopter went down to look for it; however, he was unable to immediately locate the helicopter. See Sauer Depo. 10:24-11:5; MSJ ¶ 4, at 2 (setting forth this fact); MSJ Response ¶ 4, at 2 (not disputing this fact). Once Sauer walked to the golf course area, he saw that the helicopter had crashed in a residence's backyard, where he saw the observer and the pilot emerging from the wreckage. See Sauer Depo. at 12:18-13:1, 14:18-15:11; MSJ ¶ 5 at 2 (setting forth this fact); MSJ Response ¶ 5, at 2 (not disputing this fact). Sauer observed two or three civilians approaching the crash, and Sauer instructed them to move back and stay away from the helicopter. See Sauer Depo. at 20:14-16; MSJ ¶ 6, at 2 (setting forth this fact); MSJ Response ¶ 6, at 3 (not disputing this fact). Several civilians told Sauer that they had heard shots fired before the helicopter crashed. See Sauer Depo. at 40:16-19; MSJ Response ¶ 33, at 5 (setting forth this fact).
J. Kerns was one of the witnesses who approached Sauer and J. Kerns stated that
J. Kerns told the police that he heard a pop noise that was so loud it made his ears ring. See J. Kerns Depo. at 156:15-25; MSJ ¶ 11, at 3 (setting forth this fact); MSJ Response ¶ 11, at 3 (not disputing this fact). He explained that the pop noise sounded "like an engine back low or maybe a rifle report, like the sound of a gun going off." J. Kerns Depo. at 157:19-25; MSJ ¶ 11, at 3 (setting forth this fact); MSJ Response ¶ 11, at 3 (not disputing this fact). He also reported that he heard the sound of rocks kick up from the direction in which he believed he heard the pop noise originated. See J. Kerns Depo. at 162:6-8; MSJ ¶ 11, at 3 (setting forth this fact); MSJ Response ¶ 11, at 3 (not disputing this fact). J. Kerns also provided the police with a written statement wherein he stated that he was "standing on the edge of the property line and the golf course watching the helicopter hovering." Written Statement of Jason Kerns at 1, filed
J. Kerns gave Johnston directions to his home, which is located at 9910 Columbus Circle N.W., on the golf course. See Johnston Depo. at 15:15-19; MSJ ¶ 13, at 4 (setting forth this fact); MSJ Response ¶ 13, at 3 (not disputing this fact). In response to J. Kerns' report, Johnston sent members of the SWAT and K-9 units to the area of J. Kerns' residence so the officers could look for evidence where a gunshot might have taken place, or contact anybody else in the neighborhood who may have heard or seen something. See Johnston Depo. at 15:12-15, 16:13-17:7; MSJ ¶ 14, at 4 (setting forth this fact); MSJ Response ¶ 14, at 3 (not disputing this fact); MSJ Response ¶ 37, at 6 (setting forth this fact); City Defendants' Reply to Plaintiffs' Response to Their Motion for Summary Judgment Requesting Dismissal of Counts I, X, and XIII of Plaintiff' First Amended Complaint at 3, filed June 18, 2009 (Doc. 161)("MSJ Reply")(not disputing this fact). Bader, Carter, and Thompson were among the tactical officers who went to the area. See Defendant Drew Bader's Answers to Plaintiff Jason Kerns' First Set of Interrogatories and Request for Production of Documents to Defendant Drew Bader at 2, filed February 2, 2009 (Doc. 117-7)("Bader Ans."); Defendant Russell Carter's Answers to Plaintiff Jason Kerns' First Set of Interrogatories and Request for Production of Documents to Defendant Russell Carter at 2, filed February 2, 2009 (Doc. 117-8)("Carter Ans."); Defendant Matthew Thompson's Answers to Plaintiff Jason Kerns' First Set of Interrogatories and Request for Production of Documents to Defendant Matthew Thompson at 2, filed February 17, 2009 (Doc. 117-9)("Thompson Ans."); MSJ ¶ 15, at 4 (setting forth this fact); MSJ Response ¶ 15, at 3 (not disputing this fact). Johnston instructed the officers to go through every yard around the circle area, and if they could see lights in the house or hear noise or movement inside, to knock on the door and ask if anyone saw or heard anything. See Johnston Depo. 16:11-25; MSJ Response ¶ 38, at 6 (setting forth this fact); MSJ Reply at 3 (not disputing this fact). The officers split into two groups to canvas the neighborhood. See Johnston Depo. at 15:16-18, 34:16-25, 35:1-13; MSJ Response ¶ 39, at 6 (setting forth this fact); MSJ Reply at 3 (not disputing this fact). Johnston led one group and Defendant Officer James Montoya led the other. See Deposition of Sergeant Robert Johnston at 15:19-25; Deposition of Officer James Montoya at 12:12-19 (dated February 11, 2009), filed May 1, 2009 (Doc. 156-5); MSJ Response ¶ 40, at 6 (setting forth this fact); MSJ Reply at 3 (not disputing this fact).
Johnston spoke to people at approximately four houses, but nobody at any of the houses had heard any gunshot or heard the helicopter crash. See Johnston Depo. at 18:6-25, filed May 1, 2009 (Doc. 156-4); MSJ Response ¶ 41, at 7 (setting forth this fact); MSJ Reply at 3 (not disputing this fact). Montoya's team made contact with people at one or two houses, but no one reported hearing shots fired or knew anything about the helicopter crash. See Montoya Depo. at 14:3-25, 15:7-10; MSJ Response ¶ 42, at 7 (setting forth this fact); MSJ Reply at 3 (not disputing this fact). It is possible that the noises J. Kerns heard could have been acoustical reverberations from the buildings along the golf course. See MSJ Response ¶¶ 43, 44, at 7 (setting forth this fact).
Thompson stated that, given the circumstances, he "thought that the occupants may be in danger from a possible armed suspect that may have fired at the police helicopter," that "it was possible debris from the [helicopter] could have lodged inside the home," and that "the broken glass could have resulted from a gunshot coming from or into the residence." Thompson Ans. at 2; MSJ ¶ 24, at 6 (setting forth this fact).
After entering J. Kerns' residence, Bader, Thompson, and Carter were met by a female, later identified as Michelle Zisser. See Thompson Ans. at 2; MSJ ¶ 27, at 6 (setting forth this fact); MSJ Response ¶ 27, at 5 (not disputing this fact). Zisser had been sleeping in a room near the door and did not hear anything until the officers were inside the home with their radios transmitting. See Zisser Depo. at 40:10-25, 41:1-22; MSJ Response ¶ 67, at 10 (setting forth this fact).
The Kerns filed their First Amended Complaint for Damages Caused by the Deprivation of Civil Rights and Other Tortious Conduct on November 26, 2007. See
On February 17, 2009, Bader, Thompson, and Carter moved for summary judgment on the basis of qualified immunity on Counts I, X, and XIII. See Doc. 117. The City Defendants argued that the Kerns cannot show a clearly established constitutional violation from the City Defendants' entry into their residence. See MSJ at 9. They noted that the Fourth Amendment does not mandate that police officers possess a warrant before entering a home. See MSJ at 9 (citing United States v. Najar, 451 F.3d 710, 714 (10th Cir.2006)). The City Defendants asserted that they went to 9910 Columbus Circle "to search for a possible shooting suspect and/or evidence that a shooting occurred in the vicinity of the Kerns' residence." MSJ at 9-10. They contended that the scene that confronted them at the residence was unusual, because "[t]hey saw an open garage door, approximately five vehicles parked at this residence, furniture and other miscellaneous items out in the yard all the while they heard loud music coming from this residence." MSJ at 10. They further asserted that the officers knocked and announced their presence, viewed a broken window, and discussed the possibility of a burglary at the residence. See MSJ at 10. They emphasized that these circumstances arose around midnight at the same residence where J. Kerns heard a sound consistent with rifle fire. See MSJ at 10. The City Defendants argued that exigency justified their entry, because the officers were concerned that someone was in need of assistance "given the scene they observed." MSJ at 11. They contended that "the business of policemen and firemen is to act, not to speculate or meditate on whether the report is correct." MSJ at 11-12 (citing United States v. Najar, 451 F.3d at 714). They asserted that, once they entered the home, Zisser gave them permission to look around and escorted them around the house. See MSJ at 12. The City Defendants also argued that they have not waived immunity under the NMTCA and that the Court should dismiss the state claims against them. See MSJ at 12-13.
On May 1, 2009, the Kerns filed their MSJ Response. See Doc. 156. The Kerns argued that the boundaries of the exigent-circumstances exception to the Fourth Amendment were clearly established on August 6, 2009. See MSJ Response at 11. They asserted that the City Defendants "can seek no safe harbor in any exigent circumstances exception to the Fourth Amendment, as they can point to no objective facts that would lead a reasonable police officer to have concluded that somebody inside the Kerns' home was in need of immediate assistance." MSJ Response at 11. They contended that "the exception has never been applied to the search of a home where the officers could not identify a specific threat known to have originated from or that had a direct tie to the dwelling that was searched." MSJ Response at 12. The Kerns pointed to the United States Court of Appeals for the Tenth Circuit's decision in United States v. Bute, 43 F.3d 531 (10th Cir.1994), in which the Tenth Circuit found that a police officer violated the Fourth Amendment when he
The Kerns argued that the Court's assessment of reasonableness turns on "whether the record provides a clear showing of an immediate need to protect the safety of others." MSJ Response at 14. They contended that the officers "attach a great deal of intrigue to their claim that... the music stopped," even though Johnston stated that the music remained on and that the officers "cast the most sinister interpretation possible about a single pane of a two pane window being broken." MSJ Response at 16. The Kerns asserted that a reasonable officer would have confirmed that the broken glass was the result of a bullet before entering the home. See MSJ Response at 17. They further asserted that, although the officers focus on the fact that no one came to the door, "for all they knew, nobody was home to answer the door." MSJ Response at 17. The Kerns pointed out that a prudent officer would not have entered the home without obtaining information regarding the occupants of the home from J. Kerns. See MSJ Response at 17. They emphasized that the record indicates that the police teams' search of the area had already yielded "the conclusion that there existed no evidence indicating that a shooter was in the area." MSJ Response at 18. The Kerns asserted that the best evidence that the City Defendants did not enter the home to check for an injured person is the concession that the officers did not go to A. and M. Kerns' bedroom to check on their welfare. See MSJ Response at 18. They argued that the officers considered the Kerns' home to be a crime scene and that the officers entered the home to investigate the helicopter shooting. See MSJ Response at 19. The Kerns also contended they have pled valid claims against the City Defendants under state law. See MSJ Response at 19-22
On June 18, 2009, the City Defendants filed the MSJ Reply. See Doc. 161. The City Defendants emphasized that the Tenth Circuit established the exigent circumstances test in United States v. Najar and that it requires: (i) that the officers had reasonable grounds to believe that there is an immediate need to protect the lives or safety of themselves or others; and (ii) the manner and scope of the search is reasonable. See MSJ Reply at 7. They pointed out that the Kerns failed to cite any authority for the proposition that the officers must identify a specific threat directly tied to the dwelling that was searched. See MSJ Reply at 7. They argued that such a holding would unduly restrict law enforcement and contradict United States v. Najar. See MSJ Reply at 8. The City Defendants contended that there was no known threat in United States v. Najar and that they have set forth facts which establish their objectively reasonable belief that someone inside 9910 Columbus Circle could have been injured or in harms way. See MSJ Reply at 8. They asserted that undisputed facts demonstrate that a prudent officer would be reasonable in believing "that the shooter was in or that the shooting took place in the area of the Kerns' residence." MSJ Reply at 9. They emphasized that the officer "observed unusual activity at the home given the circumstances of the evening."
On October 5, 2009, 2009 WL 3672877, the Court filed its Memorandum Opinion and Order deciding the MSJ. See Doc. 246 ("Oct. 5, 2009 MOO"). The Court held that there were genuine issues of material fact "whether exigent circumstances exist to make the warrantless entry into Plaintiffs[] Jason Kerns, Archie Kerns, and Mary Ann Kerns' home lawful," and found that "Bader, Thompson, and Carter are not entitled to qualified immunity." Oct. 5, 2009 MOO at 2. In its legal section the Court recited the following with respect to qualified immunity:
Oct. 5, 2009 MOO at 9-10 (alterations in original). In its legal section on the Fourth Amendment, the Court stated:
The Fourth Amendment states:
Oct. 5, 2009 MOO at 11-12.
The Court found that, "because Bader, Thompson, and Carter have not met the burden of showing that there were exigent circumstances present when the[y] entered the Kerns' home, there is a factual issue whether they violated the Kerns' Fourth Amendment right to be free from unlawful searches." Oct. 5, 2009 MOO at 13. In its analysis, the Court noted that the "Kerns have a Fourth Amendment expectation of privacy in their own home that is well-established," and that the City Defendants bear the burden of proving that an exigency existed. See Oct. 5, 2009 MOO at 13 (citing Payton v. New York, 445 U.S. at 585, 100 S.Ct. 1371). The Court held that the City Defendants had not established, as a matter of law, that "the observations that Bader, Thompson, and Carter made
Oct. 5, 2009 MOO at 14-15. The Court lent weight to the Kerns' argument that, "if there was concern for the safety of people possibly inside the Kerns' home, Bader, Thompson, and Carter could have learned if there were people in the Kerns' home directly from J. Kerns, with whom Johnston was in radio contact," and noted that the officers' actions once inside the home undercut their explanation for preceding without a warrant or consent. Oct. 5, 2009 MOO at 16. The Court concluded:
Oct. 5, 2009 MOO at 16. With respect to the state law claims, the Court held that there is evidence that Bader, Thompson, and Carter "entered the Kern's home without a warrant and without an exception to the warrant requirement, and, in doing so, they may not say they have
On March 31, 2010, the Court denied: (i) Defendant Mike Haag's motion for summary judgment; (ii) Defendants Board of County Commissioners of Bernalillo County, White, Lindley, Ralph Gonzales, and Koren's motion for summary judgment on the basis of qualified immunity; and (iii) the Kerns' motion for summary judgment as to Counts II, IV, and V of the First Amended Complaint. See Order at 4, filed March 31, 2010 (Doc. 264)("March 31, 2010 Order"). The Court also granted the Kerns' motion for summary judgment as to Counts III and IV of the First Amended Complaint. See March 31, 2010 Order at 4.
On April 12, 2010, 707 F.Supp.2d 1190 (D.N.M.2010) the Court issued its Memorandum Opinion more fully explaining the reasons behind its March 31, 2010 Order. See Memorandum Opinion, filed April 12, 2010 (Doc. 265)("April 12, 2010 MO"). The Court first decided that Lindley was entitled to qualified immunity as to Count II — unlawful search and seizure and deprivation of property without due process of law — because his search warrant affidavit established probable cause and because Lindley did not knowingly or recklessly include false statements in the affidavit. See April 12, 2010 MO, 707 F.Supp.2d at 1253. The Court next determined that the Kerns were entitled to summary judgment: (i) Count III — unlawful search and seizure of medical information and deprivation of medical privacy contrary to the Fourth Amendment, the Fourteenth Amendment, and the Federal Privacy Act, 5 U.S.C. § 552A(b)(7) — asserted against White; and (ii) Count IV — false arrest/false imprisonment of J. Kerns under the Fourth Amendment — asserted against Lindley, Koren, and Haag. See April 12, 2010 MO, 707 F.Supp.2d at 1253-54. The Court found that White's request for J. Kerns' medical files violated J. Kerns' right to privacy, because J. Kerns had a legitimate expectation of privacy in his medical records and because White could have achieved his objectives in a less obtrusive manner. See April 12, 2010 MO, 707 F.Supp.2d at 1254-60. The Court held that the right to privacy in medical records was clearly established, because the weight of authority established such a right and because a Tenth Circuit case closely on point, Lankford v. City of Hobart, 27 F.3d 477 (10th Cir.1994), gave "White notice that requesting private medical records violates the patient's right of privacy." April 12, 2010 MO, 707 F.Supp.2d at 1259-61. It found that White violated J. Kerns' right to be free from an unlawful search and seizure when White requested J. Kerns' medical records from the veteran's hospital. See April 12, 2010 MO, 707 F.Supp.2d at 1263. The Court then held that there "is established precedent in the Tenth Circuit that an officer using his authority to procure medical records without the consent of the patient is a violation of a constitutional privacy right" and that the clearly established prong did not need to be "construed so narrowly as to foreclose liability on one ground and not another, simply because there is not case law on point for one of the constitutional grounds of the violation." April 12, 2010 MO, 707 F.Supp.2d at 1264. The Court found that Lindley and Koren were not entitled to qualified immunity on Count IV, for false arrest and false imprisonment, because there were genuine issues of material fact regarding their intent. See April 12, 2010 MO, 707 F.Supp.2d at 1274-76. The Court found that those same issues of material fact precluded summary judgment on Count V, J. Kerns' malicious prosecution claim against Lindley, Koren, and Haag. See April 12, 2010 MO, 707 F.Supp.2d at 1276. With respect to Haag, the Court
On October 29, 2009, Bader, Carter, Thompson filed their Notice of Appeal. See Doc. 248. On January 19, 2012, the Tenth Circuit reversed the Court's decision with respect to its denial of qualified immunity, and remanded the case for further proceedings "in accordance with the opinion of this court." Tenth Circuit Judgment at 4. The Oct. 5, 2009 MOO was vacated. See Tenth Circuit Judgment at 4. With respect to White, Lindley, Koren, and Haag, the Tenth Circuit directed the Court to grant dismissal to those defendants on the basis of qualified immunity. See Tenth Circuit Judgment at 4-5.
In its opinion, issued December 20, 2011, the Tenth Circuit stated it would address the following questions: (i) "Do we have to decide a qualified immunity appeal involving close questions of law that the district court hasn't yet addressed?"; (ii) "Do the police violate a suspect's clearly established rights by requesting his hospital records?"; and (iii) "[D]o authorities have probable cause to arrest a trained marksman who makes suspicious statements in the wake of a shooting, who leads officers on a high speed chase, and who has a recently concealed rifle shell casing lying at the bottom of his trash can?" Kerns v. Bader, 663 F.3d 1173, 1177 (10th Cir.2011). The Tenth Circuit answered "no to the first two questions and yes to the last." Kerns v. Bader, 663 F.3d at 1177.
The Tenth Circuit began its analysis with Bader, Thompson, and Carter. The Tenth Circuit noted the "heavy burden" a plaintiff bears to overcome the presumption of qualified immunity and that the Supreme Court of the United States had recently suggested that federal courts should "think hard, and then think hard again, before turning small cases into large ones." Kerns v. Bader, 663 F.3d at 1180-81. It held that, despite both aspects being "in play" before the Court, "the district court did not analyze the clearly established law element" and that the Court "held only that the defendants had actually violated Mr. Kerns's Fourth Amendment rights." Kerns v. Bader, 663 F.3d at 1181 (emphasis in original). It found that the Oct. 5, 2009 MOO "addressed only the first part of the two part test for qualified immunity." Kerns v. Bader, 663 F.3d at 1181 (emphasis in original). The Tenth Circuit asserted that, if it were that there were no constitutional violation then the Tenth Circuit could "simply reverse," but that "the answer to that question isn't so clear in this case." Kerns v. Bader, 663 F.3d at 1181. Instead, the Tenth Circuit remanded the case as "the issue is close and the briefing on appeal less than entirely satisfactory," emphasizing that many considerations counseling "in favor of proceeding directly to the second qualified immunity element ... also counsel in favor of remanding to ensure the district court addresses the second element before we begin to tangle with a case on appeal." Kerns v. Bader, 663 F.3d at 1182. With respect to the dissent's analysis of the qualified immunity question, the Tenth Circuit stated that the dissent relies on "a single sentence in the district court's self-described `analysis' section," which "[b]y its own terms doesn't purport to issue any holding on the second qualified immunity question." Kerns v. Bader, 663 F.3d at 1182. The Tenth Circuit emphasized that the Supreme Court has instructed courts "not to define clearly established law at a high level of generality" and that "[t]he general proposition, for example, that an unreasonable search or seizure violates the
The Honorable William J. Holloway, Jr., Senior United States Circuit Judge for the Tenth Circuit, wrote in dissent. Senior Judge Holloway stated that he "would affirm the district court's denial of the Officers' motion for summary judgment sought on grounds of qualified immunity." Kerns v. Bader, 663 F.3d at 1191 (Holloway, J., dissenting). He commented that the Defendants "contend that the district court erred in its application of the legal standards enunciated in United States v. Najar, 451 F.3d 710 (10th Cir.2006)," but that "their argument rests on rejection of the district court's holding that the jury must decide questions of fact pertaining to whether a reasonable officer would have perceived an immediate need to protect himself or others under the circumstances." Kerns v. Bader, 663 F.3d at 1191. He asserted that, on the facts as the Tenth Circuit must take them,
Kerns v. Bader, 663 F.3d at 1191. Senior Judge Holloway disagreed with the majority's finding that the Court did not address the second prong of the qualified-immunity analysis. See Kerns v. Bader, 663 F.3d at 1191. He noted that the Defendants "made only a conclusory assertion that the Plaintiffs had not shown the violation of a clearly established right" and that the "district judge prefaced his analysis with a thorough discussion of the applicable law." Kerns v. Bader, 663 F.3d at 1192. He stated:
Kerns v. Bader, 663 F.3d at 1192. He emphasized that "general statements of the law are not inherently incapable of giving fair and clear warning." Kerns v. Bader, 663 F.3d at 1192 (citing Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). Senior Judge Holloway stated:
Kerns v. Bader, 663 F.3d at 1192.
Senior Judge Holloway also found the majority's instruction that the Court must consider the Defendants' "claim that their intrusion was justified in part because of the consent Ms. Zisser supplied" surprising, because the Defendants did not make that argument on appeal. Kerns v. Bader, 663 F.3d at 1193. He stated:
Kerns v. Bader, 663 F.3d at 1193.
With respect to White, the majority analyzed the clearly established prong of the qualified immunity analysis and gave the Court some insight into how the Tenth Circuit applies that test. The Tenth Circuit recognized that, in Douglas v. Dobbs, 419 F.3d 1097 (10th Cir.2005), it "accepted that a patient has a privacy interest in medical records held by a third party medical services provider," but pointed out that it had explained that "statutes requiring disclosure of those records to `law enforcement' may not always violate the Fourth Amendment." Kerns v. Bader, 663 F.3d at 1184 (majority opinion). It emphasized that it had noted that the "question whether, in the absence of a statute, `a warrant is required for [law enforcement] to conduct an investigatory search of [medical] records [held by a third party] ... is an issue that has not been settled.'" Kerns v. Bader, 663 F.3d at 1184 (alterations in original). The Tenth Circuit noted J. Kerns' reliance on Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001), but noted that "in that case the Supreme Court expressly declined to answer the question posed in this one." Kerns v. Bader, 663 F.3d at 1184. It held that, "[a]ccording to the terms of Ferguson itself, then, it hardly placed the Fourth Amendment question before us beyond debate." Kerns v. Bader, 663 F.3d at 1185. Discussing J. Kerns' and the dissent's reliance on Lankford v. City of Hobart, the Tenth Circuit noted that it noted only a "possible" Fourth Amendment violation in "somewhat similar circumstances" and that, "[a]t best, Lankford's equivocation declined to foreclose the possibility of a Fourth Amendment violation." Kerns v. Bader, 663 F.3d at 1185 n. 2 (emphasis in original). With respect to the Fourteenth Amendment, the Tenth Circuit noted that, "[c]onfirming the lack of a clear answer here, most of the cases Mr. Kerns cites involve state actors who publicly disclosed a citizen's private information, not law enforcement officers who requested the voluntary production of records held by a third party for use in legitimate law enforcement efforts." Kerns v. Bader, 663 F.3d at 1186 (emphasis in original). The Tenth Circuit found that there was a meaningful difference between those situations. See Kerns v. Bader, 663 F.3d at 1186. It stated: "If we could be sure that the distinction between public disclosure of government access without a valid purpose, on the one hand,
On January 26, 2012, the Court issued a Minute Order requesting that the parties outline their suggested procedures for how the Court should proceed in this matter. See Doc. 287. On February 6, 2012, the City Defendants wrote the Court, and suggested that the Court should address "whether it was beyond debate in 2005 that the officers' entry and search lacked legal justification." Letter from Stephanie Griffin to the Court at 2 (dated February 6, 2012), filed February 6, 2012 (Doc. 288)("Feb. 6, 2012 Griffin Letter"). The City Defendants asserted that the Court needs to address; (i) the officers' claim that exigent circumstances existed; and (ii) their claim that their intrusion was justified because Zisser provided consent. See Feb. 6, 2012 Griffin Letter at 2. The Kerns also wrote the Court and suggested "that the most efficient way to resolve the outstanding factual and legal issues is for the District Court to grant the Kerns leave to file an additional brief that will address the Circuit Court's concerns." Letter from Mark Lowry to the Court at 2 (dated February 6, 2012), filed February 6, 2012 (Doc. 289)("Feb. 6, 2012 Lowry Letter"). They asserted that, once additional briefing was completed, the Court would be in a position to rule on the matters which the Tenth Circuit remanded to it. See Feb. 6, 2012 Lowry Letter at 2. The City Defendants suggested that the parties simultaneously submit supplemental briefs of no more than ten pages. See Letter from Stephanie Griffin to the Court at 2 (dated February 7, 2012), filed February 7, 2012 (Doc. 293). The Court then requested that the City Defendants file a supplemental brief, after which the Kerns could respond, and the City Defendants reply. See Minute Order, filed February 17, 2012 (Doc. 291).
On March 5, 2012, the City Defendants filed the City Defendants Drew Bader, Matthew Thompson, and Russell Carter's Supplemental Brief to Their Motion for Summary Judgment and Memorandum in Support Thereof [Doc. 117], Requesting Dismissal of Counts I, X, and XII of Plaintiffs' First Amended Complaint [Doc. 5]. See Doc. 295 ("Defendants' Supplement"). The City Defendants emphasize that qualified immunity "gives government officials breathing room to make reasonable but mistaken judgments," and "protects `all but the plainly incompetent or those who knowingly violate the law.'" Defendants' Supplement at 2 (citing Ashcroft v. al-Kidd, 131 S.Ct. at 2085). They argue that the Supreme Court has provided:
Defendants' Supplement at 2-3 (quoting Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Applying these standards, the City Defendants argue that, "even if one were to presume a constitutional violation on the part of City Defendants, City Defendants would not have been on notice that their conduct was unlawful," because "it is well settled in federal jurisdictions throughout the country that officers can reasonably search for victims upon reports of gunfire." Defendants' Supplement at 3. They further assert that it is well-settled that "[o]fficers do not need ironclad proof of `a likely serious, life-threatening' injury to invoke the emergency aid exception." Defendants' Supplement at 4 (citing Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 549, 175 L.Ed.2d 410 (2009)). They point out that the "Plaintiffs have not cited any case in their response brief which holds that officers faced with the same or similar circumstances should have ignored the unusual scene at the Kerns' residence and presumed that no one was in harm's way." Defendants' Supplement at 4.
The City Defendants contend that the officers had "every indication that someone was present inside the Kerns' residence when they were there looking for the shooting suspect." Defendants' Supplement at 4. They admit that, when considering the circumstances the officers confronted in isolation, the facts may appear innocent, but argue that, "when viewing this information objectively and in totality, there is cause for concern." Defendants' Supplement at 5 (citing Ryburn v. Huff, ___ U.S. ___, 132 S.Ct. 987, 990, 181 L.Ed.2d 966 (2012)(per curiam)). They assert that there must be some authority which existed on August 6, 2005, which would have made it readily apparent that an officer would act objectively reasonable if that officer ignored the unusual scene and that "[t]here is no such authority, because viewing the totality of the circumstances in the present controversy caused City Defendants reasonably, yet mistakenly, to conclude that the unresponsiveness to their knock and announcements mean that persons inside the residence could have been injured." Defendants' Supplement at 5.
On March 24, 2012, the Kerns filed the Plaintiffs' Response to Drew Bader, Matthew Thompson, and Russell Carter's Supplemental Brief to Their Motion for Summary Judgment Requesting Dismissal of Counts I, X, and XIII of Plaintiffs' First Amended Complaint. See Doc. 297 ("Supplement Response"). The Kerns first argue that Zisser's consent to search the residence was involuntary and failed to justify the City Defendants' illegal entry into the Kerns' home. See Supplement Response at 2. They assert that, even if the Court finds that Zisser's consent was voluntary, her permission was "unconstitutionally tainted by the City Defendants'
Supplement Response at 3 (citing United States v. Carter, 360 F.3d 1235, 1243 (10th Cir.2004)). They argue that Zisser's consent was involuntary and point to United States v. Medlin, 842 F.2d 1194, in which the Tenth Circuit held that "it seems reasonable that Medlin would have believed when faced by federal and state officers with guns drawn that he had no right to resist" a search. Supplement Response at 4. The Kerns further assert that, even if the consent was voluntary, it was immediate consequence of an unconstitutional entry. See Supplement Response at 4.
The Kerns next argue that the law regarding exigent circumstances was clearly established at the appropriate level of generality when the City Defendants searched the Kerns' home. See Supplement Response at 5. They assert that the City Defendants "agree that the proper level of generality to analyze the exigent circumstances exception to the warrant requirement for the Fourth Amendment in this case is that of law enforcement officers reasonably searching for victims when gunshots are reported." Supplement Response at 5. They contend that the City Defendants "fail to grasp the fact that in each one of the cases cited by them there existed an objectively real and substantial nexus between the actual location of the shots that were fired and the dwelling that was searched." Supplement Response at 5. They argue that there were no reliable reports of gunshots in the area and that the officers knew that J. Kerns had left the home after the helicopter was shot down. See Supplement Response at 6. The Kerns assert that there was no nexus between the emergency the City Defendants allege existed and the Kerns' home. See Supplement Response at 6. They emphasize that the cases to which the City Defendants cite all underscore the point that, in a shots-fired case, exigent circumstances are constitutional only if the police have information confirming that the gunshots are intimately associated with the precise residence being searched. See Supplement Response at 7. They assert that, in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), the Supreme Court declined to hold that "the seriousness of the offense under investigation itself creates exigent circumstances of the kind that under the Fourth Amendment justify a warrantless search." Supplement Response at 8. The Kerns argue that, in United States v. Davis, 290 F.3d 1239 (10th Cir.2002), the Tenth Circuit recognized that "there must be some reasonable basis approaching probable cause, to associate an emergency with the area or place to be searched." Supplement Response at 9. They contend that, on August 5, 2005, the City Defendants "knew beyond debate, that in order to search a house without a warrant to find an armed suspect or to protect citizens from an armed individual, that they had to associate the armed suspect that they were looking for with the specific residence to be searched." Supplement Response at 9. The Kerns point out that the Court is not compelled to find a precise match to conclude that the law was clearly established. See Supplement Response at 10 (citing Weigel v. Broad, 544 F.3d 1143, 1153 (10th Cir. 2008)).
On April 4, 2012, the City Defendants filed the City Defendants Drew Bader, Matthew Thompson, and Russell Carter's
On April 10, 2012, the Court held a hearing. The Court stated that, in its view, it decided that the exigency law was clearly established and, although the Tenth Circuit requires a more detailed analysis, the question is whether it should change its view. See Transcript of Hearing at 3:12-21 (April 10, 2012)(Court)("Tr.").
The Kerns asserted that the case was rightly decided and that the mandate directs the Court to consider the City Defendants' argument that exigent circumstances existed based on a belief that the person who had shot down the helicopter might be hiding in or near the home. See Tr. at 13:24-14:20 (Lowry). They argued that Senior Judge Holloway correctly decided this issue and noted that the City Defendants have conceded that Zisser's consent did not justify the initial entry. See Tr. at 14:21-15:5 (Lowry). The Court asked whether, when the Tenth Circuit inserts a fact that the Court must consider such as the finding that the police entered based on a belief that the shooter was in or near the home, the Court was forced to find that exigent circumstances existed. See Tr. at 15:17-16:3 (Court). The Kerns responded that the exigency with which the Tenth Circuit is concerned is the fleeing-felon exception and argued that there must be hot pursuit. See Tr. at 16:14-17:4 (Lowry). They contended that, here, there is no pursuit. See Tr. at 17:5-6 (Lowry). They asserted that there was a chicken-and-egg problem, because the officers assert that they thought the shooter had taken refuge in the home and they had to believe that the shooter was in the area. See Tr. at 17:7-15 (Lowry). The Kerns argued that the officers never saw the shooter, never found evidence indicating that the shooter was in the area, and that Johnston admitted that he was not looking for a person. See Tr. at 17:16-18:2 (Lowry). They emphasized that, when analyzing these facts under an objective reasonableness standard, no reasonable officer would have believed that the shooter had taken refuge in the Kerns' home. See Tr. at 18:3-15 (Lowry). They asserted that, if the Court objectively analyzes the officers' behavior, it reveals that they were not concerned about a shooter, because they never searched A. and M. Kern's bedroom. See Tr. at 19:12-23 (Lowry). The Kerns pointed to Armijo ex rel. Armijo Sanchez v. Peterson, in which the Tenth Circuit was clear that a reasonable officer will check every room to ensure that all the occupant's are safe. See Tr. at 19:23-20:3 (Lowry). With respect to the level of generality, the Kerns asserted that there was unlikely to be another case where a helicopter was shot from the sky and that such a strict requirement is unrealistic. See Tr. at 20:25-21:3 (Lowry). They stated their belief that the difficulty in finding a similar case is why the City Defendants are relying on the gunshots-fired cases, rather than the fleeing-felon cases. See Tr. at 21:3-6 (Lowry). They also reiterated that, if the officers were concerned with the safety of the homes' inhabitants, the officers would have checked the entire house. See Tr. at 22:1-25 (Lowry).
The Court then stated that the Tenth Circuit, in their analysis of White's qualified immunity, does not appear to be allowing much generality and asked whether the Tenth Circuit was signaling its intent to require a case closely on point to defeat qualified immunity. See Tr. at 23:9-24:4 (Court). The Kerns acknowledged that
The City Defendants asserted that the Court should look to Anderson v. Creighton and ask whether the officers made a reasonable yet mistaken belief. See Tr. at 36:3-10 (Griffin). They argued that the Supreme Court's opinions in the last three years indicate that a court's clearly-established-law analysis was supposed to be in the specific context of the issue before the court. See Tr. at 36:11-37:2 (Griffin). They suggested that the Court take a close look at the Armijo ex rel. Armijo Sanchez v. Peterson case, because it was based on a bomb threat where the officers had to act immediately and the threat was not at the person's home. See Tr. at 37:4-12 (Griffin). They contended that the officers in this case were in a situation similar to the officers in Armijo ex rel. Armijo Sanchez v. Peterson and that, in Armijo ex rel. Armijo Sanchez v. Peterson, the Tenth Circuit indicated that the officers should be given a certain amount of deference in a rapidly evolving situation. See Tr. at 37:13-38:17 (Griffin). The City Defendants further asserted that, had they left, and someone was in the home, the officers would face a lawsuit for failure to protect. See Tr. at 38:9-13 (Griffin). They argued that Zisser's consent goes only to the scope of the search question, because the officers were already inside the house
The Court asked whether, in the gunshots-fired cases, there has to be a direct connection between the shots and the house to be searched. See Tr. at 41:21-25 (Court). The City Defendants responded that it does not lessen the threat that the gunshots originated off-premises, because they were fired in the area of the home and J. Kerns pointed the officers to his home. See Tr. at 42:1-20 (Griffin). The Court then asked why there were exigent circumstances for J. Kerns' home, but not the house next door, because the principle that the City Defendants outline would seem to open all of those houses to a search. See Tr. at 42:21-43:2 (Court). The City Defendants argued that there were certain facts specific to J. Kerns' home that distinguished it, such as: (i) the unsecured garage door; (ii) the items outside the residence; (iii) the residents' unresponsiveness; and (iv) the lights on inside the residence. See Tr. at 43:3-12 (Griffin). The Court asked what the City Defendants believe is incorrect with Senior Judge Holloway's analysis. See Tr. at 44:4-10 (Court). The City Defendants asserted that Senior Judge Holloway's analysis was still in general terms, that he did not focus on the totality of the circumstances, and that he did not state which cases would provide the officers with notice that their conduct was unlawful. See Tr. at 44:21-45:5 (Griffin). The Court asked why the officers did not search the entire house if they suspected a hostage situation. See Tr. at 45:6-10 (Court). The City Defendants argued that, once they were inside the home, they were able to observe Zisser and, based on their conversations with and observations of her, they dispelled their suspicions. See Tr. at 45:11-46:7 (Griffin).
The Kerns emphasized that Senior Judge Holloway did not believe that this was a case that required much particularity to establish a violation of clearly established law. See Tr. at 46:23-47:5 (Lowry). They reiterated that, if the officers were concerned about the house's occupants, the officers could have contacted J. Kerns, with whom they were in radio contact. See Tr. at 47:18-48:11 (Lowry). The Kerns also asserted that it would be inappropriate for the Court to grant summary judgment on the state-law claims based on the federal law analysis. See Tr. at 48:25-49:3 (Lowry). The Court asked whether, if it decides to grant the MSJ on the federal claims, it should dismiss without prejudice the state-law claims. See Tr. at 51:12-15 (Court). The Kerns agreed that such a procedure would be appropriate. See Tr. at 51:16-18 (Lowry). The Court also asked about the Tenth Circuit's discussion about a bullet at the bottom of a trash can in the Kerns' home. See Tr. at 51:19-52:3 (Court). The Kerns asserted that this fact was not relevant to the claims before the Court on remand. See Tr. at 53:21-23 (Court, Lowry). The Court asked whether there were any additional pieces of evidence or arguments that
The Court then asked the City Defendants whether it should dismiss without prejudice the state claims, if it grants summary judgment on the Fourth Amendment claim. See Tr. at 57:8-11 (Court). The City Defendants agreed that the Court's proposal was acceptable. See Tr. at 57:12 (Griffin). The Court then asked whether there was any other evidence or arguments that the Court should consider. See Tr. at 57:13-24 (Court). The City Defendants asserted that they could not respond without examining their briefs. See Tr. at 58:3-5 (Griffin). The Court stated that the City Defendants should report to the Court if there are any facts with which they disagree. See Tr. at 58:6-9 (Court). The City Defendants stated that they did not think such a review was necessary, because of the limited nature of the remand. See Tr. at 58:10-15 (Griffin). The Court stated that the parties should write the Court a letter discussing the facts the Court should add to its factual background section. See Tr. at 59:19-22 (Court).
Following the hearing, the parties responded to the Court's request regarding factual disputes. On April 11, 2012, the City Defendants wrote the Court concerning nine additional facts that the Court should consider. See Letter from Stephanie Griffin to the Court (dated April 11, 2012), filed April 11, 2012 (Doc. 300). On April 25, 2012, the Kerns filed the Plaintiffs' Supplemental Factual Support in Opposition to the City Defendants' Motion for Summary Judgment, which disputes those facts. See Doc. 301. The Court, after reviewing these documents and the original briefing in this case, has now addressed all of the facts that the City Defendants have put forth.
Rule 56(a) of the Federal Rules of Civil Procedure states: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). The movant bears the initial burden of "show[ing] that there is an absence of evidence to support the nonmoving party's case." Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)(internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant meets this burden, rule 56 requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The party opposing a motion for summary judgment must "set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993)("However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." (internal quotation marks omitted)). Rule 56(c)(1) provides: "A party asserting that a fact ... is genuinely disputed must support the assertion by .... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his [or her] pleadings." Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980)("However, `once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.'" (citation omitted)). Nor can a party "avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation." Colony Nat'l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005, at *1 (D.Kan. June 2, 2008)(citing Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)). "In responding to a motion for summary judgment, `a party cannot rest on ignorance of facts, on speculation, or
To deny a motion for summary judgment, genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere "scintilla" of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). Rather, there must be sufficient evidence on which the factfinder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. "[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
When reviewing a motion for summary judgment, the court should keep in mind three principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. at 550-55, 119 S.Ct. 1545; Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."). Third, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.
Qualified immunity recognizes the "need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "Qualified immunity protects federal and state officials from liability for discretionary functions, and from `the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.'" Roybal v. City of Albuquerque, No. 08-0181, 2009 WL 1329834, at *10 (D.N.M. Apr. 28, 2009)(Browning, J.)(quoting Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). Issues of qualified immunity are best resolved at the "earliest possible stage in litigation." Pearson v. Callahan, 555 U.S. at 232, 129 S.Ct. 808 (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)(per curiam)). "If qualified immunity is to mean anything, it must mean that public employees who are just doing their jobs are generally immune from suit." Lewis v. Tripp, 604 F.3d 1221, 1230 (10th Cir.2010).
The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified-immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts "should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand." 555 U.S. at 236, 129 S.Ct. 808. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz will often be beneficial. See Pearson v. Callahan, 555 U.S. at 241, 129 S.Ct. 808. In rejecting a mandatory approach, the Supreme Court recognized that "[t]here are cases in which it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right," and that such an approach burdens district court and courts of appeals with "what may seem to be an essentially academic exercise." Pearson v. Callahan, 555 U.S. at 237, 129 S.Ct. 808. The Supreme Court also recognized that a mandatory approach "departs from the general rule of constitutional avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of constitutionality unless such adjudication is unavoidable." Pearson v. Callahan, 555 U.S. at 241, 129 S.Ct. 808 (alterations omitted)(internal quotation marks omitted). Once the plaintiff has established the inference that the defendant's conduct violated a clearly established constitutional right, a qualified-immunity defense generally fails. See Cannon v. City & Cnty. of Denver, 998 F.2d 867, 870-71 (10th Cir.1993).
The Supreme Court recognized seven circumstances where district courts should proceed directly to and "should address only" the clearly established prong of the qualified immunity analysis:
Kerns v. Bader, 663 F.3d at 1180-81 (quoting Pearson v. Callahan, 555 U.S. at 236-42, 129 S.Ct. 808). Regarding the last of these seven circumstances, the Supreme Court has clarified that courts may "avoid avoidance" and address the first prong before the second prong in cases involving a recurring fact pattern where guidance on the constitutionality of the challenged conduct is necessary and the conduct is only likely to face challenges in the qualified-immunity context. Camreta v. Greene, ___ U.S. ___, 131 S.Ct. 2020, 2031-32 & n. 5, 179 L.Ed.2d 1118 (2011). See Kerns v. Bader, 663 F.3d at 1181. "In general, courts should think hard, and then think hard again, before turning small cases into large ones." Camreta v. Greene, 131 S.Ct. at 2032. Accord Kerns v. Bader, 663 F.3d at 1181. The Supreme Court has also recently emphasized in the qualified immunity context: "Courts should think carefully before expending `scarce judicial resources' to resolve difficult and novel questions of constitutional or statutory interpretation that will `have no effect on the outcome of the case.'" Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011). The Tenth Circuit will normally remand a case to the district court for further consideration when the district court has given cursory treatment to the qualified immunity issue. See Kerns v. Bader, 663 F.3d at 1182.
In evaluating whether a right was clearly established, a district court considers whether the right was sufficiently clear that a reasonable government employee in the defendant's shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1327 (10th Cir.2007). A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be "indisputable" and "unquestioned." Zweibon v. Mitchell, 720 F.2d 162, 172-73 (D.C.Cir.1983). "Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Currier v. Doran, 242 F.3d 905, 923 (10th Cir.2001). See Medina v. City & Cnty. of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). On the other hand, the Supreme Court has observed that it is generally not necessary to find a controlling decision declaring the "very action in question ... unlawful." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). "In determining whether the right was `clearly established,' a court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether `the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir.2001)(quoting Saucier v. Katz, 533 U.S. at 202, 121 S.Ct. 2151). A court should inquire "whether the law put officials on fair notice that the described conduct was unconstitutional" rather than engage in "a scavenger hunt for cases with precisely the same facts." Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir.2004).
The Tenth Circuit, in Kerns v. Bader, focused on the Supreme Court's language in Ashcroft v. al-Kidd in its analysis of qualified immunity. In that case, which dealt with a search of a home, the Tenth Circuit explained that the relevant question "wasn't whether we all have some general privacy interest in our home," but "whether it was beyond debate in 2005 that the officers' entry and search lacked legal justification." Kerns v. Bader, 663 F.3d at 1183. The Tenth Circuit reiterated that "a case on point isn't required if the impropriety of the defendant's conduct is clear from existing law," but held that, where distinctions "might make a constitutional difference," the law is not clearly established. Kerns v. Bader, 663 F.3d at 1187 (emphasis in original). Earlier Tenth Circuit cases, clarifying the level of generality at which a legal rule must be defined, applied a sliding scale to determine when the law is clearly established. In Casey v. City of Federal Heights, 509 F.3d 1278 (10th Cir.2007), the Tenth Circuit re-emphasized its sliding scale approach: "The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation." 509 F.3d at 1284 (citing Pierce v. Gilchrist, 359 F.3d at 1298). Thus, "when an officer's violation ... is particularly clear ..., [the Tenth Circuit] does not require a second decision with greater specificity to clearly establish the law." Casey v. City of Fed. Heights, 509 F.3d at 1284. Furthermore, "general statements of law are not inherently incapable of giving fair and clear warning...." Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).
In determining whether the plaintiff has met his or her burden of establishing a constitutional violation that was clearly established, a court construes the facts in the light most favorable to the plaintiff as the non-moving party. See
Thomson v. Salt Lake Cnty., 584 F.3d at 1312. "The Tenth Circuit, in Rhoads v. Miller, explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony[.]" Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M.2010)(Browning, J.) (citation omitted).
Rhoads v. Miller, 352 Fed.Appx. 289, 291-92 (10th Cir.2009)(unpublished). See Lymon v. Aramark Corp., 728 F.Supp.2d at 1249-50 (quoting Rhoads v. Miller, 352 Fed.Appx. at 291-92). In a concurring opinion in Thomson v. Salt Lake County, the Honorable Jerome A. Holmes, United States Circuit Judge for the Tenth Circuit, stated that courts must focus first on the legal question of qualified immunity and "determine whether plaintiff's factual allegations are sufficiently grounded in the record such that they may permissibly comprise the universe of facts that will serve as the foundation for answering the legal question before the court" before inquiring into whether there are genuine issues of material fact for resolution by the jury. 584 F.3d at 1326-27 (Holmes, J. concurring)(citing Goddard v. Urrea, 847 F.2d 765, 770 (11th Cir.1988)(Johnson, J., dissenting)(observing that, even if factual disputes exist, "these disputes are irrelevant to the qualified immunity analysis because that analysis assumes the validity of the plaintiffs' facts")).
"Qualified immunity protects federal and state officials from liability for discretionary functions, and from `the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.'" Roybal v. City of Albuquerque, 2009 WL 1329834, at *10. Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Issues of qualified immunity are best resolved at the "earliest possible stage in litigation." Pearson v. Callahan, 555 U.S. at 232, 129 S.Ct. 808. The Supreme Court has suggested that, to avoid unnecessary exposure to burdensome discovery, the preferred practice is for the government officials to move to dismiss the action based on qualified immunity before discovery is ordered:
Crawford-El v. Britton, 523 U.S. 574, 598, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). When a court permits discovery, the Supreme Court has emphasized that "Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery." Crawford-El v. Britton, 523 U.S. at 598, 118 S.Ct. 1584. "There are, however, exceptions to the rule that no discovery be allowed when government officials claim qualified immunity." Todd v. Montoya, No. 10-0106, 2011 WL 5238900, at *4 (D.N.M. Oct. 4, 2011)(Browning, J.). The officials are not protected from all discovery, "`but only from discovery which is either avoidable or overly broad.'" Garrett v. C.A. Stratman, 254 F.3d 946, 953 (10th Cir.2001)(quoting Maxey v. Fulton, 890 F.2d 279, 282 (10th Cir.1989)).
The Fourth Amendment to the United States Constitution "protects `[t]he right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures.'" United States v. Thompson, 524 F.3d 1126, 1132 (10th Cir.2008)(quoting U.S. Const. amend. IV). It also commands that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. "The security of one's privacy against arbitrary intrusion by the police — which is at the core of the Fourth Amendment — is basic to a free society." Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
"[T]he Fourth Amendment protects people, not places," and the Supreme Court has vigorously asserted that the proper analysis under the Fourth Amendment is not whether the place searched is a "constitutionally protected area." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The proper inquiry is whether the defendant had an expectation of privacy in the place searched and whether that expectation was objectively reasonable. See Katz v. United States, 389 U.S. at 351, 88 S.Ct. 507 ("What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an
There is no doubt, however, that a citizen has a reasonable expectation of privacy, and a particularly strong one, in his own home. The "chief evil" from which the Fourth Amendment protects citizens is unwanted police entry into the home, and the "principal protection" is "the Fourth Amendment's warrant requirement." United States v. Thompson, 524 F.3d at 1132. See Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001)("`At the very core' of the Fourth Amendment `stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'" (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961))); Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)("[S]earches and seizures inside a home without a warrant are presumptively unreasonable.").
Not all searches require a warrant. The Supreme Court has instructed that, when assessing the reasonableness of a warrantless search, a court must begin "with the basic rule that `searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.'" Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009)(citing Katz v. United States, 389 U.S. at 357, 88 S.Ct. 507). See Payton v. New York, 445 U.S. at 586, 100 S.Ct. 1371. As the Tenth Circuit stated in United States v. Cos, 498 F.3d 1115 (10th Cir. 2007): "A warrantless search of a suspect's home is per se unreasonable under the Fourth Amendment unless the government can show that it falls within `one of a carefully defined set of exceptions.'" 498 F.3d at 1123 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 474, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). See United States v. Thompson, 524 F.3d at 1132.
"One exception to the warrant requirement is when police reasonably believe an emergency exists that makes it infeasible to obtain a warrant." United States v. Gambino-Zavala, 539 F.3d 1221, 1225 (10th Cir.2008). "The government bears the burden of proving the exigency exception to the warrant requirement applies." United States v. Najar, 451 F.3d 710, 717 (10th Cir.2006)(citing United States v. Wicks, 995 F.2d 964, 970 (10th Cir.1993)). "That burden is especially heavy when the exception must justify the warrantless entry of a home." United States v. Najar, 451 F.3d at 717 (citation omitted). Generally, a warrantless entry under the exigent-circumstances exception requires probable cause and exigent circumstances. See Kirk v. Louisiana, 536 U.S. 635, 638, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002); Manzanares v. Higdon, 575 F.3d 1135, 1142-43 (10th Cir.2009). With respect to the standard of review on the existence of exigent circumstances, the Tenth Circuit has stated: "The existence of exigent circumstances is a mixed question of law and fact. Although we accept underlying fact findings unless they are clearly erroneous, the determination of whether those facts satisfy the legal test of exigency is subject to de novo review." United States v. Davis, 290 F.3d 1239, 1241 (10th Cir.2002).
Additionally, the Tenth Circuit appears to have recognized a subset of exigent-circumstances
United States v. Najar, 2004 WL 3426123, at *6 (alteration in original). The Court's September 3, 2004 opinion in United States v. Najar reconsidered an earlier opinion in which the Court had granted the motion to suppress. Compare United States v. Najar, 2004 WL 3426123, at *8 ("Thus, based upon the totality of the circumstances confronting the officers, the Court finds that the United States has satisfied the standards set forth by the Supreme Court and the Tenth Circuit regarding warrantless entries based upon emergency circumstances.") with United States v. Najar, No. 03-0735, 2004 WL 3426122, at *4 (D.N.M. July 6, 2004)(Browning, J.)("Because the Court, after reviewing precedent from both the Supreme Court and the Tenth Circuit, believes that the exception applies to warrantless entries based upon probable cause plus exigent circumstances, it will grant Najar's motion to suppress."). The Court originally held that Fourth Amendment law required the exigent-circumstances exception to the warrant requirement required probable cause and an exigent circumstance. See United States v. Najar, 2004 WL 3426122, at *4. It then reconsidered, and the Tenth Circuit later affirmed this decision, and held that, in cases involving emergency situations, the Supreme Court required only a reasonable belief that a person within a residence needs immediate aid. See United States v. Najar, 2004 WL 3426123, at *2. The Court rejected the approach that the United States Court of Appeals for the Eleventh Circuit adopted, in United States v. Holloway, 290 F.3d 1331 (11th Cir.2002), that retained a probable cause requirement for exigent circumstances, but held that a reasonable belief that a person was in danger satisfied the probable cause requirement. See United States v. Najar, 2004 WL 3426123, at *4. Instead, the Court found that the Supreme Court had eliminated the probable cause requirement for the emergency-aid exception and that this finding was consistent with Tenth Circuit precedent. See United States v. Najar, 2004 WL 3426123, at *6-7 (citing United States v. Rhiger, 315 F.3d at 1288). In the Tenth Circuit's opinion in United States v. Najar, the Tenth Circuit held that the exigent-circumstances exception to the warrant requirement authorized a warrantless police entry in an emergency-aid situation without a showing of probable cause. In so doing, the Tenth Circuit noted that the Supreme Court in Brigham City, Utah v. Stuart, which was determining "whether the risk of personal danger created exigent circumstances," did not "require probable cause in this type of exigent circumstances." United States v. Najar, 451 F.3d at 718 (emphasis added).
In such emergency-aid situations, the Tenth Circuit employs a two-pronged test to determine whether emergency circumstances justify a warrantless entry into a home, which examines: "whether (1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable." United States v. Najar, 451 F.3d at 717-18. A court is "guided by the realities of the situation presented by the record,"
The Tenth Circuit has instructed the Court to examine whether it was clearly established in 2005 that exigent circumstances did not exist and that a reasonable officer would have understood that his conduct violated the law. The Court finds that the law was not clearly established, because the facts of this case resemble the facts of cases in which the Tenth Circuit found exigent circumstances, such that the officers would not have had notice that their conduct violated the law. Accordingly, the Court will grant the MSJ with respect to Count I. Because a federal claim — Count VI — remains pending before the Court, however, the Court will continue to exercise supplemental jurisdiction over the state-law claims.
The Tenth Circuit, in Kerns v. Bader, directed the Court to "finish the work of analyzing the second qualified immunity question," and to "address the officers' claim that exigent circumstances existed (based on a belief that someone who had just shot down a police helicopter might be hiding in or near the home)." 663 F.3d at 1182-83. The Tenth Circuit warned that, although the Supreme Court permits federal courts to "avoid avoidance," courts "should think hard, and then think hard again, before turning small cases into large ones." Kerns v. Bader, 663 F.3d at 1181 (quoting Camreta v. Greene, 131 S.Ct. at 2032).
The Court finds itself in an awkward position given that only Senior Judge Holloway analyzed the clearly established law prong of the qualified immunity analysis, and he found that the Court had found the law clearly established and that the case law was clearly established. See Kerns v. Bader, 663 F.3d at 1192 (Holloway, J., dissenting). He voted to affirm the Court. See Kerns v. Bader, 663 F.3d at 1192 ("The district judge's ruling denying summary judgment for the Officers should be affirmed."). Neither the majority nor the dissent questioned the Court's analysis of
The Supreme Court and the Tenth Circuit have repeatedly stated that it is unnecessary to scour the case law for a case on point and that, in some cases, generalized principles will suffice to be clearly established law. See, e.g., Hope v. Pelzer, 536 U.S. at 741, 122 S.Ct. 2508 ("But general statements of the law are not inherently incapable of giving fair and clear warning...."); United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)("[I]n other instances a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though `the very action in question has [not] previously been held unlawful.'"); Anderson v. Creighton, 483 U.S. at 640, 107 S.Ct. 3034 ("This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful."); Anderson v. Blake, 469 F.3d 910, 913 (10th Cir.2006)("This means that there need not be precise factual correspondence between earlier cases and the case at hand...."); Snell v. Tunnell, 920 F.2d 673, 699 (10th Cir.1990)("[P]recise factual correlation between then-existing law and the case at-hand is not required."). It seems that, if these statements are ever true, it would be in the area of exigent circumstances. While an officer like White could take his time requesting medical records of a suspect or procuring a search warrant, or perhaps consult with the district attorney before acting, a police officer
The Tenth Circuit, however, foreclosed this approach. The Tenth Circuit held that:
Kerns v. Bader, 663 F.3d at 1182 (citing Medina v. City & Cnty. of Denver, 960 F.2d 1493, 1497-98 (10th Cir.1992)). The Tenth Circuit's holding that the Court may not analyze the second qualified-immunity prong using "such" generalized principles and that the Court's reliance on Payton v. New York was too general; the Tenth Circuit has said there has to be increased specificity. This language alone may leave some room for the Court's proposed sliding-scale analysis. The Supreme Court's holding in Payton v. New York stands for the principle that the threshold of a home may not be crossed without a warrant, absent exigent circumstances. See 445 U.S. at 590, 100 S.Ct. 1371. One could interpret the Tenth Circuit's language regarding "generalized principles" to mean that articulating the general principle expressed in Payton v. New York and discussing the law regarding exigent circumstances would be specific enough to meet the clearly-established prong. In other words the Court might be more specific than its references to Payton v. New York and still not have to find on point factual cases. The Tenth Circuit, however, went on to emphasize that:
Kerns v. Bader, 663 F.3d at 1183. This holding and the Tenth Circuit's interpretation of Anderson v. Creighton, convinces the Court that its proposed sliding scale is foreclosed.
Although exigent circumstances might be an area of the law where a higher level of generality makes sense, because, practically speaking, police officers do not have time to analyze a situation at such a specific level before making decisions, in the end, the Court concludes that the Supreme Court's decision in Anderson v. Creighton, and the Tenth Circuit's interpretation of it, suggests that only a factual analysis of the case could satisfy the clearly-established prong. The majority, in Kerns v. Bader, stated that the Supreme Court has "vigorously underscored this point" and that it has reminded lower courts "with some apparent exasperation" not to define "clearly established law at a high level of generality." Kerns v. Bader, 663 F.3d at 1182-83. In Anderson v. Creighton, decided in 1987,
While the Court greatly appreciates Senior Judge Holloway's support, and continues to believe there was both a violation and violation of clearly established law, the Tenth Circuit has found the Court's clearly established analysis inadequate, and the Court must faithfully follow the Tenth Circuit's decision and judgment. The Court also concludes that Senior Judge Holloway's clearly established law analysis is inconsistent with the Supreme Court's requirements in Anderson v. Creighton. Senior Judge Holloway's clearly established law analysis is as follows:
Kerns v. Bader, 663 F.3d at 1192 (Holloway, J., dissenting). Senior Judge Holloway's analysis suffers from the same flaw, according to the Supreme Court's analysis in Anderson v. Creighton, as the Court's proposed sliding-scale analysis. The Tenth Circuit has, relying on Anderson v. Creighton, apparently, rejected this level of generality with its holding:
Kerns v. Bader, 663 F.3d at 1182 (majority opinion)(alterations in original)(emphasis in original). While it is tempting to say that the majority did not decide the clearly-established-law
Accordingly, the Court will analyze the City Defendants' conduct to determine whether it violated clearly established law, as it stood in August of 2005.
The City Defendants argue that, "even if one were to presume a constitutional violation on the part of City Defendants, City Defendants would not have been on notice that their conduct was unlawful," because "it is well settled in federal jurisdictions throughout the country that officers can reasonably search for victims upon reports of gunfire." Defendants' Supplement at 3. They further assert that it is well-settled that "[o]fficers do not need ironclad proof of `a likely serious, life-threatening' injury to invoke the emergency aid exception." Defendants' Supplement at 4 (citing Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 549, 175 L.Ed.2d 410 (2009)). They contend that there must be some authority which existed on August 6, 2005 which would have made it readily apparent that an officer would act objectively if that officer ignored the unusual scene and that "[t]here is no such authority, because ... City Defendants reasonably ... conclude[d] that the unresponsiveness to their knock and announcements mean that persons inside the residence could have been injured." Defendants' Supplement at 5. The Kerns argue that the law regarding exigent circumstances was clearly established at the appropriate level of generality when the City Defendants searched the Kerns' home. See Supplement Response at 5. They contend that the City Defendants "fail to grasp the fact that in each one of the cases cited by them there existed an objectively real and substantial nexus between the actual location of the shots that were fired and the dwelling that was searched." Supplement Response at 5. They argue that there were no reliable reports of gunshots in the area and that the officers knew that J. Kerns had left the home after the helicopter was shot down. See Supplement Response at 6. They assert that, on August 5, 2005, the City Defendants "knew beyond debate, that in order to search a house without a warrant to find an armed suspect or to protect citizens from an armed individual, that they had to associate the armed suspect that they were looking for with the specific residence to be searched." Supplement Response at 9.
Construing the facts in the light most favorable to the Kerns, the material facts related to the exigent circumstances question are as follows. On August 6, 2005, a helicopter was shot down at approximately 12:00 a.m. At the scene, J. Kerns informed Sauer, an officer, that he knew where the shot came from and later described the sound as a pop noise. When APD officers arrived, J. Kerns said that the noise was so loud that it made his ear ring and that he heard the sound of gravel kick up as he watched the helicopter at the edge of his property. J. Kerns then directed officers to his home and the officers searched the area. Bader, one of the officers to whom J. Kerns originally spoke, and Carter and Thompson were among the officers sent to J. Kerns' home. None of J. Kerns' neighbors reported hearing any gunshots. At J.
Exigent circumstances can justify a warrantless entry into a home. "Examples of exigent circumstances include a threat to officer safety, an ongoing `hot pursuit' of a fleeing suspect, or the possible imminent destruction of evidence." United States v. Martin, 613 F.3d 1295, 1299 (10th Cir.2010). Another exigent circumstance is based on the fear that a person inside the home may be in imminent danger and is known as the emergency-aid exception. See United States v. Martinez, 643 F.3d 1292, 1296 (10th Cir. 2011). "The emergency aid exception depends on `an objectively reasonable basis for believing that a person within the house is in need of immediate aid.'" United States v. Martinez, 643 F.3d at 1296 (citing Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 548, 175 L.Ed.2d 410 (2009)).
The Supreme Court introduced the concept of exigent circumstances in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). There, the Supreme Court held that there was no Fourth Amendment violation, because "[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others." 387 U.S. at 298-99, 87 S.Ct. 1642. The Supreme Court also recognized other exigencies, such as the destruction of evidence, see Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and hot pursuit, see United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). One of the earliest Supreme Court cases to discuss the emergency-aid exception was Mincey v. Arizona, decided in 1978. In that case, an officer went to an apartment to make an undercover drug buy, and, when the officers returned to arrest the occupants, an officer was killed. See Mincey v. Arizona, 437 U.S. at 387, 98 S.Ct. 2408. After the shooting, officers entered the apartment and located other occupants. See Mincey v. Arizona, 437 U.S. at 388, 98 S.Ct. 2408. When the suspects and victims were removed, the agents then spent four days searching the entire apartment. See Mincey v. Arizona, 437 U.S. at 388, 98 S.Ct. 2408. The Supreme Court recognized "the right of police to respond to emergency situations," but that the second entry could not be justified as a response to an emergency, because all the persons in the apartment had been located before the officers began their search. Mincey v. Arizona, 437 U.S. at 392-93, 98 S.Ct. 2408. In Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), the Supreme Court stated that "[a] burning building presents an exigency of sufficient proportions to render a warrantless entry `reasonable.'" 436 U.S. at 509, 98 S.Ct. 1942.
With respect to gunshots-fired cases, the City Defendants cite to cases from a variety of circuits which establish that a report of gunfire can constitute exigent circumstances to look in the area for victims. In Tamez v. City of San Marcos, Texas, 118 F.3d 1085 (5th Cir.1997), officers entered a home after: (i) the neighbors reported gunshots at 9:30 p.m.; (ii) a man, known as a burglary suspect, exited the house and denied any shots had been fired; and (iii) the officers heard a television or music playing in the house. See 118 F.3d at 1092. The United States Court of Appeals for the Fifth Circuit held that "an officer in Misinasek's position reasonably could have believed that the safety of the general public, or even the safety of the police officers, created exigent circumstances." Tamez v. City of San Marcos, Tex., 118 F.3d at 1095. The Fifth Circuit noted that other circuits have also held that "the firing of a weapon in a residential neighborhood at night creates exigent circumstances." Tamez v. City of San Marcos, Tex., 118 F.3d at 1095 (citing United States v. Arcobasso, 882 F.2d 1304 (8th Cir.1989)). It found that exigent circumstances existed, because "[t]he officers had not yet located the gun used to fire the reported shots, nor had they conclusively determined that there were no shooting victims or hostages in the house." Tamez v. City of San Marcos, Tex., 118 F.3d at 1096. In United States v. Holloway, 290 F.3d 1331 (11th Cir.2002), officers received 911 calls reporting of gunshots and arguing at 10:22 p.m., and, when officers arrived at the area, they observed the defendant and his wife on the front porch, which did not dissuade the officers of the veracity of the 911 calls. See 290 F.3d at 1338. The United States Court of Appeals for the Eleventh Circuit held that, under those circumstances, "the officers reasonably believed an emergency situation justified a warrantless search of Appellants' home for victims' of gunfire." United States v. Holloway, 290 F.3d at 1338. In United States v. Collins, 110 Fed.Appx. 701 (7th Cir. 2004) (unpublished), the officers: (i) responded to gunshots at an apartment complex; (ii) heard loud music coming from Apartment 7; (iii) arrested the resident of Apartment 7 when he pushed an officer; and (iv) three minutes later the officers returned and entered the apartment. See 110 Fed.Appx. at 702. The United States Court of Appeals for the Seventh Circuit found that it was a close question, because the defendant correctly argued that there was nothing to distinguish his apartment from others in the complex as a source of the gunfire. See United States v. Collins, 110 Fed.Appx. at 704. The Seventh Circuit found the defendant's unusually aggressive behavior significant and that the officers reasonably believed a victim might be inside the apartment. See United States v. Collins, 110 Fed.Appx. at 705.
The plaintiff in a qualified immunity case has the burden to establish that a right is clearly established. See Holland ex rel. Overdorff v. Harrington, 268 F.3d at 1186. Additionally, to be clearly established, a right must be so thoroughly developed and defined as to be "indisputable" and "unquestioned." Zweibon v. Mitchell, 720 F.2d at 172-73. Rather than point to factually similar cases in which the Supreme Court or Tenth Circuit has found
The undisputed facts, construed in the light most favorable to the Kerns, establish that J. Kerns informed the officers that, while he was standing at the edge of his property line, he heard a pop noise that sounded "like an engine blowback or maybe a rifle report, like the sound of a gun going off," and heard rocks kick up. J. Kerns Depo. at 157:19-25, 162:6-8. Accord Written Statement of Jason Kerns at 1. There was, therefore, a reason to associate the gunfire with J. Kerns' property. Circumstances, including the music and the lights, indicated that there were individuals inside the house, but no one answered the door after repeated attempts to contact them. There was a broken window, which resembled a bullet hole, and the door was unlocked. Moreover, officers were operating in circumstances where someone was skilled enough to shoot down a helicopter at night. The Court upon its first examination of these facts found that there were factual issues which precluded summary judgment. See Oct. 5, 2009 MOO at 16. Focusing exclusively on the Tenth Circuit's analysis in United States v. Bute, the Court held:
Oct. 5, 2009 MOO at 14-15. Having concluded that, depending on the jury's view of the facts, exigent circumstances may not exist, the Court found there may be a constitutional violation under the first prong of the qualified-immunity analysis. The Court's analysis established that a jury could find that the facts confronting the officers was too speculative to support a reasonable belief that someone inside the apartment was in danger or that the shooter might be hiding inside.
The second prong of the qualified immunity analysis has a different focus, and asks whether that violation was clearly established such that an officer would be aware that his conduct violated the law. Thus, while the Court can believe, as it does believe, that a reasonable jury might find that the officers did not have exigent circumstances and violated the Kerns' civil rights, they may still not have violated clearly established law. In other words, it had to be pretty clear, to every reasonable officer, they were violating clearly established law. As articulated by the Supreme Court and the Tenth Circuit, the Court must say that every reasonable officer would have known that they were violating the Kerns' civil rights when they entered the home. See Ashcroft v. al-Kidd, 131 S.Ct. at 2083 ("A Government official's conduct violates clearly established law when, at the time of the challenged conduct, `[t]he contours of [a] right [are] sufficiently clear' that every `reasonable official would have understood that what he is doing violates that right.'"); Kerns v. Bader, 663 F.3d at 1180. "In making this determination, the `relevant inquiry ... is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'" Ealum v. Schirard, 46 Fed.Appx. 587, 590 (10th Cir.2002) (quoting Saucier v. Katz, 533 U.S. at 202, 121 S.Ct. 2151). The Court must also construe the facts — even though disputed — in the light most favorable to the non-moving party; here, the Kerns. See Hunt v. Cromartie, 526 U.S. at 551, 119 S.Ct. 1545. Because the officers in this case could reasonably have believed that their conduct was lawful under the circumstances, even construing the facts in the light most favorable to the Kerns, they are entitled to qualified immunity. Given the state of the law and the facts with which the officers were presented, it was not unreasonable for the officers to believe that they had exigent circumstances under the emergency-aid exception. Even though the Court indicated that a jury could find that their actions unduly speculative, qualified immunity also shields officers who have "reasonable, but mistaken beliefs," and operates to protect officers from the sometimes "hazy border[s]" of the law. Saucier v. Katz, 533 U.S. at 205, 121 S.Ct. 2151. Looking to Tenth Circuit precedent in 2005, the officers could draw parallels between this case and Galindo v. Town of Silver City, and reasonably believe that there were exigent circumstances. In both cases, the occupants of the home were unresponsive. See 127 Fed.Appx. at 466. Additionally, in both cases, there were vague reports of a danger that the officers' observations supported. In Galindo v. Town of Silver City, the officers were told that parents suspected underage drinking at the home, and the officers observed two sleeping teenagers, leading to fears of alcohol poisoning. Here, the officers were given information that the gunshot which took out the helicopter came from nearby, and observed a broken window and unlocked door, leading to fears that the shooter or an injured person might be inside. While, ultimately, the officers had less information on which to base their decision in this
Similarly, in United States v. Rhiger, the officers had exigent circumstances to enter a home based on nothing more than their knowledge that the residents had purchased items used to make methamphetamine and the odor of methamphetamine from the home. See 315 F.3d at 1289-90. A gunman with the skills to shoot down a helicopter at night arguably represents a more immediate public threat than a methamphetamine laboratory, and the officers could reason that a broken window and unresponsive residents provided evidence that the residents might be in danger similar to the smell of methamphetamine in United States v. Rhiger. Again the officers in United States v. Rhiger had more concrete knowledge, but an officer is entitled to qualified immunity despite "the officer's mistake as to what the law requires." Smith v. Wampler, 108 Fed.Appx. 560, 566 (10th Cir.2004)(unpublished) (citation omitted). It was not unreasonable for Carter, Bader, and Thompson to believe that they had exigent circumstances based on United States v. Rhiger, given the level of danger and the broken window. Tamez v. City of San Marcos, Texas provides further support for the proposition that the law was not clearly established, because there the Fifth Circuit held that the officers were permitted to enter the home, after reports of gunshots, where "[they] had not yet located the gun used to fire the reported shots, nor had they conclusively determined that there were no shooting victims or hostages in the house." 118 F.3d at 1096. The officers reported similar fears in this case, because they had not yet identified the shooter or his location, J. Kerns' had identified the area surrounding his home as the locus of the shots, and, although people appeared home, none came to the door. An officer could look at these cases and determine, in the heat of the moment, that he or she was justified in a warrantless entry to the Kerns' home. A jury could determine that the officers acted based on speculation, but to establish that the law was clearly established, the Kerns must "overcome a claim that the official made a reasonable `mistake of law' ..., a reasonable `mistake of fact,' or a reasonable `mistake based on mixed questions of law and fact.'" Deutsch v. Jordan, 618 F.3d 1093, 1099 (10th Cir.2010).
Furthermore, looking at the case law today, the Court does not believe the Kerns could meet the clearly established prong of the qualified immunity test as the Tenth Circuit has articulated that analysis in Kerns v. Bader and as the Supreme Court has applied the clearly established law analysis in Anderson v. Creighton. In United States v. Gambino-Zavala, 539 F.3d 1221 (10th Cir.2008), the Tenth Circuit recognized that "it is well settled that officers can reasonably search for victims upon reports of gunfire." 539 F.3d at 1226. The Tenth Circuit made that comment in the context of a case where officers were responding to witness reports of gunshots from an apartment complex, and, at the scene, witnesses identified the apartment searched, said the occupants were known to have guns, and identified two vehicles as belonging to the occupants in the parking lot. See United States v. Gambino-Zavala, 539 F.3d at 1226. An officer could reasonably construe the Tenth Circuit's statements in that case as justifying a search where a witness identified shots as coming from near his home, there was a window with a hole resembling a bullet in it, and, despite indications that the occupants were home, no one answered the door. In 2010, in Armijo ex rel. Armijo Sanchez v. Peterson, the Tenth Circuit recognized that officers had exigent circumstances
The Supreme Court has emphasized that courts must take into account the officers' on-scene perspective in gauging the reasonableness of their conduct as to the application of the exigent-circumstances doctrine. See Saucier v. Katz, 533 U.S. at 205, 121 S.Ct. 2151. Although certain factual questions remain, the officers' actions were not unreasonable in light of the clearly established law, and they are thus entitled to qualified immunity. The "principles of qualified immunity shield an officer from personal liability when an officer reasonably believes that his or her conduct complies with the law." Pearson v. Callahan, 555 U.S. at 244, 129 S.Ct. 808. Bader, Thompson, and Carter were operating within an emergency situation. The Supreme Court has recently admonished judges to "be cautious about second-guessing a police officer's assessment, made on the scene, of the danger presented by a particular situation," and that "the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving." Ryburn v. Huff, ___ U.S. ___, 132 S.Ct. 987, 992, 181 L.Ed.2d 966 (2012)(per curiam)(finding that officers were entitled to qualified immunity where they responded to a threat to "shoot-up" a school and entered the home of a suspect without a warrant). In its opinion, the Tenth Circuit acknowledged that the second qualified immunity question "is close." Kerns v. Bader, 663 F.3d at 1182. Given the case law as it stood in 2005, the Court finds that the law was not clearly established that police officers in these circumstances, taken in a light most favorable to the Kerns, did not have exigent circumstances to enter the Kerns' home. Although the officers may have been mistaken as to the immediacy of the danger, given that the shots were not reported to have come from within the Kerns' home and the broken window was the result of a stray golf ball, an officer's reasonable mistake as to the facts will still entitle the officer to qualified immunity. See Saucier v. Katz, 533 U.S. at 206, 121 S.Ct. 2151.
In the end, the Tenth Circuit and the Supreme Court law is not precise enough to give the courts, much less police officers, clear guidance on what is an exigent circumstance. Moreover, the cases from other circuits are not much more precise, and the Court cannot say, given such guidance, that the law is so clearly established that every reasonable police officer would know that entering the Kerns' home violated their civil rights. The swath of what may be constitutional — while no doubt broader than what is unconstitutional — remains broad. See Groh v. Ramirez, 540 U.S. at 573, 124 S.Ct. 1284 (Thomas, J., dissenting)("That is, our cases stand for the illuminating principle that warrantless searches are per se unreasonable, except, of course, when they are not."). The Court cannot say that every reasonable officer would have though what they were doing was unconstitutional. While a jury would have to resolve the disputed facts to determine whether the officers acted constitutionally, the clearly established prong is more protective than the first prong, and protects officers even when there are genuine issues of material fact.
The Kerns argue that the clearly established law required a connection between the Kerns' home and the gunshots. They also emphasize that Montoya, at the conclusion of the investigation, asserted that J. Kerns' perception of events was, at best, "not solid," and at worst, "misleading." Montoya Depo. at 58:17-25. The Court does not believe it was unreasonable, however, for the officers to rely on J. Kerns' statements in this rapidly evolving situation and finds it difficult for the Kerns to argue that the police should have known not to rely on what he reported. Furthermore, the Kerns point to no case law establishing that J. Kerns' statements were insufficient to connect the gunshots to his property. The case law requires "some reasonable basis" to associate an emergency
In the end, and at least for the foreseeable future, it may be difficult for plaintiffs in § 1983 cases to overcome qualified immunity defense in exigent circumstances cases. Like in baseball, ties go to the runner, see Coleman v. McLaren, 631 F.Supp. 749 (N.D.Ill.1985)("In the legal version of baseball's `ties go to the runner,' the party that fails to satisfy its burden of proof (here plaintiff) must lose."); in the exigent circumstances area, ties and even close calls go to the police, or other government official. Only the most extreme cases will go to the jury. Perhaps this what the Supreme Court intended, however, when it said: "Qualified immunity ... protects `all but the plainly incompetent or those who knowingly violate the law.'" Ashcroft v. al-Kidd, 131 S.Ct. at 2085 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). Despite the broad language of § 1983, all other innocent citizens will be without a remedy when their constitutional rights — less well-established — are violated.
The Tenth Circuit also directed the Court to determine whether the intrusion was justified, because Zisser consented to the search, "at least after the first incursion was made." Kerns v. Bader, 663 F.3d at 1183. On remand, the City Defendants have asserted that they "have never argued that Michelle Zisser's consent authorized the entry." Supplement Reply at 1-2. First, Zisser's consent could not have justified the officers' initial entry, because she encountered them only after they had entered the house. See Thompson Ans. at 2. Zisser's after-acquired consent could not justify the earlier entry, because, assuming that there were no exigent circumstances, the Fourth-Amendment violation had already occurred. Second, Zisser's consent could not justify any further intrusion, because her consent was not voluntary. Relevant considerations for consent to search include: "physical mistreatment, use of violence, threats, promises, inducements, deception, trickery, or an aggressive tone, the physical and mental condition and capacity of the defendant, the number of officers on the scene, and the display of police weapons." United States v. Sawyer, 441 F.3d 890, 895 (10th Cir.2006). Bader, Thompson, and Carter encountered Zisser in the hallway with their weapons drawn late at night, after their radios woke her up, and Zisser did
At the April 12, 2012 hearing, the parties agreed that, if the Court granted the MSJ, all of the federal claims would be resolved and that the Court should dismiss without prejudice the state law claims. See Tr. at 51:12-18 (Court, Lowry); id. at 57:8-12 (Court, Griffin). Despite this agreement, the Court finds that one federal claim remains pending before it — Count VI. Accordingly, the Court will continue to exercise supplemental jurisdiction over the pending state law claims.
On October 5, 2009, before the Court decided the City Defendants' MSJ, the remaining Counts and Defendants were: (i) Count I — illegal entry without a warrant — asserted against Bader, Carter, and Thompson; (ii) Count II — unlawful search and seizure — asserted against Lindley; (iii) Count III — unlawful search and seizure of medical information and deprivation of medical privacy contrary to the Fourth Amendment, the Fourteenth Amendment, and the Federal Privacy Act, 5 U.S.C. § 552A(b)(7) — asserted against White; (iv) Count IV — false arrest/false imprisonment of J. Kerns under the Fourth Amendment — asserted against Lindley, Koren, and Haag; (v) Count V — malicious prosecution under the Fourth Amendment — asserted against Lindley, Koren, and Haag; (vi) Count VI — municipal liability against the Board of Commissioners of Bernalillo County for the violations White was alleged to have committed in Count III; (vii) Count VIII — false detention/arrest/imprisonment
In its March 31, 2010 Order, the Court granted the Plaintiff's Motion for Summary Judgment as to Liability on Counts III & VI of the First Amended Complaint, filed July 17, 2009 (Doc. 180). See March 31, 2010 Order at 4.
In the April 12, 2010 MO, the Court also found that the Board of Commissioners of Bernalillo County were liable, under a theory of municipal liability, for White's constitutional violation and entered summary judgment on Count VI. See April 12, 2010 MO, 707 F.Supp.2d at 1269-70. The Court found that "White was the moving force behind the request without consent of J. Kerns' private medical records" and that "he is the official policy-maker for law-enforcement policies for the Bernalillo County Sheriff's Department." April 12, 2010 MO, 707 F.Supp.2d at 1269. The Tenth Circuit did not address the Court's determination that the Kerns' were entitled to summary judgment
Cooper v. Dillon, 403 F.3d at 1223. Accordingly, the Tenth Circuit's determination that White is entitled to qualified immunity does not effect the Court's determination that the Board of Commissioners for Bernalillo County were subject to municipal liability and its entry of summary judgment on Count VI in favor of the Kerns. Count VI thus remains pending before the Court and awaits a trial on damages.
In its Oct. 5, 2009 MOO, the Court held that Bader, Carter, and Thompson, "as law enforcement officers, do not have immunity for deprivation of property rights and trespass." Oct. 5, 2009 MOO at 17. The Court found that there "is evidence that Bader, Thompson, and Carter entered the Kerns' home without a warrant and without an exception to the warrant requirement, and, in doing so, they may not say they have immunity from tort liability." Oct. 5, 2009 MOO at 17-18.
MSJ Reply ¶ 43, at 4 (citing Montoya Depo. at 37:18-21, 38:1-5)(emphasis added). With respect to paragraph 44, the City Defendants assert that
MSJ Reply ¶ 44, at 4 (citing Bader Depo. at 19:5-14). In their depositions, Montoya and Bader both acknowledge that it is possible that J. Kerns heard the echo of the shot. See Montoya Depo. at 38:5 ("That could always be a possibility."); Bader Depo. at 18:25-19:4 ("That's fairly normal. Especially people that don't have a good background in firearms. If they have the reverberation or the echoes off the houses, they think that the shot cam from somewhere else...."). The City Defendants have not specifically controverted the asserted fact, that Montoya and Bader acknowledge J. Kerns could have heard an echo or reverberation, and the Court will deem that fact admitted. See D.N.M.LR-Civ. 56.1(b).
MSJ ¶ 17, at 4. The Kerns assert: "It is not contested that APD Officer Thompson was on the scene at 9910 Columbus Circle to investigate the helicopter shooting, genuine dispute exists as to how Officer Thompson was called to the Kerns' residence." MSJ Response ¶ 17, at 3. The Kerns do not, however, cite any evidence to support a genuine dispute, and, having admitted paragraph 18, the Court is unsure what dispute there could be. The local rules provide that "[a]ll material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted" and that the response "must refer with particularity to those portions of the record upon which the non-movant relies." D.N.M.LR-Civ. 56.1(b). Accordingly, the Court will deem paragraph 18 admitted.
MSJ ¶¶ 16, 19, at 4-5. The Kerns dispute that the music was loud, that the garage door was open, and that the lights were off. See MSJ Response ¶¶ 16, 19, at 3-4 (citing J. Kerns Depo. at 124:16-20, 140:19-25). In the MSJ Reply, the City Defendants assert that there is no genuine dispute, because the facts describe Bader's and Carter's perceptions. See MSJ Reply ¶ 16, at 2. They argue that J. Kerns' testimony establishes that his music was playing at "level eight" and, although the garage was closed when he left his residence, he admits that the garage door was open when he returned home at 2:45 a.m. MSJ Reply ¶ 16, at 2. Whether the music was loud is a matter of perception and, in paragraph 62 of the Kerns' asserted facts, the Kerns assert that Johnston heard the music playing inside the home, before the officers entered. See MSJ Response ¶ 62, at 10. The Court does not believe that the Kerns have specifically controverted the asserted fact, that the music was loud, with J. Kerns' testimony that the music was at level eight, given that the officers could hear the music playing while outside. Because the Kerns have not specifically controverted the asserted fact, the Court will deem the fact that the music was loud admitted. See D.N.M.LR-Civ. 56.1(b). With respect to whether the garage door was open, J. Kerns stated that "the door to the garage was completely shut." J. Kerns Depo. at 140:20. The City Defendants assert that J. Kerns conceded that the garage door was open when he returned at 2:45 a.m. See MSJ Reply ¶ 16, at 2 (citing J. Kerns Depo. at 252:6-10). The City Defendants did not, however, provide the Court with the cited portion of the deposition. Accordingly, there is dispute whether the garage door was open or closed. Because the Court must resolve all disputes in favor of the non-moving party, the Court will not include Thompson's observation that the garage door was open. See Hunt v. Cromartie, 526 U.S. 541, 551, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999)(stating that the court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party). With respect to whether the lights were on or off, there is conflicting testimony between the officers. See Thompson Ans. at 2 ("The garage door was open, but all the lights were out inside of the home."); Johnston Depo. at 23:1-5 ("[B]ut I could see lights on at the house...."). Furthermore, the City Defendants did not dispute the Kerns' paragraph 62, in which the Kerns assert that Johnston observed that the lights were on inside the house. See MSJ Reply at 3-7. Accordingly, because the Court must construe the evidence in the light most favorable, the Court will not include Thompson's observation that the lights were turned off. See Hunt v. Cromartie, 526 U.S. at 551, 119 S.Ct. 1545.
MSJ Reply ¶ 47, at 5 (citing Bader Depo. at 38:3-22, 54:18-20). The portions of Bader's deposition to which the City Defendants cite do not specifically controvert the asserted fact. Accordingly, the Court will deem the asserted fact, that Bader could not locate evidence about where the shooter was standing or went, admitted. See D.N.M.LR-Civ. 56.1(b). To more accurately reflect Bader's testimony, however, the Court will modify this fact to assert that Bader found no evidence of a shooter — other than the broken window.
MSJ Reply ¶¶ 56-57, at 5 (citing Bader Depo. at 46:8-14). This information and the cited portion of Bader's deposition do not controvert the asserted fact that the damage was because of a golf ball, which was on the ground next to the window. See D.N.M.LR-Civ. 56.1(b). Moreover, the Kerns do not assert, in this paragraph, that the officers' knew a golf ball caused the damage, they only assert that a golf ball caused the damage. Accordingly, the Court will deem this fact admitted. The Court will also include the information from Bader's deposition, that he did not closely inspect the window, in a separate fact.
Plaintiffs' Supplemental Factual Support in Opposition to the City Defendants' Motion for Summary Judgment ¶ 7, at 4, filed April 25, 2012 (Doc. 301). While the Kerns attack whether this fact was important to Johnston's decision-making, they do not specifically controvert the asserted fact that, in Bader's experience, a broken window is a bad sign. See D.N.M.LR-Civ. 56.1(b). Accordingly, the Court will deem the asserted fact admitted.
MSJ Reply ¶¶ 56-57, at 5 (citing Bader Depo. at 46:8-14). The City Defendants correctly point out that the portions of the record to which the Kerns cite do not establish that the officers knew that a golf ball had damaged the window. In his deposition, Bader testified that he "didn't closely inspect" the window and that he did not recall seeing the golf ball on the ground. Bader Depo. at 46:6-10. Each fact asserted in a response must "refer with particularity to those portions of the record upon which the non-movant relies." D.N.M.LR-Civ. 56.1(b). Because there is no evidence that the officers knew that a golf ball caused the damages that they observed, the Court will modify the asserted fact. The City Defendants do not, however, specifically controvert the remaining portion of the asserted fact, that it is not unusual for a golf ball to strike the Kerns' home because it is located on the eighteenth hole. See D.N.M.LR-56. 1(b). Accordingly, the Court will deem the remaining portion of the asserted fact admitted.
Johnston Depo. at 42:13-20. Accordingly, the City Defendants have specifically controverted the asserted fact that Johnston could articulate no facts concerning why he believed a person might be in need of assistance. See D.N.M.LR-Civ. 56.1(b). In response to a question whether he could articulate any objective facts that made him think someone had taken refuge inside of the house, Bader said "no." Bader Depo. at 69:4-7. Earlier in his deposition, however, Bader had stated:
Bader Depo. at 65:4-15. Thus, although perhaps confused as to what objective facts might be, Bader gave reasons why he believed an injured person or the shooter could have taken refuge in the house. The City Defendants have therefore specifically controverted the asserted fact that Bader could not articulate a reason someone might have sought refuge inside the house, and the Court will not include that fact. See D.N.M.LR-Civ. 56.1(b).
MSJ Reply ¶ 63, at 6. The City Defendants do not dispute the asserted fact, that Bader believed the Kerns' residence could be the scene of the crime, and the Court will deem that fact admitted. See D.N.M.LR-Civ. 56.1(b). The Court will, however, modify that fact to more accurately reflect the totality of Bader's testimony and the context in which that statement was made.
MSJ Reply ¶ 67, at 6-7 (citing Zisser Depo. at 39:5-21). The City Defendants' MSJ Reply does not specifically controvert the asserted fact. The Kerns and the City Defendants appear to agree that Zisser was asleep and that she did not hear anything before she woke up to the noises on the police radio. The City Defendants also do not provide any evidence which addresses where Zisser was sleeping. Accordingly, the Court will deem the asserted fact admitted.
Zisser Depo. at 46:19-47:6. The City Defendants point to other portions of Zisser's testimony in which she states that the officers did not threaten her, were not mean to her, and did not yell at her. See Zisser Depo. at 47:15-17, 51:17-25. This testimony does not, however, specifically controvert the asserted fact that Zisser testified that she did not feel that she could deny consent or that the officers had their weapons displayed. Accordingly, the Court will deem the asserted fact admitted. See D.N.M.LR-Civ.56.1(b).
MSJ Reply ¶ 45, at 4-5 (citing Montoya Depo. at 48:19-49:6). The City Defendants do not dispute that Montoya did not come across a clue indicating that the shot had come from Columbus Circle and the Court will deem that fact admitted. See D.N.M.LR-Civ. 56.1(b). The Court will, however, to more accurately reflect his testimony, indicate that Montoya reached this conclusion after the search and after talking with the other officers.
If, perhaps, a "large" case is a Supreme Court case or one that comes from the East Coast or California, rather than one in a district court in New Mexico, then it helps to look at what cases the Supreme Court has decided for the plaintiff. The three most recent qualified immunity cases, the Supreme Court dealt with are: (i) Reichle v. Howards, ___ U.S. ___, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012); (ii) Filarsky v. Delia, ___ U.S. ___, 132 S.Ct. 1657, 182 L.Ed.2d 662 (2012); and (iii) Messerschmidt v. Millender, ___ U.S. ___, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012). In Reichle v. Howards, the Supreme Court determined that secret service agents were entitled to qualified immunity for arresting a protestor who touched the Vice President and held that it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation. See 132 S.Ct. at 2092, 2097. In Filarsky v. Delia, the Supreme Court held that a private individual that the government hires to do its work, an internal affairs review, is entitled to seek qualified immunity for Fourth and Fourteenth Amendment violations. See 132 S.Ct. at 1660, 1668. In Messerschmidt v. Millender, the Supreme Court held that police officers in Los Angeles, California were entitled to qualified immunity when they relied on an invalid warrant to search a home, because a reasonable officer would not have realized the error. See 132 S.Ct. at 1241, 1250. The Supreme Court has not denied qualified immunity since 2004 in Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004), where it held that an officer unreasonably relied on a deficient warrant. See 540 U.S. at 565, 124 S.Ct. 1284. The Court does not think those presumably "large" cases (they are Supreme Court cases, after all) are any different — substantively, legally, or factually — than this case involving the search of a citizen's home after someone shot down a police helicopter and then detained that suspect for nine months until the United States realized that J. Kerns could not have shot down the helicopter.
On the flip side, treating large cases like they are large cases can create an appearance problem to the public and to the litigants — that only big cases deserve the Court's attention. A trial judge can overwork a "large" case. It is better to treat even "large" cases like every other case; large cases and their litigants need to know and appreciate that they are not the only case on the court's docket, and realize that the scarcity of judicial resources applies to them too.
407 U.S. at 238-39, 92 S.Ct. 2151. Congress did not say it would remedy only violations of "clearly established" law, but that
42 U.S.C. § 1983 (emphasis added). The Supreme Court established the qualified immunity defense in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and held that officials were not liable for constitutional violation where they reasonably believed that their conduct was constitutional. See E. Clarke, Safford Unified Sch. Dist. No. 1 v. Redding: Why Qualified Immunity is a Poor Fit in Fourth Amendment School Search Cases, 24 B.Y.U. J. Pub.L. 313, 329 (2010). The Supreme Court first introduced the "clearly established" prong in reference to an officer's good faith and held that a compensatory award would only be appropriate if an officer "acted with such an impermissible motivation or with such disregard of the [individual's] clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith." Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). In Harlow v. Fitzgerald, when the Supreme Court moved to an objective test, the clearly-established prong became a part of the qualified immunity test. See 457 U.S. at 818, 102 S.Ct. 2727 ("We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights."). It seems ironic that the federal courts would restrict a congressionally mandated remedy for constitutional violations — presumably the rights of innocent people — and discourage case law development on the civil side — and restrict case law development to motions to suppress, which reward only the guilty and is a judicially created, rather than legislatively created, remedy. Commentators have noted that, "[o]ver the past three decades, the Supreme Court has drastically limited the availability of remedies for constitutional violations in" exclusionary rule litigation in a criminal case, habeas corpus challenges, and civil litigation under § 1983. J. Marceau, The Fourth Amendment at a Three-Way Stop, 62 Ala. L.Rev. 687, 687 (2011). Some commentators have also encouraged the courts to drop the suppression remedy and the legislature to provide more — not less — civil remedies for constitutional violations. See Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. Ill. L.Rev. 363, 390-91 (1999)("Behavioral theory suggests that the exclusionary rule is not very effective in scaring police into behaving.... These theories also suggest that a judicially administered damages regime ... would fare significantly better at changing behavior at an officer level."); Hon. Malcolm R. Wilkey, Constitutional Alternatives to the Exclusionary Rule, 23 S. Tex. L.J. 531, 539 (1982)(criticizing the exclusionary rule and recommending alternatives). In Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), the Supreme Court noted that civil remedies were a viable alternative to a motion to suppress when it held that the exclusionary rule was inapplicable to cases in which police officers violate the Fourth Amendment when they fail to knock and announce their presence before entering. See 547 U.S. at 596-97, 126 S.Ct. 2159. Rather than being a poor or discouraged means of developing constitutional law, § 1983 seems the better and preferable alternative to a motion to suppress. It is interesting that the current Supreme Court and Tenth Circuit appear more willing to suppress evidence and let criminal defendants go free, than have police pay damages for violations of innocent citizens' civil rights. It is odd that the Supreme Court has not adopted a clearly established prong for suppression claims; it seems strange to punish society for police violating unclear law in criminal cases, but protect municipalities from damages in § 1983 cases.
