663 F.3d 1173 (10th Cir. 2011), 09-2273, Kerns v. Bader

Docket Nº:09-2273, 10-2103, 10-2106.
Citation:663 F.3d 1173
Opinion Judge:GORSUCH, Circuit Judge.
Party Name:Jason KERNS; Archie Kerns; Mary Ann Kerns, Plaintiffs-Appellees, v. Albuquerque Police Department Officers Drew BADER; Matt Thompson; Russell Carter, in their individual capacities, Defendants-Appellants, and Board of Commissioners of Bernalillo County; Bernalillo County Sheriff Darren White, in his individual and his official capacity; Bernalillo
Attorney:Stephanie M. Griffin, Assistant City Attorney, City of Albuquerque Legal Department, Albuquerque, NM, and Daniel J. Macke, Robles, Rael & Anaya, P.C., for Defendants-Appellants. Marc M. Lowry, Rothstein, Donatelli, Hughes, Dahlstrom, Schoenberg & Bienvenu, LLP, Albuquerque, NM, for Plaintiffs-App...
Judge Panel:Before O'BRIEN, HOLLOWAY, and GORSUCH, Circuit Judges. HOLLOWAY, Circuit Judge, dissenting:
Case Date:December 20, 2011
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1173

663 F.3d 1173 (10th Cir. 2011)

Jason KERNS; Archie Kerns; Mary Ann Kerns, Plaintiffs-Appellees,

v.

Albuquerque Police Department Officers Drew BADER; Matt Thompson; Russell Carter, in their individual capacities, Defendants-Appellants,

and

Board of Commissioners of Bernalillo County; Bernalillo County Sheriff Darren White, in his individual and his official capacity; Bernalillo County Sheriff's Detectives Brian Lindley; Ralph Gonzales; James Hamsten, in their individual capacities; Bernalillo County Sheriff Deputies Lawrence Koren; Sean Connors; Aaron Wright; Timothy Hix; Rhonda Moya, in their individual capacities; The City of Albuquerque; Albuquerque Police Department Officers Robert Johnston; James Montoya, in their individual capacities; Metropolitan Forensic Science Center Firearm and Tool Mark Examiner Mike Haag, in his individual capacity; John Does 1-10, in their individual capacities, Defendants.

Jason Kerns; Archie Kerns; Mary Ann Kerns, Plaintiffs-Appellees,

v.

Board of Commissioners of Bernalillo County; Bernalillo County Sheriff Darren White, in his individual and his official capacity; Bernalillo County Sheriff Detective Brian Lindley; Bernalillo County Sheriff Deputy, Lawrence Koren, Defendants-Appellants,

and

Bernalillo County Sheriff's Detectives Ralph Gonzales, and James Hamsten, in their individual capacities; Sean Connors, Aaron Wright, Timothy Hix, and Rhonda Moya, in their individual capacities; The City of Albuquerque, Albuquerque Police Department Officer Drew Bader, Matt Thompson, Russell Carter, Robert Johnston and James Montoya, in their individual capacities; Metropolitan Forensic Science Center Firearm and Tool Mark Examiner Mike Haag, in his individual capacity; and John Does 1-10, in their individual capacities, Defendants.

Mike Haag; Jason Kerns; Archie Kerns; Mary Ann Kerns, Plaintiffs-Appellees,

v.

Metropolitan Forensic Science Center Firearm and Tool Mark Examiner Mike Haag, in his individual capacity, Defendant-Appellant,

and

Board of Commissioners of Bernalillo County, Bernalillo County Sheriff Darren White, in his individual and his official capacity; Bernalillo County Sheriff's Detectives Brian Lindley, Ralph Gonzales, and James Hamsten, in their individual capacities; Bernalillo County Sheriff Deputies Lawrence Koren, Sean Connors, Aaron Wright, Timothy Hix, and Rhonda Moya, in their individual capacities; The City of Albuquerque, Albuquerque Police Department Officers Drew Bader, Matt Thompson, Russell Carter, Robert Johnston and James Montoya, in their individual capacities; and John Does 1-10, in their individual capacities, Defendants.

Nos. 09-2273, 10-2103, 10-2106.

United States Court of Appeals, Tenth Circuit.

December 20, 2011

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Stephanie M. Griffin, Assistant City Attorney, City of Albuquerque Legal Department, Albuquerque, NM, and Daniel J. Macke, Robles, Rael & Anaya, P.C., for Defendants-Appellants.

Marc M. Lowry, Rothstein, Donatelli, Hughes, Dahlstrom, Schoenberg & Bienvenu, LLP, Albuquerque, NM, for Plaintiffs-Appellees.

Before O'BRIEN, HOLLOWAY, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Do we have to decide a qualified immunity appeal involving close questions of law that the district court hasn't yet addressed? Do the police violate a suspect's clearly established rights by requesting his hospital records? And do 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? We answer no to the first two questions and yes to the last.

I

On a summer evening in 2005 a sniper shot down a police helicopter over Albuquerque. When the authorities reached the scene, one man stood out. His name was Jason Kerns. Mr. Kerns was quick to tell the police that he was watching the helicopter from his backyard when it went down— and that he had heard a loud, ear-ringing pop just to his left and the sound of rocks kicking up nearby. In response to this information, SWAT and K-9 units canvassed the area Mr. Kerns described.

They soon noticed that something seemed amiss when they reached Mr. Kerns's house: a door was ajar, music was playing, no lights were on. Things took an even darker turn when the officers noticed a broken window. A silver-dollar-sized hole punctured a window of the house, with shattering concentrically outward. This, the police thought, might be the result of a gunshot— perhaps by the same sniper who had just fired on the police.

Concerned that an armed suspect might be hiding inside (perhaps even holding hostages), three officers— Bader, Thompson, and Carter— attempted to make contact with the occupants of the house. No one answered their repeated knocks. Finding a side door unlocked, Officers Bader, Thompson, and Carter announced and entered. Inside they soon encountered Mr. Kerns's girlfriend, Michelle Zisser, who hadn't heard their knocks. One of the officers explained that he was looking for a possible shooting suspect and was concerned the suspect might be hiding

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somewhere inside. Ms. Zisser agreed to let them look around. The police did a quick sweep, everything appeared to be in order, and they soon left. Indeed, it later turned out that the broken window had been caused by an errant golf ball some time before.

As police continued to investigate, it seemed to them that some of Mr. Kerns's statements didn't add up. He told police that he had heard a loud clap when the helicopter went down. But none of his neighbors reported hearing anything like this. He told police that rocks kicked up nearby at the same time. But the police couldn't find a rock bed anywhere near the location Mr. Kerns described. Deputy Lindley learned that Mr. Kerns had served in the military as a helicopter mechanic and marksmanship instructor. Deputy Lindley also learned that Mr. Kerns had been trained to hit man-sized targets up to 2100 feet away— and could likely hit a helicopter-sized target at a much greater distance. For his part, Mr. Kerns estimated that the helicopter had been less than 1000 feet away from his house when it was shot down.

Later interactions with Mr. Kerns only made him appear more suspect in the authorities' eyes. In a written statement, he admitted that he had been looking at the helicopter and had been " annoyed" by it. He bragged to Deputy Lindley that he would have been able to " make that shot" with " no problem." He added that he had trained to take shots at even greater distances. Deputy Lindley prodded Mr. Kerns a bit, asking him whether someone near Mr. Kerns's house would have been able to see the helicopter from that angle. Not missing a beat, Mr. Kerns replied that he had been able to see the helicopter just fine, and the way it was backlit made it " a great target." He even explained how the helicopter's red strobe lights gave him an indication of the helicopter's flight path.

Later, detectives attempted to follow Mr. Kerns in an unmarked car. It wasn't long before Mr. Kerns noticed he was being tailed and began to drive over one hundred miles per hour in an admitted attempt to lose the trailing car. As he later explained, he thought he was being followed by police and " if they're just watching now, I'm not gonna make it easy for anybody." Aplt.App. at 215. He also told investigators that he suffered from Post Traumatic Stress Disorder (PTSD), and that being followed by an unmarked police car had triggered a negative reaction. He declined to tell police, however, what other situations might prompt his PTSD.

Eventually, the Bernalillo County Sheriff's Department executed a warrant to search Mr. Kerns's home for weapons and ammunition. They found plenty of both, as well as a silencer, military literature, and several high power rifles they thought capable of downing a helicopter. One rifle in particular, a Fabrique Nationale Model 30.06 bolt-action rifle (" FN rifle" ), captured their attention. As part of the search, police also examined the trash outside Mr. Kerns's home. There they found something else curious: a spent rifle shell wrapped in tape and buried at the bottom of the trash can. Mr. Kerns said the shell was an old one he found while cleaning his garage. But analysis of the tape showed that it was fresh, neither dry nor dirty. All this suggested to police that someone had attempted to conceal the shell and had done so recently.

While these events were unfolding, Sheriff White began to question whether Mr. Kerns could lawfully possess weapons at all. Given Mr. Kerns's admission that he suffered from PTSD, Sheriff White decided to investigate whether he had ever

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been adjudicated to have a mental defect and so unable to possess firearms under 18 U.S.C. § 922(g)(4). In aid of his effort, the Sheriff sent a letter to the local Veteran Affairs hospital, where Mr. Kerns had received psychiatric treatment, asking for " any and all records possessed by the VA pertaining to [Mr. Kerns's] psychiatric condition as it would apply to 18 U.S.C. [§ ] 922(g)(4)." Aplt.App. at 308. A few days later the hospital voluntarily complied.

Meanwhile, other investigators sought to learn more from the wreckage of the helicopter. They evaluated the apparent trajectory of the bullet through the helicopter to determine where the bullet had come from, and they retrieved a few fragments of the bullet itself. Though these fragments were badly mangled, a forensic expert, Michael Haag, told investigators that the bullet could have come from Mr. Kerns's FN rifle...

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