Kerns v. Bd. of Comm'rs of Bernalillo Cnty.

• Decision Date: 22 August 2012
• Docket Number: No. CIV 07–0771 JB/ACT.,CIV 07–0771 JB/ACT.
• Citation: 888 F.Supp.2d 1176
• Parties: Jason KERNS, Archie Kerns, and Mary Ann Kerns, Plaintiffs, v. 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, 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.
• Court: U.S. District Court — District of New Mexico

888 F.Supp.2d 1176

Jason KERNS, Archie Kerns, and Mary Ann Kerns, Plaintiffs,

v.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, 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.

No. CIV 07–0771 JB/ACT.

United States District Court,

D. New Mexico.

Aug. 22, 2012.

Marc M. Lowry, Carolyn M. Nichols, Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Albuquerque, NM, for Plaintiffs.

Daniel J. Macke, Robles, Rael, & Anaya, P.C., Albuquerque, NM, for Defendants Board of Commissioners of Bernalillo County, Bernalillo County Sheriff Darren White, Bernalillo County Sheriff's Detectives Brian Lindley, and Bernalillo County Sheriff's Deputy Lawrence Koren.

Stephanie M. Griffin, Assistant City Attorney, Albuquerque City Attorney's Office, Albuquerque, NM, for Defendants Albuquerque Police Department Officers Drew Baden, Matt Thompson, Russell Carter, and Metropolitan Forensic Science Center Firearm and Tool Mark Examiner Mike Haag.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the United States Court of Appeals for the Tenth Circuit's Judgment, filed January 19, 2012 (Doc. 286–2) (“Tenth Circuit Judgment”); (ii) United States Court of Appeals for the Tenth Circuit's Opinion, filed January 19, 2012 (Doc. 286–1); ¹ and (iii) Defendants Drew Bader, Matthew Thompson, and Russell Carter's Motion for Summary Judgment and Memorandum in Support, Requesting Dismissal of Counts I, X, and XIII of Plaintiffs' First Amended Complaint [Doc. 5], filed February 17, 2009 (Doc. 117)(“MSJ”). The Court held a hearing on April 10, 2012. The primary issue is whether Defendants Drew Bader, Matthew Thompson, and Russell Carter ² are entitled to qualified immunity protection from the Plaintiffs' claims for relief, because they did not violate clearly established law regarding a warrantless search pursuant to the exigent circumstances exception.³ The Court will grant the MSJ with respect to the Fourth–Amendment claim asserted in Count I. The Court finds that the City Defendants did not violate clearly established law, because, analyzing the case law at a low level of generality, it was not clearly established that exigent circumstances did not exist.

FACTUAL BACKGROUND

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. Plaintiffs J. Kerns, Archie Kerns, and Mary Ann Kerns brought this federal suit against those involved in the investigation, arrest, and prosecution.

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).⁴ Sauer radioed the Special Weapons and Tactics (“SWAT”) supervisor to come to his location, because he had “three witnesses [that say] they know where the shots fired came from.” Deposition of Edward Sauer at 44:9–15 (January 12, 2009), filed May 1, 2009 (Doc. 156–2); Response MSJ ¶ 34, at 5 (setting forth this fact); MSJ Reply at 3 (not disputing this fact). One man kept telling Sauer that the helicopter had been shot down. See Sauer Depo. at 20:16–23; MSJ ¶ 6, at 3 (setting forth this fact).⁵

J. Kerns was one of the witnesses who approached Sauer and J. Kerns stated that he overheard other people saying that the helicopter had been shot down. See Deposition of Jason Kerns at 148:11–17, filed May 1, 2009 (Doc. 156–1); Transcript of Videotaped Interview of Jason Kerns at 18:22–25, 19:1–4 (not dated), filed May 1, 2009 (Doc. 156–1)(“J. Kerns Videotaped Tr.”); MSJ Response ¶ 35, at 6 (setting forth this fact).⁶ Sauer recalls J. Kerns saying: “I know where the shot came from.” Sauer Depo. at 21:21–22:1, 40:6–19; MSJ ¶ 7, at 3 (setting forth this fact).⁷ J. Kerns told Sauer: “I watched it go down, I think I heard where the pop noise came from.” Deposition of Jason Kerns 49:23–24 at 2 (taken Oct. 22, 2008), filed Feb. 17, 2009 (Doc. 117–3); MSJ ¶ 7, at 3 (setting forth this fact); MSJ Response ¶ 7, at 3 (not disputing this portion of the fact); MSJ Response ¶ 36, at 6 (setting forth this fact). Sauer instructed J. Kerns to “[s]tay right here,” and Sauer had another officer speak with J. Kerns. Sauer Depo. 22:90–23:2 at 6; MSJ ¶ 8 (setting forth this fact); MSJ Response ¶ 8, at 3 (not disputing this fact). After hearing that the Metro One helicopter had been shot down, members of the Albuquerque Police Department (“APD”) Tactical Unit arrived on the scene. See Deposition of Sergeant Robert Johnston at 4:18–24 (February 4, 2009), filed February 17, 2009 (Doc. 117–4); MSJ ¶ 9, at 3 (setting forth this fact); MSJ Response ¶ 9, at 3 (not disputing this fact). Officer Drew Bader and Sergeant Robert Johnston spoke to J. Kerns about what he witnessed. See Johnston Depo. at 9:13–24, 11:5–19; Deposition of Drew Bader at 22:2–12 (taken Feb. 11, 2009), filed February 17, 2009 (Doc. 117–5); MSJ ¶ 10 (setting forth this fact); Response MSJ ¶ 10, at 3 (not disputing this fact).

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 February 17, 2009 (Doc. 117–6); MSJ ¶ 12, at 4 (setting forth this fact); MSJ Response ¶ 12, at 3 (not disputing this fact).

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, f...