Kerns v. Bd. Of Comm'rs Of Bernalillo County

• Decision Date: 12 April 2010
• Docket Number: No. CIV 07-0771 JB/ACT.,CIV 07-0771 JB/ACT.
• Citation: 707 F.Supp.2d 1190
• 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

707 F.Supp.2d 1190

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.

April 12, 2010.

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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 ¹

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) Defendant Mike Haag's Motion for Summary Judgment and Memorandum in Support, Requesting Dismissal of Counts IV, V, VIII, IX, XI, XII, XIII, and XIV of Plaintiffs' First Amended Complaint, filed June 26, 2009 (Doc. 165)(“Haag's Motion”); (ii) Defendants Board of County Commissioners of Bernalillo County, Darren White, Brian Lindley, Ralph Gonzales, and Laurence Koren's Motion for Summary Judgment on the Basis of Qualified Immunity and on Other Grounds and Memorandum in Support, filed July 17, 2009 (Doc. 182)(“County Defendants' Motion”); (iii) the Plaintiffs' Motion for Summary Judgment as to Liability on Counts III & VI of the First Amended Complaint, filed July 17, 2009 (Doc. 180)(“Plaintiffs Motion on Counts III & VI”); and (iv) the Plaintiffs' Motion for Summary Judgment as to Liability on Counts II, IV & V of the First Amended Complaint, filed July 27, 2009 (Doc. 189)(“Plaintiffs' Motion on Counts II, IV & V”). The Court held a hearing on August 31, 2009. The primary issues are: (i) whether probable cause supported Defendant Bernalillo County Sheriff's Detective Brian Lindley's search-warrant affidavit for Plaintiffs Jason Kerns, Archie Kerns, and Mary Ann Kerns' residence; (ii) whether Defendant Bernalillo County Sheriff Darren White's request for J. Kerns' medical records was an unlawful search and seizure, and an unlawful violation of privacy; (iii) whether Lindley's, Defendant Bernalillo County Sheriff's Deputy Lawrence Koren's, and Defendant Metropolitan Forensic Science Center Firearm and Tool Mark Examiner Mike Haag's contributions to the arrest-warrant affidavit were recklessly false, vitiating probable cause of J. Kerns' arrest; (iv) whether Lindley, Koren, and Haag are liable for malicious prosecution; (v) whether Haag is liable for false arrest and malicious prosecution for his ballistics analysis; (vi) whether Lindley, Koren, and Defendant Board of Commissioners of Bernalillo County are liable under the New Mexico Tort Claims Act (“NMTCA”) NMSA 1978, §§ 41-4-1 through 41-4-27, for false arrest and malicious abuse of process; and (vii) whether Lindley and Bernalillo County are liable for trespass and conversion. The Court finds that probable cause supported the search warrant of the Plaintiffs' residence and will therefore grant Lindley qualified immunity on Count II. The Court finds that White violated J. Kerns' right of privacy under the Fourth and Fourteenth Amendments and, because there are no genuine issues of fact that necessitate trial, the Court will grant the Plaintiffs' motion for summary judgment as to liability on Counts III and VI. The Court finds that qualified immunity on Counts IV and V is inappropriate because there are genuine issues of material fact as to Haag's, Lindley's and Koren's intent, and thus denies both the Defendants and the Plaintiffs summary judgment as to those counts. Also, because probable cause remains in question, the Court will deny the motion for summary judgment on Counts XIII and IX. Because there is no evidence of trespass or property conversion, the Court will grant summary judgment to Lindley and Bernalillo County on Counts X and XI.

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 J. 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. The Plaintiffs brought this federal suit against those involved in the investigation, arrest, and prosecution. Many of the material facts are undisputed. The Court notes, however, the factual disputes and whether the dispute is material.

1. The Crash of Metro One.

On August 6, 2005, Metro One was conducting a law-enforcement surveillance patrol, circling the intersection of Golf Course Road and Paradise Boulevard in Albuquerque to assist officers on the ground who were attempting to locate a burglary suspect. See Holland's Report to the National Transportation Safety Board at 3 (dated September 29, 2005), filed July 27, 2009 (Doc. 190-1) (“Holland's NTSB Report”). At approximately 12:00 a.m., Ed Sauer, retired Deputy Chief of the Albuquerque Police Department (“APD”), observed Metro One hovering in the area of Paradise Boulevard and Golf Court Road. See Deposition of Edward Sauer at 5:5-9, filed February 17, 2009 (Doc. 117-2).

On Metro One's fifth pass over the area, the two-person crew heard a load noise originating from inside the aircraft, the aircraft shook, and began to turn right. See Holland's NTSB Report at 3. A bullet struck Metro One, entering the bottom front nose of the helicopter, piercing the plexiglass, and sticking into the left rudder pedal. See Deposition of Lawrence Koren at 22:2-24 (taken December 23, 2008), filed July 27, 2009 (Doc. 190). Metro One's pilot, Chris Holland, estimated that the left rudder pedal was four inches forward of neutral and eight inches in front of the right rudder pedal when the bullet hit Metro One. See Deposition of Christopher Holland at 63:11-64:10 (taken October 30, 2008), filed July 27, 2009 (Doc. 190-1).

Holland estimates his altitude at about 400 feet above ground level at the time the bullet struck Metro One. See Holland's NTSB Report at 3; Holland's Depo. at 38:28. In Holland's deposition, Holland marked a map indicating the direction that Metro One was facing when Holland heard a pop noise inside the helicopter and the airframe shook violently. See Holland Depo. at 32:4-17; id. at 35:3-8; id. Exhibit 2. At that time, Holland indicated that he believed Metro One was pointed in a north-easterly direction. See Holland Depo. at 32:4-17; id. at 35:3-8; id. Exhibit 2.²

Believing the engine had suffered catastrophic engine failure, Holland initiated an emergency landing of Metro One. See Holland Depo. at 36:14-37:4. Metro One crashed into the backyard of a residence near the golf course. See Sauer Depo. at 12:18-13:1.

2. Police Response After the Crash.

Following the crash of Metro One, multiple police units responded to the scene. See Deposition of Brian Lindley at 11:14-25 (taken December 18, 2008), filed July 17, 2009 (Doc. 182-4). Sauer was one of the first officers to arrive at the scene of the helicopter crash. See Sauer Depo. at 14:18-15:16. After discovering the helicopter wreckage, he assisted in tearing down a fence. See Sauer Depo. at 14:23-15:3. He also saw the observer-passenger and Holland walking away from the helicopter, but did not observe anyone else near the helicopter at that time. See id. at 15:4-16. Sauer did not recall seeing anyone else at the scene when the fence was torn down. See id. at 14:21-15:8. Many individuals in the area, including J. Kerns, witnessed the crash. See id. at 20:14-16. Sauer testified that several people approached him, as he was coming from the crash, saying: “We think there were shots.” Sauer Depo. at 40:16-19.³ Sauer instructed them to move back and stay away from the helicopter. See Sauer Depo. at 20:14-16.

Bernalillo County Sheriff's Deputy Bill Webb was another first responder to the scene. See Affidavit of William Webb ¶¶ 1-2, at 1 (executed June 24, 2009), filed July 17, 2009 (Doc. 182-6)(“Webb Aff.”). He did not witness any civilians in the area when he arrived, nor did he recall hearing any civilians instructing officers on how to open the door to the helicopter. See Webb Aff. ¶¶ 4-5, at 2. Detectives asked Webb whether any civilians were in the vicinity at the time that he arrived, and he testified that he did not recall seeing anyone there except another officer. See id. ¶ 5, at 2.

3. J. Kerns at the Scene of the Crash.

Before the crash, J. Kerns was working outside the Plaintiffs' residence, located at 9910 Columbus Circle, Albuquerque, rearranging storage in the storage area on the side of the house and the garage. See Deposition of Jason Kerns at 122:1-21 (taken October 22, 2008), f...