# Kerns v. Board of Com'rs of Bernalillo County

> District Court, D. New Mexico · April 12, 2010 · 707 F. Supp. 2d 1190

URL: https://www.frixlaw.com/law-library/cases/2539740

## Case

- **Full name:** 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 Sheriffs 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:** District Court, D. New Mexico
- **Decided:** April 12, 2010
- **Citations:** 707 F. Supp. 2d 1190; 2010 U.S. Dist. LEXIS 38110; 2010 WL 1609222
- **Precedential status:** Published
- **Opinion:** Opinion by Browning
- **Judges:** James O. Browning
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2539740

## How later opinions describe it (automated extraction)

- stating that “HIPAA restrains the 'health plan, health care clearinghouse, or health care provider’ from disclosing protected medical information, and does not restrain law-enforcement directly.” (quoting 45 C.F.R. § 164.104)
- rejecting argument that “law enforcement officer is liable for property damage resulting from a violation of property rights” where search pursuant to a warrant was lawful, and dismissing claims under the TCA for deprivation of property right based in trespass and conversion d…

## Opinion text

MEMORANDUM OPINION
1
JAMES 0. 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 Sheriffs 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,
*1198
§§ 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 Sheriffs 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 Sheriffs 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-l)(“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
*1199
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 Sheriffs 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.
*1200
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), filed July 27, 2009 (Doe. 190-2). He watched the helicopter hovering from the edge of his backyard, near the property line and the golf course.
See
Statement of Jason Kerns at 5, filed July 27, 2009 (Doc. 190-2)(“J. Kerns Statement”); J. Kerns Depo. at 126:13-128:24. As J. Kerns watched the helicopter fly low over the area, he heard a “loud pop sound” to his left, and he observed the helicopter pitch severely and dive to the ground.
See
J. Kerns Statement at 5. After witnessing the crash, J. Kerns quickly left the house-leaving the music on and the door cracked open — and drove to the intersection of Golf Course Road and Paradise Hills Boulevard.
See
J. Kerns Depo. at 140:6-143:7. J. Kerns attempted to telephone 911 from his cellular telephone while he drove, but the call was dropped, and he never reached 911.
See
J. Kerns Depo. at 141:18-143:10.
Once J. Kerns got to the scene, which he located based on the activity surrounding the wreck, he went to the backyard where the helicopter had crashed and, according to J. Kerns, he told an officer how to open the door of the helicopter.
See
J. Kerns Depo. at 144:5-145:13. J. Kerns approached Sauer and told him: “I watched it go down, I think I heard where the pop noise came from.” J. Kerns Depo. at 49:23-24.
4
Sauer separated J. Kerns from the other witnesses.
See
J. Kerns Depo. at 150:4-23;
id.
at 154:6-17. Members of the APD Special Weapons and Tactics team (“SWAT”) arrived on the scene, including Defendant Officer Drew Bader and Sergeant Robert Johnston.
See
Deposition of Robert Johnston at 9:13-24 (taken February 4, 2009), filed July 17, 2009 (Doc. 182-7). When Johnston arrived, Sauer informed him that there was a witness — J. Kerns — who believed he heard a gunshot.
See
Johnston Depo. at 3:19:4:24. Sauer then instructed Johnston to talk to J. Kerns, find out where the popping noise or gunshot came from, and search that area.
See
Johnston Depo. at 9:11-24. J. Kerns spoke to Johnston and told him about the popping noise, that he knew the direction from which the noise came, and that the noise was loud enough to make J. Kerns’ ears ring.
See
J. Kerns Depo. at 156:9-25. J. Kerns also told Johnston that the popping sound came from J. Kerns’ left, north of his location, and that, almost immediately thereafter, J. Kerns heard a sound like rocks kicking up or something impacting the ground near where the popping noise originated.
See
Sauer Depo. at 62:2-7; 911 Calls and Dispatch on August 6, 2005 at 35:11-17, filed August 11, 2009 (Doc. 201-2); Johnston Depo. at 12:7-13.
5
While J. Kerns did not know the identity of the officer to whom he spoke, he concedes that he probably said these things to whomever that person was.
See
J. Kerns Depo. at 156:12-25. J. Kerns told Johnston that his observations took place near his residence.
See
Johnston Depo. at 11:4-14. He also told Johnston that he saw the helicopter flying around and then
*1201
heard popping noise about fifty feet away.
See
Johnston Depo. at 11:14-19. Upon further inquiry by the officers, J. Kerns conceded that the noise could have been an engine backfire or a rifle report.
See
J. Kerns Depo. at 157:12-158:10.
6
J. Kerns also provided a written statement to the APD officers on an APD witness form, in which he described his perceptions of the helicopter crash.
See
J. Kerns Statement at 5. In the statement, J. Kerns stated the helicopter was hovering approximately three-hundred yards southeast of the Plaintiffs’ residence.
See id.
He stated he was standing on the edge of his yard, looking out because his dog — who is not generally troubled by aircraft — was upset and barking at something.
See id.
J. Kerns stated that he walked to the edge of his property line and the golf course, watching the helicopter hovering, assuming it was giving air support to some ground units.
See id.
He began wondering why it was staying in the same location for so long.
See id.
His statement described his observation of the helicopter crash as follows:
I hate to say this, but I was getting annoyed by the sound of the chopper because it was there so long. It seemed lower and closer than they usually fly around the golf course. I had been watching it for close to eight minutes. He looked closer than 1000 ft and I was actually contemplating if I should call someone but then I thought how complicated that would be and if I waited he’d be gone in a few minutes anyway. Besides I couldn’t see the aircraft #’s to report it. All I could see is the chopper’s siloutte [sic] illuminated from below and behind by the cloud cover and street lights. I also could see the aircraft lights and two red strobes giving me a better reference of its flight. It started to rain but I was working outside anyways so I stood fast and continued to watch. The golf course sprinklers were on, but my dog was still upset, I was trying to calm her down. I thought it might be another rabbit by the yard. I was looking up at the helicopter. There was a loud pop sound directly to my left North of my location right after the pop almost instantly I heard rocks kicking up like something got kicked up or impacted the ground by the same location of the pop noise, immediately after that the helicopter pitched severely the helicopter sound went to a loud winding pitch as it dove. The pilot had almost no time to autogyro and I watched the helicopter go down.
J. Kerns Statement at 5.
No one other than J. Kerns heard any gun shot in the area of the Plaintiffs’ residence.
See
Affidavit for Search Warrant at 4 (executed August 9, 2005), filed July 27, 2009 (Doe. 190-4); Lindley Depo. at 59:21-25; Deposition of Ralph Gonzales at 40:5-25 (taken December 9, 2008), filed July 27, 2009 (Doc. 190-5). Other witnesses who informed law-enforcement officers that they heard a gun shot were all in the immediate area of the helicopter crash
*1202
and not close to the Plaintiffs’ home.
See
Affidavit for Search Warrant at
2.
4.
August 6, 2005 Search of the Plaintiffs ’ Residence.
After speaking with J. Kerns, Johnston sent the APD SWAT team and K-9 units to the area of the Plaintiffs’ 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 13:10-18;
id.
at 15:10— 15. When the SWAT team got to the Plaintiffs’ residence, they heard music coming from the residence.
See
Johnston Depo. at 23:6-8;
id.
at 23:17-24; J. Kerns Depo. at 124:16-24. Johnston’s report alleges that the garage door was open when Johnston and his SWAT team got to the Plaintiffs’ residence.
See
Johnston Depo. at 23:6-8;
id.
at 23:17-24; Lindley Depo. at 59:21-25. J. Kerns, however, asserts that the garage door was closed when he left his home to go to the crash cite.
See
J. Kerns Depo. at 140:19-20.
Officer James Montoya, part of Johnston’s SWAT team, reported that the Plaintiffs’ garage door was open and music was coming from the residence.
See
Deposition of James Montoya (taken February 9, 2009) at 4:9-5:22, filed July 17, 2009 (Doc. 182-9). Defendant Matthew Thompson, an APD SWAT officer, was advised that officers from his search team heard loud music coming from the house, and that the other officers “believed that there was a possible party going on inside.” Matthew Thompson’s Answer to Interrogatory 7, filed July 17, 2009 (Doc. 182-10). Sauer also testified that he heard over the radio that there was a “39-2,” which is code for a loud-party disturbance.
See
Sauer Depo. at 61:9-18. According to J. Kerns, he was working on rearranging storage outside the Plaintiffs residence before the crash and had been playing music.
See
J. Kerns Statement at 5; Lindley Depo. at 72:9-15, filed August 11, 2009 (Doc. 201-4).
Montoya reported that there was “stuff’ thrown in the driveway and on the side of the home, and also reported observing Marine Corps manuals and other items.
See
Montoya Depo. at 5:19-22. Another APD officer reported seeing ammunition canisters either inside the house or in the garage.
See
Johnston Depo. at 32:16-34:6; Thompson’s Answer to Interrogatory No. 7. Montoya also wrote in his report that the information given by Kerns was “not solid and was misleading,” Montoya Depo. at 5:18-19 & Exhibit 1, but he could not recall why he had written that in his report,
see
Montoya Depo. at 36:9-37:13. Montoya had never spoken, however, directly with Kerns.
See
Montoya Depo. at 36:9-37:13.
The officers investigated the outside perimeter of the Plaintiffs’ residence and discovered a broken window in the rear of the house. A. Kerns explains that only the outside pane of the double-paned window had been broken when it was struck by a golf ball.
See
Deposition of Archie Kerns at 88:1-6 (taken Oct. 15, 2008), filed May 1, 2009 (Doc. 156-6);
id.
at 89:14-21; PI. Response Exhibit 8 at 1, filed May 1, 2009 (Doc. 156-7). Defendant APD Officer Drew Bader was concerned about the broken window, given the possibility of gunfire in the area; however, he did not closely inspect the broken glass, and he does not recall seeing a golf ball.
See
Deposition of Drew Bader at 38:2-22 (taken February 11, 2009), filed February 17, 2009 (Doc. 117-4);
id.
at 46:6-10 at 3.
After checking the area around the Plaintiffs’ residence for evidence or suspects, Bader and Thompson made several attempts to contact anyone inside the house by knocking and announcing that they were police officers. No one came to the door in response to their knocking and
*1203
announcements.
See
Johnston Depo. 24:2— 9. The occupants inside the home, A. and M. Kerns — J. Kerns’ parents — and Michele Zisser — J. Kerns’ girlfriend — -were all asleep, and did not hear the officers’ knocks and announcements or any sounds related to the helicopter crash.
See
A. Kerns Depo. at 79:2-21; Deposition of Mary Ann Kerns at 64:20-65:23 (taken Oct. 15, 2008), filed February 17, 2009 (Doc. 117-11).
After the first knock and announce in which the officers were unable to make contact with anyone who might have been inside, Johnston came over to the Plaintiffs’ residence and then radioed to the officers at the golf course to get more information from J. Kerns whether it was in fact his residence and where in relation to his residence it was that J. Kerns had heard or seen what he had said he heard or saw.
See
Johnston Depo. 24:2-9. Johnston radioed to the officers at the golf course, who had stayed with J. Kerns, to get clarification from J. Kerns where he was standing when he heard the popping noise; J. Kerns relayed that the sound which he heard was directly north.
See
Johnston Depo. at 24:2-9. According to Johnston, directly north of the location that J. Kerns gave him is a golf course.
See
Johnston Depo. at 24:1-21, 25:11-22. During this time, the officers at the golf course repeatedly asked J. Kerns to confirm the details of the night. The officers asked him from what direction he heard the popping noise, what caliber of gun he believed made the noise, and the direction he was standing if one were facing his house.
See
J. Kerns Depo. at 158:5-10;
id.
at 160:25-161:21. J. Kerns told the officers that the noise came from the north.
See
J. Kerns Depo. at 161:1-162-21.
Johnston did not request permission from J. Kerns to enter the Plaintiffs’ residence or inquire whether anyone else was in the residence.
See
Johnston Depo. at 24:11-21. Johnston stated that, because it was late at night, music was playing, and no one answered the door, the police officers were concerned.
See
Johnston Depo. at 28:2-6. He also stated that he could not articulate anything that led him to believe that somebody may have been hurt or injured inside the Plaintiffs’ residence.
See id.
at 28:7-10. 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. According to Johnston, at that time there were lights on in the Plaintiffs’ residence, and the music coming from the residence played the entire time.
See
Johnston Depo. at 31:20-25. Bader stated that at the time he had no objective facts or knowledge that made him think that someone had taken refuge inside J. Plaintiffs’ residence.
See
Bader Depo. at 69:4-7. Bader observed that the music that had been coming from the Plaintiffs’ residence turned off, which raised concerns, and the officers moved to the rear of the residence.
See
Bader Depo. at 39:24-40:13. Thompson and Bad-er knocked on a door at the side of the house and, after no response from within, found the door unlocked and entered the Plaintiffs’ residence.
See
Bader Ans. at 2; Thompson Ans. at 2.
After entering the Plaintiffs’ residence, Bader, Thompson, and Defendant APD Officer Russell Carter were met by a female, later identified as Michelle Zisser, J. Kerns’ girlfriend at the time.
See
Thompson Ans. at 2. Thompson identified himself as an APD officer and spoke with Zisser. The officers asked Zisser’s consent to look around inside the house. Zisser testified in her deposition that she did not feel she
*1204
could deny the officers’ request, as they had their weapons displayed.
See
Zisser Depo. 46:19-25. According to Zisser, the officers went quickly around the house with her, and when Zisser informed the officers that J. Kerns’ parents were asleep in the master bedroom, they did not enter or investigate in that room.
See id.
47:2-14, 48:24-25:4, at 3-4. The officers were in the Plaintiffs’ residence for about five minutes.
See id.
51:8-13. at 3.
5.
The Investigation of the Helicopter Crash.
By the morning of Monday, August 8, 2005, the helicopter had been partially reassembled.
See
Lindley Depo. at 22:13-21;
id.
at 23:16-19. According to Bernalillo County Sheriff Deputy Ralph Gonzales, deputies from Bernalillo County Sheriffs Department had reconstructed the aircraft and found a hole in the plexiglass in the front of the helicopter.
See
Gonzales Depo. at 24:10-23. Bernalillo County and other officials then began to focus their attention on the possibility that the helicopter could have been shot down based on suspected bullet holes in the nose of the helicopter.
See
Lindley Depo. at 22:13-21;
id.
at 23:16-19. The hole aligned with a shattered left anti-torque pedal in the helicopter.
See
Gonzales Depo. at 24:10-23. During the reconstruction, an agent from the Federal Aviation Administration (“FAA”) got into the helicopter.
See
Gonzales Depo. at 25:12-15. When he secured the harness, a piece of a bullet-jacket fragment fell from the harness and into his lap.
See
Gonzales Depo. at 25:15-26:1, 26:6-10. At this time, detectives began pursuing a theory that Metro One had been shot down.
See
Gonzales Depo. at 26:3-5.
Bernalillo County Sheriffs Detective Aaron Wright inspected Metro One on August 8, 2005 for evidence relating to the crash.
See
Deposition of Aaron Wright at 70:21-23 (taken March 30, 2009), filed June 26, 2009 (Doc. 165-3). Wright collected several bullet fragments from inside the helicopter.
See
Wright Depo. at 20:2-11, 33:1-21;
id.
at 71:21-23; Wright Depo. Exhibit 1 (Doc. 182-16). Wright believed the evidence was consistent with the theory that a bullet had made the hole.
See
Wright Depo. at 32:23-33:21. Wright also obtained bullet fragments from the leg of the pilot, Holland, following Holland’s surgery.
See
Wright Depo. at 44:21-25;
id.
at 45:1-12;
id.
at 71:7-14; Exhibit 10 & Exhibit 11. Wright then began filling out the forms to request evaluation by the Forensic Science Center (“FSC”).
See
Wright Depo. at 45:1-12, Exhibit 10 & Exhibit 11. The fragments were tagged and send to Haag at the FSC for processing.
See id.
Koren, the Bernalillo County Sheriffs Department’s helicopter mechanic, retrieved the data from the helicopter’s global-positioning-system (“GPS”) navigational device, and measured the distance that the shooter would have been standing from the helicopter when it was shot using a trajectory angle of sixteen degrees and an altitude of four-hundred-fifty feet.
See
Koren Depo. at 67:14-21.
7
Koren told Lindley that, when the bullet struck the helicopter, it would have been facing in the direction of a ground tracking measurement of 046 degrees.
See
Lindley Depo. at 171:24-172:11. The Plaintiffs contend that the trajectory angle is wrong, because the pedals were in neutral when Koren took his measurements.
See
Plaintiffs’ Motion on Counts II, IV & V at 12. Koren and Lindley argue that Nelson Welch, the Plaintiffs’ expert in accident reconstruction and fire
*1205
arm examination who reviewed Koren and Lindley’s findings, stated that Koren’s math was correct.
See
Deposition of Nelson Welch at 183:3-184:6 (taken December 10, 2008), filed August 4, 2009 (Doc. 196-2). The Plaintiffs counter that the math, given an angle of sixteen degrees is correct, but that the angle Koren relied on for his calculations is ten degrees off, because the pedals were placed eight inches from each other at the time the helicopter was shot, and so the correct trajectory angle should be approximately twenty-five degrees and the correct distance from which the shooter was located should be closer to one-thousand feet.
See
Plaintiffs’ Reply to the County Defendants’ Response to the Motion for Summary Judgment as to Liability of Counts II, IV
&
V of the First Amended Complaint at 5, filed August 24, 2009 (Doc. 215); Declaration of Nelson E. Welch ¶¶ 4-5, at 1 (executed September 3, 2009), filed September 15, 2009 (Doc. 240-9) (finding that the angle is 25.6 degrees and that the shot came from nine-hundred-thirty-nine feet away measured on the horizontal).
8
The Plaintiffs contend such a measurement indicates the helicopter was facing northeast,
see
Plaintiffs Motion on Counts II, IV & V at 12, but Lindley and Koren contend such a measurement indicates no specific direction because a helicopter has the ability to fly sideways,
see
Lindley and Koren’s Response at 9. Koren determined an approximate distance, sixteen-hundred-thirty feet, from which the rifle which shot the helicopter was fired, describing his process as follows:
The helicopter flies at a relatively level a[l]titude to the earth’s horizon during slowly level flight; unfortunately, the downed helicopter was sitting on a flat bed trailer and canted in a nose low position. Knowing it is impractical to suspend the downed helicopter in the air to level it and take trajectory measurements, I used [the] following steps. 1) I zeroed a protractor on the floor of the rear passenger/cargo area along the longitudinal axis (nose to tail). 2) I pointed a laser beam equipped with a carpenters’ level thru the bullet hole to the damaged area of the peddle post. 3) I placed the protractor on top of the carpenters’ level and read the measurement (approximately 16 degrees). 4) I repeated these steps about three times with the same results. 5) Using a ruler, yard stick, and protractor, I drew a pictoral sketch depicting the helicopter in level flight at about 450 feet over the ground on a dry erase board. I drew a line at an angle of 16 degrees down from the helieopter[’]s longitudinal axis extending from the nose of the helicopter to the ground. My drawing formed a right triangle. 6) I measured each leg of the triangle and converted inches to feet. The vertical leg was 4$" (conversion to feet: approximately 450 feet). The base leg or horizontal leg was about 15 3/4" (conversion to feet: approximately 1575 feet). The sloping line/hypotenuse extending from the nose of the helicopter to the ground was measured at about 16 3/8" (conversion to feet: approximately 1630 feet).
Koren Answer to Interrogatory No. 10 at 1, filed July 17, 2009 (Doc. 182-26).
9
On
*1206
August 12, 2005, Lindley and Koren flew over the crash site in another Bernalillo Sheriffs Department helicopter — Metro Two — to measure several locations from the helicopter to the ground.
See
Koren Depo. at 78:12-17; Lindley Depo. at 172:23-174:12. They positioned the helicopter where Koren had calculated Metro One had been, using information from the GPS and from the pilot.
See
Lindley Depo. at 180:13-19; Arrest Warrant Affidavit at 14, filed August 11, 2009 (Doc. 201-4). Officers on the ground used a laser-measuring device to measure the distance from the ground at certain locations and the location of Metro Two, for example measuring that the Plaintiffs’ residence was 1670 feet from the position of Metro Two.
See
Lindley Depo. at 176:3-6;
id.
at 182:5-12.
The Bernalillo County Sheriffs Department at no time during the investigation leading up to the arrest-warrant affidavit requested for Haag to ascertain the trajectory angle.
See
Defendant Mike Haag’s Answers to Plaintiff Jason Kerns’ Second Set of Interrogatories to Defendant Mike Haag and Second Request for Production of Documents, Answer No. 26, at 3 (Doc. 240-6). In early 2006, Haag asked if he could revisit Metro One and use the Metro Forensic Science Center’s new Leica Geo-systems HDS laser scanner to take a scan of the helicopter.
10
See id.,
Answer No. 27. The Bernalillo County Sheriffs Department did not ask Haag to use his scan to complete the trajectory analysis.
See id.,
Answer No. 28.
Welch conducted his own analysis and formed a theory on the trajectory of the bullet that hit Metro One. According to Welch’s original assessment, the measured trajectory angle was between thirty degrees and thirty-five degrees, which he stated could not be achieved from the Plaintiffs’ residence one-thousand-thirty feet away.
See
Letter from Nelson Welch to Marc Lowry at 2 (dated November 6, 2008, 2008 WL 6045640 ), filed October 1, 2009 (Doc. 243-1). He concluded that “[t]he arrest affidavit about the trajectory is therefore also clearly in error.” Letter from Nelson Welch to Marc Lowry at 2.
In Welch’s revised findings, based on Dietrich L. Evans’ analysis of the data from Haag’s laser-scan of Metro One, Welch concluded that the measured angle of the bullet’s trajectory was 25.6 degrees.
See
Declaration of Nelson E. Welch ¶ 4, at 1 (executed September 3, 2009), filed September 15, 2009 (Doc. 240-9). Using an entry angle of 25.6 degrees, and assuming the helicopter was four-hundred-fifty feet off the ground, Welch calculated that the shot would have originated from a distance in front of the helicopter of about nine-hundred-thirty-nine feet, measured on the horizontal.
See
Welch Declaration ¶ 5, at 1.
6.
Lindley’s August 8, 2005 Interview of J. Kerns.
On or about August 8, 2005, Lindley interviewed J. Kerns at the Plaintiffs’ residence.
See
Lindley Depo. at 27:12-23; Affidavit for Search Warrant at 3; J. Kerns Depo. at 164:5-8. During the interview, Lindley questioned J. Kerns about the information he provided the night of the helicopter crash.
See
J. Kerns Depo. at 165:3-14 (Doc. 182-2). At Lindley’s request, J. Kerns showed Lindley where
*1207
he had been standing on the night of the crash — a couple of feet from the edge of his property.
See
J. Kerns Depo. at 165:3-166:3. Lindley asked J. Kerns about the length of the shot and whether an average person could make the shot.
See
J. Kerns Depo. at 166:4-167:3. J. Kerns told Lindley that J. Kerns could make the shot “no problem,” and explained that he was a Marine sniper and that he would easily be able to “take a shot” at over four hundred yards because he routinely trained to take shots of at least four-hundred yards. Affidavit for Search Warrant at 3; J. Kerns Depo. at 166:4-167:21; Lindley Depo. at 54:18-56:6. Kerns further explained that Marine Corps standard for firing for regular Marines — the minimum Marine Corps standard — was to be qualified at a five-hundred-yard range.
See
J. Kerns Depo. at 167:16-21. In response to more general questions about shooting, J. Kerns told Lindley that one could brace themselves against a tree or kneel to take a shot.
See
J. Kerns Depo. at 168:15-22.
Lindley confirmed with Federal Bureau of Investigation (“FBI”) Agent Andrew Matas that J. Kerns had such marksmanship training, and the FBI advised Lindley that J. Kerns had been a helicopter airframe mechanic and range coach/primary marksmanship instructor in the Marine Corps, and such an instructor would “easily be able to hit a man size target out to 700 yards.” Affidavit for Search Warrant at 3. Lindley Depo. at 56:3-6. According to Matas, J. Kerns was listed as a Lance Corporal and honorably discharged on November 15, 2001.
See
Affidavit of Brian Lindley ¶ 3, at 2 (executed July 10, 2009), filed July 17, 2009 (Doc. 182-11).
During Lindley’s August 8, 2005 interview with J. Kerns, Lindley also questioned J. Kerns about the visibility of the helicopter on the night of the crash.
See
Affidavit for Search Warrant at 4. He asked J. Kerns if anyone would have been able to see the helicopter from the area from which J. Kerns heard the popping sound, to which J. Kerns responded: “I was able to see the helicopter fine because I remember the cloud cover was good that night and with the clouds and the lights shining up from the street. The helicopter was a great target.” Affidavit for Search Warrant at 4. J. Kerns admits that he probably told Lindley that the helicopter made a great target; it was back-lit, making it appear like a black silhouette on a lighter background, much like the targets used on shooting ranges.
See
J. Kerns Depo. at 171:9-24. J. Kerns states that he told Lindley that, because he had been able to see the helicopter go down, obviously someone in his position could see it.
See
J. Kerns Depo. at 169:12-18. J. Kerns explains he described the night sky as follows:
I was repeating things that I had written in this written statement about the cloud cover being overcast, a pillowy ceiling of cloud layer that covered the entire sky at the same level like a blanket, but had a specific altitude above the helicopter illuminated from below by the city lights causing the helicopter to look like a black dot on a gray orange background creating a silhouette effect, but in different words or approximate words.
J. Kerns Depo. at 169:24-170:6.
Lindley also reported that, as he was leaving the Plaintiffs’ residence, he spoke with one of Plaintiffs’ neighbors. Lindley represents that she told him that “if anybody was going to shoot down the helicopter it would have been my next door neighbor,” and that “[h]e’s crazy enough to shoot down the helicopter.” Lindley Depo. at 33:9-34:15 (Doc. 182-5). J. Kerns contests this fact, asserting that his next-door neighbor never made such a statement.
See
Response ¶ 59, at 5 (citing Affidavit of Gayle Green Gilb at 1-2 (executed July 15,
*1208
2009), filed July 27, 2009 (Doc. 190-6)). J. Kerns cites Gilb’s affidavit, which states that an elderly woman named Kathryn Beauchamp was the neighbor to which Lindley refers, and that Beauchamp denies making the statements that Lindley attributes to her.
See
Gilb Aff. at 1-2.
On August 9, 2005, Detective Danny Joseph conducted surveillance on J. Kerns, following him in an unmarked vehicle.
See
Affidavit of Danny Joseph ¶ 2, at 2 (executed July 6, 2009), filed July 17, 2009 (Doc. 182-18). According to Joseph, J. Kerns realized he was being followed, and began to make erratic turns and drove at a high rate of speed — over one-hundred miles per hour — in an apparent attempt to lose his pursuer.
See
Joseph Aff. ¶ 2, at 2. According to J. Kerns, he did not know who was following him, but it triggered his post-traumatic-stress disorder (“PTSD”).
See
J. Kerns Depo. at 78:2-80:24.
7.
August 9, 2005 Interviews of A. Kerns.
On August 9, 2005, Gonzales, along with other officers, conducted two interviews with A. Kerns, J. Kerns’ father.
See
Affidavit for Search Warrant at 4; Gonzales Depo. at 48:13-49:5; Gonzales Depo. at 86:14-87:16, filed July 27, 2009 (Doc. 190-6); A. Kerns Depo. at 133:9-20. The interviews were tape-recorded.
See
Gonzales Depo. at 87:2-4. A. Kerns let the officers into the Plaintiffs’ residence on both occasions.
See
A. Kerns Depo. at 133:9-20; Gonzales Depo. at 48:13-49:5. During the first interview, Gonzales and Bernalillo County Sheriffs Deputy Russ Tellez interviewed A. Kerns about a variety of issues, including the firearms A. Kerns and J. Kerns owned.
See
Gonzales Depo. at 48:13-49:5. During the interview, A. Kerns showed Gonzales some photographs of J. Kerns and Zisser.
See
Gonzales Depo. at 53:4-23;
id.
at 87:21-88:16; Transcript of A. Kerns’ First Interview at 7 (taken August 9, 2005), filed July 17, 2009 (Doc. 182-13) (“A. Kerns First Interview Tr.”). In the photographs, J. Kerns was cleaning several firearms, and one of the rifles appeared to have a silencer attached.
See
Gonzales Depo. at 52:15-25;
id.
at 53:4-23;
id.
at 87:21-88:16; A. Kerns First Interview Tr. at 7. The other photographs depicted several rifles, one of which looked to be an assault rifle.
See
Gonzales Depo. at 54:19-55:14;
id.
at 87:21-88:7. Gonzales relayed what he saw in the photographs to Lindley.
See
Gonzales Depo. at 62:16-63:6.
Gonzales returned to the Plaintiffs’ residence on the evening of August 9, 2005 to obtain more information about the firearms and the helicopter crash.
See
Gonzales Depo. at 64:14-66-8. On this second visit, Todd Kalish, an FBI investigator, accompanied Gonzales.
See
Gonzales Depo. at 67:23-68:11. Kalish was shown the photographs that A. Kerns had previously shown to Gonzales.
See
Gonzales Depo. at 67:23-68:11. Kalish noted that J. Kerns seemed familiar with guns and stated “he’s got a bunch of them,” and A. Kerns replied “Oh yeah.” Transcript of Archie Kerns’ Second Interview at 11-12 (taken August 9, 2005), filed July 17, 2009 (Doc. 182-13)(“A. Kerns Second Interview Tr.”).
11
*1209
During the second interview, Kalish asked A. Kerns what J. Kerns had told him about the crash.
See
Gonzales Depo. at 69:16-70:7; A. Kerns Second Interview Tr. at 10-11. A. Kerns explained that his routine is to get up early — approximately 3:00 a.m. or 3:30 a.m. — to make coffee.
See
A. Kerns Depo. at 79:17-80:5. He did not recall whether J. Kerns told him about the helicopter crash in the early morning of August 6, 2005, but he recalled J. Kerns told him about the crash the following morning, including the fact that J. Kerns had watched the helicopter crash.
See
A. Kerns Depo. at 81:5-19;
id.
at 95:22-96:3;
id.
at 109:17:22. J. Kerns also told A. Kerns that, after seeing the helicopter go down, he helped officers open the door to the helicopter.
See
A. Kerns Depo. at 81:20-82:18;
id.
at 108:3-8;
id.
at 108:24-25;
id.
at 109:2-3;
id.
at 110:1-9; A. Kerns Second Interview Tr. at 4. Lindley perceived some inconsistencies in J. Kerns’ description of events and what J. Kerns apparently told his father about helping both the pilot and observer, and about where he heard the sound of the rocks.
See
Lindley Depo. at 137:8-17;
id.
at 90:13-25.
12
8.
August 10, 2005 Search of the Plaintiffs’ Residence.
Lindley drafted a search warrant on August 9, 2005.
See
Lindley Depo. at 118:5— 10. Lindley’s Affidavit for the Search Warrant requested authority to seize:
Any and all firearms, to include, but not limited to: automatic pistols or revolvers, long rifles or shotguns; any ammunition, live or spent, any and all boxes and/or containers that may hold said items; any and all gun cleaning equipment and any and all paperwork that may show ownership or possession of said firearms. Any and all photographs, video, audio, records or writings which may contain information, which may lead investigators to information on the chain of events which lead to the crash of the helicopter in this incident. Affiant also requests to view or listen to said videos or recordings. Any and all paperwork or documents showing ownership. Possession or occupancy of said property.
Any and all military handbooks, guides, and/or literature. Any and all news articles/clippings pertaining to the crash of the helicopter being investigated.
Affidavit for Search Warrant at 1. On August 10, 2005 members of the Bernalillo County Sheriffs Department and several FBI agents executed the search warrant for the Plaintiffs’ residence.
See
Wright Depo. at 72:24-73:11; Deposition of FBI Agent Heather Howard at 25:18-25 (taken March 6, 2009), filed August 10, 2009 (Doc. 199-4). Lindley did not participate in the search of the Plaintiffs’ residence after he dropped off the search warrant.
See
Lindley Depo. at 121:9-124:23. The search warrant inventory records indicate that Wright, Bernalillo County Sheriffs Detective James Hamsten, Bernalillo County Sheriffs Deputy Sean Connors, Bernalillo County Sheriffs Deputy Timothy Hix,
*1210
Bernalillo County Sheriffs Deputy Rhonda Moya, and FBI agents conducted the search of the Plaintiffs’ residence.
See
Wright Depo. at 53:21-25 and Exhibit 14. According to Wright, it was Hamsten’s, Connors’ or Hix’ duty to ensure that the items collected were within the scope of the search warrant.
See
Wright Depo. at 58:18-25. During the search of the Plaintiffs’ residence, the officers and agents seized firearms, ammunition, documents— including J. Kerns’ medical records
13
— A. Kerns’ Vietnam helicopter flight manual, and literature.
See
Wright Depo. at 72:24-73:11; J. Kerns Aff. ¶ 7, at 1-2. The officers seized the following firearms: (i) a 9mm Luger; (ii) a Springfield .45 semiautomatic pistol; (iii) a 9-shot .22 LR revolver; (iv) a Marlin .22 LR semi-automatic rifle; (v) a Remington 870 shotgun; (vi) a Fabrique Nationale .30.06 bolt-action rifle (“FN rifle”); (vii) a .357 revolver; (viii) an AR-15 Bushmaster rifle with a loaded magazine, which was inside a custom guitar case; (ix) an AK-47; (x) a special weapons MP-5 with collapsible stock and oversized flash suppressor; (xi) a .45 semiautomatic pistol with custom laser-sight grips; and (xii) a suitcase containing a Glock 17 9mm handgun, a custom silencer, and several high-capacity magazines for the Glock.
See
Supplemental Report Form to Wright’s Report at 1-2, filed July 17, 2009 (Doc. 182-16); Wright Depo. at 53:4-11;
id.
at 56:1-13.
During the search, Joseph and Moya searched the trash left at the roadside at the Plaintiffs’ residence.
See
Joseph Aff. ¶ 5; Affidavit of Rhonda Moya ¶ 2, at 2 (executed July 10, 2009), filed July 17, 2009 (Doc. 182-23). The officers found a spent casing from a high-powered rifle wrapped in tape in the Plaintiffs’ trash.
See
Wright Depo. at 72:15-20; Joseph Aff. ¶ 5; Moya Aff. ¶ 2, at 2; Electronic Mail Message from Haag to Lindley (dated Aug. 15, 2005), filed June 26, 2009 (Doc. 165-5)(“Haag Email”).
J. Kerns arrived at the Plaintiffs’ residence during the search.
See
J. Kerns Aff. ¶ 6, at 1. J. Kerns was then voluntarily transported to the Bernalillo County Sheriffs Department’s main office for a formal interview with Lindley and the FBI.
See
Lindley Depo. at 125:5-23; J. Kerns Depo. 63:14-64:9. J. Kerns told Lindley and Matas that he was being followed earlier.
See
Interview with Jason Kerns at 18, filed July 17, 2009 (Doe. 182-4). J. Kerns told Lindley and Matas that he did not know who was following him, but it triggered his PTSD.
See
J. Kerns Depo. at 78:2-80:24. When asked more questions about his PTSD, Kerns told Lindley and Matas: “I guess I can’t explain what PTSD is, if you need to know you can speak to my doctor and he’ll explain it.” Interview with Jason Kerns at 18.
9.
J. Kerns’Medical Records.
At the time of the Metro One investigation, White was the elected sheriff of Bernalillo County, and therefore in charge of the Bernalillo County Sheriffs Department’s policies and procedures.
See
Deposition of Sheriff Darren White at 24:11-16 (taken March 5, 2009), filed July 17, 2009 (Doc. 180-2). After leaving the Marines in 2001, J. Kerns received medical and behavioral healthcare at the Veterans Hospital in Albuquerque.
See
Affidavit of Jason Kerns ¶ 2, at 1 (executed July 16, 2009), filed July 17, 2009 (Doc. 180-1). On August 11, 2005, as part of the investigation of J. Kerns, White signed a written request for the Veterans Hospital to disclose J. Kerns’ medical and behavior health in
*1211
formation.
See
White Depo. at 58:23-59-20;
id.
at 67:1-12. An FBI report indicates that the request was made pursuant the Bureau of Alcohol, Tobacco and Firearms’ (“BATF”) investigation, which it was conducting with the assistance of the FBI and the Bernalillo County Sheriffs Department.
See
FBI Report, Exhibit 3 to Klein Depo. at 1, filed July 17, 2009 (Doc. 182-33). Because of J. Kerns’ admission that he suffers from PTSD, the BATF was interested whether J. Kerns made false statements when purchasing his firearms, because he would have had to indicate that he had not been diagnosed with a mental disorders.
See
FBI Report, Exhibit 3 to Klein Depo. at 1. On August 16, 2005, the Veterans Hospital received a request, signed by White, from the Bernalillo County Sheriffs Department for the release of information from the medical chart of J. Kerns, which the Release of Information unit of the Health Information Management Section for the Veterans Hospital processed.
See
Declaration of Rebecca W. Martinez ¶ 4, at 2 (executed July 17, 2009), filed July 17, 2009 (Doc. 180-3). The Release of Information unit granted the request on or about August 17, 2005 by releasing 1000 pages of computer records and clipped pages from J. Kerns’ chart.
See
Martinez Declaration ¶ 4, at 2. J. Kerns did not consent to the release of his medical records.
See
J. Kerns Aff. ¶¶ 3-5, at 1. Assistant United States Attorney Barth testified that the Bernalillo County Sheriffs Department retrieved the records, then passed to the FBI, and then to the United States Attorney’s Office.
See
Deposition of Assistant United States Attorney Charles L. Barth at 34:1-16 (taken May 18, 2009), filed August 4, 2009 (Doc. 196-3).
10.
Haag’s Involvement in the Investigation.
Haag is a civilian employee of the City of Albuquerque, serving as a forensic scientist with the APD Crime Lab in the Firearms and Toolmark Unit.
See
Deposition of Michael G. Haag at ,4:12-14 (taken December 15, 2008), filed June 26, 2009 (Doc. 165-1). Haag is not a law-enforcement officer and therefore does not have the authority to apprehend, arrest, or bring before the court violators within the state.
See
Haag Depo. 5:23-24; Affidavit of Michael G. Haag ¶ 2, at 1 (executed February 18, 2009), filed June 26, 2009 (Doc. 165-2). Haag is a distinguished member of the Association of Firearms and Toolmark Examiners (“AFTE”), which sets the standards and guidelines for all firearm and toolmark examiners.
See
Welch Depo. at 30:11-13;
id.
at 60:4-10. The field of firearm and toolmark examination is based in science, and thus an examiner uses his or her training in the field to inform and support his or her subjective opinions.
See
Theory of Identification as it Relates to Toolmarks at 3, filed August 23, 2009 (Doc. 212-2)(“Currently the interpretation of individualization/identification is subjective in nature, founded on scientific principles and based on the examiner’s training and experience.”).
On August 9, 2005, Wright requested Haag examine the Metro One helicopter, and Haag noted “[sjeveral suspicious perforations” of the Plexiglass window, which were consistent with a bullet hole. Report of Analysis at 12 (dated December 30, 2005), filed June 26, 2009 (Doc. 165-2). On August 11, 2005, Wright gave Haag two work orders requesting Haag examine the evidence the officers collected, including metal fragments, ammunition, firearms, and clothing,
see
APD Forensic and Technical Services Request for Service Forms at 3-5 (dated Aug. 11, 2005), filed June 26, 2009 (Doc. 165-2); Haag Depo. at 59:4-17; Haag Aff. ¶ 3, at 1, and an additional request, dated September 14, 2005, to examine the copper fragments from Holland’s leg,
see
APD Forensic and Technical Ser
*1212
vices Request for Service Form at 6 (dated Sept. 14, 2005), filed June 26, 2009 (Doc. 165-2). Part of Haag’s task was to compare the fragments recovered from the helicopter and from Holland’s leg, and compare them to test-shots from the firearms seized from the Plaintiffs’ residence, including the FN rifle.
See
Wright Depo. at 46:1-6. As part of his examination of the evidence, Haag wrote a Report of Analysis.
See
Report of Analysis at 8-17.
14
He took lead lifts with sodium rhodizonate’
15
from the helicopter, which tested positive for vaporous lead
16
and from that result, determined that only a high-velocity projectile, such as a rifle bullet, would have generated, on impact with the helicopter, the amount of vaporous lead he found.
See
Report of Analysis at 12-17; Haag Depo. at 58:17-21. Haag, in his Report of Analysis, does not mention J. Kerns’ name, or any allegations about or alleged conduct of J. Kerns.
See
Report of Analysis at 8-17.
Haag was first given access to the weapons, ammunition, and other evidence seized from the Plaintiffs’ residence pursuant to the August 10, 2005 search warrant on August 12, 2005.
See
Haag Depo. at 58:10-14. Haag examined three rifles — an AR-15 clone, an AK clone, and a FN bolt-action rifle — from the collection of weapons seized from the Plaintiffs’ residence.
See
Haag Depo. at 60:22-25. Haag chose to examine these firearms because they were the only high-powered rifles among the weapons seized.
See
Haag Depo. at 58:19-22. Haag determined that the barrel of the FN rifle was manufactured with a pattern of four lands and four grooves.
17
See
Haag Depo. at 66:18-22; Haag Depo. Exhibit 22. Haag measured the average land width on the FN rifle as 0.041 inches.
See
Haag Depo. at 69:20-22. The literature value
18
for a four land and groove weapon — a weapon shooting 30-caliber bullets — is 0.236.
See
Haag Depo. at 116:5-14; Haag Depo. Exhibit 22.
Haag also examined all of the fragments collected from inside the Metro One helicopter and from the pilot’s leg.
See
Report of Analysis at 7-17. The bullet fragments Haag examined were damaged.
See
Defendant Mike Haag’s Answers to Plaintiff Jason Kerns’ First Set of Interrogatories (“Haag’s Answers to Interrogatories”), Answer No. 3 at 4, filed June 26, 2009 (Doc. 165^1); Report of Analysis at
*1213
13-15. Because of the damage to the fragments, Haag had to unfurl or unbend the fragments recovered to conduct his analysis.
See
Haag Depo. at 71:11-14;
id.
at 109:17-21;
id.
at 140:20-22; Welch Depo. at 116:17-24. According to Haag’s work notes for the fragment labeled p-1, he made land width measurements of 0.036, 0.037, and 0.035, and noted the average land width measurement as 0.036.
See
Haag Depo. at 92:10-16; Haag Depo. Exhibit 22. Because of the amount of damage to the p-1 fragment, Haag, in his notes, did not write down his measurement for the groove impression width because of his lack of confidence that his measurement would be accurate.
See
Haag Depo. at 94:ll-20.
19
The Plaintiffs state that it was “self-evident” that the forensic measurements for the land width and the groove width of the bullet fragment recovered from Holland’s leg — fragment p-1 measured a land width of approximately 0.036 inches and a groove width of less than 0.12 inches — were considerably smaller than the land and groove widths on the FN rifle, which had a land width of 0.041 inches and a groove width of 0.195 inches.
See
Plaintiffs’ Motion on Counts II, IV & V at 9. Haag repeatedly states that, because of the significant amount of damage the fragments suffered because of the initial impact of the bullet into the helicopter, fragmentation and bending of the bullet, as well as subsequent deformation, he was not willing to simply take a number down, plug it into a formula, and exclude a weapon with confidence.
See
Haag Depo. at 94:15-20;
id.
at 98:6-16;
id.
at 102:6-22 (“I wanted to give myself as much breathing room on this as possible, again because of my lack of confidence in the observed measurements, so pause, no, not necessarily. The bigger the list, the better, because again, I didn’t feel comfortable in excluding based on what I saw.”).
Haag concluded from his analysis that the AR-15 clone and the AK clone rifles did not fire the bullet fragments recovered from the helicopter.
See
Haag Depo. at 61:24-62:13. Haag initially opined that the bullet fragments could not be identified with or excluded from having been fired from the FN rifle.
See
Report of Analysis at 13-15; Haag’s Answers to Interrogatories, Answer Nos. 5, 7, and 18. Haag determined that the cartridge casing wrapped in tape recovered from the Plaintiffs’ residence had been fired from the FN rifle.
See
Report of Analysis at 13. Further, Haag was not willing to definitively state that the bullet fragments recovered from the Metro One shooting came from a 30-caliber bullet.
See
Haag Depo. at 98:3-16. In his Report of Analysis, in his conclusions about each of the seven fragments recovered from the helicopter and from the pilot’s leg, Haag concluded: “This fragment cannot be identified or excluded from having been fired from the FN rifle.” Report of Analysis at 13 & 14. The FN rifle fired 30-caliber bullets.
See
Haag Depo. at 98:21-24. The Plaintiffs contend that Haag “lacked confidence in his original ballistics conclusion that the FN rifle could not be excluded as the suspect weapon.” Plaintiffs’ Sealed Response in Opposition to Defendant Mike Haag’s Motion for Summary Judgment and Memorandum, in Support, Requesting Dismissal of Counts IV, V, VIII, IX, XI, XIII, and XIV of Plaintiffs’ First Amended Complaint at 5, filed August 7, 2009 (Doc. 197)(“Plain-tiffs’ Response to Haag”). The Court has reviewed Haag’s deposition testimony, which the Plaintiffs contend makes this factual assertion, and finds that the Plaintiffs have reversed what Haag asserted. Haag’s deposition states:
*1214
Q. Okay. And you said even though what appears to be a gross discrepancy between the land impression, you weren’t comfortable excluding the FN rifle from having fired the bullet fragment?
A. Correct, because of the amount of unfurling that I had to do, my confidence in the amount of deformation that could have taken place, my confidence in the representation was very low.
Haag Depo. at 79:11-18. Haag answers that he was not comfortable excluding the FN rifle, not, as the Plaintiffs contend, that he was not comfortable with his conclusion that he could not exclude the FN rifle. According to Haag, he could not ascertain if the 0.03 land width he measured on fragment f-7 was the result of deformation to the fragment, and thus he was not comfortable excluding the FN rifle, which has a land width of 0.041.
See
Haag Depo. at 114:11-115:10. Additionally, the proportion of the ratios between the land grooves of the fragments and the FN rifle, in Haag’s opinion, were different, but were not sufficient for him to feel comfortable excluding the FN rifle in his initial conclusions.
See
Haag Depo. at 108:23-109:3. These comparisons Haag made are standard analytical tools used to match a bullet fragment to a weapon, as reflected by Haag’s bench notes, which have entries for these values.
See
Haag’s Bench Notes (taken August 12, 2005), filed August 7, 2009 (Doc. 197-1). Haag was also not willing to make a definitive conclusion whether the fragments found in the pilot’s leg were compressed.
See
Haag Depo. at 119:12-122:22. Haag acknowledged that the ability to detect the possibility of damage and compression in the fragments is based on past experience, and not methods set forth in scientific literature.
See
Haag Depo. at 131:24-132:6 (“I describe it as healthy skepticism over for the observation of physical evidence.”). The AFTE does not have a standard margin of error that is acceptable or unacceptable.
See
Welch Depo. at 58:4-10
On August 15, 2005, Haag wrote an electronic-mail message to Lindley.
See
Haag Email at 1. The electronic-mail message informed Lindley of Haag’s preliminary results, including that the cartridge wrapped in tape found in the trash matched the FN rifle collected, the ammunition found in the house was all copper-based bullets, that all of the fragments were “mangled very badly,” and that the fragments from the helicopter indicated it could have been fired from a “relatively big list of rifles.” Haag Email at 1. The electronic-mail message did not mention J. Kerns name, or any allegations or alleged conduct.
See
Haag Email at 1. Haag’s electronic-mail message did not give the measurement values he took, nor the literature values for the FN rifle.
See
Haag Email at 1.
11.
J. Kerns’ Arrest and Indictment.
On August 15, 2005, Lindley drafted and signed an arrest-warrant affidavit, which was reviewed by a supervisor and an assistant District Attorney prior to submission to the State District Court Judge.
See
Lindley Aff. ¶4, at 2. That same day, Lindley obtained a warrant for the arrest of J. Kerns, and J. Kerns was arrested on August 15, 2005.
See
Arrest Warrant Affidavit at 21-27 (executed Aug. 15, 2005), filed July 17, 2009 (Doc. 182-4). The arrest warrant served as the impetus for criminal charges under state law, but the charges were dropped on August 22, 2005.
See
Plaintiffs’ Request for Admission No. 4 at 1, filed July 17, 2009 (Doc. 182-28).
In the arrest-warrant affidavit, as well as in the state criminal complaint, Lindley used some of the information he received from Haag’s electronic mail message, but used his own phrasing and interpretation of the content of the message when writing the arrest-warrant affidavit.
See
Arrest
*1215
Warrant Affidavit and Criminal Complaint at 1-7 (dated Aug. 15, 2005), filed June 26, 2009 (Doc. 165-6); Haag Depo. at 154:2-156:22.
20
Haag first saw the arrest-warrant affidavit on May 2, 2006, which was after state district judge reviewed and approved it.
See
Haag Depo. at 153:20-23. The United States Attorney’s Office either issued a subpoena or requested Haag to testify as a witness before the grand jury.
See
Haag Aff. ¶ 5, at 2. On August 17, 2005, Haag testified before the grand jury, during which he described his experience and his examination of the Metro One helicopter, the bullet fragments, and the FN rifle.
See
Grand Jury Transcript of Haag’s Testimony (taken August 17, 2005), filed June 26, 2009 (Doc. 165-8). Haag stated during his testimony that:
these fragments are highly damaged, I cannot identify them as having been fired from that particular rifle. So I can’t say it’s that rifle amongst all others, but the widths, the general size of them, cants or twists of them, is in agreement with those produced by that rifle, as well as many others that are out there on the market.
Grand Jury Transcript of Haag’s Testimony at 32:7-13.
21
During his testimony,
*1216
Haag never mentioned J. Kerns by name.
See
Grand Jury Transcript of Haag’s Testimony. Agent Doug Klein of the FBI also testified before the Grand Jury.
See
Grand Jury Transcript of [Redacted] Testimony (taken August 17, 2005), filed June 26, 2009 (Doc. 165-8).
On August 17, 2005, the federal grand jury indicted J. Kerns.
See
Indictment, filed June 26, 2009 (Doc. 165-9). The only witnesses to testify before the grand jury were Haag and FBI agent Klein. Lindley turned his files over to the FBI prior to the grand jury proceeding.
See
Lindley Answer to Interrogatory No. 24 at 1, filed July 17, 2009 (Doc. 182-35).
22
According to Klein, all of the information he testified to before the grand jury came from the Bernalillo County Sheriffs Department and the APD.
See
Klein Depo. at 36:15-16.
12.
J. Kerns’ Waiver of Detention Hearing.
On August 25, 2005, J. Kerns filed a Waiver of Detention Hearing.
See
Waiver of Detention Hearing (dated Aug. 25, 2005), filed June 26, 2009 (Doc. 165-10). The Honorable Alan C. Torgerson, United States Magistrate Judge for the District of New Mexico, issued an Order of Detention Pending Trial, which states: “The Court makes the necessary probable cause finding based on the waiver,” Order of Detention Pending Trial (dated Aug. 25, 2005), filed June 26, 2009 (Doc. 165-11).
23
J. Kerns was thereby remanded into the custody of the United States Marshals pending final disposition of his case.
See
Order of Detention Pending Trial. J. Kerns filed a Motion to Reconsider Detention Order on December 1, 2005,
see United States v. Jason Kerns,
No. CR 05-01776 JC (D.N.M.), Motion to Reconsider Detention Order (Doc. 20), and Judge Torgerson held a hearing on December 21, 2005. In an Order issued that same day, Judge Torgerson denied J. Kerns’ motion for reconsideration, finding that J. Kerns did not overcome the rebuttable presumption under 18 U.S.C. § 3142 (e) that J. Kerns was a danger to the community and a flight risk. Judge Torgerson independently
*1217
found that, based on past failures to appear and J. Kerns’ attempt to avoid the Bernalillo County Sheriffs Department’s detectives, he was a flight risk.
See United States v. Jason Kerns,
05-01776 JC. Order at 1 (Doc. 28). Judge Torgerson also found that, based on J. Kerns’ mental history, testimony about his acts of road rage and history with his mother, he was a danger to the community.
See id.
at 1. J. Kerns remained incarcerated for nine months.
13.
Welch’s Analysis and Dismissal of Charges Against J. Kerns.
On April 27, 2006, the Plaintiffs’ expert, Welch, contacted Haag to inform him that Welch had concluded that the FN rifle seized from the Plaintiffs’ residence possessed differing rifling characteristics
24
than the rifle used to fire the bullet that fragmented within the Metro One helicopter.
See
Report of Analysis at 17; Haag’s Answers to Interrogatories, Answer No. 4. According to Welch, he eliminated the FN rifle as the suspect rifle in less than five seconds after comparing a bullet fragment to the test-fire from the FN rifle under a forensic microscope.
See
Haag Depo. at 135:9-14. Welch found that the groove-width comparison of the bullet fragment from the helicopter was not in agreement with the bullets test-fired from the FN rifle.
See
Declaration of Nelson E. Welch ¶¶ 5-7, at 1 (executed August 7, 2009), filed August 7, 2009 (Doc. 197-7). Haag reviewed Welch’s notes, in particular, his methodology in determining general rifling characteristics using the knurled cannelure
25
present on fragment p-1.
See
Report of Analysis at 17.
26
According to Haag, the use of knurls to evaluate the spacing of lands and grooves is not standard practice in the field of Firearm Examination, nor is it published or accepted as a method of analysis.
See
Haag’s Answers to Interrogatories, Answer No. 4. Haag reviewed and evaluated Welch’s use of the “knurled cannelure method” and found no flaws in its use or accuracy, and Haag, therefore, concluded from the novel methodology that the FN rifle had different class characteristics from the knurled cannelure present on the p-1 bullet fragment and thus could be excluded from having fired the bullet into the Metro One helicopter.
See
Haag’s Answers to Interrogatories, Answer No. 4; Report of Anal
*1218
ysis at 17. Haag apprised the United States Attorney’s Office of his revised findings.
See
Haag’s Answers to Interrogatories, Answer No. 18. Haag maintains that he is still not confident that the fragments were from a 30-caliber bullet, but states that he is not willing to second-guess his initial observations and conclusion to not exclude the FN rifle.
See
Haag Depo. at 107:7-13. Welch stated that it is common for forensic analysts in the field of firearms and toolmarks to have inconclusive findings.
See
Welch Depo. at 20-23. He also stated, however: “I cannot comprehend from the work notes why it was an inconclusive. I just — it boggles my mind.” Welch Depo. at 30:1-5.
According to Welch, Haag is responsible, conscientious, and detail-oriented.
See
Welch Depo. at 29:19-30:4. Welch also stated that Haag is truthful, well-published, and well-respected in the field.
See
Welch Depo. at 30:5-13. This case is the first and only time that Welch has disagreed with one of Haag’s findings.
See
Welch Depo. at 30:21-23. Welch believes that the failure to account for the discrepancy between the groove width on the bullet fragments from the helicopter and the bullet test-fired from the FN rifle constituted reckless disregard of the facts.
See
Welch Declaration ¶ 11, at 2.
On May 10, 2006, the federal criminal charges against J. Kerns were dismissed by the United States Attorney because he determined, after review of the ballistics evidence, that there was insufficient evidence to proceed.
See United States v. Jason Kerns,
05-cr-1776 (D.N.M.) (Does. 54 & 55). The Plaintiffs gave notice of potential New Mexico Tort Claims Act claims on July 7, 2006.
See
Notice of Claims Pursuant to New Mexico Tort Claims Act (dated July 7, 2006), filed July 1, 2009 (Doc. 168-16).
PROCEDURAL BACKGROUND
The Plaintiffs filed their First Amended Complaint for Damages Caused by the Deprivation of Civil Rights and Other Tortious Conduct on November 26, 2007.
See
Doc. 5. The Plaintiffs asserted fifteen claims, each against some or all of the seventeen named Defendants and against ten unidentified John Does, stemming from the arrest and incarceration of J. Kerns. Since the filing of the Amended Complaint, the Plaintiffs have stipulated to the dismissal of all claims asserted against certain Defendants
27
and have stipulated to the dismissal of some claims against other remaining Defendants.
28
The remaining Counts and Defendants are: (i) Count I — illegal entry without a warrant—
*1219
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 for the violations asserted in Count III — asserted against White; (vii) Count VIII — false detention/arrest/imprisonment of J. Kerns under the NMTCA— asserted against Lindley, Koren, and the County; (viii) Count IX — malicious abuse of process under the NMTCA — asserted against Lindley, Koren, and Bernalillo County; (ix) Count X — deprivation of property rights and trespass under the NMTCA' — asserted against Lindley, Bad-er, Thompson, Carter, and Bernalillo County; and (x) Count XI — deprivation of property rights and conversion under the NMTCA — asserted against Lindley and Bernalillo County. 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
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), which the Court denied.
See
Order, filed September 30, 2009 (Doc. 242); Memorandum Opinion, filed October 5, 2009, 2009 WL 3672877 (Doc. 246). The City of Albuquerque appealed that decision to the United States Court of Appeals for the Tenth Circuit on October 29, 2009.
See
Notice of Appeal, filed October 29, 2009 (Doc. 248)
29
*1220
Now before the Court are four summary judgment motions — two motions for summary judgment from the Plaintiffs, Haag’s motion for summary judgment on the basis of qualified immunity, and Bernalillo County, White, Lindley, and Koren’s (“County Defendants”)
30
motion for summary judgment on the basis of qualified immunity. The parties have expressed to the Court that they wish for the Court to decide these four motions “in one global order to facilitate the appellate process.” Letter to the Court from Stephanie Griffin and Marc Lowry re: Pending Matters at 1, filed February 18, 2010 (Doc. 259).
1.
Haag’s Motion for Summary Judgment on the Basis of Qualified Immunity on Counts IV and
F.
The Plaintiffs have two outstanding claims against Haag: (i) a claim under 42 U.S.C. § 1983 for false arrest/false imprisonment in violation of the Fourth Amendment and Fourteenth Amendment; and (ii) a § 1983 claim for malicious prosecution in violation of the Fourth Amendment and Fourteenth Amendment. In his motion for summary judgment, Haag asserts that he is entitled to qualified immunity against the false arresi/imprisonment claim. He also asserts he is entitled to absolute immunity or, in the alternative, to qualified immunity against the malicious-prosecution claim.
a.
Arguments in the Briefs on Haag’s Motion for Summary Judgment.
Haag contends that he did not personally participate in the authorship of J. Kerns’ arrest-warrant affidavit and that he never reviewed the arrest-warrant affidavit, in which Lindley included information from the electronic-mail message he received from Haag, before it was presented to a judge for approval.
See
Haag Motion at 9-10. Haag argues that he did not see the arrest-warrant affidavit until nine months after it had been submitted to a judge. Haag further argues that he is not a police officer and has no authority to arrest J. Kerns, nor was he the affiant of the arrest-warrant affidavit.
See
Haag Motion at 11-12. Haag argues that, because he is not a law-enforcement officer and not the affiant, he cannot be held liable for the false arrest/false imprisonment claim alleged in Count IV. Haag also argues that he is entitled to absolute immunity protection from the Plaintiffs’ malicious-prosecution claim because he testified as a witness in the grand-jury proceeding and was not a complaining witness — he did not accuse J. Kerns of criminal conduct — and therefore he should be immune from civil damages based upon his testimony.
See
Haag’s Motion at 12-13. In the alternative, Haag argues he should be entitled to qualified immunity protection because he did not cause J. Kerns’ continued confinement or prosecution.
See
Haag’s Motion at 15.
The Plaintiffs contend that Haag contributed material misinformation and omitted exculpatory facts that created a false impression that probable cause existed to arrest J. Kerns.
See
Plaintiffs’ Sealed Response in Opposition to Defendant Mike Haag’s Motion for Summary Judgment and Memorandum, in Support, Requesting Dismissal of Counts IV, V, VIII, IX, XI, XIII, and XIV of Plaintiffs’ First Amended Complaint at 1, filed August 7, 2009 (Doc. 197). The Plaintiffs contend that Haag’s
*1221
asserted lack of personal participation in charging, arresting, detaining, or prosecuting J. Kerns is insufficient to warrant dismissal of the Plaintiffs’ federal civil rights claims.
See
Response to Haag’s Motion at 8. The Plaintiffs also argue that Haag had no credible rationale for failing to exclude the FN rifle as the suspect rifle.
See
Response to Haag’s Motion at 8. The Plaintiffs contend that Haag’s theory that the bullet fragments may have been compressed, which he states he believes is a possibility based upon experience, and not based on published scientific literature, shows a knowing or reckless disregard for the truth that the groove measurements of the fragments did not match the grooves in the test-fire bullet from the FN rifle, for which the Plaintiffs contend Haag is liable under the Fourth and Fourteenth Amendments.
See
Response to Haag’s Motion at 9. The Plaintiffs also argue that Haag is not entitled to absolute immunity from them malicious-prosecution claim because they contend that Haag was a complaining witness. The Plaintiffs contend that Haag’s failure to immediately exclude the FN rifle was instrumental in causing J. Kerns’ arrest and prosecution. The Plaintiffs also contend that their malicious-prosecution claim accrued well before Haag testified before the grand jury.
See
Response to Haag’s Motion at 11.
The Plaintiffs argue that Haag is liable under the Tenth Circuit’s holding in
Pierce v. Gilchrist,
359 F.3d 1279 (10th Cir.2004), in which the Tenth Circuit denied a forensic analyst’s motion to dismiss a claim against her for malicious prosecution, based on her finding that hair could have been from a suspect that was later exculpated, because the Tenth Circuit could “not say the false information supplied by [the forensic analyst] and the accurate exculpatory information disregarded by [the forensic analyst] were not significant enough to prejudice [the defendant’s] constitutional rights[.]” 359 F.3d at 1287 . The Plaintiffs contend that Haag’s statement to the grand jury that the bullet fragments recovered from the shooting were “in agreement with those produced by” the FN rifle is the functional equivalent of saying that the FN rifle could have fired the bullet which hit the helicopter.
See
Response to Haag’s Motion at 12.
In reply, Haag argues that the Plaintiffs have offered no argument establishing that a non-affiant who was not afforded the opportunity to review an arrest-warrant affidavit should be liable under § 1983 for an unlawful arrest claim.
See
Haag’s Reply at 5. Haag argues that the law establishes that only an affiant and/or a person in the same position as the affiant can be held liable under § 1983.
See
Haag’s Reply at 6 (citing
Malley v. Briggs,
475 U.S. 335, 345 , 106 S.Ct. 1092 , 89 L.Ed.2d 271 (1986)). Haag contends that he is not a complaining witness and thus entitled to absolute immunity from the malicious-prosecution claim because he did not investigate J. Kerns.
See
Haag’s Reply at 7. Haag contends that his role was solely as a firearm and tool mark examiner evaluating physical evidence to offer opinions of identification, elimination, or inconclusive.
See
Haag’s Reply at 7. Haag further argues that his calculations are not materially exculpatory information because he had concerns about their accuracy because of the deformation of the bullet fragments.
See
Haag’s Reply at 9. Further, Haag contends that there is no clearly established law stating that a non-officer may be liable for withholding allegedly exculpatory information from law-enforcement officials.
See
Haag’s Reply at 10. Finally, Haag argues that, even if his testimony were excluded from the grand jury’s probable-cause determination, Klein’s testimony — • which Haag contends the Plaintiffs have not challenged — would still provide the requisite probable cause.
See
Haag’s Reply at 10-11.
*1222
b.
Arguments at the Hearing Regarding Haag’s Motion for Summarg Judgment.
At the hearing, Stephanie Griffin, Haag’s attorney, argued that the Tenth Circuit’s holding in
Pierce v. Gilchrist
did not address false arrest or false imprisonment, and indeed the Tenth Circuit found that there was probable cause for the warrant for arrest in that case.
See
Transcript of Hearing at 39:23-40:9 (taken August 31, 2009)(Griffin)(“Tr.”).
31
Ms. Griffin contended that the false-arrest claim and false-imprisonment claims should fail because Haag lacks personal participation.
See
Tr. at 40:10-12 (Griffin). Ms. Griffin conceded that the holding in
Pierce v. Gilchrist
would allow the Plaintiffs to bring a claim against Haag for malicious prosecution, even though he did not personally participate as an affiant; however, she argued that Haag has raised a number of defenses, including absolute immunity, which were not raised in
Pierce v. Gilchrist. See
Tr. at 40:20-25 (Griffin). Ms. Griffin argued that Haag did not actively instigate or encourage prosecution of J. Kerns.
See
Tr. at 41:17-20 (Griffin). She distinguished
Pierce v. Gilchrist,
arguing that, even if Haag determined that the FN rifle was responsible for the fragments, he would not have determined that J. Kerns was responsible for firing that weapon, and thus he should not be viewed as a complaining witness.
See
Tr. at 42:6-19 (Griffin). Ms. Griffin stressed that Welch was asked if Haag withheld any data from him, and he strenuously denied that any data was withheld.
See
Tr. at 45:9-20 (Griffin). Ms. Griffin further argued that, even if Haag’s testimony before the grand jury were set aside and not considered, Klein’s evidence alone established probable cause.
See
Tr. at 48:22-49:2 (Griffin).
Marc Lowry, the Kerns’ attorney, argued that Haag’s actions in not immediately excluding the FN rifle amounted to more than negligence; it amounted to reckless disregard for the truth.
See
Tr. at 54:7-12 (Lowry). Lowry argued that the land and groove impression on the fragment from Holland’s leg and the test-fire from the FN do not match, and Haag’s inability to make that determination was reckless.
See
Tr. at 56:16-21 (Lowry). Mr. Lowry argued that, based on the notes Haag made in his raw data, there is room for an inference that Haag used a larger margin of error to include the FN rifle.
See
Tr. at 62:1-5 (Lowry). Mr. Lowry believes the interpretation of the work notes is a question of fact that the jury should decide, and that it is up to the jury to decide whether Haag’s actions amounted to recklessness or if he intentionally ignored data.
See
Tr. at 63:13-15 (Lowry);
id.
at 81:6-14 (Lowry). Mr. Lowry stated that he believes that Haag’s actions were in such gross error that the Court is in a position to say as a matter of law that he is liable.
See
Tr. at 81:17-22 (Lowry). Mr. Lowry maintained that the errors should have been obvious to Haag.
See
Tr. at 72:12-24 (Lowry). Mr. Lowry also stressed that Haag is a complaining witness, not entitled to qualified immunity.
See
Tr. at 72:24-73:7 (Lowry).
Ms. Griffin responded to Mr. Lowry’s assertion that the exclusion of the FN rifle should have been obvious to Haag, arguing that Haag was conservative, given the damage to the fragments recovered from Holland’s leg and from Metro One.
See
Tr. at 86:21-25 (Lowry). Ms. Griffin also argued that Haag eliminated some of the firearms found in the Plaintiffs’ residence.
See
Tr. at 88:18-25 (Griffin). Ms. Griffin
*1223
stated that she does not believe that Haag’s conduct rises to the standard in
Pierce v. Gilchrist,
because he was dealing with a lot of variables, given the size of the fragments and the damage to the fragments.
See
Tr. at 89:8-15 (Griffin). Mr. Lowry further argued that it is his contention that Haag was under institutional pressure to find some commonality between the FN rifle and the fragments.
See
Tr. at 97:20-24 (Lowry). Mr. Lowry conceded that the shell-cartridge wrapped in tape found in the Kerns’ trash can was definitely from the FN rifle.
See
Tr. at 99:15-20 (Court, Lowry).
2.
The Plaintiffs’ Motion for Summary Judgment as to Liability on
Counts
11. TV and V of the First Amended Complaint.
The Plaintiffs, in their motion for summary judgment on Counts II, IV & V, move the Court to enter declaratory judgment. First, in Count II, the Plaintiffs ask the Court to declare Lindley liable for the illegal search of the Plaintiffs’ residence. Second, in Count IV, they ask the Court to declare Lindley, Koren, and Haag liable for J. Kerns’ false arrest and false imprisonment. Third, in Count V, the Plaintiffs ask the Court to declare Lindley, Koren, and Haag liable for the failure to disclose exculpatory information.
See
Plaintiffs’ Motion on Counts II, IV & V at 1.
The Plaintiffs contend that Lindley’s search-warrant affidavit lacked probable cause to support the search of the Plaintiffs’ residence because it failed to tie J. Kerns to the shooting of Metro One in a meaningful way.
See
Plaintiffs’ Motion on Counts II, IV & V at 13. The Plaintiffs contend that Lindley should have known that J. Kerns’ statements to officers that he heard a popping sound from his backyard was “an innocent mistake.” Plaintiffs’ Motion on Counts II, IV & V at 14. The Plaintiffs also argue that Lindley should have realized there was no nexus between J. Kerns or the Plaintiffs’ residence, and the shooting of Metro One, other than Lindley’s suspicion that J. Kerns was involved. Plaintiffs’ Motion on Counts II, IV & V at 14. The Plaintiffs contend that Lindley’s affidavit in support of the search warrant is an unsubstantiated hunch that J. Kerns was involved in the shooting. The Plaintiffs also argue that the Court should exclude information from the affidavit in support of the search warrant which they contend was recklessly false, including: (i) information regarding a concerned citizen who made statements that, if anyone in the neighborhood would have shot down a helicopter, it would be the male living at 9910 Columbus Circle— the Plaintiffs’ address; (ii) statements Lindley attributed to A. Kerns that J. Kerns told him shortly after 12:30 a.m. on August 6, 2005, that someone had shot down the helicopter; (iii) the statement attributed to A. Kerns that J. Kerns had “a bunch of rifles somewhere in the house”; and (iv) that A. Kerns stated that J. Kerns had told him that he had helped the pilot and observer out of the helicopter after the crash.
See
Plaintiffs’ Motion on Counts II, IV & V at 17. The Plaintiffs also contend that the warrant affidavit failed to include the following: (i) that another witness, George Smith, was standing at the clubhouse to the golf course, not far from the Plaintiffs’ residence, and also drove to the scene of the crash, but did not report hearing anything like gunshots; and (ii) that the helicopter had been struck by a bullet directly through the front of the aircraft while, according to Smith, the aircraft was facing away from the Plaintiffs’ residence.
See
Plaintiffs’ Motion on Counts II, IV & V at 17. The Plaintiffs also argue that the execution of the August 9, 2005 search warrant caused much of the Plaintiffs’ property to be illegally seized because the warrant was insufficiently par
*1224
tieularized.
See
Plaintiffs’ Motion on Counts II, IV & V at 18.
With regards to Count IV — false arrest and false imprisonment — the Plaintiffs contend that Lindley’s arrest-warrant affidavit contained recklessly false information, and omitted both information about the positioning of the helicopter and ballistics information that Haag provided.
See
Plaintiffs’ Motion on Counts II, IV & V at 21-23. The Plaintiffs contend that, when the information regarding the shooting distance and GPS information, as well as the ballistics information, is purged from the affidavit, there is no probable cause left to support the proposition that J. Kerns was responsible for the Metro One shooting.
See
Plaintiffs’ Motion on Counts II, IV & V at 25.
The Plaintiffs also argue that the suppression of favorable evidence violates the due-process clause and that a police officer or forensic analyst may be liable under the Fourteenth Amendment for withholding exculpatory evidence.
See
Plaintiffs’ Motion on Counts II, IV & V at 26. The Plaintiffs contend that Lindley, Koren, and Haag knowingly and recklessly withheld material exculpatory information from the Court, the prosecution, and the defense team, and contend that if such evidence had been disclosed in a timely manner, J. Kerns would have been exonerated.
See
Plaintiffs’ Motion on Counts II, IV & V at 26. The Plaintiffs contend that Koren and Lindley fabricated their trajectory analysis to place a gunshot within forty feet of the Plaintiffs’ residence.
See
Plaintiffs’ Motion on Counts II, IV & V at 26-27. The Plaintiffs state that the GPS data from the helicopter constitutes
Brady v. Maryland
32
material because it was demonstrably exculpatory, as they contend it showed that the helicopter was facing away from the Plaintiffs’ home and demonstrated that the officers’ analysis was misleading.
See
Plaintiffs’ Motion on Counts II, IV & V at 27. The Plaintiffs further contend that Haag failed to disclose the true nature of his forensic tests and that he should have informed the Court that he was not confident in his analysis, and that in not doing do, he suppressed material evidence in violation of the Fourteenth Amendment.
See
Plaintiffs’ Motion on Counts II, IV & V at 27-28.
The County Defendants respond that Lindley and Koren are entitled to qualified immunity. They contend that the search warrant established a sufficient nexus because J. Kerns’ recount to multiple officers that he heard a popping noise or a gunshot established a link between him and the shooting.
See
Defendants Brian Lindley and Lawrence Koren’s Response to Plaintiffs’ Motion for Summary Judgment as to Liability on Counts II, IV & V of the First Amended Complaint at 12, filed August 10, 2009 (Doc. 199)(“County Defendants’ Response”). The County Defendants also argue that there is no evidence that any material facts in the affidavit for the search warrant were recklessly false.
See
County Defendants’ Response at 13. The County Defendants contend that the facts which the Plaintiffs contend were false, if excluded, do not vitiate probable cause.
See
County Defendants’ Response at 13. They argue that, to the extent that the quotes are not correct, the warrant affidavit’s language was innocent or negligent, which is insufficient for constitutional liability. For example, that there were weapons in the Plaintiffs’ residence is all that was needed to establish probable cause, regardless whether A. Kerns made statements regarding the quantity of guns.
See
County Defendants’ Response at 14. The County Defendants also argue that, to the extent that'the Plaintiffs contest the timing when J. Kerns talked to his father
*1225
about helping the pilot and observer out of the helicopter, such issue is not relevant, because it is undisputed that A. Kerns told officers that J. Kerns stated he helped— even though other officers have provided contrary information.
See
County Defendants’ Response at 15. The County Defendants further contend that the purported exculpatory material is not exculpatory. First, regarding statements Smith made, the County Defendants argue that they contradict the statements Holland made about the direction of the helicopter, and further, Smith never made statements about directionality to the officers at the time of the crash. Lindley, thus, could not recklessly exclude information he did not have.
See
County Defendants’ Response at 16. The County Defendants further argue that the Plaintiffs’ argument regarding the insufficient particularity of the search warrant is a new claim raised for the first time at the summary judgment stage, and is not contained within the First Amended Complaint, and should therefore not be permitted now.
See
County Defendants’ Response at 17. Alternatively, they contend that there is no evidence that either Lindley or Koren participated in, supervised, or ordered the search of the Plaintiffs’ residence.
See
County Defendants’ Response at 17.
With regard to the arrest-warrant affidavit, the County Defendants argue that Koren’s calculations were not false, and moreover, the two facts asserted in the arrest-warrant affidavit — (i) 1630 feet is within the range of a 30-caliber rifle and (ii) J. Kerns could shoot a man-sized target from 1670 feet — are not disputed. As to the ballistics information, the County Defendants contends that Lindley is constitutionally permitted to rely on the analysis other officers conducted.
See
County Defendants’ Response at 21. Finally, the County Defendants argue the Plaintiffs have no Fourteenth-Amendment claim that exists separate and apart from their Fourth-Amendment claim.
See
County Defendants’ Response at 25.
The Plaintiffs reply that the law-enforcement officers should have discredited J. Kerns’ testimony the night of the crash that he heard a popping noise because no one but J. Kerns made a similar claim.
See
Plaintiffs’ Reply to the County Defendants’ Response to the Motion for Summary Judgment as to Liability on Counts II, IV & V of the First Amended Complaint at 5, filed August 24, 2009 (Doc. 215)(“Plaintiffs’ Reply to County Defendants”). They also argue that falsifying statements in the affidavit for the search warrant is evidence of malice.
See
Plaintiffs’ Reply to County Defendants at 6-7. The Plaintiffs’ further contend that establishing that J. Kerns had the means and the ability to shoot Metro One is not enough to establish probable cause.
See
Plaintiffs’ Reply to County Defendants at 7-8. Regarding the particularity argument, the Plaintiffs contend that a Fourth-Amendment search-and-seizure violation was set forth in the First Amended Complaint, which is sufficient to incorporate the particularity claim.
See
Plaintiffs’ Reply to County Defendants at 8. The Plaintiffs further contend that Lindley instigated the search by obtaining the search warrant without probable cause and thus is liable for the damages that flowed from the illegal search.
See
Plaintiffs’ Reply to County Defendants at 9.
Haag filed a separate response, arguing that he was not obligated to explain his math to prosecutors or law enforcement, but rather has an obligation to offer opinions of identification, elimination, or inconclusive, with regard to rifling characteristics.
See
Defendant Mike Haag’s Response in Opposition to Plaintiffs’ Motion for Partial Summary Judgment as to Liability on Counts II, IV & V of the First Amended Complaint at 16-17, filed
*1226
August 4, 2009 (Doe. 196) (“Haag’s Response”). Haag’s opinion was “inconclusive,” which means he came to a conclusion that the FN rifle could or could not be excluded, which Haag contends distinguishes this case from the forensic analyst in
Pierce v. Gilchrist,
who reported that evidence she examined could have come from the plaintiff, but withheld information that the evidence also could not have come from the plaintiff.
See
Haag’s Response at 17 (citing
Pierce v. Gilchrist,
359 F.3d at 1293 ). Here, Haag contends he was explicit that the bullet fragments could not be identified or excluded as having been fired from the FN rifle and there were many other rifles on the market from which the bullet fragment could have come.
See
Haag’s Response at 17. Moreover, Haag contends that, when Welch demonstrated his novel knurled cannelure methodology, Haag tested the method and found that it produced an accurate measurement allowing him to confidently exclude the FN rifle.
See
Haag’s Response at 18-19. Finally, Haag argues that the Plaintiffs did not suffer a due-process violation because of Haag’s alleged exclusion of
Brady v. Maryland
material because J. Kerns’ criminal case never went to trial.
See
Haag’s Response at 20.
In reply to Haag, the Plaintiffs argue that Haag effectively declared that J. Kerns could have shot down Metro One by stating that the bullet fragments could not be excluded from having been fired from the FN rifle.
See
Plaintiffs’ Reply in Support of their Motion for Summary Judgment as to Liability on Counts II, IV & V of the First Amended Complaint at 13, filed August 23, 2009 (Doc. 212)(“Plaintiffs’ Reply to Haag”). The Plaintiffs argue that, if Haag concluded that the fragments were too damaged for a conclusion, his result should have been “unsuitable for microscopic examination,” and concluding otherwise evidences malice and bias. Plaintiffs’ Reply to Haag at 13. The Plaintiffs maintain that Haag purposefully distorted his analysis.
See
Plaintiffs’ Reply to Haag at 14. The Plaintiffs concede, however, Haag’s argument that their procedural due-process claim fails as a matter of law under Tenth Circuit precedent, because a plaintiff can assert only a 42 U.S.C. § 1983 claim based on failure to provide
Brady v. Maryland
material after a criminal defendant has been convicted and a judgment entered against him.
See
Plaintiffs’ Reply to Haag at 15 (citing
Becker v. Kroll,
494 F.3d 904, 920-21 (10th Cir.2007));
Morgan v. Gertz,
166 F.3d 1307, 1310 (10th Cir.1999).
33
3.
The Plaintiffs’ Motion for Summary Judgment as to Liability of Counts III & VI of the First Amended Complaint.
The Plaintiffs move the Court to enter an order declaring that White, in his individual and official capacity, is liable for obtaining J. Kerns’ medical and behavioral health records in violation of J. Kerns’ right to privacy under the Fourth and Fourteenth Amendments.
See
Plaintiffs’ Motion on Counts III & VI at 1. The Plaintiffs argue that, because J. Kerns was not provided with any notice or an opportunity to prevent the disclosure of his medical records, the seizure of those records violated his clearly established federal procedural due-process rights.
See
Plaintiffs’ Motion on Counts III & VI at 10. The Plaintiffs also argue that the Fourth-Amendment protections attach to J. Kerns’ individual claim of privacy. Finally, the
*1227
Plaintiffs contend that the seizure of J. Kerns’ medical records triggers municipal liability, because White is the policymaker for Bernalillo County and there is no written policy addressing how a law enforcement officer would secure medical records, and, therefore, by signing a request for records, White created policy.
See
Plaintiffs’ Motion on Counts III & VI at 14.
In response, the County Defendants argues that there is no clearly established law which put White on notice that a request to a third-party medical provider for medical records violated the Fourth or Fourteenth Amendments.
See
Defendants Board of County Commissioners of Bernalillo County, Darren White, Brian Lindley, and Lawrence Koren’s Response to Plaintiffs’ Motion for Summary Judgment as to Liability on Counts III & VI of the First Amendment Complaint at 5, filed July 29, 2009 (Doc. 193)(“White’s Response”).
34
The County Defendants argue that there is no evidence that the Veterans Hospital was compelled to release the records; rather, as stated in Martinez’s affidavit, the request was processed through the procedure the hospital has in place to protect patient files.
See
White’s Response at 7. The County Defendants further argue that, under the Plaintiffs’ theory, any law-enforcement officer who requests medical records commits an unconstitutional search.
See
White’s Response at 7. They also contend that no clearly established law put White on notice that such a request would violate the Fourth Amendment. The County Defendants further note that the Plaintiffs have not challenged whether White had probable cause to search or seize the medical records.
See
White’s Response at 8. They additionally argue that the Federal Privacy Act permits disclosure of information to another agency for a criminal law-enforcement activity if the head of the agency has made a written request.
See
White’s Response at 8 (citing 5 U.S.C. § 552a(b)(7)). The County Defendants further contend that the Plaintiffs’ theory of liability under the Fourteenth Amendment relies upon cases involving either the compelled disclosure of information or the dissemination of information to others, but that White engaged in neither.
See
White’s Response at 8. Finally, the County Defendants argue that, because White committed no clearly established constitutional violation, there can be no municipal liability.
See
White’s Response at 12.
In reply, the Plaintiffs argue that the request submitted to the hospital is no different from consent from a maid to search a hotel room, which the Supreme Court has held violates the Fourth Amendment.
See
Plaintiffs’ Reply in Support of their Motion for Summary Judgment as to Liability on Counts III & VI of the First Amended Complaint at 5, filed August 12, 2009 (Doc. 203)(“Plaintiffs’ Reply to White”)(citing
Stoner v. California,
376 U.S. 483, 489 , 84 S.Ct. 889 , 11 L.Ed.2d 856 (1964)). The Plaintiffs argue that the County Defendants’ argument that the Federal Privacy Act applies is unavailing, because the request can only be made if the activity is authorized by law, and obtaining private medical records without consent is not authorized by law.
See
Plaintiffs’ Reply to White at 6. The Plaintiffs further argue that White’s actions constituted more than a mere request— rather, his agent, another officer with the Bernalillo County Sheriffs Department acting under White’s signed request, reviewed all computer records and clipped pages and copied records containing protected and irrelevant medical material.
See
Plaintiffs’ Reply to White at 7. The Plaintiffs stress that J. Kerns did not provide consent or implied consent for such a
*1228
search.
See
Plaintiffs’ Reply to White at 7. The Plaintiffs maintain their argument that any constitutional violation by White establishes municipal liability because he created policy when he authorized the search and seizure of J. Kerns’ medical records.
See
Plaintiffs’ Reply to White at 9.
4.
The County Defendants’ Motion for Summary Judyment on the Basis of Qualified Immunity and Other Grounds on Counts II, III, IV, V, VI. VIII, IX, X and XI.
The County Defendants move for summary judgment on the basis of qualified immunity on all remaining claims asserted against them.
See
County Defendants’ Motion at 1. The remaining Counts against the County Defendants are: (i) Count II— unlawful search and seizure; (ii) Count III — unlawful search and seizure of medical information and deprivation of medical privacy; (iii) Count IV — -false arrest/false imprisonment of J. Kerns; (iv) Count V— malicious prosecution; (v) Count VI — municipal liability for violation of Count III; (vi) Count VIII — false detention/arrest/imprisonment under the NMTCA; (vii) Count IX — malicious abuse of process; (viii) Count X — deprivation of property rights and trespass under the NMTCA; and (ix) Count XI- — deprivation of property rights and conversion under the NMTCA. The Court will address the arguments on each claim in turn.
a.
Aryuments on Count II.
Count II is asserted against Lindley. The County Defendants argue that the Plaintiffs cannot meet their burden of establishing that Lindley knowingly or recklessly made false statements in the affidavit in support of the search warrant for the Plaintiffs’ residence.
See
County Defendants’ Motion at 26. Moreover, the County Defendants argue that Lindley’s search-warrant affidavit, viewed in light of the totality of the circumstances, establishes probable cause.
See
County Defendants’ Motion at 27. In the alternative, the County Defendants argue that probable cause existed to search the Plaintiffs’ residence based upon the weapons-related charges under investigation by the BATF, with the assistance of the Bernalillo County Sheriffs Department.
See
County Defendants’ Motion at 27. They argues that probable cause existed based upon J. Kerns’ admission to Lindley and Matas that he has PTSD, and based on the photograph A. Kerns showed Gonzales and others of J. Kerns cleaning his firearms.
See
County Defendants’ Motion at 27.
In response, the Plaintiffs argue that the affidavit in support of the search warrant fails to establish probable cause. The Plaintiffs stress that no one else around the Plaintiffs’ residence, except J. Kerns, heard a gunshot.
See
Plaintiffs’ Response in Opposition to Defendant Board of County Commissioners of Bernalillo County, Darren White, Brian Lindley, Ralph Gonzales, and Lawrence Koren’s Motion for Summary Judgment on the Basis of Qualified Immunity and on Other Grounds and Memorandum in Support at 12, filed August 11, 2009 (Doc. 201)(“Plaintiffs’ Response to County Defendants”). The Plaintiffs argue that the affidavit contains recklessly false statements, such as A. Kerns speaking to J. Kerns shortly after the crash and alleged statements of the Plaintiffs’ neighbor.
See
Plaintiffs’ Response to County Defendants at 13. The Plaintiffs contend that Lindley’s facts were untrustworthy, incompetent, or deliberately misleading.
See
Plaintiffs’ Response to County Defendants at 16.
In reply, the County Defendants argue that, if the Plaintiffs are facially challenging the affidavit, Lindley is entitled to qualified immunity, because an officer who acts with objective good faith and obtains a
*1229
search warrant cannot be expected to question the magistrate judge’s probable-cause determination.
See
County Defendants’ Reply to Motion for Summary Judgment, filed August 17, 2009 (Doc. 205)(“County Defendants’ Reply”). Moreover, the County Defendants argue that, even if the Court strikes the statements attributed to A. Kerns and Beauchamp, the search-warrant affidavit still establishes probable cause.
See
County Defendants’ Reply at 8.
At the hearing, Daniel Macke, the County Defendants’ attorney, argued that neither Lindley nor Koren personally participated in the search.
See
Tr. at 109:20-110:4 (Macke). Mr. Macke also challenged the standard that the Plaintiffs are trying to impose on the affidavit for the search warrant, contending that the Plaintiffs are attempting to impose a beyond-a-reasonable-doubt standard on the probable-cause determination.
See
Tr. at 110:25-111:6 (Macke). He argued that the facts in the search-warrant affidavit that the Plaintiffs contest are (i) not material to the probable-cause determination and (ii) not recklessly submitted.
See
Tr. at 111:7-13 (Macke). Mr. Macke argued that, if the Court excluded the statement from the neighbor, who was expressing an opinion and had no personal knowledge of the shooting, there would still be probable cause.
See
Tr. at 111:21 -24 (Macke). He put forth the same argument regarding whether J. Kerns told A. Kerns about the shooting in the early morning shortly after Metro One went down.
See
Tr. at 114:19-115:1 (Macke). Mr. Macke also argued that it is undisputed that J. Kerns told officers on numerous occasions that he heard a popping noise, and Mr. Macke contended that the logical inference, given the rest of the evidence, is that J. Kerns was referring to a gunshot.
See
Tr. at 113:2-18 (Macke). Mr. Macke also pointed out that J. Kerns’ entire written statement is included in the search-warrant affidavit, which cannot be viewed as a reckless disregard of the facts.
See
Tr. at 114:4-8 (Macke). Mr. Macke further argued that there are no facts that have been submitted which show that the officers had any information, at the time the search warrant was drafted, regarding which way the helicopter was facing when it was shot down.
See
Tr. at 116:2-11 (Macke). Mr. Macke stressed that there was no duty to follow up on all potentially exculpatory leads, and thus he does not believe that the lack of information in the warrant about the direction of the helicopter gives rise to a genuine issue of material fact.
See
Tr. at 116:9-12. Mr. Macke argued that there was plenty of information to support a reasonable officer’s belief that there was probable cause for the search warrant: J. Kerns’ attempt to evade police, what he heard and saw the night of the shooting, his descriptions of what he saw, his admissions about how the helicopter made a great target, and his admission that he could make the shot no problem.
See
Tr. at 116:25-117:13 (Macke).
Mr. Lowry argued that there is no nexus between J. Kerns and his involvement in the actual helicopter shooting, and that the search warrant was premised on a hunch.
See
Tr. at 150:20-151:1 (Lowry). Mr. Lowry argued that he thinks there was a duty upon Lindley to determine more of the fundamental facts of the case before he wrote the affidavit for the search warrant for the Plaintiffs’ residence.
See
Tr. at 155:6-10 (Lowry).
b.
Arguments on Count III.
Count III is asserted against White for unlawful search and seizure of medical records, and deprivation of medical privacy, contrary to the Fourth and Fourteenth Amendments and the Federal Privacy Act. The County Defendants first argue that any claim brought against White under the Federal Privacy Act is both barred by a
*1230
two-year statute of limitations and not actionable against local officials or a municipality. They further argue that White is entitled to qualified immunity, because he had probable cause to make the request for J. Kerns’ medical records, and there is no evidence that, once disclosed, White made unlawful use of the medical records.
See
County Defendants’ Motion at 29. The County Defendants also contend that there is no clearly established law that would have put White on notice that a request for medical records would violate J. Kerns’ constitutional rights.
In response, the Plaintiffs stipulate to a dismissal of the Privacy Act claim.
See
Plaintiffs’ Response to County Defendants at 17. The Court, therefore, will not review that aspect of Count III. They also reassert the arguments they made in their stand-alone motion for summary judgment on Count III and VI.
See
Plaintiffs’ Response to County Defendants at 17.
At the hearing, Mr. Macke argued that the testimony is clear that White has no recollection beyond signing the request.
See
Tr. at 118:17-21 (Macke). Mr. Macke argues that there is not clearly established law which put White on notice that his request would violate the Constitution.
See
Tr. at 118:23-119:1 (Macke). Mr. Lowry clarified that Count III is alleging breach of privacy under both the Fourth and Fourteenth Amendments.
See
Tr. at 131:20-25 (Lowry). Mr. Lowry distinguished White’s request for medical records from a police knock-and-talk, because asking for medical records touches upon an area which the Supreme Court and the Tenth Circuit have held constitutes private intimate information.
See
Tr. at 133:24-134:25 (Lowry).
Mr. Lowry urged the Court to follow the clearly established precedent of the Supreme Court and the Tenth Circuit, which provide that requesting medical or behavioral records violates the Fourth Amendment.
See
Tr. at 135:6-25 (Lowry). Mr. Lowry further argued that there is no implied waiver in this case, like there was in the Court’s decision in
Chavez v. Martinez,
No. CIV 07-1250, 2008 WL 6045509 , 2008 U.S. Dist. LEXIS 108932 (D.N.M. Oct. 20, 2008) (Browning, J.).
See
Tr. at 140:23-25 (Lowry).
c.
Arguments on Count IV.
Count IV, brought under § 1983 for false arrest or false imprisonment, is asserted against Lindley, Koren, and Haag. Lindley and Koren as well as Haag have asserted a qualified immunity defense. Haag’s arguments are contained within his motion for summary judgment, already discussed. The County Defendants argue that they believe the Plaintiffs’ claim should be for malicious prosecution, and not for false arrest or false imprisonment.
See
County Defendants’ Motion at 30. They also argue that the Plaintiffs should be estopped from asserting that there was no probable cause for J. Kerns’ arrest and imprisonment, because J. Kerns waived his detention hearing on August 25, 2005. Moreover, they argue probable cause supported the arrest. See County Defendants’ Motion at 32. Even if probable cause did not exist, they argue Lindley and Koren are still entitled to qualified immunity because they could have mistakenly, but reasonably, concluded that they had probable cause.
See
County Defendants’ Motion at 32. Finally, they assert there was no malice.
See id.
In response, the Plaintiffs argue that the Lindley and Koren cannot hide behind the fact that they did not file the federal charges, because the charges were filed based on their distorted view of the evidence.
See
Plaintiffs’ Response to County Defendants at 18. The Plaintiffs further argue that Lindley and Koren cannot assert a probable-cause defense because the information in the warrant is not trustwor
*1231
thy.
See
Plaintiffs’ Response to County Defendants at 19.
At the hearing, Mr. Macke argued that there is no evidence that anything submitted in the arrest-warrant affidavit was false or recklessly submitted.
See
Tr. at 124:10-13. Mr. Macke also underscored that there is nothing in the warrant regarding where the shooter was relative to Metro One. Rather, the warrant contains information that the helicopter was within a distance from the Plaintiffs’ residence which J. Kerns told officers he could shoot and hit a man-sized target.
See
Tr. at 125:1-10 (Macke).
Mr. Lowry argued that the trajectory analysis from Koren in the arrest-warrant affidavit was recklessly false, because the pedal position he used was incorrect.
See
Tr. at 160:22-25 (Lowry). He also argued that the description of the Metro Two test is recklessly false, because the officers did not use the data from the GPS.
See
Tr. at 163:11-164:6 (Lowry). Mr. Macke contends, even striking the trajectory evidence, there is still probable cause for the arrest warrant.
See
Tr. at 174:12-19 (Macke).
d.
Arguments on Count V.
Count V, brought under § 1983 for malicious prosecution, is asserted against Lindley, Koren, and Haag. Lindley and Koren as well as Haag have asserted qualified immunity. Haag’s arguments are contained within his motion for summary judgment, already discussed. The County Defendants argue that Lindley and Koren did not cause J. Kerns’ continued prosecution or imprisonment; Lindley filed a state criminal complaint, which was dismissed on August 22, 2005, and thus, the County Defendants argue, the claim should cut off at that time.
See
County Defendants’ Motion at 30. They argue that neither Lindley nor Koren testified before the grand jury, which secured the federal indictment against J. Kerns, nor were they involved in what evidence to bring before the grand jury.
See
County Defendants’ Motion at 31. They further contend that the chain of causation was broken by the intervening acts of the AUSA and grand jury.
See
County Defendants’ Motion at 31. Finally, they assert there was no malice.
See id.
Mr. Macke, at the hearing, argued that the Plaintiffs do not meet the elements of malicious prosecution, because Lindley cannot initiate federal charges.
See
Tr. at 126:18-127:3 (Macke).
e.
Arguments on Count VIII.
Count VIII asserts claims of false detention, arrest, and imprisonment under the NMTCA asserted against Bernalillo County, Lindley, and Koren. The County Defendants argue that the Court should dismiss this claim for failure to provide timely notice, as the NMTCA requires.
See
County Defendants’ Motion at 33. In the alternative, they argue that they are entitled to summary judgment because Lindley’s and Koren’s actions were lawful and based on probable cause.
See
County Defendants’ Motion at 33. In response, the Plaintiffs argue that their claim is not untimely, because notice that the Plaintiffs preserved their right to potentially file suit was filed within ninety days of the dismissal of J. Kerns’ federal charges.
See
Plaintiffs’ Response to County Defendants at 20. The Plaintiffs further argue that, under -New Mexico state law, the County Defendants are liable, because Lindley and Koren are required to complete a reasonable pre-filing investigation, and they did not.
See
Plaintiffs’ Response to County Defendants at 20. In reply, the County Defendants contend that the NMTCA claims accrued when the state charges, not the federal charges, were dismissed, and thus the Plaintiffs’ notice was untimely.
See
County Defendants’ Reply at 12.
*1232
f.
Arguments on Count IX.
Count IX of the First Amended Complaint asserts a claim for “abuse of process-malicious prosecution” under the NMTCA against Bernalillo County, Lindley and Koren. In New Mexico, the torts of malicious prosecution and abuse of process have been combined into a single tort of malicious abuse of process.
See DeVaney v. Thriftway Mktg. Corp.,
124 N.M. 512, 518 , 953 P.2d 277, 283 (1997). The County Defendants argue that the Plaintiffs have not presented any evidence of the County Defendants’ improper use of process, and argue that Lindley and Koren had probable cause to believe that J. Kerns had committed the crimes charged in the arrest warrant.
See
County Defendants’ Motion at 34. The Plaintiffs argue that the County Defendants lacked both probable cause and purposefully withheld exculpatory information from the courts, which was an abuse of process.
See
Plaintiffs’ Response to County Defendants at 20.
g.
Arguments on Count X and Count XI.
Count X asserts a claim for deprivation of property rights and trespass under the NMTCA against Lindley and Bernalillo County.
35
The County Defendants argue that there is no waiver of sovereign immunity for the claim, that Lindley did not participate in the search, and that, therefore, neither Lindley nor Bernalillo County could have committed trespass.
See
County Defendants’ Motion at 34. They further contend that, because there was probable cause, there was a lawful reason for the Bernalillo County Sheriffs Department to be on the Plaintiffs’ property.
See
County Defendants’ Motion at 34. Count XI asserts a claim for deprivation of property rights and conversion under the NMTCA against Lindley and Bernalillo County. The County Defendants assert the same arguments that they put forth for why the Court should grant summary judgment on Count X.
See
County Defendants’ Motion at 34.
The Plaintiffs respond that a law enforcement officer is liable for property damage resulting from false imprisonment, false arrest, malicious prosecution, abuse of process, or violation of property rights.
See
Plaintiffs’ Response to County Defendants at 21. The County Defendants reply that the Plaintiffs have not brought forth any evidence of property damage, much less property damage that Lindley caused.
LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT
Rule 56(c) of the Federal Rules of Civil Procedure states that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The movant bears the initial burden of “showing] 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(e) 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);
Vitkus v. Beatrice Co.,
11 F.3d
*1233
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 quotes omitted).
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). Rule 56 provides that “an opposing party may not rely merely on allegations or denials in its own pleadings; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). 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. 242, 256, 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986).
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.’ ”). 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) and
Argo v. Blue Cross and 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 on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ”
Colony Nat’l Ins. Co. v. Omer,
2008 WL 2309005 , at *1 (quoting
Conaway v. Smith,
853 F.2d 789, 794 (10th Cir.1988)).
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.
See Vitkus v. Beatrice Co.,
11 F.3d at 1539. Rather, there must be sufficient evidence on which the fact-finder could reasonably find for the nonmoving party.
See Anderson v. Liberty Lobby, Inc., 477
U.S. at 251, 106 S.Ct. 2505 (quoting
Schuylkill and Dauphin Improvement Co. v. Munson,
81 U.S. 442, 448 , 14 Wall. 442 , 20 L.Ed. 867 (1870):
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 (internal 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-
*1234
moving party, and construe all evidence in the light most favorable to the non-moving party.
See Hunt v. Cromartie,
526 U.S. 541, 550-55 , 119 S.Ct. 1545 , 143 L.Ed.2d 731 (1999). Third, the Court cannot decide any issues of credibility.
See Anderson v. Liberty Lobby, Inc.,
477 U.S. at 255, 106 S.Ct. 2505 .
LAW REGARDING QUALIFIED IMMUNITY
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. at 807, 102 S.Ct. 2727 . 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. Civ. 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,
— U.S. -, 129 S.Ct. 808, 815 , 172 L.Ed.2d 565 (2009) (quoting
Hunter v. Bryant,
502 U.S. 224, 227 , 112 S.Ct. 534 , 116 L.Ed.2d 589 (1991)).
Qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Pearson v. Callahan,
129 S.Ct. at 815 (quoting
Harlow v. Fitzgerald,
457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (198

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2539740. Public record. Not legal advice.