MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) the United States Court of Appeals for the Tenth Circuit’s Judgment, filed January 19, 2012 (Doc. 286-2)(“Tenth Circuit Judgment”); (ii) United States Court of Appeals for the Tenth Circuit’s Opinion, filed January 19, 2012 (Doc. 286-1);
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 Plaintiff Jason Kerns on August 15, 2005 and a federal grand jury indicted him on federal charges. On May 10, 2006, the United States Attorney dismissed the charges against J. Kerns.
On or about August 6, 2005, at approximately 12:00 a.m., retired Deputy Chief Ed Sauer observed the Bernalillo County Sheriffs Department Metro One helicopter hovering in the area of Paradise Boulevard and Golf Course Road in Bernalillo County, New Mexico, after he pulled into his driveway and exited his vehicle. See Deposition of Edward Sauer 5:5-9 (October 22, 2008), filed February 17, 2009 (Doc. 117-2); MSJ ¶ 1, at 2 (setting forth this fact); Plaintiffs’ Response to City Defendants Drew Bader, Matthew Thompson, and Russell Carter’s Motion for Summary Judgment Requesting Dismissal of Counts I, X, and XIII of Plaintiffs’ First Amended Complaint ¶ 1, at 2, filed May 1, 2009 (Doc. 156)(“MSJ Response”)(not disputing this fact). As Sauer entered his residence, he heard a loud crack that sounded like a rifle shot. See Sauer Depo. at 5:17-7:8; MSJ ¶2, at 2 (setting forth this fact); MSJ Response ¶ 2, at 2 (not disputing this fact). Sauer observed the Metro One helicopter go straight down to the ground after he heard the shot. See Sauer Depo. at 10:14-19; MSJ ¶ 3, at 2 (setting forth this fact); MSJ Response ¶ 3, at 2 (not disputing this fact).
Sauer drove to the intersection where he believed the helicopter went down to look for it; however, he was unable to immediately locate the helicopter. See Sauer Depo. 10:24-11:5; MSJ ¶4, at 2 (setting forth this fact); MSJ Response ¶4, at 2 (not disputing this fact). Once Sauer walked to the golf course area, he saw that the helicopter had crashed in a residence’s backyard, where he saw the observer and the pilot emerging from the wreckage. See Sauer Depo. at 12:18-13:1, 14:18-15:11; MSJ ¶ 5 at 2 (setting forth this fact); MSJ Response ¶ 5, at 2 (not disputing this fact). Sauer observed two or three civilians approaching the crash, and Sauer instructed them to move back and stay away from the helicopter. See Sauer Depo. at 20:14-16; MSJ ¶ 6, at 2 (setting forth this fact); MSJ Response ¶ 6, at 3 (not disputing this fact). Several civilians told Sauer that they had heard shots fired before the helicopter crashed. See Sauer Depo. at 40:16-19; MSJ Response ¶ 33, at 5 (setting forth this fact).
J. Kerns was one of the witnesses who approached Sauer and J. Kerns stated that
J. Kerns told the police that he heard a pop noise that was so loud it made his ears ring. See J. Kerns Depo. at 156:15-25; MSJ ¶ 11, at 3 (setting forth this fact); MSJ Response ¶ 11, at 3 (not disputing this fact). He explained that the pop noise sounded “like an engine back low or maybe a rifle report, like the sound of a gun going off.” J. Kerns Depo. at 157:19-25; MSJ ¶ 11, at 3 (setting forth this fact); MSJ Response ¶ 11, at 3 (not disputing this fact). He also reported that he heard the sound of rocks kick up from the direction in which he believed he heard the pop noise originated. See J. Kerns Depo. at 162:6-8; MSJ ¶ 11, at 3 (setting forth this fact); MSJ Response ¶ 11, at 3 (not disputing this fact). J. Kerns also provided the police with a written statement wherein he stated that he was “standing on the edge of the property line and the golf course watching the helicopter hovering.” Written Statement of Jason Kerns at 1, filed
J. Kerns gave Johnston directions to his home, which is located at 9910 Columbus Circle N.W., on the golf course. See Johnston Depo. at 15:15-19; MSJ ¶ 13, at 4 (setting forth this fact); MSJ Response ¶ 13, at 3 (not disputing this fact). In response to J. Kerns’ report, Johnston sent members of the SWAT and K-9 units to the area of J. Kerns’ residence so the officers could look for evidence where a gunshot might have taken place, or contact anybody else in the neighborhood who may have heard or seen something. See Johnston Depo. at 15:12-15, 16:13-17:7; MSJ ¶ 14, at 4 (setting forth this fact); MSJ Response ¶ 14, at 3 (not disputing this fact); MSJ Response ¶ 37, at 6 (setting forth this fact); City Defendants’ Reply to Plaintiffs’ Response to Their Motion for Summary Judgment Requesting Dismissal of Counts I, X, and XIII of Plaintiff First Amended Complaint at 3, filed June 18, 2009 (Doc. 161)(“MSJ Reply”)(not disputing this fact). Bader, Carter, and Thompson were among the tactical officers who went to the area. See Defendant Drew Bader’s Answers to Plaintiff Jason Kerns’ First Set of Interrogatories and Request for Production of Documents to Defendant Drew Bader at 2, filed February 2, 2009 (Doc. 117-7)(“Bader Ans.”); Defendant Russell Carter’s Answers to Plaintiff Jason Kerns’ First Set of Interrogatories and Request for Production of Documents to Defendant Russell Carter at 2, filed February 2, 2009 (Doc. 117-8)(“Carter Ans.”); Defendant Matthew Thompson’s Answers to Plaintiff Jason Kerns’ First Set of Interrogatories and Request for Production of Documents to Defendant Matthew Thompson at 2, filed February 17, 2009 (Doc. 117-9)(“Thompson Ans.”); MSJ ¶ 15, at 4 (setting forth this fact); MSJ Response ¶ 15, at 3 (not disputing this fact). Johnston instructed the officers to go through every yard around the circle area, and if they could see lights in the house or hear noise or movement inside, to knock on the door and ask if anyone saw or heard anything. See Johnston Depo. 16:11-25; MSJ Response ¶ 38, at 6 (setting forth this fact); MSJ Reply at 3 (not disputing this fact). The officers split into two groups to canvas the neighborhood. See Johnston Depo. at 15:16-18, 34:16-25, 35:1-13; MSJ Response ¶ 39, at 6 (setting forth this fact); MSJ Reply at 3 (not disputing this fact). Johnston led one group and Defendant Officer James Montoya led the other. See Deposition of Sergeant Robert Johnston at 15:19-25; Deposition of Officer James Montoya at 12:12-19 (dated February 11, 2009), filed May 1, 2009 (Doc. 156-5); MSJ Response ¶ 40, at 6 (setting forth this fact); MSJ Reply at 3 (not disputing this fact).
Johnston spoke to people at approximately four houses, but nobody at any of the houses had heard any gunshot or heard the helicopter crash. See Johnston Depo. at 18:6-25, filed May 1, 2009 (Doc. 156-4); MSJ Response ¶ 41, at 7 (setting forth this fact); MSJ Reply at 3 (not disputing this fact). Montoya’s team made contact with people at one or two houses, but no one reported hearing shots fired or knew anything about the helicopter crash. See Montoya Depo. at 14:3-25, 15:7-10; MSJ Response ¶ 42, at 7 (setting forth this fact); MSJ Reply at 3 (not disputing this fact). It is possible that the noises J. Kerns heard could have been acoustical reverberations from the buildings along the golf course. See MSJ Response ¶¶ 43, 44, at 7 (setting forth this fact).
Thompson stated that, given the circumstances, he “thought that the occupants may be in danger from a possible armed suspect that may have fired at the police helicopter,” that “it was possible debris from the [helicopter] could have lodged inside the home,” and that “the broken glass could have resulted from a gunshot coming from or into the residence.” Thompson Ans. at 2; MSJ ¶ 24, at 6 (setting forth this fact).
After entering J. Kerns’ residence, Bad-er, Thompson, and Carter were met by a female, later identified as Michelle Zisser. See Thompson Ans. at 2; MSJ ¶ 27, at 6 (setting forth this fact); MSJ Response ¶ 27, at 5 (not disputing this fact). Zisser had been sleeping in a room near the door and did not hear anything until the officers were inside the home with their radios transmitting. See Zisser Depo. at 40:10-25, 41:1-22; MSJ Response ¶ 67, at 10 (setting forth this fact).
PROCEDURAL BACKGROUND
The Kerns filed their First Amended Complaint for Damages Caused by the Deprivation of Civil Rights and Other Tortious Conduct on November 26, 2007. See
1. Bader, Thompson, and Carter’s MSJ.
On February 17, 2009, Bader, Thompson, and Carter moved for summary judgment on the basis of qualified immunity on Counts I, X, and XIII. See Doc. 117. The City Defendants argued that the Kerns cannot show a clearly established constitutional violation from the City Defendants’ entry into their residence. See MSJ at 9. They noted that the Fourth Amendment does not mandate that police officers possess a warrant before entering a home. See MSJ at 9 (citing United States v. Najar,
On May 1, 2009, the Kerns filed their MSJ Response. See Doc. 156. The Kerns argued that the boundaries of the exigent-circumstances exception to the Fourth Amendment were clearly established on August 6, 2009. See MSJ Response at 11. They asserted that the City Defendants “can seek no safe harbor in any exigent circumstances exception to the Fourth Amendment, as they can point to no objective facts that would lead a reasonable police officer to have concluded that somebody inside the Kerns’ home was in need of immediate assistance.” MSJ Response at 11. They contended that “the exception has never been applied to the search of a home where the officers could not identify a specific threat known to have originated from or that had a direct tie to the dwelling that was searched.” MSJ Response at 12. The Kerns pointed to the United States Court of Appeals for the Tenth Circuit’s decision in United States v. Bute,
The Kerns argued that the Court’s assessment of reasonableness turns on “whether the record provides a clear showing of an immediate need to protect the safety of others.” MSJ Response at 14. They contended that the officers “attach a great deal of intrigue to their claim that ... the music stopped,” even though Johnston stated that the music remained on and that the officers “cast the most sinister interpretation possible about a single pane of a two pane window being broken.” MSJ Response at 16. The Kerns asserted that a reasonable officer would have confirmed that the broken glass was the result of a bullet before entering the home. See MSJ Response at 17. They further asserted that, although the officers focus on the fact that no one came to the door, “for all they knew, nobody was home to answer the door.” MSJ Response at 17. The Kerns pointed out that a prudent officer would not have entered the home without obtaining information regarding the occupants of the home from J. Kerns. See MSJ Response at 17. They emphasized that the record indicates that the police teams’ search of the area had already yielded “the conclusion that there existed no evidence indicating that a shooter was in the area.” MSJ Response at 18. The Kerns asserted that the best evidence that the City Defendants did not enter the home to check for an injured person is the concession that the officers did not go to A. and M. Kerns’ bedroom to check on their welfare. See MSJ Response at 18. They argued that the officers considered the Kerns’ home to be a crime scene and that the officers entered the home to investigate the helicopter shooting. See MSJ Response at 19. The Kerns also contended they have pled valid claims against the City Defendants under state law. See MSJ Response at 19-22
On June 18, 2009, the City Defendants filed the MSJ Reply. See Doc. 161. The City Defendants emphasized that the Tenth Circuit established the exigent circumstances test in United States v. Najar and that it requires: (i) that the officers had reasonable grounds to believe that there is an immediate need to protect the lives or safety of themselves or others; and (ii) the manner and scope of the search is reasonable. See MSJ Reply at 7. They pointed out that the Kerns failed to cite any authority for the proposition that the officers must identify a specific threat directly tied to the dwelling that was searched. See MSJ Reply at 7. They argued that such a holding would unduly restrict law enforcement and contradict United States v. Najar. See MSJ Reply at 8. The City Defendants contended that there was no known threat in United States v. Najar and that they have set forth facts which establish their objectively reasonable belief that someone inside 9910 Columbus Circle could have been injured or in harms way. See MSJ Reply at 8. They asserted that undisputed facts demonstrate that a prudent officer would be reasonable in believing “that the shooter was in or that the shooting took place in the area of the Kerns’ residence.” MSJ Reply at 9. They emphasized that the officer “observed unusual activity at the home given the circumstances of the evening.”
2. The Court’s October 5, 2009 Opinion.
On October 5, 2009,
Qualified immunity recognizes the “need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority.” Harlow v. Fitzgerald,457 U.S. 800 , 807 [102 S.Ct. 2727 ,73 L.Ed.2d 396 ] (1982). Qualified immunity “protects federal and state officials from liability for discretionary functions, and from ‘the unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.’ ” Roybal v. City of Albuquerque, No. Civ. 08-0181 [2009 WL 1329834 , at *10],2009 U.S. Dist. LEXIS 45670 , at *29 (D.N.M. Apr. 28, 2009)(quoting Siegert v. Gilley,500 U.S. 226 , 232 [111 S.Ct. 1789 ,114 L.Ed.2d 277 ] (1991)). Issues of qualified immunity are best resolved at the “earliest possible stage in litigation.” Pearson v. Callahan, [555 U.S. 223 ]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. at 818 [102 S.Ct. 2727 ]). The United States Court of Appeals for the Tenth Circuit has stated:
When a defendant asserts qualified immunity at summary judgment, the responsibility shifts to the plaintiff to meet a “heavy two-part burden,” [Medina v. Cram,252 F.3d 1124 , 1128 (10th Cir.2001) ] (internal quotation marks omitted), demonstrating, first, that the defendant’s actions violated a constitutional or statutory right and, second, that the right at issue was clearly established at the time of the defendant’s allegedly unlawful conduct. In assessing whether the right was clearly established, we ask whether the right was sufficiently clear that a reasonable government officer in the defendant’s shows would understand that what he or she did violated that right. If the plaintiff fails to satisfy either part of the two-part inquiry, we must grant the defendant qualified immunity.
Casey v. W. Las Vegas Indep. Sch. Dist.,473 F.3d 1323 , 1327 (10th Cir.2007).
A clearly established right is generally defined as a right so thoroughly developed and consistently recognized under the law of the jurisdiction as to be “in*1198 disputable” and “unquestioned.” Zweibon v. Mitchell,720 F.2d 162 , 172-173 (D.C.Cir.1983), cert. denied,469 U.S. 880 [105 S.Ct. 244 ,83 L.Ed.2d 182 ] (1984). “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Strepka v. Miller,28 Fed.Appx. 823 , 830 (10th Cir.2001)(citing Currier v. Doran,242 F.3d 905 , 923 (10th Cir.2001)). See Medina v. City and County of Denver,960 F.2d 1493 , 1498 (10th Cir.1992). “In determining whether the right was ‘clearly established,’ the court assesses the objective legal reasonableness of the action at the time of the alleged violation and asks whether the ‘the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Holland ex rel. Overdorff v. Harrington,268 F.3d at 1186 (quoting Anderson v. Creighton,483 U.S. 635 , 640 [107 S.Ct. 3034 ,97 L.Ed.2d 523 ] (1987)).
As the Supreme Court of the United States has observed, it is generally not necessary to find a controlling decision declaring the “very action in question ... unlawful.” Anderson v. Creighton,483 U.S. at 640 [107 S.Ct. 3034 ], However, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. at 635 [107 S.Ct. 3034 ],
In Saucier v. Katz,533 U.S. 194 ,121 S.Ct. 2151 ,150 L.Ed.2d 272 (2001), the Supreme Court required that the courts decide whether the defendant’s actions violated a constitutional right before determining whether the right was clearly established at the time of the defendant’s allegedly unlawful conduct. See id. at 201,121 S.Ct. 2151 . In Pearson v. Callahan, the Supreme Court revisited the proper procedure for lower courts to evaluate a qualified-immunity defense, holding that, “while the sequence set forth [in Saucier v. Katz,] is often appropriate, it should no longer be regarded as mandatory.”129 S.Ct. at 818 . Rather, lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” Id. The Supreme Court also noted that, while no longer mandatory, the protocol outlined in Saucier v. Katz would often be beneficial. See Pearson v. Callahan,129 S.Ct. at 819 .
Oct. 5, 2009 MOO at 9-10 (alterations in original). In its legal section on the Fourth Amendment, the Court stated:
The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. [a]mend. IV. The Fourth Amendment generally requires a warrant for there to be a valid search and seizure. For the warrantless search to be valid and legal, the search must fall within a recognized exception to the Fourth Amendment’s warrant requirement. See United States v. Aquino, 836 F.3d [F.2d] 1268, 1271 n. 3 (1988)(stating “[p]olice violate the Fourth Amendment when they engage in a warrantless search and no exception to the warrant requirement applies.”) (citation omitted).
To enter a home, “police officers need either a warrant or probable cause plus exigent circumstances, in order to make lawful entry into a home.” Kirk v. Louisiana,
In Mincey v. Arizona,437 U.S. 385 [98 S.Ct. 2408 ,57 L.Ed.2d 290 ] (1978), the Supreme Court instructed: “[T]he Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid.” Mincey v. Arizona,437 U.S. at 392 [98 S.Ct. 2408 ]. The United States Court of Appeals for the Tenth Circuit, in United States v. Najar, set forth a two-part test for determining whether there are exigent circumstances present: “[0]ur test is now twofold, whether (1) the officers have an objectively reasonable basis to believe that there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable (a modification of our former third prong).”451 F.3d at 718 . In the limited circumstances where the risk of danger to the officers or others gives rise to the exigent circumstance, the court does not require a separate showing of probable cause. See id.
Oct. 5, 2009 MOO at 11-12.
The Court found that, “because Bader, Thompson, and Carter have not met the burden of showing that there were exigent circumstances present when the[y] entered the Kerns’ home, there is a factual issue whether they violated the Kerns’ Fourth Amendment right to be free from unlawful searches.” Oct. 5, 2009 MOO at 13. In its analysis, the Court noted that the “Kerns have a Fourth Amendment expectation of privacy in their own home that is well-established,” and that the City Defendants bear the burden of proving that an exigency existed. See Oct. 5, 2009 MOO at 13 (citing Payton v. New York,
[A] reasonable fact finder could find that Bader, Thompson, and Carter acted on little more than speculation. In the canvassing of the neighborhood, Bader, Thompson, and Carter, and the other police officers dispatched to the area, had some information that might lead them to believe that the offender was in the area. After they arrived, however, their initial investigation did not produce much information that supported the lead from J. Kerns. The citizens in the neighboring homes with whom the officers spoke did not hear a gunshot, nor did they realize that a helicopter had crashed nearby. They did not discover a gun, shell casings, or signs of a shoot. A reasonable fact finder might also conclude that the presence of music playing from the Kerns’ home, miscellaneous items in the yard, and a possible open garage door, did not suggest danger. A reasonable fact finder might not find these circumstances to be particularly suggestive, given that Bader, Thompson, and Carter knew that the residence belonged to one of the witnesses back at the golf course, with whom Johnston was in contact via the police radio. A reasonable fact finder might conclude that these circumstances could be more readily and reasonably explained as attributable to a person who had left his home in a hurry after witnessing a helicopter crash. Bader, Thompson, and Carter contend that they grew concerned when the music coming from J. Kerns’ home stopped playing and that this factored into the decision to enter. Johnston contends, however, that the music was playing continuously. See Johnston Depo. 31:20-24, at 3. Given the discrepancy in the facts, a reasonable fact finder might find that the music turning off is not a persuasive factor in the determination that persons inside J. Kerns’ home were in danger. The Court finds that a reasonable fact finder might conclude that it was conjecture for Bader, Thompson, and Carter to make the leap that these were sign of an intruder into the Kerns’ home.
Oct. 5, 2009 MOO at 14-15. The Court lent weight to the Kerns’ argument that, “if there was concern for the safety of people possibly inside the Kerns’ home, Bader, Thompson, and Carter could have learned if there were people in the Kerns’ home directly from J. Kerns, with whom Johnston was in radio contact,” and noted that the officers’ actions once inside the home undercut their explanation for preceding without a warrant or consent. Oct. 5, 2009 MOO at 16. The Court concluded:
The evidence that the Kerns have presented and Bader, Thompson, and Cartels] inability to adequately demonstrate, as a matter of law, the first-prong of the exigent-circumstances test, leads the Court to find that there is sufficient evidence to deny Bader, Thompson, and Carter’s motion for summary judgment. The Court, therefore, will not grant Bader, Thompson, and Carter qualified immunity on the Kerns’ first claim.
Oct. 5, 2009 MOO at 16. With respect to the state law claims, the Court held that there is evidence that Bader, Thompson, and Carter “entered the Kern’s home without a warrant and without an exception to the warrant requirement, and, in doing so, they may not say they have
3. April 12, 2010 Opinion.
On March 31, 2010, the Court denied: (i) Defendant Mike Haag’s motion for summary judgment; (ii) Defendants Board of County Commissioners of Bernalillo County, White, Lindley, Ralph Gonzales, and Koren’s motion for summary judgment on the basis of qualified immunity; and (iii) the Kerns’ motion for summary judgment as to Counts II, IV, and V of the First Amended Complaint. See Order at 4, filed March 31, 2010 (Doc. 264)(“March 31, 2010 Order”). The Court also granted the Kerns’ motion for summary judgment as to Counts III and IV of the First Amended Complaint. See March 31, 2010 Order at 4.
On April 12, 2010,
4. Appeal to the Tenth Circuit, and the Tenth Circuit’s Opinion and Holding.
On October 29, 2009, Bader, Carter, Thompson filed their Notice of Appeal. See Doc. 248. On January 19, 2012, the Tenth Circuit reversed the Court’s decision with respect to its denial of qualified immunity, and remanded the case for further proceedings “in accordance with the opinion of this court.” Tenth Circuit Judgment at 4. The Oct. 5, 2009 MOO was vacated. See Tenth Circuit Judgment at 4. With respect to White, Lindley, Koren, and Haag, the Tenth Circuit directed the Court to grant dismissal to those defendants on the basis of qualified immunity. See Tenth Circuit Judgment at 4-5.
In its opinion, issued December 20, 2011, the Tenth Circuit stated it would address the following questions: (i) “Do we have to decide a qualified immunity appeal involving close questions of law that the district court hasn’t yet addressed?”; (ii) “Do the police violate a suspect’s clearly established rights by requesting his hospital records?”; and (iii) “[D]o authorities have probable cause to arrest a trained marksman who makes suspicious statements in the wake of a shooting, who leads officers on a high speed chase, and who has a recently concealed rifle shell casing lying at the bottom of his trash can?” Kerns v. Bader,
The Tenth Circuit began its analysis with Bader, Thompson, and Carter. The Tenth Circuit noted the “heavy burden” a plaintiff bears to overcome the presumption of qualified immunity and that the Supreme Court of the United States had recently suggested that federal courts should “think hard, and then think hard again, before turning small cases into large ones.” Kerns v. Bader,
The Honorable William J. Holloway, Jr., Senior United States Circuit Judge for the Tenth Circuit, wrote in dissent. Senior Judge Holloway stated that he “would affirm the district court’s denial of the Officers’ motion for summary judgment sought on grounds of qualified immunity.” Kerns v. Bader,
the answer to the first question surely is easy: An entry into the home is unlawful when there is neither a warrant nor probable cause and when the purported exigency is not one that would cause a reasonable to believe that someone inside the home was either an imminent threat to others or was herself in imminent danger.
Kerns v. Bader,
The district court merely held that, depending on what facts are found by the jury, the Officers may have entered the Plaintiffs’ home when no reasonable officer would have perceived any imminent danger to anyone. Such an entry would violate the clearly established law that the district judge had surveyed.
Kerns v. Bader,
The question is not a difficult one in my view, and so I disagree with the majority’s decision to remand the matter to the district court to rule again on this strictly legal question. The Officers had neither a warrant nor probable cause. If the circumstances they encountered did not support a reasonable belief that dan*1204 ger to someone was imminent, then the armed, nighttime entry into the home violated clearly established Fourth Amendment law.
Kerns v. Bader,
Senior Judge Holloway also found the majority’s instruction that the Court must consider the Defendants’ “claim that their intrusion was justified in part because of the consent Ms. Zisser supplied” surprising, because the Defendants did not make that argument on appeal. Kerns v. Bader,
More importantly, the majority’s instruction to the district court that it should consider this is very problematic because the issue appears to be one that the district court must resolve against the Officers. Ms. Zisser testified that she was unaware of the Officers until they had already crossed the threshold. Obviously being unaware of their entry, she did not consent to it. Encountering armed officers inside the home in the middle of the night, Ms. Zisser did not tell them to leave immediately.... Barring a concession by the Plaintiffs that Ms. Zisser’s consent was voluntarily given, which seems most unlikely giver her testimony, I believe that ... the district court must regard the Officers’ continued presence in the home as being without consent.
Kerns v. Bader,
With respect to White, the majority analyzed the clearly established prong of the qualified immunity analysis and gave the Court some insight into how the Tenth Circuit applies that test. The Tenth Circuit recognized that, in Douglas v. Dobbs,
5. Brieñng on Remand.
On January 26, 2012, the Court issued a Minute Order requesting that the parties outline their suggested procedures for how the Court should proceed in this matter. See Doc. 287. On February 6, 2012, the City Defendants wrote the Court, and suggested that the Court should address “whether it was beyond debate in 2005 that the officers’ entry and search lacked legal justification.” Letter from Stephanie Griffin to the Court at 2 (dated February 6, 2012), filed February 6, 2012 (Doc. 288)(“Feb. 6, 2012 Griffin Letter”). The City Defendants asserted that the Court needs to address; (i) the officers’ claim that exigent circumstances existed; and (ii) their claim that their intrusion was justified because Zisser provided consent. See Feb. 6, 2012 Griffin Letter at 2. The Kerns also wrote the Court and suggested “that the most efficient way to resolve the outstanding factual and legal issues is for the District Court to grant the Kerns leave to file an additional brief that will address the Circuit Court’s concerns.” Letter from Mark Lowry to the Court at 2 (dated February 6, 2012), filed February 6, 2012 (Doc. 289)(“Feb. 6, 2012 Lowry Letter”). They asserted that, once additional briefing was completed, the Court would be in a position to rule on the matters which the Tenth Circuit remanded to it. See Feb. 6, 2012 Lowry Letter at 2. The City Defendants suggested that the parties simultaneously submit supplemental briefs of no more than ten pages. See Letter from Stephanie Griffin to the Court at 2 (dated February 7, 2012), filed February 7, 2012 (Doc. 293). The Court then requested that the City Defendants file a supplemental brief, after which the Kerns could respond, and the City Defendants reply. See Minute Order, filed February 17, 2012 (Doc. 291).
On March 5, 2012, the City Defendants filed the City Defendants Drew Bader, Matthew Thompson, and Russell Carter’s Supplemental Brief to Their Motion for Summary Judgment and Memorandum in Support Thereof [Doc. 117], Requesting Dismissal of Counts I, X, and XII of Plaintiffs’ First Amended Complaint [Doc. 5]. See Doc. 295 (“Defendants’ Supplement”). The City Defendants emphasize that qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments,” and “protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Defendants’ Supplement at 2 (citing Ashcroft v. al-Kidd,
The operation of the qualified immunity standard, however, depends substantially upon the level of generality at which the relevant “legal rule” is to be identified. For example, the right to due*1206 process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates clearly established right. Much the same could be said of any other constitutional or statutory violation. But if the test of “clearly established law” were to be applied at this level of generality, it would bear no relationship to the “objective legal reasonableness” that is the touchstone of Harlow .... It should not be surprising, therefore, that our cases establish that the right the official is alleged to have violated must have been “clearly established” in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.
Defendants’ Supplement at 2-3 (quoting Anderson v. Creighton,
The City Defendants contend that the officers had “every indication that someone was present inside the Kerns’ residence when they were there looking for the shooting suspect.” Defendants’ Supplement at 4. They admit that, when considering the circumstances the officers confronted in isolation, the facts may appear innocent, but argue that, “when viewing this information objectively and in totality, there is cause for concern.” Defendants’ Supplement at 5 (citing Ryburn v. Huff, — U.S. —,
On March 24, 2012, the Kerns filed the Plaintiffs’ Response to Drew Bader, Matthew Thompson, and Russell Carter’s Supplemental Brief to Their Motion for Summary Judgment Requesting Dismissal of Counts I, X, and XIII of Plaintiffs’ First Amended Complaint. See Doc. 297 (“Supplement Response”). The Kerns first argue that Zisser’s consent to search the residence was involuntary and failed to justify the City Defendants’ illegal entry into the Kerns’ home. See Supplement Response at 2. They assert that, even if the Court finds that Zisser’s consent was voluntary, her permission was “unconstitutionally tainted by the City Defendants’
It has been clearly established law for decades that when “a consensual search is preceded by a Fourth Amendment violation, the government must prove not only (1) the voluntariness of the consent under the totality of the circumstances, but the government must also establish (2) a break in the causal connection between the illegality and the evidence thereby obtained.”
Supplement Response at 3 (citing United States v. Carter,
The Kerns next argue that the law regarding exigent circumstances was clearly established at the appropriate level of generality when the City Defendants searched the Kerns’ home. See Supplement Response at 5. They assert that the City Defendants “agree that the proper level of generality to analyze the exigent circumstances exception to the warrant requirement for the Fourth Amendment in this case is that of law enforcement officers reasonably searching for victims when gunshots are reported.” Supplement Response at 5. They contend that the City Defendants “fail to grasp the fact that in each one of the cases cited by them there existed an objectively real and substantial nexus between the actual location of the shots that were fired and the dwelling that was searched.” Supplement Response at 5. They argue that there were no reliable reports of gunshots in the area and that the officers knew that J. Kerns had left the home after the helicopter was shot down. See Supplement Response at 6. The Kerns assert that there was no nexus between the emergency the City Defendants allege existed and the Kerns’ home. See Supplement Response at 6. They emphasize that the cases to which the City Defendants cite all underscore the point that, in a shots-fired case, exigent circumstances are constitutional only if the police have information confirming that the gunshots are intimately associated with the precise residence being searched. See Supplement Response at 7. They assert that, in Mincey v. Arizona,
On April 4, 2012, the City Defendants filed the City Defendants Drew Bader, Matthew Thompson, and Russell Carter’s
6. Post-Remand Hearing.
On April 10, 2012, the Court held a hearing. The Court stated that, in its view, it decided that the exigency law was clearly established and, although the Tenth Circuit requires a more detailed analysis, the question is whether it should change its view. See Transcript of Hearing at 3:12-21 (April 10, 2012)(Court)(“Tr.”).
The Kerns asserted that the case was rightly decided and that the mandate directs the Court to consider the City Defendants’ argument that exigent circumstances existed based on a belief that the person who had shot down the helicopter might be hiding in or near the home. See Tr. at 13:24-14:20 (Lowry). They argued that Senior Judge Holloway correctly decided this issue and noted that the City Defendants have conceded that Zisser’s consent did not justify the initial entry. See Tr. at 14:21-15:5 (Lowry). The Court asked whether, when the Tenth Circuit inserts a fact that the Court must consider such as the finding that the police entered based on a belief that the shooter was in or near the home, the Court was forced to find that exigent circumstances existed. See Tr. at 15:17-16:3 (Court). The Kerns responded that the exigency with which the Tenth Circuit is concerned is the fleeing-felon exception and argued that there must be hot pursuit. See Tr. at 16:14-17:4 (Lowry). They contended that, here, there is no pursuit. See Tr. at 17:5-6 (Lowry). They asserted that there was a chicken-and-egg problem, because the officers assert that they thought the shooter had taken refuge in the home and they had to believe that the shooter was in the area. See Tr. at 17:7-15 (Lowry). The Kerns argued that the officers never saw the shooter, never found evidence indicating that the shooter was in the area, and that Johnston admitted that he was not looking for a person. See Tr. at 17:16-18:2 (Lowry). They emphasized that, when analyzing these facts under an objective reasonableness standard, no reasonable officer would have believed that the shooter had taken refuge in the Kerns’ home. See Tr. at 18:3-15 (Lowry). They asserted that, if the Court objectively analyzes the officers’ behavior, it reveals that they were not concerned about a shooter, because they never searched A. and M. Kern’s bedroom. See Tr. at 19:12-23 (Lowry). The Kerns pointed to Armijo ex rel. Armijo Sanchez v. Peterson, in which the Tenth Circuit was clear that a reasonable officer will check every room to ensure that all the occupant’s are safe. See Tr. at 19:23-20:3 (Lowry). With respect to the level of generality, the Kerns asserted that there was unlikely to be another case where a helicopter was shot from the sky and that such a strict requirement is unrealistic. See Tr. at 20:25-21:3 (Lowry). They stated their belief that the difficulty in finding a similar case is why the City Defendants are relying on the gunshots-fired cases, rather than the fleeing-felon cases. See Tr. at 21:3-6 (Lowry). They also reiterated that, if the officers were concerned with the safety of the homes’ inhabitants, the officers would have checked the entire house. See Tr. at 22:1-25 (Lowry).
The Court then stated that the Tenth Circuit, in their analysis of White’s qualified immunity, does not appear to be allowing much generality and asked whether the Tenth Circuit was signaling its intent to require a case closely on point to defeat qualified immunity. See Tr. at 23:9-24:4 (Court). The Kerns acknowledged that
The City Defendants asserted that the Court should look to Anderson v. Creighton and ask whether the officers made a reasonable yet mistaken belief. See Tr. at 36:3-10 (Griffin). They argued that the Supreme Court’s opinions in the last three years indicate that a court’s clearly-established-law analysis was supposed to be in the specific context of the issue before the court. See Tr. at 36:11-37:2 (Griffin). They suggested that the Court take a close look at the Armijo ex rel. Armijo Sanchez v. Peterson case, because it was based on a bomb threat where the officers had to act immediately and the threat was not at the person’s home. See Tr. at 37:4-12 (Griffin). They contended that the officers in this case were in a situation similar to the officers in Armijo ex rel. Armijo Sanchez v. Peterson and that, in Armijo ex rel. Armijo Sanchez v. Peterson, the Tenth Circuit indicated that the officers should be given a certain amount of deference in a rapidly evolving situation. See Tr. at 37:13-38:17 (Griffin). The City Defendants further asserted that, had they left, and someone was in the home, the officers would face a lawsuit for failure to protect. See Tr. at 38:9-13 (Griffin). They argued that Zisser’s consent goes only to the scope of the search question, because the officers were already inside the house
The Court asked whether, in the gunshots-fired cases, there has to be a direct connection between the shots and the house to be searched. See Tr. at 41:21-25 (Court). The City Defendants responded that it does not lessen the threat that the gunshots originated off-premises, because they were fired in the area of the home and J. Kerns pointed the officers to his home. See Tr. at 42:1-20 (Griffin). The Court then asked why there were exigent circumstances for J. Kerns’ home, but not the house next door, because the principle that the City Defendants outline would seem to open all of those houses to a search. See Tr. at 42:21^13:2 (Court). The City Defendants argued that there were certain facts specific to J. Kerns’ home that distinguished it, such as: (i) the unsecured garage door; (ii) the items outside the residence; (iii) the residents’ unresponsiveness; and (iv) the lights on inside the residence. See Tr. at 43:3-12 (Griffin). The Court asked what the City Defendants believe is incorrect with Senior Judge Holloway’s analysis. See Tr. at 44:4-10 (Court). The City Defendants asserted that Senior Judge Holloway’s analysis was still in general terms, that he did not focus on the totality of the circumstances, and that he did not state which cases would provide the officers with notice that their conduct was unlawful. See Tr. at 44:21-45:5 (Griffin). The Court asked why the officers did not search the entire house if they suspected a hostage situation. See Tr. at 45:6-10 (Court). The City Defendants argued that, once they were inside the home, they were able to observe Zisser and, based on their conversations with and observations of her, they dispelled their suspicions. See Tr. at 45:11-46:7 (Griffin).
The Kerns emphasized that Senior Judge Holloway did not believe that this was a case that required much particularity to establish a violation of clearly established law. See Tr. at 46:23-47:5 (Lowry). They reiterated that, if the officers were concerned about the house’s occupants, the officers could have contacted J. Kerns, with whom they were in radio contact. See Tr. at 47:18-48:11 (Lowry). The Kerns also asserted that it would be inappropriate for the Court to grant summary judgment on the state-law claims based on the federal law analysis. See Tr. at 48:25-49:3 (Lowry). The Court asked whether, if it decides to grant the MSJ on the federal claims, it should dismiss without prejudice the state-law claims. See Tr. at 51:12-15 (Court). The Kerns agreed that such a procedure would be appropriate. See Tr. at 51:16-18 (Lowry). The Court also asked about the Tenth Circuit’s discussion about a bullet at the bottom of a trash can in the Kerns’ home. See Tr. at 51:19-52:3 (Court). The Kerns asserted that this fact was not relevant to the claims before the Court on remand. See Tr. at 53:21-23 (Court, Lowry). The Court asked whether there were any additional pieces of evidence or arguments that
The Court then asked the City Defendants whether it should dismiss without prejudice the state claims, if it grants summary judgment on the Fourth Amendment claim. See Tr. at 57:8-11 (Court). The City Defendants agreed that the Court’s proposal was acceptable. See Tr. at 57:12 (Griffin). The Court then asked whether there was any other evidence or arguments that the Court should consider. See Tr. at 57:13-24 (Court). The City Defendants asserted that they could not respond without examining their briefs. See Tr. at 58:3-5 (Griffin). The Court stated that the City Defendants should report to the Court if there are any facts with which they disagree. See Tr. at 58:6-9 (Court). The City Defendants stated that they did not think such a review was necessary, because of the limited nature of the remand. See Tr. at 58:10-15 (Griffin). The Court stated that the parties should write the Court a letter discussing the facts the Court should add to its factual background section. See Tr. at 59:19-22 (Court).
Following the hearing, the parties responded to the Court’s request regarding factual disputes. On April 11, 2012, the City Defendants wrote the Court concerning nine additional facts that the Court should consider. See Letter from Stephanie Griffin to the Court (dated April 11, 2012), filed April 11, 2012 (Doc. 300). On April 25, 2012, the Kerns filed the Plaintiffs’ Supplemental Factual Support in Opposition to the City Defendants’ Motion for Summary Judgment, which disputes those facts. See Doc. 301. The Court, after reviewing these documents and the original briefing in this case, has now addressed all of the facts that the City Defendants have put forth.
Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). The movant bears the initial burden of “showing] that there is an absence of evidence to support the non-moving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc.,
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.,
To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc.,
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,
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. 800, 807,
1. Procedural Approach to Qualified Immunity.
The Supreme Court recently revisited the proper procedure for lower courts to evaluate a qualified-immunity defense. In Pearson v. Callahan, the Supreme Court held that lower courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.”
The Supreme Court recognized seven circumstances where district courts should proceed directly to and “should address only” the clearly established prong of the qualified immunity analysis:
[W]hen (1) the first, constitutional violation question “is so factbound that the decision provides little guidance for future cases”; (2) “it appears that the question will soon be decided by a higher court”; (3) deciding the constitutional question requires “an uncertain interpretation of state law”; (4) “qualified immunity is asserted at the pleading stage” and “the precise factual basis for the ... claim ... may be hard to identify”; (5) tackling the first element “may create a risk of bad decisionmaking” due to inadequate briefing; (6) discussing both elements risks “bad decisionmaking” because the court is firmly convinced the law is not clearly established and is thus inclined to give little thought*1216 to the existence of the constitutional right; or (7) the doctrine of “constitutional avoidance” suggests the wisdom of passing on the first constitutional question because “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right.”
Kerns v. Bader,
2. Clearly Established Rights in the Qualified-Immunity Analysis.
In evaluating whether a right was clearly established, a district court considers whether the right was sufficiently clear that a reasonable government employee in the defendant’s shoes would understand that what he or she did violated that right. See Casey v. W. Las Vegas Indep. Sch. Dist.,
The Tenth Circuit, in Kerns v. Bader, focused on the Supreme Court’s language in Ashcroft v. al-Kidd in its analysis of qualified immunity. In that case, which dealt with a search of a home, the Tenth Circuit explained that the relevant question “wasn’t whether we all have some general privacy interest in our home,” but “whether it was beyond debate in 2005 that the officers’ entry and search lacked legal justification.” Kerns v. Bader,
3. Factual Disputes in the Qualified-Immunity Analysis.
In determining whether the plaintiff has met his or her burden of establishing a constitutional violation that was clearly established, a court construes the facts in the light most favorable to the plaintiff as the non-moving party. See
[BJeeause at summary judgment we are beyond the pleading phase of the litigation, a plaintiffs version of the facts must find support in the record: more specifically, “[a]s with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts[.J” York v. City of Las Cruces,523 F.3d 1205 , 1210 (10th Cir.2008)(quoting Scott [v. Harris ],550 U.S. at 380 ,127 S.Ct. 1769 ); see also Estate of Larsen ex. rel Sturdivan v. Murr,511 F.3d 1255 , 1258 (10th Cir.2008).
Thomson v. Salt Lake Cnty.,
In evaluating a motion for summary judgment based on qualified immunity, we take the facts “in the light most favorable to the party asserting the injury.” Scott v. Harris,550 U.S. 372 , 377,127 S.Ct. 1769 ,167 L.Ed.2d 686 (2007). “[TJhis usually means adopting ... the plaintiffs version of the facts,” id. at 378,127 S.Ct. 1769 , unless that version “is so utterly discredited by the record that no reasonable jury could have believed him,” id. at 380,127 S.Ct. 1769 . In Scott, the plaintiffs testimony was discredited by a videotape that completely contradicted his version of the events.550 U.S. at 379 ,127 S.Ct. 1769 . Here, there is no videotape or similar evidence in the record to blatantly contradict Mr. Rhoads’ testimony. There is only other witnesses’ testimony to oppose his version of the facts, and our judicial system leaves credibility determinations to the jury. And given the undisputed fact of injury, Mr. Rhoads’ alcoholism and memory problems go to the weight of his testimony, not its admissibility. ... Mr. Rhoads alleges that his injuries resulted from a beating rendered without resistence or provocation. If believed by the jury, the events he describes are sufficient to support a claim of violation of clearly established law under Graham v. Connor,490 U.S. 386 , 395-96,109 S.Ct. 1865 ,104 L.Ed.2d 443 (1989), and this court’s precedent.
Rhoads v. Miller,
“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,
When a plaintiff files a complaint against a public official alleging a claim that requires proof of wrongful motive, the trial court must exercise its discretion in a way that protects the substance of the qualified immunity defense. It must exercise its discretion so that officials are not subjected to unnecessary and burdensome discovery or trial proceedings.
Crawford-El v. Britton,
RELEVANT LAW ON THE FOURTH AMENDMENT
The Fourth Amendment to the United States Constitution “protects ‘[t]he right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures.’ ” United States v. Thompson,
“[T]he Fourth Amendment protects people, not places,” and the Supreme Court has vigorously asserted that the proper analysis under the Fourth Amendment is not whether the place searched is a “constitutionally protected area.” Katz v. United States,
There is no doubt, however, that a citizen has a reasonable expectation of privacy, and a particularly strong one, in his own home. The “chief evil” from which the Fourth Amendment protects citizens is unwanted police entry into the home, and the “principal protection” is “the Fourth Amendment’s warrant requirement.” United States v. Thompson,
Not all searches require a warrant. The Supreme Court has instructed that, when assessing the reasonableness of a warrantless search, a court must begin “with the basic rule that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ ” Arizona v. Gant,
“One exception to the warrant requirement is when police reasonably believe an emergency exists that makes it infeasible to obtain a warrant.” United States v. Gambino-Zavala,
Additionally, the Tenth Circuit appears to have recognized a subset of exi
For probable cause in the usual [evidence-of-crime] sense not to be needed, the police must be responding to a true emergency rather than a crime, and the police must reasonably believe a person inside needs immediate assistance, and entry is needed to protect or preserve life, or to avoid serious injury.
United States v. Najar,
In such emergency-aid situations, the Tenth Circuit employs a two-pronged test to determine whether emergency circumstances justify a warrantless entry into a home, which examines: “whether (1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable.” United States v. Najar,
ANALYSIS
The Tenth Circuit has instructed the Court to examine whether it was clearly established in 2005 that exigent circumstances did not exist and that a reasonable officer would have understood that his conduct violated the law. The Court finds that the law was not clearly established, because the facts of this case resemble the facts of cases in which the Tenth Circuit found exigent circumstances, such that the officers would not have had notice that their conduct violated the law. Accordingly, the Court will grant the MSJ with respect to Count I. Because a federal claim — Count VI — remains pending before the Court, however, the Court will continue to exercise supplemental jurisdiction over the state-law claims.
I. THE COURT’S TASK ON REMAND IS TO EXAMINE WHETHER A REASONABLE OFFICIAL WOULD HAVE UNDERSTOOD THAT HIS PARTICULAR CONDUCT WOULD VIOLATE CLEARLY ESTABLISHED LAW.
The Tenth Circuit, in Kerns v. Bader, directed the Court to “finish the work of analyzing the second qualified immunity question,” and to “address the officers’ claim that exigent circumstances existed (based on a belief that someone who had just shot down a police helicopter might be hiding in or near the home).”
The Court finds itself in an awkward position given that only Senior Judge Holloway analyzed the clearly established law prong of the qualified immunity analysis, and he found that the Court had found the law clearly established and that the case law was clearly established. See Kerns v. Bader,
The Supreme Court and the Tenth Circuit have repeatedly stated that it is unnecessary to scour the case law for a case on point and that, in some cases, generalized principles will suffice to be clearly established law. See, e.g., Hope v. Pelzer,
The Tenth Circuit, however, foreclosed this approach. The Tenth Circuit held that:
Of course, Mr. Kerns (like everyone else) has a well-established privacy interest in his home. But the Supreme Court and we have explained that, when it comes to deciding the second qualified immunity question, “it is not enough to look at,” and declare a law enforcement officer liable, based on such “generalized principles.”
Kerns v. Bader,
[F]or any court to reach a determination that a violation of clearly established law has taken place a “more particularized” inquiry is required. Anderson [v. Creighton],483 U.S. at 640 [107 S.Ct. 3034 ], The court must ask whether “every reasonably officer would have understood that what he [did] violate[d] that right.” Ashcroft [v. al-Kidd],131 S.Ct. at 2083 (emphasis added).
Kerns v. Bader,
Although exigent circumstances might be an area of the law where a higher level of generality makes sense, because, practically speaking, police officers do not have time to analyze a situation at such a specific level before making decisions, in the end, the Court concludes that the Supreme Court’s decision in Anderson v. Creighton, and the Tenth Circuit’s interpretation of it, suggests that only a factual analysis of the case could satisfy the clearly-established prong. The majority, in Kerns v. Bader, stated that the Supreme Court has “vigorously underscored this point” and that it has reminded lower courts “with some apparent exasperation” not to define “clearly established law at a high level of generality.” Kerns v. Bader,
While the Court greatly appreciates Senior Judge Holloway’s support, and continues to believe there was both a violation and violation of clearly established law, the Tenth Circuit has found the Court’s clearly established analysis inadequate, and the Court must faithfully follow the Tenth Circuit’s decision and judgment. The Court also concludes that Senior Judge Holloway’s clearly established law analysis is inconsistent with the Supreme Court’s requirements in Anderson v. Creighton. Senior Judge Holloway’s clearly established law analysis is as follows:
The Officers had neither a warrant nor probable cause. If the circumstances they encountered did not support a reasonable belief that danger to someone was imminent, then the armed, nighttime entry into the home violated clearly established Fourth Amendment law. The district judge’s ruling denying summary judgment for the Officers should be affirmed.
Kerns v. Bader,
[I]t is “not enough to look at,” and declare a law enforcement officer liable, based on such “generalized principles.” ... Instead, for any court to reach a determination that a violation of clearly established law has taken place a “more particularized” inquiry is required. The court must ask whether “every reasonable officer would have understood that what he [did] violate[d] that right.”
Kerns v. Bader,
Accordingly, the Court will analyze the City Defendants’ conduct to determine whether it violated clearly established law, as it stood in August of 2005.
II. IN 2005, IT WAS NOT CLEARLY ESTABLISHED THAT EXIGENT CIRCUMSTANCES DID NOT EXIST TO JUSTIFY THE ENTRY INTO J. KERNS’ HOME.
The City Defendants argue that, “even if one were to presume a constitutional violation on the part of City Defendants, City Defendants would not have been on notice that their conduct was unlawful,” because “it is well settled in federal jurisdictions throughout the country that officers can reasonably search for victims upon reports of gunfire.” Defendants’ Supplement at 3. They further assert that it is well-settled that “[o]fficers do not need ironclad proof of ‘a likely serious, life-threatening’ injury to invoke the emergency aid exception.” Defendants’ Supplement at 4 (citing Michigan v. Fisher,
Construing the facts in the light most favorable to the Kerns, the material facts related to the exigent circumstances question are as follows. On August 6, 2005, a helicopter was shot down at approximately 12:00 a.m. At the scene, J. Kerns informed Sauer, an officer, that he knew where the shot came from and later described the sound as a pop noise. When APD officers arrived, J. Kerns said that the noise was so loud that it made his ear ring and that he heard the sound of gravel kick up as he watched the helicopter at the edge of his property. J. Kerns then directed officers to his home and the officers searched the area. Bader, one of the officers to whom J. Kerns originally spoke, and Carter and Thompson were among the officers sent to J. Kerns’ home. None of J. Kerns’ neighbors reported hearing any gunshots. At J.
Exigent circumstances can justify a warrantless entry into a home. “Examples of exigent circumstances include a threat to officer safety, an ongoing ‘hot pursuit’ of a fleeing suspect, or the possible imminent destruction of evidence.” United States v. Martin,
The Supreme Court introduced the concept of exigent circumstances in Warden v. Hayden,
With respect to gunshots-fired cases, the City Defendants cite to cases from a variety of circuits which establish that a report of gunfire can constitute exigent circumstances to look in the area for victims. In Tamez v. City of San Marcos, Texas,
The plaintiff in a qualified immunity case has the burden to establish that a right is clearly established. See Holland ex rel. Overdorff v. Harrington,
The undisputed facts, construed in the light most favorable to the Kerns, establish that J. Kerns informed the officers that, while he was standing at the edge of his property line, he heard a pop noise that sounded “like an engine blowback or maybe a rifle report, like the sound of a gun going off,” and heard rocks kick up. J. Kerns Depo. at 157:19-25, 162:6-8. Accord Written Statement of Jason Kerns at 1. There was, therefore, a reason to associate the gunfire with J. Kerns’ property. Circumstances, including the music and the lights, indicated that there were individuals inside the house, but no one answered the door after repeated attempts to contact them. There was a broken window, which resembled a bullet hole, and the door was unlocked. Moreover, officers were operating in circumstances where someone was skilled enough to shoot down a helicopter at night. The Court upon its first examination of these facts found that there were factual issues which precluded summary judgment. See Oct. 5, 2009 MOO at 16. Focusing exclusively on the Tenth Circuit’s analysis in United States v. Bute, the Court held:
[A] reasonable fact finder could find that Bader, Thompson, and Carter acted on little more than speculation. In the canvassing of the neighborhood, Bader, Thompson, and Carter, and the other police officers dispatched to the area, had some information that might lead them to believe that the offender was in the area. After they arrived, however, their initial investigation did not produce much information that supported the lead from J. Kerns. The citizens in the neighboring homes with whom the officers spoke did not hear a gunshot, nor did they realize that a helicopter had crashed nearby. They did not discover a gun, shell casings, or signs of a shoot. A reasonable fact finder might also conclude that the presence of music playing from the Kerns’ home, miscellaneous items in the yard, and a possible open garage door, did not suggest danger. A reasonable fact finder might not find these circumstances to be particularly suggestive, given that Bader, Thompson, and Carter knew that the residence belonged to one of the witnesses back at the golf course, with whom Johnston was in contact via the police radio. A reasonable fact finder might conclude that these circumstances could be more readily and reasonably explained as attributable to a person who had left his home in a hurry after witnessing a helicopter crash.... The Court finds that a reasonable fact finder might conclude*1233 that it was conjecture for Bader, Thompson, and Carter to make the leap that these were sign of an intruder into the Kerns’ home.
Oct. 5, 2009 MOO at 14-15. Having concluded that, depending on the jury’s view of the facts, exigent circumstances may not exist, the Court found there may be a constitutional violation under the first prong of the qualified-immunity analysis. The Court’s analysis established that a jury could find that the facts confronting the officers was too speculative to support a reasonable belief that someone inside the apartment was in danger or that the shooter might be hiding inside.
The second prong of the qualified immunity analysis has a different focus, and asks whether that violation was clearly established such that an officer would be aware that his conduct violated the law. Thus, while the Court can believe, as it does believe, that a reasonable jury might find that the officers did not have exigent circumstances and violated the Kerns’ civil rights, they may still not have violated clearly established law. In other words, it had to be pretty clear, to every reasonable officer, they were violating clearly established law. As articulated by the Supreme Court and the Tenth Circuit, the Court must say that every reasonable officer would have known that they were violating the Kerns’ civil rights when they entered the home. See Ashcroft v. al-Kidd,
Similarly, in United States v. Rhiger, the officers had exigent circumstances to enter a home based on nothing more than their knowledge that the residents had purchased items used to make methamphetamine and the odor of methamphetamine from the home. See
Furthermore, looking at the case law today, the Court does not believe the Kerns could meet the clearly established prong of the qualified immunity test as the Tenth Circuit has articulated that analysis in Kerns v. Bader and as the Supreme Court has applied the clearly established law analysis in Anderson v. Creighton. In United States v. Gambino-Zavala,
The Supreme Court has emphasized that courts must take into account the officers’ on-scene perspective in gauging the reasonableness of their conduct as to the application of the exigent-circumstances doctrine. See Saucier v. Katz,
In the end, the Tenth Circuit and the Supreme Court law is not precise enough to give the courts, much less police officers, clear guidance on what is an exigent circumstance. Moreover, the cases from other circuits are not much more precise, and the Court cannot say, given such guidance, that the law is so clearly established that every reasonable police officer would know that entering the Kerns’ home violated their civil rights. The swath of what may be constitutional — while no doubt broader than what is unconstitutional— remains broad. See Groh v. Ramirez,
The Kerns argue that the clearly established law required a connection between the Kerns’ home and the gunshots. They also emphasize that Montoya, at the conclusion of the investigation, asserted that J. Kerns’ perception of events was, at best, “not solid,” and at worst, “misleading.” Montoya Depo. at 58:17-25. The Court does not believe it was unreasonable, however, for the officers to rely on J. Kerns’ statements in this rapidly evolving situation and finds it difficult for the Kerns to argue that the police should have known not to rely on what he reported. Furthermore, the Kerns point to no case law establishing that J. Kerns’ statements were insufficient to connect the gunshots to his property. The case law requires “some reasonable basis” to associate an emergen
In the end, and at least for the foreseeable future, it may be difficult for plaintiffs in § 1983 cases to overcome qualified immunity defense in exigent circumstances cases. Like in baseball, ties go to the runner, see Coleman v. McLaren,
III. UNDER CLEARLY ESTABLISHED LAW, ZISSER’S CONSENT TO THE SEARCH DOES NOT JUSTIFY THE OFFICERS’ INTRUSION, BECAUSE THE OFFICERS HAD ALREADY ENTERED THE HOME AND HER CONSENT WAS NOT VOLUNTARY.
The Tenth Circuit also directed the Court to determine whether the intrusion was justified, because Zisser consented to the search, “at least after the first incursion was made.” Kerns v. Bader,
IV. BECAUSE A FEDERAL CLAIM-COUNT VI — REMAINS PENDING BEFORE THE COURT, THE COURT WILL RETAIN JURISDICTION OVER THE REMAINING STATE LAW CLAIMS.
At the April 12, 2012 hearing, the parties agreed that, if the Court granted the MSJ, all of the federal claims would be resolved and that the Court should dismiss without prejudice the state law claims. See Tr. at 51:12-18 (Court, Lowry); id. at 57:8-12 (Court, Griffin). Despite this agreement, the Court finds that one federal claim remains pending before it — Count VI. Accordingly, the Court will continue to exercise supplemental jurisdiction over the pending state law claims.
A. COUNT VI REMAINS BEFORE THE COURT FOR A DETERMINATION OF DAMAGES.
On October 5, 2009, before the Court decided the City Defendants’ MSJ, the remaining Counts and Defendants were: (i) Count I — illegal entry without a warrant — asserted against Bader, Carter, and Thompson; (ii) Count II — unlawful search and seizure — asserted against Lindley; (iii) Count III — unlawful search and seizure of medical information and deprivation of medical privacy contrary to the Fourth Amendment, the Fourteenth Amendment, and the Federal Privacy Act, 5 U.S.C. § 552A(b)(7) — asserted against White; (iv) Count IV — false arrest/false imprisonment of J. Kerns under the Fourth Amendment — asserted against Lindley, Koren, and Haag; (v) Count V— malicious prosecution under the Fourth Amendment — asserted against Lindley, Koren, and Haag; (vi) Count VI — municipal liability against the Board of Commissioners of Bernalillo County for the violations White was alleged to have committed in Count III; (vii) Count VIII — false de
In its March 31, 2010 Order, the Court granted the Plaintiffs Motion for Summary Judgment as to Liability on Counts III & VI of the First Amended Complaint, filed July 17, 2009 (Doc. 180). See March 31, 2010 Order at 4.
In the April 12, 2010 MO, the Court also found that the Board of Commissioners of Bernalillo County were liable, under a theory of municipal liability, for White’s constitutional violation and entered summary judgment on Count VI. See April 12, 2010 MO,
Because the statute’s unconstitutionality was not clearly established prior to its enforcement, Dillon is entitled to qualified immunity.... However, as a municipal officer with firm policymaking authority as to law enforcement matters, Dillon did expose the City of Key West to § 1983 liability by choosing to enforce the statute against Cooper.
Cooper v. Dillon,
B. BECAUSE COUNT VI REMAINS BEFORE THE COURT, THE COURT WILL CONTINUE TO EXERCISE SUPPLEMENTAL JURISDICTION OVER THE STATE-LAW CLAIMS AND THE COURT’S DECISION IN THE OCT. 5, 2009 MOO, REGARDING THE STATE-LAW CLAIMS, STANDS.
In its Oct. 5, 2009 MOO, the Court held that Bader, Carter, and Thompson, “as law enforcement officers, do not have immunity for deprivation of property rights and trespass.” Oct. 5, 2009 MOO at 17. The Court found that there “is evidence that Bader, Thompson, and Carter entered the Kerns’ home without a warrant and without an exception to the warrant requirement, and, in doing so, they may not say they have immunity from tort liability.” Oct. 5, 2009 MOO at 17-18.
IT IS ORDERED that 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), is granted with respect to Count I.
Notes
. The opinion is published as Kerns v. Bader,
. The Court will refer to Bader, Thompson, and Carter collectively as the "City Defendants.”
. The Tenth Circuit instructed the Court to conduct further proceedings with respect to the second prong of the qualified immunity analysis — whether the law was clearly established. See Kerns v. Bader,
. The City Defendants admit that Sauer testified that "there were several people around saying, ‘We think there were shots,' ” but point out that, in the next line, Sauer testified that J. Kerns said: "Hey, I know where the shots came from.” Sauer Depo. at 40:16-19. This information does not specifically controvert the asserted fact and, in fact, supports the asserted fact that several people told Sauer they heard shots. Accordingly, the Court will deem the asserted fact admitted.
. The Kerns dispute this fact and state that the City Defendants’ next asserted fact, in paragraph 7 of the MSJ, "clearly indicated that Jason Kerns never stated to law enforcement that the helicopter had been 'shot down.’ ” MSJ Response ¶ 6, at 3. In paragraph 7, the City Defendants note that "Plaintiff claims that he recalls saying T watched it go down, I think I heard where the pop noise came from.’ ” MSJ ¶ 7, at 3 (citing Deposition of Jason Kerns 49:23-24 at 2 (taken Oct. 22, 2008), filed Feb. 17, 2009 (Doc. 117-3)).
. The City Defendants do not object to the substance of the asserted fact, and the Court will therefore deem the asserted fact admitted, see D.N.M.LR-Civ. 56.1(b), but clarifies that the search, to which the MSJ Response refers in a footnote, took place three days after the helicopter was shot down on a warrant the Bernalillo County Sheriff’s Department executed, see MSJ Reply ¶ 35, at 3.
. The Kerns again disputes that J. Kerns told Sauer he witnessed the helicopter get shot down, based on J. Kerns' testimony that "I watched it go down, I think I heard where the pop noise came from.” J. Kerns Depo. at 149:23-24, 154:14-17. As the Court stated earlier, J. Kerns’ deposition testimony does not specifically controvert the asserted fact that J. Kerns told Sauer he knew from where the shot came. See note 5, supra. Accordingly, the Court will deem the asserted fact admitted.
. The Kerns assert that "Officer Montoya acknowledged that the noises that Jason Kerns heard could have been acoustical reverberations off of the buildings along the golf course” and "Officer Bader recognized the same.” MSJ Response ¶¶ 43-44, at 7 (citing
The deposition testimony cited by Plaintiffs is taken out of context as this testimony is in response to Plaintiffs' counsel follow-up questions to the testimony offered by Officer Montoya on page 37 of his deposition. Officer Montoya testified "... I am going off of what I was told, that shots came from that direction and that there was some type of impact either near or around [Jason Kerns] in that area.” When asked if it was also likely that maybe the sound would have reverberated or ricocheted off of something else back to him [Jason Kerns], Officer Montoya responded “That could always be a possibility."
MSJ Reply ¶ 43, at 4 (citing Montoya Depo. at 37:18-21, 38:l-5)(emphasis added). With respect to paragraph 44, the City Defendants assert that
Officer Bader’s testimony is taken out of context as his testimony clearly illustrates that he is giving general examples of what happens when witnesses report hearing gun fire. The testimony cited by Plaintiff also shows that Officer Bader said that he is incapable of testifying about the possibility of hearing reverberations or echoes, but Officer Bader pointed out that with respect to the subject incident, officers did not have any good information "until we learned what the information was that Jason Kerns had.”
MSJ Reply ¶ 44, at 4 (citing Bader Depo. at 19:5-14). In their depositions, Montoya and Bader both acknowledge that it is possible that J. Kerns heard the echo of the shot. See Montoya Depo. at 38:5 (“That could always be a possibility.”); Bader Depo. at 18:25-19:4 ("That’s fairly normal. Especially people that don’t have a good background in firearms. If they have the reverberation or the echoes off the houses, they think that the shot cam from somewhere else____”). The City Defendants have not specifically controverted the asserted fact, that Montoya and Bader acknowledge J. Kerns could have heard an echo or reverberation, and the Court will deem that fact admitted. See D.N.M.LR-Civ. 56.1(b).
. The Kerns do not dispute paragraph 18 of the MSJ, which states in full: "Officer Thompson was advised that the officers who were at 9910 Columbus Circle could hear loud rap music coming from inside this home and that they believed that there was a possible party going on inside so Officer Thompson went over to this residence to assist.” MSJ ¶ 18, at 4-5. See MSJ Response ¶ 18, at 3 (not disputing this fact). The Kerns dispute paragraph 17 of the MSJ, which states in full:
Meanwhile, SWAT Officer Thompson was searching around the neighborhood near the 9910 Columbus Circle residence and made contact with several people to see if they had any pertinent information relating to the crash. Within fifteen minutes of starting his search, another search team requested the SWAT team’s assistance at the 9910 Columbus Circle residence.
MSJ ¶ 17, at 4. The Kerns assert: "It is not contested that APD Officer Thompson was on the scene at 9910 Columbus Circle to investigate the helicopter shooting, genuine dispute exists as to how Officer Thompson was called to the Kerns’ residence.” MSJ Response ¶ 17, at 3. The Kerns do not, however, cite any evidence to support a genuine dispute, and, having admitted paragraph 18, the Court is unsure what dispute there could be. The local rules provide that "[a]ll material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted” and that the response “must refer with particularity to those portions of the record upon which the non-movant relies.” D.N.M.LRCiv. 56.1(b). Accordingly, the Court will deem paragraph 18 admitted.
. The City Defendants' asserted facts are:
16. K-9 Officers Bader and Carter went to the 9910 Columbus Circle residence where they heard loud music coming from the house and noticed that the garage door was open.
19. When Officer Thompson arrived at the 9910 Columbus Circle residence, he saw approximately five vehicles parked at this residence and lots of furniture and other miscellaneous items out in the yard. He also saw that the garage door was open, but noticed that all the lights were off inside of the home. '
MSJ ¶¶ 16, 19, at 4-5. The Kerns dispute that the music was loud, that the garage door was open, and that the lights were off. See MSJ Response ¶¶ 16, 19, at 3-4 (citing J. Kerns Depo. at 124:16-20, 140:19-25). In the MSJ Reply, the City Defendants assert that there is no genuine dispute, because the facts describe Bader’s and Carter’s perceptions. See MSJ Reply ¶ 16, at 2. They argue that J. Kerns’ testimony establishes that his music was playing at "level eight” and, although the garage was closed when he left his residence, he admits that the garage door was open when he returned home at 2:45 a.m. MSJ Reply ¶ 16, at 2. Whether the music was loud is a matter of perception and, in paragraph 62 of the Kerns' asserted facts, the Kerns assert that Johnston heard the music playing inside the home, before the officers entered. See MSJ Response ¶ 62, at 10. The Court does not believe that the Kerns have specifically controverted the asserted fact, that the music was loud, with J. Kerns' testimony that the music was at level eight, given that the officers could hear the music playing while outside. Because the Kerns have not specifically controverted the asserted fact, the Court will deem the fact that the music was loud admitted. See D.N.M.LR-Civ. 56.1(b). With respect to whether the garage door was open, J. Kerns stated that "the door to the garage was completely shut." J. Kerns Depo. at 140:20. The City Defendants assert that J. Kerns conceded that the garage door was open when he returned at 2:45 a.m. See MSJ Reply ¶ 16, at 2 (citing J. Kerns Depo. at 252:6-10). The City Defendants did not, however, provide the Court with the cited portion of the deposition. Accordingly, there is dispute whether the garage door was open or closed. Because the Court must resolve all disputes in favor of the non-moving party, the Court will not include Thompson’s observation that the garage door was open. See Hunt v. Cromartie,
. The City Defendants assert: "This seemed odd to Officer Thompson because it was late at night so he and other members of the tactical team discussed the possibility of an armed suspect possibly being inside the home. During their discussion, the loud music that had been playing suddenly stopped.” MSJ ¶ 20, at 5. The Kerns point to Johnston’s testimony, which states that the music was playing when he arrived until the officers entered the house. See Johnston Depo. at 31:20-25. The City Defendants respond that "the record cited by the Plaintiffs does not support their contention that Fact No. 20 is disputed,” but do not explain why Johnston's deposition testimony is insufficient. There is a dispute between Thompson’s Answer and Johnston's deposition testimony, and the City Defendants do not contest paragraph 62, in which the Kerns rely on Johnston's testimony that the music was on the entire time. Because the Court must construe the evidence in the light most favorable to the Kerns, the
. The Kerns assert that "Officer Bader looked for evidence revealing where a shooter may have been standing or where a shooter may have departed to, and found none.” MSJ Response ¶ 47, at 7. The City Defendants assert:
Officer Bader's testimony is taken out of context. The testimony cited by Plaintiffs reflects Officer Bader's answer to the question of whether tactical officers ever left the Kerns property. Officer Bader testified that one of the first things that he observed at the Kerns home that indicated gunfire, or something unusual was the broken window at the back of the home.
MSJ Reply ¶ 47, at 5 (citing Bader Depo. at 38:3-22, 54:18-20). The portions of Bader's deposition to which the City Defendants cite do not specifically controvert the asserted fact. Accordingly, the Court will deem the asserted fact, that Bader could not locate evidence about where the shooter was standing or went, admitted. See D.N.M.LR-Civ. 56.1(b). To more accurately reflect Bader’s testimony, however, the Court will modify this fact to assert that Bader found no evidence of a shooter — other than the broken window.
. The City Defendants dispute the asserted fact that only the exterior pane was broken and that it was broken by a golf ball, and argue:
Plaintiff fails to cite any evidence in the record that officers knew for a fact that a golf ball and not a gun shot or debris from the helicopter crash or something else caused the damage to the broken window. Officer Bader testified that he does not recall seeing a golf ball on the ground and that he could not see whether the broken glass went all the way through the interior. MSJ Reply ¶¶ 56-57, at 5 (citing Bader Depo. at 46:8-14). This information and the cited portion of Bader’s deposition do not controvert the asserted fact that the damage was because of a golf ball, which was on the ground next to the window. See D.N.M.LR-Civ. 56.1(b). Moreover, the Kerns do not assert, in this paragraph, that the officers' knew a golf ball caused the damage, they only assert that a golf ball caused the damage. Accordingly, the Court will deem this fact admitted. The Court will also include the information from Bad-er’s deposition, that he did not closely inspect the window, in a separate fact.
. The Kerns dispute this fact and assert:
While Bader found the broken window to play a factor in his desire to search the Kerns’ home, Sgt. Johnson, who actually authorized the entry into the Kerns’ house, never mentioned the broken window as playing a role in his decision to enter the Kerns’ home. In any event, as discussed above, the City Defendants have conceded that the cause of the broken window is a factual issue to be resolved by a jury. Unlike Bader, Sgt. Johnson did not think the shooter was inside the Kerns' home, but wanted to make sure the home had not been burglarized after Jason Kerns had departed the house.
Plaintiffs’ Supplemental Factual Support in Opposition to the City Defendants' Motion for Summary Judgment ¶ 7, at 4, filed April 25, 2012 (Doc. 301). While the Kerns attack whether this fact was important to Johnston’s decision-making, they do not specifically controvert the asserted fact that, in Bader's experience, a broken window is a bad sign. See D.N.M.LR-Civ. 56.1(b). Accordingly, the Court will deem the asserted fact admitted.
.Paragraph 57 asserts: “The fact that a golf ball had struck the Kerns’ window should not have been out of the ordinary to the law enforcement officers, as the Kerns’ back yard borders the eighteenth (18th) hole of the golf course at Paradise Hills.” MSJ Response ¶ 57, at 9. The City Defendants reiterate:
Plaintiff fails to cite any evidence in the record that officers knew for a fact that a golf ball and not a gun shot or debris from the helicopter crash or something else caused the damage to the broken window. Officer Bader testified that he does not recall seeing a golf ball on the ground and*1189 that he could not see whether the broken glass went all the way through the interior.
MSJ Reply ¶¶ 56-57, at 5 (citing Bader Depo. at 46:8-14). The City Defendants correctly point out that the portions of the record to which the Kerns cite do not establish that the officers knew that a golf ball had damaged the window. In his deposition, Bader testified that he "didn't closely inspect” the window and that he did not recall seeing the golf ball on the ground. Bader Depo. at 46:6-10. Each fact asserted in a response must "refer with particularity to those portions of the record upon which the non-movant relies.” D.N.M.LR-Civ. 56.1(b). Because there is no evidence that the officers knew that a golf ball caused the damages that they observed, the Court will modify the asserted fact. The City Defendants do not, however, specifically controvert the remaining portion of the asserted fact, that it is not unusual for a golf ball to strike the Kerns’ home because it is located on the eighteenth hole. See D.N.M.LR-56. 1(b). Accordingly, the Court will deem the remaining portion of the asserted fact admitted.
. The Kerns assert: "It is not contested that nobody inside the Kerns' home came to the door or that entry to the Kerns’ home took place after a thorough search of the area for evidence or suspects; the rest, however is contested.” MSJ Response ¶21, at 4 (citing Zisser Depo. at 40:10-41:22). Zisser testified that she did not hear any knocks at the door or the doorbell and that "I would have heard a knock or anything, because this window, you can hear.” Zisser Depo. at 40:10-21. Zisser also testified that she was asleep before waking up when she heard the police radio. See Zisser Depo. at 40:1-7. The cited portions of Zisser's deposition testimony do not establish that the police did not knock on the door; they establish only that Zisser did not hear any noises from outside. Because the Kerns have not specifically controverted the asserted fact, that the police knocked and announced themselves, the Court will deem this fact admitted. See D.N.M.LR-Civ. 56.1(b).
. The Kerns dispute this fact and assert that ”[g]enuine disputes exist as to what Officer Thompson may have thought” and point the Court to "Plaintiffs facts 41 through 69 below.” MSJ Response ¶ 24, at 4. None of the facts asserted in paragraphs 41 through 69, however, mention Thompson by name or address his state of mind. The local rules require that the non-moving party "specifically controvert” an asserted fact. D.N.M.LR-Civ. 56.1(b). Because the facts to which the Kerns point do not specifically controvert the assert
. The City Defendants assert that, "[n]otwithstanding this fact, Sergeant Johnston also testified that his concern was for the safety of the resident occupants in the aftermath of the shooting.” MSJ Reply ¶ 61, at 6 (citing Johnston Depo. at 42:13-20). The City Defendants do not appear to contest the asserted fact and the portion of Johnston's deposition to which they cite does not address whether Johnston believed he would find the suspect. Because the City Defendants have not specifically controverted the asserted fact the Court will deem this fact admitted. See D.N.M.LR-Civ. 56.1(b).
. Paragraph 62 of the MSJ Response is not listed as one of the paragraphs with which the City Defendants "do not take issue”; however, the City Defendants do not otherwise discuss paragraph 62. MSJ Reply at 3-7. Because the local rules require that a reply "specifically controvert” any material facts included in the response and because the MSJ Reply does not specifically address paragraph 62, the Court will deem this fact admitted. D.N.M.LR-Civ. 56.1(b) ("All material facts set forth in the Response will be deemed undisputed unless specifically controverted.”).
. The Kerns assert two additional facts, which the City Defendants have specifically controverted. The Kerns assert that: (i) "Sgt. Johnston could not articulate any fact that led him to believe that somebody was hurt or injured inside the Kerns' home”; and (ii) Officer Bader could not articulate any objective fact that made him "think anyone, even the shooter, had sought refuge inside the Kerns' home.” MSJ Response ¶¶ 59-60, at 9 (citing Johnston Depo. at 28:7-10); (Bader Depo. at 69:4-7). The City Defendants point out that Johnston and Bader both articulated facts that led officers to be concerned for the welfare of those individuals inside the home. See MSJ Reply ¶¶ 59-60, at 5-6 (citing Johnston Depo. at 42:3-20; Bader Depo. at 65:4-15). The Kerns point to Johnston’s statement, in response to a question whether he could articulate what led him to believe that someone may have been hurt inside the house, that, "[a]t this point in time, no, sir.” Johnston Depo. at 28:7-10. Later in his deposition, however, Johnston states:
When we got to the Kerns residents [sic] and the door was open, the lights were on, the music was playing loud, it was late at night, early in the morning, nobody was answering the door, for whatever reason, and the fact that a shooting had taken place of a helicopter, unknown if anybody else had been shot in the interim prior to, after, whatever that yes, I felt at that time we needed to get in that house to make sure there was nobody injured inside that house.
Johnston Depo. at 42:13-20. Accordingly, the City Defendants have specifically controverted the asserted fact that Johnston could articulate no facts concerning why he believed a person might be in need of assistance. See D.N.M.LR-Civ. 56.1(b). In response to a question whether he could articulate any objective facts that made him think someone had taken refuge inside of the house, Bader said "no.” Bader Depo. at 69:4-7. Earlier in his deposition, however, Bader had stated:
So now we are thinking well, the door is unlocked, we haven’t found the offender, now nobody is coming to the door. There may be somebody hurt or maybe somebody being held hostage. We really don't know what's going on yet and that’s not good. I mean, this is as far as we know, and we don't have the information to tell us otherwise, this is basically the scene of a crime. This is where somebody shot down a helicopter. That’s a big deal, and to have these people now not able to come to the door to contact us is extremely troubling.
. The Kerns dispute this fact and assert that "[gjenuine disputes exist as to what the City Defendants were concerned about, or whether they announced themselves as they entered.” MSJ Response ¶ 25, at 4. The City Defendants respond that the Kerns’ "claims that a genuine issue of fact exists as to these facts; however, the Plaintiffs only cite argument of their counsel, not actual contested facts to support their position.” MSJ Reply ¶¶ 24-26, at 3 (citing Fritzsche v. Albuquerque Mun. Sch. Dist.,
. The Kerns argue that: "It is not contested that the APD Officers entered the Kerns’ home without permission. A genuine dispute exists, however, as to whether APD Officers had lawful authority to do so, and to the remaining statements.” MSJ Response ¶ 26, at 4. The Kerns cite generally to the facts which they assert in paragraphs 41 through 69 of the MSJ Response. See MSJ Response ¶ 26, at 4. Whether the officers had lawful authority to enter the Kerns' home is a legal question, which the Court will address in its analysis section. See Wilson v. Jara,
.The City Defendants assert that this fact is misleading "as it is uncontested [See fact 29] that Ms. Zisser was asked by the officers if they could look around inside the house, and she said 'sure,' and took them around the house real quick.” MSJ Reply ¶ 65, at 6. The Court agrees that, once the officers were inside the house, Ms. Zisser agreed to let the officers tour the residence. The asserted fact, ■ however, states that the officers failed to ask permission before entering the home. The City Defendants' facts, however, also establish that the officers were already in the home when they encountered Ms. Zisser; therefore, she could not have granted them permission to enter. See MSJ ¶ 27, at 6 ("The officers entered the residence through a side door where they were met by a female, who was later identified as Plaintiff Jason Kerns' girl
. The City Defendants assert:
This fact is misleading as Plaintiffs fail to represent Officer Bader’s testimony as a whole in their recitation of the facts. The complete testimony reveals that Officer Bader was asked how the decision was made to enter the Kerns property and Officer Bader responds by describing the exigency of the situation under the totality of the circumstances.
MSJ Reply ¶ 63, at 6. The City Defendants do not dispute the asserted fact, that Bader believed the Kerns’ residence could be the scene of the crime, and the Court will deem that fact admitted. See D.N.M.LR-Civ. 56.1(b). The Court will, however, modify that fact to more accurately reflect the totality of Bader's testimony and the context in which that statement was made.
. The Kerns assert that "Michelle Zisser, who was staying at the Kerns’ home and was sleeping in a location where she could have heard a knock on the door or anything else did not hear anything until the City Defendants were inside the home with their radios on.” MSJ Response ¶ 67, at 10 (citing Zisser Depo. at 40:10-41:22; Map of Residence, filed May 1, 2009 (Doc. 156-10)). The City Defendants assert that
This fact is misleading as Ms. Zisser was asleep and did not hear any noises whatsoever while she was asleep until she was awakened by the sounds of a police radio. Consequently Ms. Zisser did not hear any sounds before hearing the police radio, including the music playing, the sound of the helicopter before or after it crashed, any knocks at the door, or the pop noise that Plaintiff Jason Kerns claims he heard.
MSJ Reply ¶ 67, at 6-7 (citing Zisser Depo. at 39:5-21). The City Defendants' MSJ Reply does not specifically controvert the asserted fact. The Kerns and the City Defendants appear to agree that Zisser was asleep and that she did not hear anything before she woke up to the noises on the police radio. The City Defendants also do not provide any evidence which addresses where Zisser was sleeping. Accordingly, the Court will deem the asserted fact admitted.
. The City Defendants assert that the asserted fact, that Zisser felt that she could not deny the officers consent to search the home, "is misleading as Ms. Zisser testified that she was initially startled by the officers’ presence, but she concedes that the officers did not threaten her with their firearms” and note that Zisser does not "claim that any of the officers yelled at her or were mean to her.” MSJ Reply ¶ 69, at 7. In the cited portion of Zisser’s deposition, in response to a question regarding what was meant when she said that she
A: Well, you know, I’m not going to tell them no, that they can’t look around the house, when they have guns. So they said we can just quickly go around, and so that’s what I did. I quickly showed them. As I’m taking them through, they — it was — they weren’t really — they just kind of went through, almost like they had already seen it.
Zisser Depo. at 46:19-47:6. The City Defendants point to other portions of Zisser's testimony in which she states that the officers did not threaten her, were not mean to her, and did not yell at her. See Zisser Depo. at 47:15-17, 51:17-25. This testimony does not, however, specifically controvert the asserted fact that Zisser testified that she did not feel that she could deny consent or that the officers had their weapons displayed. Accordingly, the Court will deem the asserted fact admitted. See D.N.M.LR-Civ.56.1(b).
.The Kerns assert that ”[g]enuine disputes exist as to the damage that may have been caused.” MSJ Response ¶ 31, at 5. The Kerns do not cite to any portion of the record to support their argument. The local rules require that a response "refer with particularity to those portions of the record upon which the non-movant relies.” D.N.M.LR-Civ. 56.1(b). The Kerns have not cited any portion of the record, and the Court will therefore deem the fact that there was no damage admitted.
. The City Defendants assert that, "by stating the officers did not 'find or see anything’, Officer Montoya obviously came to this conclusion after officers had already gone to the Kerns residence.” MSJ Reply ¶ 64, at 6 (emphasis in original). The City Defendants do not dispute the asserted fact, that Montoya believed the J. Kerns’ statements were misleading or mistaken, and the Court will deem that fact admitted. See D.N.M.LR-Civ. 56.1(b). The Court will, however, modify that fact to more accurately reflect when Montoya reached that conclusion.
. The City Defendants assert:
Officer Montoya’s testimony is taken out of context and is misleading. The portion of the testimony cited by Plaintiffs reflects that Officer Montoya is discussing what occurred after the SWAT team left the Columbus Circle area and returned to Paradise and Golf Course. Had Plaintiffs included the preceding page of Officer Montoya’s testimony, their Fact No. 45 would not be as misleading.
MSJ Reply ¶ 45, at 4-5 (citing Montoya Depo. at 48:19-49:6). The City Defendants do not dispute that Montoya did not come across a clue indicating that the shot had come from Columbus Circle and the Court will deem that fact admitted. See D.N.M.LR-Civ. 56.1(b). The Court will, however, to more accurately reflect his testimony, indicate that Montoya reached this conclusion after the search and after talking with the other officers.
. On February 24, 2009, the Kerns dismissed with prejudice all claims asserted against Defendants James Hamsten, Sean Connors, Timothy Hix, and Rhonda Moya. See Stipulation of Dismissal of Defendants James Hamsten, Sean Connors, Timothy Hix, and Rhonda Moya with Prejudice, filed February 24, 2009 (Doc. 121). On March 20, 2009, the Kerns dismissed with prejudice all claims asserted against Montoya and Johnston. See Stipulated Dismissal of Defendants James Montoya and Robert Johnston with Prejudice, filed March 20, 2009 (Doc. 137). The parties agreed to dismiss with prejudice all claims against Defendant Aaron Wright. See Stipulated Order of Dismissal of Aaron Wright with Prejudice, filed July 6, 2009 (Doc. 170). The Kerns also stipulated to dismiss with prejudice of all claims against Defendant Ralph Gonzales. See Notice of Stipulated Dismissal of Defendant Ralph Gonzales, filed July 17, 2009 (Doc. 183).
. The Kerns dismissed with prejudice Count XV as against Bernalillo County and White. See Notice of Stipulated Dismissal of Defendant Darren White and of the Board of Commissioners of Bernalillo County Under Count XV, filed August 20, 2009 (Doc. 209). The Kerns dismissed with prejudice the claims against the City of Albuquerque asserted in Counts VII, VIII, IX, X, XI, XII, XIII, XIV, and XV. See Notice of Stipulated Dismissal of City of Albuquerque, filed August 20, 2009 (Doc. 210). The Kerns dismissed the claims against Defendant Mike Haag asserted in Counts VIII, IX, X, XI, XII, XIII, XIV, and XV of the First Amended Complaint. See Notice of Stipulated Dismissal of Mike Haag, filed August 20, 2009 (Doc. 211). The Kerns dismissed with prejudice Count XII of the First Amended Complaint asserted against Defendants Bernalillo County, Brian Lindley, and Larry Koren. See Notice of Stipulated Dismissal of Bernalillo County, Brian Lindley, and Larry Koren Under Count II, filed September 4, 2009 (Doc. 229). The Kerns dismissed with prejudice Count XIII of the First Amended Complaint asserted against Bernalillo County, Lindley, Bader, Thompson, and Carter. See Notice of Stipulated Dismissal of Bernalillo County, Brian Lindley, Drew Bad-er, Matt Thompson, and Russell Carter, filed September 4, 2009 (Doc. 230). The Kerns dismissed with prejudice Count XIV of the First Amended Complaint asserted against Bernalillo County, Lindley, and Koren. See Notice of Stipulated Dismissal of Bernalillo County, Brian Lindley, and Larry Koren, filed September 4, 2009 (Doc. 231). The Plaintiffs also dismissed with prejudice Bernalillo County and White as to Count VI of the First Amended Complaint, with the exception of liability concerning Count III. See Stipulated Dismissal of Defendants Bernalillo County Board of Commissioners as to Count VI, with Prejudice, with the Exception of Municipal Liability as it Related to Count III, filed July 14, 2009 (Doc. 176).
. In a footnote, the Tenth Circuit stated that it preferred constitutional rights can be decided in future cases in which there is no qualified immunity question. The Tenth Circuit held: “Neither do we doubt that the scope of the Constitution’s protection for a patient’s hospital records can be adequately decided in future cases where the qualified immunity overlay isn't in play (e.g., through motions to suppress wrongly seized records or claims for injunctive or declaratory relief).” Kerns v. Bader,
. The Court’s citations to the transcript of the hearing refer to the court reporter’s original, unedited version. Any final transcript may contain slightly different page and/or line numbers.
. Although the majority of the factual background section remains unchanged — the Court merely expanded on its analysis of how it determined whether a fact was specifically controverted in accordance with the local rules — the Court added some new facts that the parties emphasized in their filings following remand. The Court has not found any case law that would indicate that its previous recitation of the facts binds it on remand. "The law of the case doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Emp’rs Mut. Cas. Co. v. Bartile Roofs, Inc.,
. While the Court is, of course, obligated to follow faithfully the Supreme Court’s decisions and opinions, the Court has always been unenlightened and even troubled by Justice Elena Kagan’s comments in Camreta v. Greene about “large” and “small” cases.
If, perhaps, a "large” case is a Supreme Court case or one that comes from the East Coast or California, rather than one in a district court in New Mexico, then it helps to look at what cases the Supreme Court has decided for the plaintiff. The three most recent qualified immunity cases, the Supreme Court dealt with are: (i) Reichle v. Howards, — U.S. —,
On the flip side, treating large cases like they are large cases can create an appearance problem to the public and to the litigants— that only big cases deserve the Court’s attention. A trial judge can overwork a "large” case. It is better to treat even “large” cases like every other case; large cases and their litigants need to know and appreciate that they are not the only case on the court's docket, and realize that the scarcity of judicial resources applies to them too.
. In footnote 5 of the majority’s opinion, the Tenth Circuit stated: "Neither do we doubt that the scope of the Constitution's protection for a patient’s hospital records can be adequately decided in future cases where the qualified immunity overlay isn’t in play {e.g., through motions to suppress wrongly seized records or claims for injunctive or declaratory relief).” Kerns v. Bader,
Section 1983 was originally § 1 of the Civil Rights Act of 1871 ... and was enacted for the express purpose of “enforc(ing) the Provisions of the Fourteenth Amendment.”
... The predecessor of § 1983 was thus an important part of the basic alteration in our federal system wrought in the Reconstruction era through federal legislation and constitutional amendment.
[ejvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, exception that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
42 U.S.C. § 1983 (emphasis added). The Supreme Court established the qualified immunity defense in Pierson v. Ray,
. The Supreme Court did not delve into what circumstances would satisfy the emergency-aid exception until recently, and after the conduct at issue in this case. See J. Fisher, “Lowering Standards: The Simultaneous-School-Bombing-and-Shooting-
Threat Exception of Armijo ex rel. Armijo Sanchez v. Peterson,” 41 N.M. L.Rev. 69, 116 (2011)("[T]he first mention of an emergency-aid exception appears to be in Mincey v. Arizona, and the Supreme Court did not actually apply it until 2006, in Brigham City v. Stuart, and 2009, in Michigan v. Fisher.”).
. The Court has also struggled with the contours of the emergency-aid exception and, in its two cases in United States v. Najar, first suppressed evidence discovered in a warrant-less search, before finding that the emergency-aid exception applies. See United States v. Najar,
. On July 14, 2009, the Kerns stipulated to the dismissal of Count VI, with the "single exception of municipal liability for the Board of Commissioners of Bernalillo County and Sheriff Darren White under Count VI concerning the conduct alleged in Count III.” Stipulated Dismissal of Defendants Bernalillo County Board of Commissioners as to Count VI, with Prejudice, with the Exception of Municipal Liability as It Relates to Count III, filed July 14, 2009 (Doc. 176).
. On September 15, 2010, the Tenth Circuit entered an order dismissing the Board of Commissioners for Bernalillo County as a party on appeal. See Order, filed September 15, 2010 (Doc. 284)("Appellate Order”). The Tenth Circuit stated: "The unopposed motion by Appellants-Defendants to dismiss Defendant Board of County Commissioners of Bernalillo County ('Board') as an 'appellant' in this appeal is GRANTED. Only Appellant-Defendant Board is DISMISSED. This appeal shall proceed with Appellants-Defendants Darren White, Brian Lindley, and Lawrence Koren.” Appellate Order at 1 (emphasis in original).
. At the April 12, 2010 hearing, the Kerns argued that it would be inappropriate for the Court to grant summary judgment on the state-law claims based on the federal-law analysis. See Tr. at 49:25-50:3 (Lowry). The Court has, however, already denied summary judgment on Count X against Bader, Carter, and Thompson. See Oct. 5, 2009 MOO at 18.