Kerns v. Board of Commissioners (707 F. Supp. 2d 1190, 2010)

MEMORANDUM OPINION

JAMES 0. BROWNING, District Judge.

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

FACTUAL BACKGROUND

This case involves the investigation into the August 6, 2005 shooting of the Bernalillo County Sheriffs Department’s helicopter, Metro One, which crashed into the backyard of a residence near the intersection of Golf Course Road and Paradise Boulevard in Albuquerque, New Mexico. The Bernalillo County Sheriffs Department arrested J. Kerns on August 15, 2005 and a federal grand jury indicted him on federal charges. On May 10, 2006, the United States Attorney dismissed the charges against J. Kerns. The Plaintiffs brought this federal suit against those involved in the investigation, arrest, and prosecution. Many of the material facts are undisputed. The Court notes, however, the factual disputes and whether the dispute is material.

1. The Crash of Metro One.

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

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

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

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

2. Police Response After the Crash.

Following the crash of Metro One, multiple police units responded to the scene. See Deposition of Brian Lindley at 11:14-25 (taken December 18, 2008), filed July 17, 2009 (Doc. 182-4). Sauer was one of the first officers to arrive at the scene of the helicopter crash. See Sauer Depo. at 14:18-15:16. After discovering the helicopter wreckage, he assisted in tearing down a fence. See Sauer Depo. at 14:23-15:3. He also saw the observer-passenger and Holland walking away from the helicopter, but did not observe anyone else near the helicopter at that time. See id. at 15:4-16. Sauer did not recall seeing anyone else at the scene when the fence was torn down. See id. at 14:21-15:8. Many individuals in the area, including J. Kerns, witnessed the crash. See id. at 20:14-16. Sauer testified that several people approached him, as he was coming from the crash, saying: “We think there were shots.” Sauer Depo. at 40:16-19. Sauer instructed them to move back and stay away from the helicopter. See Sauer Depo. at 20:14-16.

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

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

Before the crash, J. Kerns was working outside the Plaintiffs’ residence, located at 9910 Columbus Circle, Albuquerque, rearranging storage in the storage area on the side of the house and the garage. See Deposition of Jason Kerns at 122:1-21 (taken October 22, 2008), filed July 27, 2009 (Doe. 190-2). He watched the helicopter hovering from the edge of his backyard, near the property line and the golf course. See Statement of Jason Kerns at 5, filed July 27, 2009 (Doc. 190-2)(“J. Kerns Statement”); J. Kerns Depo. at 126:13-128:24. As J. Kerns watched the helicopter fly low over the area, he heard a “loud pop sound” to his left, and he observed the helicopter pitch severely and dive to the ground. See J. Kerns Statement at 5. After witnessing the crash, J. Kerns quickly left the house-leaving the music on and the door cracked open — and drove to the intersection of Golf Course Road and Paradise Hills Boulevard. See J. Kerns Depo. at 140:6-143:7. J. Kerns attempted to telephone 911 from his cellular telephone while he drove, but the call was dropped, and he never reached 911. See J. Kerns Depo. at 141:18-143:10.

Once J. Kerns got to the scene, which he located based on the activity surrounding the wreck, he went to the backyard where the helicopter had crashed and, according to J. Kerns, he told an officer how to open the door of the helicopter. See J. Kerns Depo. at 144:5-145:13. J. Kerns approached Sauer and told him: “I watched it go down, I think I heard where the pop noise came from.” J. Kerns Depo. at 49:23-24. Sauer separated J. Kerns from the other witnesses. See J. Kerns Depo. at 150:4-23; id. at 154:6-17. Members of the APD Special Weapons and Tactics team (“SWAT”) arrived on the scene, including Defendant Officer Drew Bader and Sergeant Robert Johnston. See Deposition of Robert Johnston at 9:13-24 (taken February 4, 2009), filed July 17, 2009 (Doc. 182-7). When Johnston arrived, Sauer informed him that there was a witness — J. Kerns — who believed he heard a gunshot. See Johnston Depo. at 3:19:4:24. Sauer then instructed Johnston to talk to J. Kerns, find out where the popping noise or gunshot came from, and search that area. See Johnston Depo. at 9:11-24. J. Kerns spoke to Johnston and told him about the popping noise, that he knew the direction from which the noise came, and that the noise was loud enough to make J. Kerns’ ears ring. See J. Kerns Depo. at 156:9-25. J. Kerns also told Johnston that the popping sound came from J. Kerns’ left, north of his location, and that, almost immediately thereafter, J. Kerns heard a sound like rocks kicking up or something impacting the ground near where the popping noise originated. See Sauer Depo. at 62:2-7; 911 Calls and Dispatch on August 6, 2005 at 35:11-17, filed August 11, 2009 (Doc. 201-2); Johnston Depo. at 12:7-13. While J. Kerns did not know the identity of the officer to whom he spoke, he concedes that he probably said these things to whomever that person was. See J. Kerns Depo. at 156:12-25. J. Kerns told Johnston that his observations took place near his residence. See Johnston Depo. at 11:4-14. He also told Johnston that he saw the helicopter flying around and then heard popping noise about fifty feet away. See Johnston Depo. at 11:14-19. Upon further inquiry by the officers, J. Kerns conceded that the noise could have been an engine backfire or a rifle report. See J. Kerns Depo. at 157:12-158:10.

J. Kerns also provided a written statement to the APD officers on an APD witness form, in which he described his perceptions of the helicopter crash. See J. Kerns Statement at 5. In the statement, J. Kerns stated the helicopter was hovering approximately three-hundred yards southeast of the Plaintiffs’ residence. See id. He stated he was standing on the edge of his yard, looking out because his dog — who is not generally troubled by aircraft — was upset and barking at something. See id. J. Kerns stated that he walked to the edge of his property line and the golf course, watching the helicopter hovering, assuming it was giving air support to some ground units. See id. He began wondering why it was staying in the same location for so long. See id. His statement described his observation of the helicopter crash as follows:

I hate to say this, but I was getting annoyed by the sound of the chopper because it was there so long. It seemed lower and closer than they usually fly around the golf course. I had been watching it for close to eight minutes. He looked closer than 1000 ft and I was actually contemplating if I should call someone but then I thought how complicated that would be and if I waited he’d be gone in a few minutes anyway. Besides I couldn’t see the aircraft #’s to report it. All I could see is the chopper’s siloutte [sic] illuminated from below and behind by the cloud cover and street lights. I also could see the aircraft lights and two red strobes giving me a better reference of its flight. It started to rain but I was working outside anyways so I stood fast and continued to watch. The golf course sprinklers were on, but my dog was still upset, I was trying to calm her down. I thought it might be another rabbit by the yard. I was looking up at the helicopter. There was a loud pop sound directly to my left North of my location right after the pop almost instantly I heard rocks kicking up like something got kicked up or impacted the ground by the same location of the pop noise, immediately after that the helicopter pitched severely the helicopter sound went to a loud winding pitch as it dove. The pilot had almost no time to autogyro and I watched the helicopter go down.

J. Kerns Statement at 5.

No one other than J. Kerns heard any gun shot in the area of the Plaintiffs’ residence. See Affidavit for Search Warrant at 4 (executed August 9, 2005), filed July 27, 2009 (Doe. 190-4); Lindley Depo. at 59:21-25; Deposition of Ralph Gonzales at 40:5-25 (taken December 9, 2008), filed July 27, 2009 (Doc. 190-5). Other witnesses who informed law-enforcement officers that they heard a gun shot were all in the immediate area of the helicopter crash and not close to the Plaintiffs’ home. See Affidavit for Search Warrant at 2.

4. August 6, 2005 Search of the Plaintiffs ’ Residence.

After speaking with J. Kerns, Johnston sent the APD SWAT team and K-9 units to the area of the Plaintiffs’ residence so the officers could look for evidence where a gunshot might have taken place, or contact anybody else in the neighborhood who may have heard or seen something. See Johnston Depo. at 13:10-18; id. at 15:10— 15. When the SWAT team got to the Plaintiffs’ residence, they heard music coming from the residence. See Johnston Depo. at 23:6-8; id. at 23:17-24; J. Kerns Depo. at 124:16-24. Johnston’s report alleges that the garage door was open when Johnston and his SWAT team got to the Plaintiffs’ residence. See Johnston Depo. at 23:6-8; id. at 23:17-24; Lindley Depo. at 59:21-25. J. Kerns, however, asserts that the garage door was closed when he left his home to go to the crash cite. See J. Kerns Depo. at 140:19-20.

Officer James Montoya, part of Johnston’s SWAT team, reported that the Plaintiffs’ garage door was open and music was coming from the residence. See Deposition of James Montoya (taken February 9, 2009) at 4:9-5:22, filed July 17, 2009 (Doc. 182-9). Defendant Matthew Thompson, an APD SWAT officer, was advised that officers from his search team heard loud music coming from the house, and that the other officers “believed that there was a possible party going on inside.” Matthew Thompson’s Answer to Interrogatory 7, filed July 17, 2009 (Doc. 182-10). Sauer also testified that he heard over the radio that there was a “39-2,” which is code for a loud-party disturbance. See Sauer Depo. at 61:9-18. According to J. Kerns, he was working on rearranging storage outside the Plaintiffs residence before the crash and had been playing music. See J. Kerns Statement at 5; Lindley Depo. at 72:9-15, filed August 11, 2009 (Doc. 201-4).

Montoya reported that there was “stuff’ thrown in the driveway and on the side of the home, and also reported observing Marine Corps manuals and other items. See Montoya Depo. at 5:19-22. Another APD officer reported seeing ammunition canisters either inside the house or in the garage. See Johnston Depo. at 32:16-34:6; Thompson’s Answer to Interrogatory No. 7. Montoya also wrote in his report that the information given by Kerns was “not solid and was misleading,” Montoya Depo. at 5:18-19 & Exhibit 1, but he could not recall why he had written that in his report, see Montoya Depo. at 36:9-37:13. Montoya had never spoken, however, directly with Kerns. See Montoya Depo. at 36:9-37:13.

The officers investigated the outside perimeter of the Plaintiffs’ residence and discovered a broken window in the rear of the house. A. Kerns explains that only the outside pane of the double-paned window had been broken when it was struck by a golf ball. See Deposition of Archie Kerns at 88:1-6 (taken Oct. 15, 2008), filed May 1, 2009 (Doc. 156-6); id. at 89:14-21; PI. Response Exhibit 8 at 1, filed May 1, 2009 (Doc. 156-7). Defendant APD Officer Drew Bader was concerned about the broken window, given the possibility of gunfire in the area; however, he did not closely inspect the broken glass, and he does not recall seeing a golf ball. See Deposition of Drew Bader at 38:2-22 (taken February 11, 2009), filed February 17, 2009 (Doc. 117-4); id. at 46:6-10 at 3.

After checking the area around the Plaintiffs’ residence for evidence or suspects, Bader and Thompson made several attempts to contact anyone inside the house by knocking and announcing that they were police officers. No one came to the door in response to their knocking and announcements. See Johnston Depo. 24:2— 9. The occupants inside the home, A. and M. Kerns — J. Kerns’ parents — and Michele Zisser — J. Kerns’ girlfriend — -were all asleep, and did not hear the officers’ knocks and announcements or any sounds related to the helicopter crash. See A. Kerns Depo. at 79:2-21; Deposition of Mary Ann Kerns at 64:20-65:23 (taken Oct. 15, 2008), filed February 17, 2009 (Doc. 117-11).

After the first knock and announce in which the officers were unable to make contact with anyone who might have been inside, Johnston came over to the Plaintiffs’ residence and then radioed to the officers at the golf course to get more information from J. Kerns whether it was in fact his residence and where in relation to his residence it was that J. Kerns had heard or seen what he had said he heard or saw. See Johnston Depo. 24:2-9. Johnston radioed to the officers at the golf course, who had stayed with J. Kerns, to get clarification from J. Kerns where he was standing when he heard the popping noise; J. Kerns relayed that the sound which he heard was directly north. See Johnston Depo. at 24:2-9. According to Johnston, directly north of the location that J. Kerns gave him is a golf course. See Johnston Depo. at 24:1-21, 25:11-22. During this time, the officers at the golf course repeatedly asked J. Kerns to confirm the details of the night. The officers asked him from what direction he heard the popping noise, what caliber of gun he believed made the noise, and the direction he was standing if one were facing his house. See J. Kerns Depo. at 158:5-10; id. at 160:25-161:21. J. Kerns told the officers that the noise came from the north. See J. Kerns Depo. at 161:1-162-21.

Johnston did not request permission from J. Kerns to enter the Plaintiffs’ residence or inquire whether anyone else was in the residence. See Johnston Depo. at 24:11-21. Johnston stated that, because it was late at night, music was playing, and no one answered the door, the police officers were concerned. See Johnston Depo. at 28:2-6. He also stated that he could not articulate anything that led him to believe that somebody may have been hurt or injured inside the Plaintiffs’ residence. See id. at 28:7-10. Thompson stated that, given the circumstances, he “thought that the occupants may be in danger from a possible armed suspect that may have fired at the police helicopter,” that “it was possible debris from the [helicopter] could have lodged inside the home,” and that “the broken glass could have resulted from a gunshot coming from or into the residence.” Thompson Ans. at 2. According to Johnston, at that time there were lights on in the Plaintiffs’ residence, and the music coming from the residence played the entire time. See Johnston Depo. at 31:20-25. Bader stated that at the time he had no objective facts or knowledge that made him think that someone had taken refuge inside J. Plaintiffs’ residence. See Bader Depo. at 69:4-7. Bader observed that the music that had been coming from the Plaintiffs’ residence turned off, which raised concerns, and the officers moved to the rear of the residence. See Bader Depo. at 39:24-40:13. Thompson and Bad-er knocked on a door at the side of the house and, after no response from within, found the door unlocked and entered the Plaintiffs’ residence. See Bader Ans. at 2; Thompson Ans. at 2.

After entering the Plaintiffs’ residence, Bader, Thompson, and Defendant APD Officer Russell Carter were met by a female, later identified as Michelle Zisser, J. Kerns’ girlfriend at the time. See Thompson Ans. at 2. Thompson identified himself as an APD officer and spoke with Zisser. The officers asked Zisser’s consent to look around inside the house. Zisser testified in her deposition that she did not feel she could deny the officers’ request, as they had their weapons displayed. See Zisser Depo. 46:19-25. According to Zisser, the officers went quickly around the house with her, and when Zisser informed the officers that J. Kerns’ parents were asleep in the master bedroom, they did not enter or investigate in that room. See id. 47:2-14, 48:24-25:4, at 3-4. The officers were in the Plaintiffs’ residence for about five minutes. See id. 51:8-13. at 3.

5. The Investigation of the Helicopter Crash.

By the morning of Monday, August 8, 2005, the helicopter had been partially reassembled. See Lindley Depo. at 22:13-21; id. at 23:16-19. According to Bernalillo County Sheriff Deputy Ralph Gonzales, deputies from Bernalillo County Sheriffs Department had reconstructed the aircraft and found a hole in the plexiglass in the front of the helicopter. See Gonzales Depo. at 24:10-23. Bernalillo County and other officials then began to focus their attention on the possibility that the helicopter could have been shot down based on suspected bullet holes in the nose of the helicopter. See Lindley Depo. at 22:13-21; id. at 23:16-19. The hole aligned with a shattered left anti-torque pedal in the helicopter. See Gonzales Depo. at 24:10-23. During the reconstruction, an agent from the Federal Aviation Administration (“FAA”) got into the helicopter. See Gonzales Depo. at 25:12-15. When he secured the harness, a piece of a bullet-jacket fragment fell from the harness and into his lap. See Gonzales Depo. at 25:15-26:1, 26:6-10. At this time, detectives began pursuing a theory that Metro One had been shot down. See Gonzales Depo. at 26:3-5.

Bernalillo County Sheriffs Detective Aaron Wright inspected Metro One on August 8, 2005 for evidence relating to the crash. See Deposition of Aaron Wright at 70:21-23 (taken March 30, 2009), filed June 26, 2009 (Doc. 165-3). Wright collected several bullet fragments from inside the helicopter. See Wright Depo. at 20:2-11, 33:1-21; id. at 71:21-23; Wright Depo. Exhibit 1 (Doc. 182-16). Wright believed the evidence was consistent with the theory that a bullet had made the hole. See Wright Depo. at 32:23-33:21. Wright also obtained bullet fragments from the leg of the pilot, Holland, following Holland’s surgery. See Wright Depo. at 44:21-25; id. at 45:1-12; id. at 71:7-14; Exhibit 10 & Exhibit 11. Wright then began filling out the forms to request evaluation by the Forensic Science Center (“FSC”). See Wright Depo. at 45:1-12, Exhibit 10 & Exhibit 11. The fragments were tagged and send to Haag at the FSC for processing. See id.

Koren, the Bernalillo County Sheriffs Department’s helicopter mechanic, retrieved the data from the helicopter’s global-positioning-system (“GPS”) navigational device, and measured the distance that the shooter would have been standing from the helicopter when it was shot using a trajectory angle of sixteen degrees and an altitude of four-hundred-fifty feet. See Koren Depo. at 67:14-21. Koren told Lindley that, when the bullet struck the helicopter, it would have been facing in the direction of a ground tracking measurement of 046 degrees. See Lindley Depo. at 171:24-172:11. The Plaintiffs contend that the trajectory angle is wrong, because the pedals were in neutral when Koren took his measurements. See Plaintiffs’ Motion on Counts II, IV & V at 12. Koren and Lindley argue that Nelson Welch, the Plaintiffs’ expert in accident reconstruction and firearm examination who reviewed Koren and Lindley’s findings, stated that Koren’s math was correct. See Deposition of Nelson Welch at 183:3-184:6 (taken December 10, 2008), filed August 4, 2009 (Doc. 196-2). The Plaintiffs counter that the math, given an angle of sixteen degrees is correct, but that the angle Koren relied on for his calculations is ten degrees off, because the pedals were placed eight inches from each other at the time the helicopter was shot, and so the correct trajectory angle should be approximately twenty-five degrees and the correct distance from which the shooter was located should be closer to one-thousand feet. See Plaintiffs’ Reply to the County Defendants’ Response to the Motion for Summary Judgment as to Liability of Counts II, IV & V of the First Amended Complaint at 5, filed August 24, 2009 (Doc. 215); Declaration of Nelson E. Welch ¶¶ 4-5, at 1 (executed September 3, 2009), filed September 15, 2009 (Doc. 240-9) (finding that the angle is 25.6 degrees and that the shot came from nine-hundred-thirty-nine feet away measured on the horizontal). The Plaintiffs contend such a measurement indicates the helicopter was facing northeast, see Plaintiffs Motion on Counts II, IV & V at 12, but Lindley and Koren contend such a measurement indicates no specific direction because a helicopter has the ability to fly sideways, see Lindley and Koren’s Response at 9. Koren determined an approximate distance, sixteen-hundred-thirty feet, from which the rifle which shot the helicopter was fired, describing his process as follows:

The helicopter flies at a relatively level a[l]titude to the earth’s horizon during slowly level flight; unfortunately, the downed helicopter was sitting on a flat bed trailer and canted in a nose low position. Knowing it is impractical to suspend the downed helicopter in the air to level it and take trajectory measurements, I used [the] following steps. 1) I zeroed a protractor on the floor of the rear passenger/cargo area along the longitudinal axis (nose to tail). 2) I pointed a laser beam equipped with a carpenters’ level thru the bullet hole to the damaged area of the peddle post. 3) I placed the protractor on top of the carpenters’ level and read the measurement (approximately 16 degrees). 4) I repeated these steps about three times with the same results. 5) Using a ruler, yard stick, and protractor, I drew a pictoral sketch depicting the helicopter in level flight at about 450 feet over the ground on a dry erase board. I drew a line at an angle of 16 degrees down from the helieopter[’]s longitudinal axis extending from the nose of the helicopter to the ground. My drawing formed a right triangle. 6) I measured each leg of the triangle and converted inches to feet. The vertical leg was 4$" (conversion to feet: approximately 450 feet). The base leg or horizontal leg was about 15 3/4" (conversion to feet: approximately 1575 feet). The sloping line/hypotenuse extending from the nose of the helicopter to the ground was measured at about 16 3/8" (conversion to feet: approximately 1630 feet).

Koren Answer to Interrogatory No. 10 at 1, filed July 17, 2009 (Doc. 182-26). On

August 12, 2005, Lindley and Koren flew over the crash site in another Bernalillo Sheriffs Department helicopter — Metro Two — to measure several locations from the helicopter to the ground. See Koren Depo. at 78:12-17; Lindley Depo. at 172:23-174:12. They positioned the helicopter where Koren had calculated Metro One had been, using information from the GPS and from the pilot. See Lindley Depo. at 180:13-19; Arrest Warrant Affidavit at 14, filed August 11, 2009 (Doc. 201-4). Officers on the ground used a laser-measuring device to measure the distance from the ground at certain locations and the location of Metro Two, for example measuring that the Plaintiffs’ residence was 1670 feet from the position of Metro Two. See Lindley Depo. at 176:3-6; id. at 182:5-12.

The Bernalillo County Sheriffs Department at no time during the investigation leading up to the arrest-warrant affidavit requested for Haag to ascertain the trajectory angle. See Defendant Mike Haag’s Answers to Plaintiff Jason Kerns’ Second Set of Interrogatories to Defendant Mike Haag and Second Request for Production of Documents, Answer No. 26, at 3 (Doc. 240-6). In early 2006, Haag asked if he could revisit Metro One and use the Metro Forensic Science Center’s new Leica Geo-systems HDS laser scanner to take a scan of the helicopter. See id., Answer No. 27. The Bernalillo County Sheriffs Department did not ask Haag to use his scan to complete the trajectory analysis. See id., Answer No. 28.

Welch conducted his own analysis and formed a theory on the trajectory of the bullet that hit Metro One. According to Welch’s original assessment, the measured trajectory angle was between thirty degrees and thirty-five degrees, which he stated could not be achieved from the Plaintiffs’ residence one-thousand-thirty feet away. See Letter from Nelson Welch to Marc Lowry at 2 (dated November 6, 2008, 2008 WL 6045640), filed October 1, 2009 (Doc. 243-1). He concluded that “[t]he arrest affidavit about the trajectory is therefore also clearly in error.” Letter from Nelson Welch to Marc Lowry at 2.

In Welch’s revised findings, based on Dietrich L. Evans’ analysis of the data from Haag’s laser-scan of Metro One, Welch concluded that the measured angle of the bullet’s trajectory was 25.6 degrees. See Declaration of Nelson E. Welch ¶ 4, at 1 (executed September 3, 2009), filed September 15, 2009 (Doc. 240-9). Using an entry angle of 25.6 degrees, and assuming the helicopter was four-hundred-fifty feet off the ground, Welch calculated that the shot would have originated from a distance in front of the helicopter of about nine-hundred-thirty-nine feet, measured on the horizontal. See Welch Declaration ¶ 5, at 1.

6. Lindley’s August 8, 2005 Interview of J. Kerns.

On or about August 8, 2005, Lindley interviewed J. Kerns at the Plaintiffs’ residence. See Lindley Depo. at 27:12-23; Affidavit for Search Warrant at 3; J. Kerns Depo. at 164:5-8. During the interview, Lindley questioned J. Kerns about the information he provided the night of the helicopter crash. See J. Kerns Depo. at 165:3-14 (Doc. 182-2). At Lindley’s request, J. Kerns showed Lindley where he had been standing on the night of the crash — a couple of feet from the edge of his property. See J. Kerns Depo. at 165:3-166:3. Lindley asked J. Kerns about the length of the shot and whether an average person could make the shot. See J. Kerns Depo. at 166:4-167:3. J. Kerns told Lindley that J. Kerns could make the shot “no problem,” and explained that he was a Marine sniper and that he would easily be able to “take a shot” at over four hundred yards because he routinely trained to take shots of at least four-hundred yards. Affidavit for Search Warrant at 3; J. Kerns Depo. at 166:4-167:21; Lindley Depo. at 54:18-56:6. Kerns further explained that Marine Corps standard for firing for regular Marines — the minimum Marine Corps standard — was to be qualified at a five-hundred-yard range. See J. Kerns Depo. at 167:16-21. In response to more general questions about shooting, J. Kerns told Lindley that one could brace themselves against a tree or kneel to take a shot. See J. Kerns Depo. at 168:15-22.

Lindley confirmed with Federal Bureau of Investigation (“FBI”) Agent Andrew Matas that J. Kerns had such marksmanship training, and the FBI advised Lindley that J. Kerns had been a helicopter airframe mechanic and range coach/primary marksmanship instructor in the Marine Corps, and such an instructor would “easily be able to hit a man size target out to 700 yards.” Affidavit for Search Warrant at 3. Lindley Depo. at 56:3-6. According to Matas, J. Kerns was listed as a Lance Corporal and honorably discharged on November 15, 2001. See Affidavit of Brian Lindley ¶ 3, at 2 (executed July 10, 2009), filed July 17, 2009 (Doc. 182-11).

During Lindley’s August 8, 2005 interview with J. Kerns, Lindley also questioned J. Kerns about the visibility of the helicopter on the night of the crash. See Affidavit for Search Warrant at 4. He asked J. Kerns if anyone would have been able to see the helicopter from the area from which J. Kerns heard the popping sound, to which J. Kerns responded: “I was able to see the helicopter fine because I remember the cloud cover was good that night and with the clouds and the lights shining up from the street. The helicopter was a great target.” Affidavit for Search Warrant at 4. J. Kerns admits that he probably told Lindley that the helicopter made a great target; it was back-lit, making it appear like a black silhouette on a lighter background, much like the targets used on shooting ranges. See J. Kerns Depo. at 171:9-24. J. Kerns states that he told Lindley that, because he had been able to see the helicopter go down, obviously someone in his position could see it. See J. Kerns Depo. at 169:12-18. J. Kerns explains he described the night sky as follows:

I was repeating things that I had written in this written statement about the cloud cover being overcast, a pillowy ceiling of cloud layer that covered the entire sky at the same level like a blanket, but had a specific altitude above the helicopter illuminated from below by the city lights causing the helicopter to look like a black dot on a gray orange background creating a silhouette effect, but in different words or approximate words.

J. Kerns Depo. at 169:24-170:6.

Lindley also reported that, as he was leaving the Plaintiffs’ residence, he spoke with one of Plaintiffs’ neighbors. Lindley represents that she told him that “if anybody was going to shoot down the helicopter it would have been my next door neighbor,” and that “[h]e’s crazy enough to shoot down the helicopter.” Lindley Depo. at 33:9-34:15 (Doc. 182-5). J. Kerns contests this fact, asserting that his next-door neighbor never made such a statement. See Response ¶ 59, at 5 (citing Affidavit of Gayle Green Gilb at 1-2 (executed July 15, 2009), filed July 27, 2009 (Doc. 190-6)). J. Kerns cites Gilb’s affidavit, which states that an elderly woman named Kathryn Beauchamp was the neighbor to which Lindley refers, and that Beauchamp denies making the statements that Lindley attributes to her. See Gilb Aff. at 1-2.

On August 9, 2005, Detective Danny Joseph conducted surveillance on J. Kerns, following him in an unmarked vehicle. See Affidavit of Danny Joseph ¶ 2, at 2 (executed July 6, 2009), filed July 17, 2009 (Doc. 182-18). According to Joseph, J. Kerns realized he was being followed, and began to make erratic turns and drove at a high rate of speed — over one-hundred miles per hour — in an apparent attempt to lose his pursuer. See Joseph Aff. ¶ 2, at 2. According to J. Kerns, he did not know who was following him, but it triggered his post-traumatic-stress disorder (“PTSD”). See J. Kerns Depo. at 78:2-80:24.

7. August 9, 2005 Interviews of A. Kerns.

On August 9, 2005, Gonzales, along with other officers, conducted two interviews with A. Kerns, J. Kerns’ father. See Affidavit for Search Warrant at 4; Gonzales Depo. at 48:13-49:5; Gonzales Depo. at 86:14-87:16, filed July 27, 2009 (Doc. 190-6); A. Kerns Depo. at 133:9-20. The interviews were tape-recorded. See Gonzales Depo. at 87:2-4. A. Kerns let the officers into the Plaintiffs’ residence on both occasions. See A. Kerns Depo. at 133:9-20; Gonzales Depo. at 48:13-49:5. During the first interview, Gonzales and Bernalillo County Sheriffs Deputy Russ Tellez interviewed A. Kerns about a variety of issues, including the firearms A. Kerns and J. Kerns owned. See Gonzales Depo. at 48:13-49:5. During the interview, A. Kerns showed Gonzales some photographs of J. Kerns and Zisser. See Gonzales Depo. at 53:4-23; id. at 87:21-88:16; Transcript of A. Kerns’ First Interview at 7 (taken August 9, 2005), filed July 17, 2009 (Doc. 182-13) (“A. Kerns First Interview Tr.”). In the photographs, J. Kerns was cleaning several firearms, and one of the rifles appeared to have a silencer attached. See Gonzales Depo. at 52:15-25; id. at 53:4-23; id. at 87:21-88:16; A. Kerns First Interview Tr. at 7. The other photographs depicted several rifles, one of which looked to be an assault rifle. See Gonzales Depo. at 54:19-55:14; id. at 87:21-88:7. Gonzales relayed what he saw in the photographs to Lindley. See Gonzales Depo. at 62:16-63:6.

Gonzales returned to the Plaintiffs’ residence on the evening of August 9, 2005 to obtain more information about the firearms and the helicopter crash. See Gonzales Depo. at 64:14-66-8. On this second visit, Todd Kalish, an FBI investigator, accompanied Gonzales. See Gonzales Depo. at 67:23-68:11. Kalish was shown the photographs that A. Kerns had previously shown to Gonzales. See Gonzales Depo. at 67:23-68:11. Kalish noted that J. Kerns seemed familiar with guns and stated “he’s got a bunch of them,” and A. Kerns replied “Oh yeah.” Transcript of Archie Kerns’ Second Interview at 11-12 (taken August 9, 2005), filed July 17, 2009 (Doc. 182-13)(“A. Kerns Second Interview Tr.”).

During the second interview, Kalish asked A. Kerns what J. Kerns had told him about the crash. See Gonzales Depo. at 69:16-70:7; A. Kerns Second Interview Tr. at 10-11. A. Kerns explained that his routine is to get up early — approximately 3:00 a.m. or 3:30 a.m. — to make coffee. See A. Kerns Depo. at 79:17-80:5. He did not recall whether J. Kerns told him about the helicopter crash in the early morning of August 6, 2005, but he recalled J. Kerns told him about the crash the following morning, including the fact that J. Kerns had watched the helicopter crash. See A. Kerns Depo. at 81:5-19; id. at 95:22-96:3; id. at 109:17:22. J. Kerns also told A. Kerns that, after seeing the helicopter go down, he helped officers open the door to the helicopter. See A. Kerns Depo. at 81:20-82:18; id. at 108:3-8; id. at 108:24-25; id. at 109:2-3; id. at 110:1-9; A. Kerns Second Interview Tr. at 4. Lindley perceived some inconsistencies in J. Kerns’ description of events and what J. Kerns apparently told his father about helping both the pilot and observer, and about where he heard the sound of the rocks. See Lindley Depo. at 137:8-17; id. at 90:13-25.

8. August 10, 2005 Search of the Plaintiffs’ Residence.

Lindley drafted a search warrant on August 9, 2005. See Lindley Depo. at 118:5— 10. Lindley’s Affidavit for the Search Warrant requested authority to seize:

Any and all firearms, to include, but not limited to: automatic pistols or revolvers, long rifles or shotguns; any ammunition, live or spent, any and all boxes and/or containers that may hold said items; any and all gun cleaning equipment and any and all paperwork that may show ownership or possession of said firearms. Any and all photographs, video, audio, records or writings which may contain information, which may lead investigators to information on the chain of events which lead to the crash of the helicopter in this incident. Affiant also requests to view or listen to said videos or recordings. Any and all paperwork or documents showing ownership. Possession or occupancy of said property.

Any and all military handbooks, guides, and/or literature. Any and all news articles/clippings pertaining to the crash of the helicopter being investigated.

Affidavit for Search Warrant at 1. On August 10, 2005 members of the Bernalillo County Sheriffs Department and several FBI agents executed the search warrant for the Plaintiffs’ residence. See Wright Depo. at 72:24-73:11; Deposition of FBI Agent Heather Howard at 25:18-25 (taken March 6, 2009), filed August 10, 2009 (Doc. 199-4). Lindley did not participate in the search of the Plaintiffs’ residence after he dropped off the search warrant. See Lindley Depo. at 121:9-124:23. The search warrant inventory records indicate that Wright, Bernalillo County Sheriffs Detective James Hamsten, Bernalillo County Sheriffs Deputy Sean Connors, Bernalillo County Sheriffs Deputy Timothy Hix, Bernalillo County Sheriffs Deputy Rhonda Moya, and FBI agents conducted the search of the Plaintiffs’ residence. See Wright Depo. at 53:21-25 and Exhibit 14. According to Wright, it was Hamsten’s, Connors’ or Hix’ duty to ensure that the items collected were within the scope of the search warrant. See Wright Depo. at 58:18-25. During the search of the Plaintiffs’ residence, the officers and agents seized firearms, ammunition, documents— including J. Kerns’ medical records — A. Kerns’ Vietnam helicopter flight manual, and literature. See Wright Depo. at 72:24-73:11; J. Kerns Aff. ¶ 7, at 1-2. The officers seized the following firearms: (i) a 9mm Luger; (ii) a Springfield .45 semiautomatic pistol; (iii) a 9-shot .22 LR revolver; (iv) a Marlin .22 LR semi-automatic rifle; (v) a Remington 870 shotgun; (vi) a Fabrique Nationale .30.06 bolt-action rifle (“FN rifle”); (vii) a .357 revolver; (viii) an AR-15 Bushmaster rifle with a loaded magazine, which was inside a custom guitar case; (ix) an AK-47; (x) a special weapons MP-5 with collapsible stock and oversized flash suppressor; (xi) a .45 semiautomatic pistol with custom laser-sight grips; and (xii) a suitcase containing a Glock 17 9mm handgun, a custom silencer, and several high-capacity magazines for the Glock. See Supplemental Report Form to Wright’s Report at 1-2, filed July 17, 2009 (Doc. 182-16); Wright Depo. at 53:4-11; id. at 56:1-13.

During the search, Joseph and Moya searched the trash left at the roadside at the Plaintiffs’ residence. See Joseph Aff. ¶ 5; Affidavit of Rhonda Moya ¶ 2, at 2 (executed July 10, 2009), filed July 17, 2009 (Doc. 182-23). The officers found a spent casing from a high-powered rifle wrapped in tape in the Plaintiffs’ trash. See Wright Depo. at 72:15-20; Joseph Aff. ¶ 5; Moya Aff. ¶ 2, at 2; Electronic Mail Message from Haag to Lindley (dated Aug. 15, 2005), filed June 26, 2009 (Doc. 165-5)(“Haag Email”).

J. Kerns arrived at the Plaintiffs’ residence during the search. See J. Kerns Aff. ¶ 6, at 1. J. Kerns was then voluntarily transported to the Bernalillo County Sheriffs Department’s main office for a formal interview with Lindley and the FBI. See Lindley Depo. at 125:5-23; J. Kerns Depo. 63:14-64:9. J. Kerns told Lindley and Matas that he was being followed earlier. See Interview with Jason Kerns at 18, filed July 17, 2009 (Doe. 182-4). J. Kerns told Lindley and Matas that he did not know who was following him, but it triggered his PTSD. See J. Kerns Depo. at 78:2-80:24. When asked more questions about his PTSD, Kerns told Lindley and Matas: “I guess I can’t explain what PTSD is, if you need to know you can speak to my doctor and he’ll explain it.” Interview with Jason Kerns at 18.

9. J. Kerns’Medical Records.

At the time of the Metro One investigation, White was the elected sheriff of Bernalillo County, and therefore in charge of the Bernalillo County Sheriffs Department’s policies and procedures. See Deposition of Sheriff Darren White at 24:11-16 (taken March 5, 2009), filed July 17, 2009 (Doc. 180-2). After leaving the Marines in 2001, J. Kerns received medical and behavioral healthcare at the Veterans Hospital in Albuquerque. See Affidavit of Jason Kerns ¶ 2, at 1 (executed July 16, 2009), filed July 17, 2009 (Doc. 180-1). On August 11, 2005, as part of the investigation of J. Kerns, White signed a written request for the Veterans Hospital to disclose J. Kerns’ medical and behavior health information. See White Depo. at 58:23-59-20; id. at 67:1-12. An FBI report indicates that the request was made pursuant the Bureau of Alcohol, Tobacco and Firearms’ (“BATF”) investigation, which it was conducting with the assistance of the FBI and the Bernalillo County Sheriffs Department. See FBI Report, Exhibit 3 to Klein Depo. at 1, filed July 17, 2009 (Doc. 182-33). Because of J. Kerns’ admission that he suffers from PTSD, the BATF was interested whether J. Kerns made false statements when purchasing his firearms, because he would have had to indicate that he had not been diagnosed with a mental disorders. See FBI Report, Exhibit 3 to Klein Depo. at 1. On August 16, 2005, the Veterans Hospital received a request, signed by White, from the Bernalillo County Sheriffs Department for the release of information from the medical chart of J. Kerns, which the Release of Information unit of the Health Information Management Section for the Veterans Hospital processed. See Declaration of Rebecca W. Martinez ¶ 4, at 2 (executed July 17, 2009), filed July 17, 2009 (Doc. 180-3). The Release of Information unit granted the request on or about August 17, 2005 by releasing 1000 pages of computer records and clipped pages from J. Kerns’ chart. See Martinez Declaration ¶ 4, at 2. J. Kerns did not consent to the release of his medical records. See J. Kerns Aff. ¶¶ 3-5, at 1. Assistant United States Attorney Barth testified that the Bernalillo County Sheriffs Department retrieved the records, then passed to the FBI, and then to the United States Attorney’s Office. See Deposition of Assistant United States Attorney Charles L. Barth at 34:1-16 (taken May 18, 2009), filed August 4, 2009 (Doc. 196-3).

10. Haag’s Involvement in the Investigation.

Haag is a civilian employee of the City of Albuquerque, serving as a forensic scientist with the APD Crime Lab in the Firearms and Toolmark Unit. See Deposition of Michael G. Haag at ,4:12-14 (taken December 15, 2008), filed June 26, 2009 (Doc. 165-1). Haag is not a law-enforcement officer and therefore does not have the authority to apprehend, arrest, or bring before the court violators within the state. See Haag Depo. 5:23-24; Affidavit of Michael G. Haag ¶ 2, at 1 (executed February 18, 2009), filed June 26, 2009 (Doc. 165-2). Haag is a distinguished member of the Association of Firearms and Toolmark Examiners (“AFTE”), which sets the standards and guidelines for all firearm and toolmark examiners. See Welch Depo. at 30:11-13; id. at 60:4-10. The field of firearm and toolmark examination is based in science, and thus an examiner uses his or her training in the field to inform and support his or her subjective opinions. See Theory of Identification as it Relates to Toolmarks at 3, filed August 23, 2009 (Doc. 212-2)(“Currently the interpretation of individualization/identification is subjective in nature, founded on scientific principles and based on the examiner’s training and experience.”).

On August 9, 2005, Wright requested Haag examine the Metro One helicopter, and Haag noted “[sjeveral suspicious perforations” of the Plexiglass window, which were consistent with a bullet hole. Report of Analysis at 12 (dated December 30, 2005), filed June 26, 2009 (Doc. 165-2). On August 11, 2005, Wright gave Haag two work orders requesting Haag examine the evidence the officers collected, including metal fragments, ammunition, firearms, and clothing, see APD Forensic and Technical Services Request for Service Forms at 3-5 (dated Aug. 11, 2005), filed June 26, 2009 (Doc. 165-2); Haag Depo. at 59:4-17; Haag Aff. ¶ 3, at 1, and an additional request, dated September 14, 2005, to examine the copper fragments from Holland’s leg, see APD Forensic and Technical Services Request for Service Form at 6 (dated Sept. 14, 2005), filed June 26, 2009 (Doc. 165-2). Part of Haag’s task was to compare the fragments recovered from the helicopter and from Holland’s leg, and compare them to test-shots from the firearms seized from the Plaintiffs’ residence, including the FN rifle. See Wright Depo. at 46:1-6. As part of his examination of the evidence, Haag wrote a Report of Analysis. See Report of Analysis at 8-17. He took lead lifts with sodium rhodizonate’ from the helicopter, which tested positive for vaporous lead and from that result, determined that only a high-velocity projectile, such as a rifle bullet, would have generated, on impact with the helicopter, the amount of vaporous lead he found. See Report of Analysis at 12-17; Haag Depo. at 58:17-21. Haag, in his Report of Analysis, does not mention J. Kerns’ name, or any allegations about or alleged conduct of J. Kerns. See Report of Analysis at 8-17.

Haag was first given access to the weapons, ammunition, and other evidence seized from the Plaintiffs’ residence pursuant to the August 10, 2005 search warrant on August 12, 2005. See Haag Depo. at 58:10-14. Haag examined three rifles — an AR-15 clone, an AK clone, and a FN bolt-action rifle — from the collection of weapons seized from the Plaintiffs’ residence. See Haag Depo. at 60:22-25. Haag chose to examine these firearms because they were the only high-powered rifles among the weapons seized. See Haag Depo. at 58:19-22. Haag determined that the barrel of the FN rifle was manufactured with a pattern of four lands and four grooves. See Haag Depo. at 66:18-22; Haag Depo. Exhibit 22. Haag measured the average land width on the FN rifle as 0.041 inches. See Haag Depo. at 69:20-22. The literature value for a four land and groove weapon — a weapon shooting 30-caliber bullets — is 0.236. See Haag Depo. at 116:5-14; Haag Depo. Exhibit 22.

Haag also examined all of the fragments collected from inside the Metro One helicopter and from the pilot’s leg. See Report of Analysis at 7-17. The bullet fragments Haag examined were damaged. See Defendant Mike Haag’s Answers to Plaintiff Jason Kerns’ First Set of Interrogatories (“Haag’s Answers to Interrogatories”), Answer No. 3 at 4, filed June 26, 2009 (Doc. 165^1); Report of Analysis at 13-15. Because of the damage to the fragments, Haag had to unfurl or unbend the fragments recovered to conduct his analysis. See Haag Depo. at 71:11-14; id. at 109:17-21; id. at 140:20-22; Welch Depo. at 116:17-24. According to Haag’s work notes for the fragment labeled p-1, he made land width measurements of 0.036, 0.037, and 0.035, and noted the average land width measurement as 0.036. See Haag Depo. at 92:10-16; Haag Depo. Exhibit 22. Because of the amount of damage to the p-1 fragment, Haag, in his notes, did not write down his measurement for the groove impression width because of his lack of confidence that his measurement would be accurate. See Haag Depo. at 94:ll-20. The Plaintiffs state that it was “self-evident” that the forensic measurements for the land width and the groove width of the bullet fragment recovered from Holland’s leg — fragment p-1 measured a land width of approximately 0.036 inches and a groove width of less than 0.12 inches — were considerably smaller than the land and groove widths on the FN rifle, which had a land width of 0.041 inches and a groove width of 0.195 inches. See Plaintiffs’ Motion on Counts II, IV & V at 9. Haag repeatedly states that, because of the significant amount of damage the fragments suffered because of the initial impact of the bullet into the helicopter, fragmentation and bending of the bullet, as well as subsequent deformation, he was not willing to simply take a number down, plug it into a formula, and exclude a weapon with confidence. See Haag Depo. at 94:15-20; id. at 98:6-16; id. at 102:6-22 (“I wanted to give myself as much breathing room on this as possible, again because of my lack of confidence in the observed measurements, so pause, no, not necessarily. The bigger the list, the better, because again, I didn’t feel comfortable in excluding based on what I saw.”).

Haag concluded from his analysis that the AR-15 clone and the AK clone rifles did not fire the bullet fragments recovered from the helicopter. See Haag Depo. at 61:24-62:13. Haag initially opined that the bullet fragments could not be identified with or excluded from having been fired from the FN rifle. See Report of Analysis at 13-15; Haag’s Answers to Interrogatories, Answer Nos. 5, 7, and 18. Haag determined that the cartridge casing wrapped in tape recovered from the Plaintiffs’ residence had been fired from the FN rifle. See Report of Analysis at 13. Further, Haag was not willing to definitively state that the bullet fragments recovered from the Metro One shooting came from a 30-caliber bullet. See Haag Depo. at 98:3-16. In his Report of Analysis, in his conclusions about each of the seven fragments recovered from the helicopter and from the pilot’s leg, Haag concluded: “This fragment cannot be identified or excluded from having been fired from the FN rifle.” Report of Analysis at 13 & 14. The FN rifle fired 30-caliber bullets. See Haag Depo. at 98:21-24. The Plaintiffs contend that Haag “lacked confidence in his original ballistics conclusion that the FN rifle could not be excluded as the suspect weapon.” Plaintiffs’ Sealed Response in Opposition to Defendant Mike Haag’s Motion for Summary Judgment and Memorandum, in Support, Requesting Dismissal of Counts IV, V, VIII, IX, XI, XIII, and XIV of Plaintiffs’ First Amended Complaint at 5, filed August 7, 2009 (Doc. 197)(“Plain-tiffs’ Response to Haag”). The Court has reviewed Haag’s deposition testimony, which the Plaintiffs contend makes this factual assertion, and finds that the Plaintiffs have reversed what Haag asserted. Haag’s deposition states:

Q. Okay. And you said even though what appears to be a gross discrepancy between the land impression, you weren’t comfortable excluding the FN rifle from having fired the bullet fragment?

A. Correct, because of the amount of unfurling that I had to do, my confidence in the amount of deformation that could have taken place, my confidence in the representation was very low.

Haag Depo. at 79:11-18. Haag answers that he was not comfortable excluding the FN rifle, not, as the Plaintiffs contend, that he was not comfortable with his conclusion that he could not exclude the FN rifle. According to Haag, he could not ascertain if the 0.03 land width he measured on fragment f-7 was the result of deformation to the fragment, and thus he was not comfortable excluding the FN rifle, which has a land width of 0.041. See Haag Depo. at 114:11-115:10. Additionally, the proportion of the ratios between the land grooves of the fragments and the FN rifle, in Haag’s opinion, were different, but were not sufficient for him to feel comfortable excluding the FN rifle in his initial conclusions. See Haag Depo. at 108:23-109:3. These comparisons Haag made are standard analytical tools used to match a bullet fragment to a weapon, as reflected by Haag’s bench notes, which have entries for these values. See Haag’s Bench Notes (taken August 12, 2005), filed August 7, 2009 (Doc. 197-1). Haag was also not willing to make a definitive conclusion whether the fragments found in the pilot’s leg were compressed. See Haag Depo. at 119:12-122:22. Haag acknowledged that the ability to detect the possibility of damage and compression in the fragments is based on past experience, and not methods set forth in scientific literature. See Haag Depo. at 131:24-132:6 (“I describe it as healthy skepticism over for the observation of physical evidence.”). The AFTE does not have a standard margin of error that is acceptable or unacceptable. See Welch Depo. at 58:4-10

On August 15, 2005, Haag wrote an electronic-mail message to Lindley. See Haag Email at 1. The electronic-mail message informed Lindley of Haag’s preliminary results, including that the cartridge wrapped in tape found in the trash matched the FN rifle collected, the ammunition found in the house was all copper-based bullets, that all of the fragments were “mangled very badly,” and that the fragments from the helicopter indicated it could have been fired from a “relatively big list of rifles.” Haag Email at 1. The electronic-mail message did not mention J. Kerns name, or any allegations or alleged conduct. See Haag Email at 1. Haag’s electronic-mail message did not give the measurement values he took, nor the literature values for the FN rifle. See Haag Email at 1.

11. J. Kerns’ Arrest and Indictment.

On August 15, 2005, Lindley drafted and signed an arrest-warrant affidavit, which was reviewed by a supervisor and an assistant District Attorney prior to submission to the State District Court Judge. See Lindley Aff. ¶4, at 2. That same day, Lindley obtained a warrant for the arrest of J. Kerns, and J. Kerns was arrested on August 15, 2005. See Arrest Warrant Affidavit at 21-27 (executed Aug. 15, 2005), filed July 17, 2009 (Doc. 182-4). The arrest warrant served as the impetus for criminal charges under state law, but the charges were dropped on August 22, 2005. See Plaintiffs’ Request for Admission No. 4 at 1, filed July 17, 2009 (Doc. 182-28).

In the arrest-warrant affidavit, as well as in the state criminal complaint, Lindley used some of the information he received from Haag’s electronic mail message, but used his own phrasing and interpretation of the content of the message when writing the arrest-warrant affidavit. See Arrest Warrant Affidavit and Criminal Complaint at 1-7 (dated Aug. 15, 2005), filed June 26, 2009 (Doc. 165-6); Haag Depo. at 154:2-156:22. Haag first saw the arrest-warrant affidavit on May 2, 2006, which was after state district judge reviewed and approved it. See Haag Depo. at 153:20-23. The United States Attorney’s Office either issued a subpoena or requested Haag to testify as a witness before the grand jury. See Haag Aff. ¶ 5, at 2. On August 17, 2005, Haag testified before the grand jury, during which he described his experience and his examination of the Metro One helicopter, the bullet fragments, and the FN rifle. See Grand Jury Transcript of Haag’s Testimony (taken August 17, 2005), filed June 26, 2009 (Doc. 165-8). Haag stated during his testimony that:

these fragments are highly damaged, I cannot identify them as having been fired from that particular rifle. So I can’t say it’s that rifle amongst all others, but the widths, the general size of them, cants or twists of them, is in agreement with those produced by that rifle, as well as many others that are out there on the market.

Grand Jury Transcript of Haag’s Testimony at 32:7-13. During his testimony, Haag never mentioned J. Kerns by name. See Grand Jury Transcript of Haag’s Testimony. Agent Doug Klein of the FBI also testified before the Grand Jury. See Grand Jury Transcript of [Redacted] Testimony (taken August 17, 2005), filed June 26, 2009 (Doc. 165-8).

On August 17, 2005, the federal grand jury indicted J. Kerns. See Indictment, filed June 26, 2009 (Doc. 165-9). The only witnesses to testify before the grand jury were Haag and FBI agent Klein. Lindley turned his files over to the FBI prior to the grand jury proceeding. See Lindley Answer to Interrogatory No. 24 at 1, filed July 17, 2009 (Doc. 182-35). According to Klein, all of the information he testified to before the grand jury came from the Bernalillo County Sheriffs Department and the APD. See Klein Depo. at 36:15-16.

12. J. Kerns’ Waiver of Detention Hearing.

On August 25, 2005, J. Kerns filed a Waiver of Detention Hearing. See Waiver of Detention Hearing (dated Aug. 25, 2005), filed June 26, 2009 (Doc. 165-10). The Honorable Alan C. Torgerson, United States Magistrate Judge for the District of New Mexico, issued an Order of Deten